Over-confident Witness Can Turn Off A Jury

Jury prep is a difficult "science." There is a tendency on both the part of the witness and the lawyer to want to come away as competent and all knowing. I have always worried about presenting witnesses who were too well trained. To that end, I have also worried about the witness who over equivocates. "I think"; "it seems as though"; " I believe"; "maybe" are all answers that to the attorney appear to be weak and not "selling" the theory of the case, well enough.

Now there is a new study out that verifies my suspicions. According to a new study at Cal Berkely an over confident witness who makes mistake on the stand is far more likely to anger a jury than one who seems unsure of himself.
The article is here.

Hattip: CrimProf Blog part of the Law Professor Blog Network.

Unemployment Insurance Fraud Seminar at Nassau County Bar Association Tonight

I will be speaking at a seminar for the Nassau COunty Bar Association on Worker's Comp Fraud and Disability Insurance Fraud at Domus. It begins at 5:30 and snacks are served. The bar will grant 3 hours of CLE credit for the program. I will be speaking on defending these cases. There will be a speaker from the Nassau District Attorney's office and Victor Fusco from Fusco Brandenstien and Rada a top Disability and Worker's compensation attorney. The program should be fun and informative. If you are representing a defendant in one of these cases you should give this seminar a shot. Cost is $100.00.

Ripped From The Headlines

A few issues “Ripped From The Headlines.”

I. Credit Card Fraud.
From May It Please The Court.
we learn that cash register receipts may no longer display your entire credit card number. These receipts may only show THE LAST FOUR(4)DIGITS of the credit card number. They also may not include your card's expiration date. If they show more than that it is a violation of the Fair Faith and Credit Transaction Act and they can be in BIG TROUBLE!!

Why you may be asking? Because "penalties range up to $1,000 per incident, and the suits can be filed as class actions, multiplying the penalties dramatically."In other words vendors who are not in compliance as of January 2007 are at risk of lawsuits. Are you in compliance? Have you been a "victim" of a violation? Time to check out those receipts.

II. Dallas Tx. District Attorney Seems To Care About Innocents Being Convicted..

Now here is what appears to be a prosecutor with both an interest in justice and a brain. Rather than waste money from his budget trying to keep evidence secret and protect possibly faulty convictions, he is willing to open his files to the Texas Tech Law School Innocence Project. Now people who claim that the have been convicted of crimes wrongfully will have the chance to have their claims investigated by a private organization which can bring their findings to the DA’s office or to court. In the long run it will save his county money and do a service to the community (and to the wrongfully accused if any exist there.) Story here
HatTip: Crim Prof Blog.

III. Pace University Law School institutes a Return to Practice Program With The Westchester Women's Bar Association..

Interesting new program over at Pace Law School. It is designed to help Lawyer-Parents who are returning to the workforce to brush up on what they may have missed while performing familial duties. It will also be open to attorneys who have found other alternate career opportunities. I can foresee a day where a smart law school will open a program like this for disbarred and suspended attorney’s and it will be required as part of their application to be restored to practice. The course could have a heavy ethics concentration as well as small business skills building. The program is described as follows:
“’New Directions,’ set for a May 21 launch, is a two-semester certificate program of study and externship for attorneys who have temporarily left practice and now want to return. “ Click here to find a form to get more information.

IV. Politics and Prosecutors..
Over the last 2 months Eight (8) Federal prosecutors have been fired by the Bush Administration. Some suspected politics at work. In this articleit appears Senator Pete Dominici had it in for a guy he formerly supported because he wasn't indicting democrats fast enough. What ever the reason, Federal prosecutors, (US Attorneys) serve at the President's discretion. President Bush has a right to fire whomever he wants. What he does not have, however, is the right to fill the positions that open up with out the advice and consent of the Senate. Right now, he fills the spots with interim people who never get to a vote up or down in the Senate. That is both a dereliction of the Constitution and a petty way to run government. Worse than that, it appears that the senator and the President were trying to rig prosecutions for political reasons. This type of behavior calls into question the fairness of the prosecutor's function. It further indicts the entire criminal justice system. Congress should be looking into that as well as the clear violation of the spirit and possible the words of the Constitution.

