Sunday, November 21, 2004

Issues of first impression? Analysis and suggestions

We here at Long Island (criminal) Trial Law have been scanning the advance sheets to find cases of interest to lawyers who try cases. We have found a few criminal cases of note. Our goal here is to provide you with a description and a citation. Occasionally we may add a comment or a practice tip too. If you have an idea, or a comment, or even a tip, feel free to leave it here. If you want to contact us, you can reach us at and go to the comment page. Finally, we invite you to read our other blog Now for today’s thoughts:

I. People v. Barham 2004 WL 1949049, (Nassau County District Court Gartner J.) 2004 Slip Op. 24318.

In the Barham case, Judge Kenneth Gartner was faced with (what he termed) a matter of first impression. Should the court suppress as involuntary, a statement given to a private (non-governmental) employer’s detective, made under the penalty of job loss? The court began its analysis by acknowledging that involuntary statements, given under the penalty of job loss to public employers are deemed constitutionally “involuntarily” made. The court noted that the same constitutional protections are not available to private employees because their employers are not acting as an “arm of the state.”

Barham was an employee of Lowes Department Store. Private detectives interrogated him regarding a scheme to steal from the store. He allegedly had to either speak to detectives or terminate his employment. He gave the statement and thereafter left the store’s employ. Months later during a routine traffic stop, two warrants for his arrest hit. One was for the larceny scheme at Lowes, the other was for an unrelated domestic dispute. After receiving Miranda warnings, police questioned the defendant about the domestic dispute. Some hours later, police questioned him about the larceny charge. He was not re-Mirandized at that time.

At bar, the defendant seeks to suppress both statements. The first for being involuntary, the latter for being given without receipt of fresh Miranda warnings. The government objects, and notes that since private employers are not an “arm of the state” the private employee has no protection from a statement he gives under the penalty of job loss. See People v. Advant, 33 NY2d 265, 352 N.Y.S.2d 161, 307 N.E.2d 230 (1973). It also objects to the second rung of defendant’s motion arguing that the police did not have an obligation to re-administer the Miranda warnings before expanding the scope of continuing interrogation to encompass another crime. See People v. Lopez, 116 A.D.2d 592, 497 N.Y.S.2d 452 (2nd Dep't 1986).

The court held that the legislature in New York had created a protection through the language of CPL § 60.45. CPL § 60.45(1) states that a defendant’s statement “…may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." CPL § 60.45(2) provides that a statement is "involuntarily made" if it is obtained "[b]y any person by the use of ... improper conduct or undue pressure which ... undermin [ed] his ability to make a choice whether or not to make a statement" (emphasis added).

The court cited the relevant legal reasoning behind the public employee’s need for protection ("the choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or remain silent.... The statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions." Garrity v. State of New Jersey, 385 U.S. 493, 497-498, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Then, while agreeing with the reasoning that denies a constitutional protection to the private employee noted the state’s statutory protection under CPL § 60.45.

Now for quite a while, prosecutors have successfully argued that the statute did not cover private employees who give statements but their reasoning completely eschewed the plain wording of the statute. The court reasoned, if a defendant is entitled to a hearing to determine the voluntariness of a statement physically beaten and coerced out of him (by private parties)” People v. Grillo, 176 A.D.2d 346, 574 N.Y.S.2d 583 (2nd Dep't 1991); and Garrity holds statements given under the threat of loss of livelihood are involuntary; then it is reasonable that the same protection is available under CPL § 60.45. The court also held the defendant entitled to a hearing to see if there was a reasonable time passage between the warnings and the statement given. The court did not use a strict time limit to determine the reasonableness of the break. (In fact, it noted cases hold twelve hours passage reasonable) but applied a “totality of the circumstances” test to the situation. In that test the court held that duration; conditions of detention; attitudes of the police toward the accused; and the age, physical state and mental state of the defendant, must all receive consideration.

Judge Gartner, considered by many to be a conservative jurist, used the plain language of the statute to preserve what the legislature clearly meant when it sought to keep involuntary statements from the jury. In today’s economic condition (especially as it exists among young people and minorities), job loss is as significant as jail. It has ramifications beyond the individual and onto his family. Judge Gartner gets kudos from those of us at Long Island (criminal) Trial Law for accomplishing the right result without bending the law (or ignoring it) to arrive at a substantially and legally correct result.