V. How do Courts Work. .
Here is a quick piece on how courts are set up within the states and federal government. It explains jurisdiction and how to tell which court hears what type of case. It is a good teaching tool.

VI. A Little TOO Friendly Skies: Airline Employee Fondles Sleeping Passenger on Flight.

Seems a maintenance man working for Northwest airlines boarded a plane from Tacoma to Minneapolis. He then allegedly waited for a female passenger to fall asleep and while the passenger slept, he lifted her shirt in an attempt to fondle her. When she awoke from feeling the material of the shirt move, he got up from the seat next to her and went elsewhere in the plane. The passenger alerted an attendant and the FBI met the flight in Minneapolis. He is being held. Article here.

Ok that's it for now.

Physician Heal Thy Self: Saving The Wounded Is Giving Material Support To The Enemy

Post 101 is contributed by Ms. Amy Hsu.

Hello readers.
I am Amy Hsu, and I am an associate at the Law Offices of Anthony J. Colleluori and Asssociates PLLC. My practice concentrates in criminal law and appeals. As the wife of a emergency room doctor in NY, I found the case of Rafiq Sabir to be both interesting and perplexing. Allow me to elaborate:

In May of 2005, an Ivy-League educated physician (Rafiq Sabir aka "the Doctor,") was charged with agreeing to provide medical care to wounded "holy warriors" in Saudi Arabia, in an FBI sting United States v. Shah,et. al., 1-05-cr-00673 (SDNY 2005). The doctor is charged with violating 18 U.S.C. 2339B.
It states in sum and substance that:

it is a crime to provide material support or resources, namely personnel training, and expert advice and assistance as defined in 18 U.S.C. 2339A to a terrorist organization.

"Material support or resources” means “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” 18 U.S.C 2339A(b)(1).

The statute also defines “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge.” 18 U.S.C. 2339A(b)(3).

The doctor/defendant contends that the statute (18 U.S.C 2339B) was unconstitutional on its face and as applied to him, because it deprives him of his right to practice medicine. He argues that the statute does not specifically identify what conduct of his as it relates to the practice of medicine is in violation of the statute, since the law explicitly excludes “medicine” from the list of items constituting “material support or resources.” “Medicine” and “doctor” are inextricably intertwined in the doctor’s mind.

District Judge Loretta A. Preska, Southern District of New York found the statute to be constitutional however. According to Judge Preska, the defendant is not charged with merely being a doctor or for performing medical services. Rather, his action constituted having “volunteered as a medic for the al Qaeda military, offering to make himself available specifically to attend to the wounds of injured fighters. Much as a military force needs weapons, ammunition, trucks, food, and shelter, it needs medical personnel to tend to its wounded.”


How could a doctor provide medicine without providing medical service, i.e. the giving of medicine? There is no doubt that a doctor has scientific, technical or other specialized knowledge given his years of professional training. However, it is unclear what "medical attention or advice" would be considered a crime subject to prosecution under 18 U.S.C. 2339B given that the law makes it okay to “provide medicine.” Is providing medicine legal but explaining its use or providing dosing information illegal. Would the same be true if an American doctor provided the same care to a POW?

Would criminalizing the doctor’s act be in violation of the Hippocratic oath that is held sacred by the physicians to treat the ill to the best of their abilities? What would happen if the law makes it crime for a doctor to treat serial killers? The oath Doctors take is to save the lives of others no matter how “despicable” they may think the lives are. This decision sets a bad precedent and fails to give doctors, or for that matter companies that manufacture medical goods and services, sufficient guidance to conduct themselves and uphold their obligations.

Actions Speak Louder Than Woofs

Diane Petillo has the honor of posting our 100th post:

And now for an update on a previous post in the case ofCave v. East Meadow Union Free School District, et al. John Cave, Jr. testified in the United States District Court for the Eastern District of NY (Central Islip) on February 22nd before EDNY Judge Arthur Spatt, at which time he detailed how the school’s refusal to allow him to bring Simba, his service dog, to school has impacted his relationship with Simba, as well as his training.

John testified that, as a result of the time he has been forced to spend away from him, Simba’s skills are waning. John went on to testify that: "He's breaking his commands at home when he's not supposed to. He's barking at sounds. He's not allowed to do that," Cave said. "He's not doing as well because he's not going to school."

During his testimony, Cave said Simba has been trained to alert him to cars, smoke alarms and bell rings by nudging him. Without the dog, Cave said, he couldn't respond immediately when a fire alarm sounded at school recently. It was only after John saw the other students getting up that he asked someone, who then informed him that the fire alarm had rung.

If Simba had been with him, one nudge from him would have alerted John immediately that there was a problem. Imagine that instead of being in a classroom with other students, John was in a bathroom stall by himself. Would someone have gone looking for him, or would he eventually figure out that something had happened when he saw no one else in the building?

Imagine, for a moment, the world around you has quieted. If you would indulge me this simple exercise, please turn on your television (or hit play on a YouTube broadcast if you are not near a television screen), mute the sound, and turn off the caption for a few minutes. How much of the conversation were you able to comprehend? It is obvious to me that you will realize how much of our world is auditory, and how much we fail to grasp when deprived of the gift of hearing. This is the world of John Cave, Jr., and so many people like him.

I have been criticized in a recent blog response regarding my analogy of Simba to John with eyeglasses to those who are visually impaired. I thank Kathy Podger for her support in this analogy. Service animals, trained specifically to help individuals overcome the limitations of their disabilities are no different than eyeglasses, hearing aids, canes, wheelchairs or other equipment.

Animals that meet the definition as set forth by the Americans with Disabilities Act are considered ‘service animals’ regardless of whether they have been licensed or certified by a state or local government or any other public or private entity. If you scroll down the last link, you will see that fear of allergy or dogs does not entitle the public entity to deny the animal access.

Under the Americans with Disabilities Act, persons who rely upon service animals have the right to have their animals accompany them wherever they go. This includes public buildings, railroads, and the subway.

The American with Disabilities Act is quite clear on this point. It is not about the device; it is about the individual’s needs. It is about what John is entitled to under the law.

P.S.: During the entire 90-minute testimony, Simba was quiet and still. Apparently, Simba is his own best argument that he will not be a disruption in class. After all, actions speak louder than woofs.

42 USC 1983 After Wallace v. Kato: What To Do Now

This is a hopefully going to be a short post. Last week (in fact the day after the court heard argument in Rita/Claiborne) it announced its decision in Wallace v. Kato. The issue effects both criminal lawyers and civil rights attorneys (or for those of us at The Law Offices of Anthony J. Colleluori & Associates, PLLC. both sides of our brains.)
Up until now it was always the procedure, that after a person was arrested (and imprisoned) he would be able to sue the government, whether or not he filed a notice of claim against the county, by alleging the same behavior(e.g. false arrest and unlawful imprisonment) through the use of a 42 USC 1983 suit. In the US District Courts in NY, The statute of limitations was always thought to be within three years of the end of his incarceration and his prosecution whichever came later.

NO MORE

The court in its decision in Wallace has changed a number of things dealing not only with filing but also with pleading the case.

1. False arrest is a subset of unlawful imprisonment.
2. The statute of limitations for a 42 USC 1983 claim arising from an unlawful imprisonment claim is as long as the time one has to file a personal injury suit in the state where the action accrues. In New York State, that means 3 years.
3. The date of accrual begins on the date of arrest and the tort ends at the time of arraignment.
4. All the damages that occur after arraignment are properly recompensed in a Malicious Prosecution based suit not by a false arrest/unlawful imprisonment cause of action.
5. While a Malicious Prosecution based suit's statues of limitations may be tolled by the case of Heck v. Humprey, 512 US 477(1994), actions for false arrest and unlawful imprisonment are not so tolled.