II. US v. Nelson ---F.Supp.2d---, 2004 WL2091020 (S.D.N.Y.) A warning to practioners.

Pleading a motion to suppress tangible evidence is often a dicey proposition. It requires pleading with particularity. In Federal Court the exercise is even more difficult. It requires supporting affidavits be made by one with personal knowledge of the facts underlying the motion. That usually means the defendant has to aver to the facts, something most of us loath. In Federal practice it gets worse, if the court finds after a conviction that the defendant perjured himself in the motion it usually adds an upward enhancement to the Federal sentencing guidelines. Nevertheless, this reticence can cause us to take our eyes off the ball. If we want suppression or need the hearing we are going to have to give something up. Failure to do so could lead to a charge of incompetence of counsel.

In Nelson, Police arrested the defendant after obtaining consent from a co-tenant to search, and then asking defendant if he had anything in the apartment that might hurt the officers. Defendant gave up two guns. The defendant alleges that neither he nor his co-tenant gave voluntary consent to the search, although the police produced a signed consent form. If nothing else, defense counsel was attempting to get a hearing on the matter. His pleadings however fell short of the necessary allegations to obtain the hearing much less the suppression.

The motion to suppress contained an affidavit from the both defense counsel and the defendant. In order to trigger a hearing to suppress evidence, a defendant must present his claim through the affidavit of someone with personal knowledge of the facts. The attorney’s affidavit did not allege personal knowledge of the disputed facts, and was inadequate to warrant a suppression hearing. This would have been okay since the pleadings included the defendant’s affidavit, but this was not only an illegal search case. In fact, the defendant had given up the weapons before the search began. This was an illegal entry case too. Nelson’s affidavit alleged neither he nor his co-tenant “gave the police permission or authority to search [their] apartment.” The court held that the Fourth amendment did not apply to entry with the consent of an inhabitant. The attorney’s affidavit alleged that police threatened the co-tenant with arrest if she did not sign a “consent to search” form. The court however noted that the lawyer’s affidavit was not based on his personal knowledge of the facts in the case. The motion to suppress was therefore defeated without hearing.

The lesson here for all defense counsel is that our affidavits (should we chose to file one) require personal knowledge. A better course is to include all the “facts” in the defendant’s affidavit (unless there is a witness available), then offer a brief with an attorney’s affirmation describing the importance of exhibits if any. Additionally, defense counsel should be very careful in the precision he uses in drafting pleadings. Here counsel probably meant to say that police coerced the co-tenant into signing the “consent to search” and into giving them the right to enter under threat of arrest. He did not say it and the court hung him for it. In fairness, I am not sure many attorneys would have picked up the significance of the difference in the drafting stage of the motion. It is axiomatic to us that if the consent to search is coerced so is the entry. We however live in the real world where we hear these things from clients all the time. They are probably often true. Nevertheless, a court is not about to throw out two guns without being forced to do so. Flawed pleadings gave the court an easy out. In the future, it would probably baud well for us all to object to both the entry and the search in our pleadings unless the facts preclude it.

III. US v. Copeland, ---F.Supp.2d---, 2004WL2093483 (EDNY): Breaking up is hard to do… but not impossible.

In another case of apparent first impression, the District Court (Block J.) held that a third-party exculpatory identification which one co-defendant would present warranted severance of that co-defendant.

In Copland, police arrested three individuals for robbing a bank. The prosecution claimed that Defendants Vasquez and Rivers allegedly entered the bank and Defendant Copeland allegedly drove the getaway car. The problem was the prosecution had witnesses that said that Vasquez never entered the bank and Copeland and Rivers were the stickup men. Of course, since these witnesses didn’t back up the Government’s theory of the case, they were not going to call them as witnesses. Vasquez’s lawyer felt differently about that and intended to ask everyone he could about the apparent … uh...discrepancy.

The court had earlier held that the defendants could not have a severance just because they were pointing fingers at each other. See United States v. Haynes, 16 F.3d 29, 31-32 (2d Cir.1994) (affirming denial of severance where defendant was implicated by co-defendant's testimony); United States v. Diaz, 176 F.3d 52, 103-04 (2d Cir.1999). Here, however, the witnesses that the government intended not to call turned Vasquez’s lawyer into a second prosecutor against Copeland. The court noted that while "mutually antagonistic defenses are not prejudicial per se; the Second Circuit has determined that "mutually antagonistic or irreconcilable defenses may be so prejudicial in some circumstances as to mandate severance." United States v. Salameh, 152 F.3d 88, 116 (2d Cir.1998). One such case may be where, as here, "in effect, a defendant's counsel becomes a second prosecutor...." United States v. Volpe, 42 F.Supp.2d 204, 210 (E.D.N.Y.1999) (quoting United States v. Tootick, 952 F.2d 1078 (9th Cir.1991)) (internal quotations omitted).”