Now here's the thing, we all know that it is easier to win a false arrest/unlawful imprisonment case, because it does not require that we win the underlying criminal action. We can accept a dismissal that is favorable on the issue of the arrest not the prosecution (ACOD's [ACD's for NYC Guys]; Dismissal in the interest of Justice, speedy trial dismissals). Malicious Prosecution based causes of action, requires a favorable termination of the prosecution itself. So in order to preserve the clients right to compensation, we have to go to trial, or at least get a "full surrender" from the DA on the prosecution's merits(a "no true bill" from a grand jury counts.)

Remedies and Strategy:
A. File a notice of claim under all circumstances. IF the attorney for the criminal defendant is not the same one as the attorney on the 1983 action, the criminal attorney would do well to keep up with his colleagues and help him draft the notice of claim. The criminal attorney should also warn the defendant about his rights to the civil rights action, otherwise he chances a malpractice suit.

B. At the very least, send a letter to the county attorney or city corporation counsel. Be sure to set out the date of occurrence, the participants and give enough information to put the county on notice of what they need to defend themselves. (One reason given for the need to file within three years of accrual is so the government will be able to gather the necessary evidence to defend itself. Hence even if you are too late to file a normal notice of claim, either file one late and as soon as possible or send a letter which follows that statute.) This is not to say a that such a letter is now a condition precedent to file a 42 USC 1983 claim, it isn't.

C. When stating damages for the false arrest and unlawful imprisonment claim, allege the further detention and prosecution of the plaintiff constituted "consequential damages" attributable to the false arrest.

D. Name the complainant in the action even if you will later not try to collect the judgment from her because of non deep pockets.

E. Bring the lawsuit timely. The court will stay the action pursuant to Quackenbush v. Allstate, 517 US 706 (1996).

F. If the client should lose in the criminal prosecution, the False Arrest/Unlawful Imprisonment case will be dismissed.THIS IS NOT THE END OF THE CASE. Notify the client that IF the case is later overturned he must immediately seek to refile the case in the US District Court. It seems he should have at least 90 days to do so, but get it done as quickly as possible. The Wallace decision in footnote 4 states that the Heck bar is not an immunity granting vehicle. The District Court should grant the defendant time to refile. I imagine that the period would be equivalent to the period under the FRCP to file in state court if the federal claims are dismissed, but the court did not say how long he has in the Wallace decision.

Remember that these changes are immediate so get to work to protect the rights of the wrongfully accused.

That Lawyer Dude At SCOTUS: Rita and Claiborne Seek To Define The Scope Of Booker

I had the privilege to attend yesterday's argument in the Rita and Claiborne cases. It was not nearly as exciting for the defense as the argument in Booker/Fanfan. In the Booker case, the courts protective view of the 6th amendment was clear. You could tell from the start there was at least 4 strong votes for the federalization of Blakely. You could also see Justices Breyer and Kennedy lobbying votes for the remedial decision.

For those of you not up on federal sentencing law, a fast update: in the mid 80's, Congress clearly upset with the divergence of sentencing and the randomness of the range from circuit to circuit and even judge to judge, set up a mandatory sentencing scheme which would give points for everything a judge should consider when sentencing someone. The judge would make a finding of whether a fact existed or not, add up the points and Voila a sentence would appear. For 18 years that was the law. Finally 3 years ago the court stated that such a sentencing scheme violated a person's right to be judged by a jury of his peers. In order to save a semblance of the "uniformity in sentence" that the guidelines gave, the court in Booker said that while mandatory guideline sentencing was unconstitutional (the merits part of the decision), an advisory guideline system was not. Instead it instructed trial level courts to consult the guideline range but them consider other factors delineated in the sentencing law (18 USC 3553a) so that they would craft a sentence that was the minimum necessary to accomplish the goals of sentencing that were laid out in the law. Courts of Appeal would then review these sentences to determine if they were reasonable given the other sentences within the circuit and the nation (this solution is known as the "remedial" side of the decision.

The cases argued yesterday, asked the question: Are the guidelines just one thing among equal issues the court should consider in crafting a sentence, or are they to be considered reasonable per se, with only extraordinary cases being allowed sentences outside of them?

Yesterday was a more contemplative court. Both anchors of the debate are clearly not happy with the results of the Booker case. Breyer was fighting for judicially mandated, case law driven guidelines that are in fact mandatory by virtue of the fact that a district court will know just what the appellate court will allow, and Scalia is fighting for the 6th amendment right to a jury driven sentencing scheme where a defendant is sentenced only by the facts he admits or a jury finds. The middle seems to be Chief Justice Roberts and Justice Ginsburg who still seems married to the Booker decision.

The attorneys for both sides argued valiantly. But as another commentator has said, they seemed to all be having separate conversations, none of which helped the court to resolve the issues it had before it.

The court was concerned that courts of appeals, deciding which issues were mitigating and which were aggravating, were just acting as mini Sentencing commissions. District court judges who did not want to be overturned would look to the decisions of the appellate courts and decide not what was right for the individual before them but instead decide what would make the appellate court happy. In effect the appellate court's decisions would become defacto mandatory guidelines.

In effect the merit's side of the court was arguing again that the remedial side of Booker was an impossible solution to the 6th amendment problems with guideline sentencing.

The merits side of Booker, clearly overly protective of the guidelines, was arguing that the sentencing statute's purpose in uniformity was a key to the issue and that the guidelines had to be at least per se reasonable unless the case were remarkable.
The issue became clear near the end of the Rita argument and held for most of the Claiborne argument. If the guidelines are really advisory, then the 6th amendment forbids appellate review for reasonableness. Both the Solicitor General and Justice Scalia answered that question that way. In a humorous but serious exchange Justice Bryer jumped in with a defense of the remedial solution which lead the Solicitor to suggest he had heard this argument before and (without saying it)preferred to not be in the middle of it (There is an old African saying that when Elephants make love Butterfly's get crushed... I think the Deputy SG is familiar with the concept)

Here is the rub from where I sit. IF in fact the court thinks that the 6th amendment right to a trial by jury is important. It has to rule that the guidelines are not constitutional at all. That sends Federal criminal law into a tail spin. If it wants to hold on to some semblance of the guidelines, Breyer and his side is going to have to say that the guidelines are to be consulted and that reasonableness review is not to uphold uniformity but to uphold the other goals of section 3553a. Otherwise the court is going to have to say that you can only sentence according to facts found at trial or admitted to by the defendant.

If Congress is seriously interested in uniformity, it will change the sentencing scheme completely, take out issues that allow departure upward or downward and pass a guideline approach that punishes only for the crime committed, with very narrow mandatory minimums and maximums to reduce judicial independence. The review in the appellate level would be then limited to 8th amendment review for cruel or unusual sentencing. Congress could allow appellate courts to review with a lesser standard, but I do not think that such a lesser standard stands a chance in the atmosphere that exists on Capitol Hill today.

A Deaf Boy and His Dog – Together Again?

Hello! I would like to introduce myself as a new blogger to this site. My name is Diane Petillo, and I am attorney in charge of the Civil Trial Division at the Law Offices of Anthony J. Colleluori (a/k/a “That Lawyer Dude”). Tony asked me for my thoughts on a recent case that you may have heard of in East Meadow, New York. I’m sure by now that you have all heard about John Cave, Jr. and his quest to bring his companion dog, Simba, to school with him.

John is now 14 years old, and he has been deaf since early childhood, and has struggled his whole life to be able to function in society like everyone else. Unfortunately, for someone who is profoundly deaf and has difficulty speaking, this is no easy task. Even having cochlear implants inserted in both ears did not fully solve the problem.

He recently became eligible for a service dog. He was required to pass the ADI Public Access test in order to qualify. After passing the test, he received Simba, a two-year old Labrador retriever, who would be his “ears” for the future. This was made possible only through grants from various individuals and organizations.