Finding that a jury could not logically accept both Copeland’s and Vasquez’s defenses as true (Copeland: I didn’t do it; Vasquez: I didn’t do it, Copeland did), the court ordered the cases severed. As a side note, but apropos of the notations about pleading thoroughly in the Nelson case above, Judge Block was careful to note that the attorneys here did not make vague, unsupported allegations. Rather they averred to specific facts elicited from neutral witnesses.

Ok ‘nuff said for tonight… “Let’s be careful out there.”

Tuesday, November 09, 2004

Taking a broader view of (Criminal) Trial law

As those of you who know me are aware, I have a broader view of the role of a criminal trial lawyer. To begin I think that lawyers trained at the criminal bar are the best trained trial lawyers in the courthouse. As such I refuse to be pigeon-holed into a strictly criminal courtroom and instead take a more federal view toward trial law. Much as a District Court Judge is not just hearing Criminal or Civil Cases neither should the trial lawyer be so narrowly viewed nor should he so narrowly view his role. He is an advocate first and trained in the Criminal law second. His or her ability to ferret out truth and to be resourceful is what makes him so diversified. More importantly he who artificially limits his academic pursuits is bound to be way to parochial to see the bigger picture. Hence the trial advocate that never tries a different kind of a case is bound to miss those things he might learn in practicing in other disciplines. Certainly having to know so many different areas of law is difficult. It is however also challenging and fascinating. It is equally important that the (Criminal ) trial lawyer not try to be a specialist in any one area but instead be a specialist in evidence and trial technique and learn all he needs to know to win the narrow positions posited in the case he is bringing. I often rely on lawyers who work in any one area on a given case for their potenial expertise in the pleadings of that particular disipline. That however is only to be a help to me. I must learn what I need to know for the case, I must play with the law's nuances and I must be the one to walk in it's shadowy places. If that sounds more like the life of a barrister in England than like an american lawyer so be it. For me my interest lies in the fine distinctions of the moves of the trial lawyer. I want to specializde in the presentation the questioning and examining and investigating of a case. My love of the criminal law and of the mens and actus reas of a criminal act discounts the fake distinctions placed upon trial lawyers by where a case is tried or what book governs the case. If I can read I can learn the law of the case. It takes a special person to be an advocate and an awful lot of blood sweat and tears to become a trial lawyer. I prefer that and the satisfaction the acedemic rigors of such a practice brings to taking the easier way out. Hence in an effort to help myself and my like thinking brothers and sisters stay abreast of what they need to know, I Blog! I also feverently hope that if anyone ever reads this stuff they enjoy it's presentation as much as I enjoyed writing it.

And Now For Today's Blog:
It's been an interesting week of decisions and we here at Long Island (Criminal) Trial Law thought we would bring you a few of the cases and lessons that trial attorneys have learned this week. Today's topic:

Family & Personal Injury Law

I. Chen v. Fischer, 2004 WL 2389825, 2004 N.Y. Slip Op 07677 (2d Dept. 2004).

In a case out of the Second Department the court grappled with what effect a divorce had on a later action for tortuous acts alleged to have occurred during the said marriage. It seemed that Ms. Chen married Mr. Fisher in March of 2001. The marriage was the precursor to a Britney Spears wedding, in that it ended some 89 days later in June of 2001. Mr. Fisher alleged in his complaint that Ms. Chen treated him cruelly. In July Ms. Chen answered that it was Mr. Fisher was cruel and that he also defrauded her. In May of 2002 the court put this wedded hell to bed by granting a divorce based on a stipulation of October 2001 and dealt with on equitable distribution issues. The court further dismissed the fraud claim for a proof failure. Meanwhile the law associates working in Ms. Fisher's lawyers office went to work overtime and filed another action for Personal Injuries she sustained by Mr. Fisher's intentional infliction of emotional distress (he locked her out of her home and would not let her visit friends and emotionally abused her for not having sex with him) and for assault and battery (a slap to the plaintiff's face.) This was filed before final judgment of Divorce but after the stipulation withdrawing everyone's most serious allegations of Cruel and Inhuman Treatment.