Now that John’s his life, arguably, should be a little easier, along comes the East Meadow (NY) School District to throw a wrench in the works.

Before I give you my thoughts on this case, I feel in the interests of fairness and full disclosure, I must tell you of my personal bias towards the abilities of Labrador Retrievers. I am known on my block as the proud “mother” of a 2-year old yellow Labrador Retriever named Kirby, who may very well be a human trapped in a cute, furry puppy suit. Kirby has figured out for himself how to open doorknobs (sometimes to our chagrin…like to time he let himself out of the house). He also treats the ice dispenser on the refrigerator door as “self-serve” although no such sign was ever formally posted. (If this grosses you out, bring your own cubes to my house[yes, we do clean it…OFTEN]).

As someone who has seen first-hand, with constant wonderment, the abilities of Labradors and how they interact so humanly with people, I truly understand his mother’s concerns that John needs to “connect” with Simba throughout the day in order to fully bond with Simba. Labradors, when left to sulk for the morning and afternoon, are not as in tune with their “people.” They thrive on human interaction, and, conversely, when such interaction is withheld for long intervals, they can lose their skills that are not regularly being reinforced. They can even become resentful of the lack of attention. (How would you feel if someone said, “be right back” and came back 8-10 hours later, and then did this again to you for 5 out of every 7 days?). If John and Simba aren’t permitted to bond, Simba will become a very expensive, and under-used assistance dog.

After all, even though Simba is a working dog, he is still just 14 year old (2 dog years = 14 human years) with boundless energy and a need to connect with John Jr. so that they may bond and function as one.

John Jr. is the most important human in Simba’s life as a working dog; John Jr. is the person to whom Simba must be unquestionable loyal. Their relationship and trust must build to the point that, if Simba were his secret service agent, he would be willing to take a bullet for John Jr.

As a volunteer at Pal-O-Mine Equestrian, a non-profit horseback riding program dedicated to teaching horseback riding to individuals with special needs, I have seen the magic that results when a child and a trained animal work together therapeutically.
They are united in their common goal of making the student’s life better on a physical and, often more importantly, on an emotional level.

Yes, no question, John, Jr. could get by on a daily basis without Simba. But should he have to? If you lost your eyeglasses or a contact lens, perhaps you’d find your way home, but that doesn’t mean that your corrective lenses are not effective in making your day easier. You could squint your way through this blog, but it may take 3 times as long. Even if just once Simba catches an auditory signal that John wouldn’t have picked up on, would that make a difference in his life?

We live in a world where people justify buying cell phones for their children to bring to school in the name of safety. Are you telling me that a service dog that is well behaved is more of a distraction in school than text messaging? Why then, are we so critical of a parent wanting extra protection for their children who legally are entitled to this assistance? Even Judge Arthur Spatt noted in his courtroom that Simba was nothing but quiet during the entire court proceeding. In Judge Spatt’s own words "The dog is in this room and seems not to have bothered anyone so far…what is the harm of this boy bringing the dog? What seems to be the problem?”

There is no question that rules must be enforced regarding hygiene, safety and proper etiquette. Simba can even be a teaching tool at a general assembly for the entire school. Children should learn the rules for interacting with the deaf community, in the event they encounter a deaf person in the outside world. All of us could stand to be reminded of how to (or, in most cases, not to) interact with a service dog. Such a dog is not a “pet.”

Simba is not to be teased. He is not a plaything, but an integral part of the life of a deaf person. The school should have no more tolerance for the interference with Simba than they would for kicking the crutch out from under a child with special needs.

I don’t know how the Court will decide....but I know what I would do if I were in a position to do so. The job of a school is to encourage children in their scholastic endeavors to foster independence, and humanity. How then can the school justify calling the police on John, Jr. and his parents because they had the nerve to come to school with a service dog? Shouldn’t they instead be doing everything in their power to make his life easier? If certain “protocols” must be followed, then why isn’t a school representative or a guidance counselor assigned to help the family get through those protocols?

But hey, that’s just my opinion. Stay tuned for the court’s ruling.