Fischer's answer to the second amended complaint pleads, as an affirmative defense, that the action was barred by res judicata, because Chen made substantially the same factual allegations in her counterclaim for divorce on the ground of cruel and inhuman treatment within the Original answering papers in the matrimonial action, and later withdrew all but one of those allegations in the stipulation of settlement, without expressly reserving any rights to make those assertions in a later separate action.

The Court held that although New York abolished interspousal immunity for torts in 1937, the law does not recognize a cause of action for Intentional Infliction of emotional distress between married parties. Hence that count of the complaint was dismissed for failure to state a claim. The court then acknowledged that the claim for assault and battery was a legitimate count but by virtue of the fact that the plaintiff had joined the act she later dismissed into the Divorce action, the claim re-brought here was to be dismissed for having been decided res judicata. Under CPLR 601(a) the parties to a civil action may join as many causes of action as they can think of arising out of the same set of facts or occurrences. However once that is done and a party has had a full and fair opportunity to contest the issues, then res judicata principals bar a re-litigation of those issues.

The Court held that societal needs and logic (logic in a Mat litigation... hmm... what a concept!) and the desirability of ending spousal litigation mitigated in favor of the court having a rule that interspousal tort actions seeking to recover damages for Personal Injuries commenced subsequent to and separate from a divorce action are barred by claim preclusion.

The lesson here is that tort actions for Personal injuries sustained during the marriage should be part of the Divorce action itself especially where the allegations in the Divorce c/a are virtually identical to the allegations in the P.I. action. Hence the case signals that the original divorce pleadings should be clear concise and inclusive of every potential c/a available to the pleader. The court noted that its ruling is likely to upset the matrimonial bar's apple cart, but also noted that had Chen raised the issue at the Matrimonial trial, she could have preserved the issue affirmatively to survive after the stipulation had been signed.

Criminal and Federal Evidence Law Tomorrow.

Sunday, November 07, 2004

Why do we elect Judges?: Or maybe we just decided to vote against the guys whose first names start with the letter "D."

Why do we elect judges?? I mean there is a real lack of sense in this process. I they could run like a regular candidate that might be different but they can’t under the judicial rules. 99% of the electorate has no idea who they are voting for or against because the judges aren’t allowed to tell them nearly anything but their names. Even if he electorate wanted to be informed ( and by no means does it show any inclination for such an education) our rules do not allow it. The result of these elections is that we pit trained qualified judges in front of a jury of voters who have not heard a bit of evidence about them before they are judged. It is a very cruel irony in that those that are accused and appear before these Judges had fairer hearings, in large part because of them.

The votes are counted, and it appears that the voters have thrown out three long time outstanding trial judges in the Nassau County Court. Now, by no means do I wish to denigrate the three new judges, all of whom are just as eminently qualified to serve in the county court as our three outgoing judges. It is just that there seems to be no rhyme or reason for the loss of three experienced well thought of jurists. The three lame duck Nassau County Court judges (Judge Dan Cotter, Judge Dan Palmeri, and Judge Donald Belfi), have all had distinguished careers as both lawyers and criminal court judges. Nary a lawyer around can say that any of these three guys was not a complete pleasure to try a case with.

Judge Belfi, the most senior judge in the Nassau County Court, was the epitome of judicial temperament patience and ability. Few Judges could have had the personality to deal with the circus that was the Long Island Railroad Massacre trial of Colin Ferguson. Judge Belfi however patiently presided over the case and gave Mr. Ferguson a far fairer trial than anyone could have imagined. Listening attentively throughout Mr. Ferguson's infuriating rants, Judge Belfi paid Mr. Ferguson respect and treated him with a dignity, which Mr. Ferguson refused to show anyone else especially his victims. In the end when he sentenced Mr. Ferguson to the maximum he could get Judge Belfi did not take that opportunity to engage in histrionics; he did not attempt to bait Mr. Ferguson or use his position as a judge as a bully pulpit, to gain publicity and notoriety for himself. Judge Belfi did his job in his usual steady way. His handling of that case was also appreciated by victims of my Ferguson. The trial that everyone though would be a disaster, in the end, thanks to Judge Belfi turned out to be one of the best examples of the American criminal justice system at work. Judge Belfi will be missed and it is a shame that the voting masses will have no idea who they turned out.

Judge Cotter was known as a Judge Belfi protégé on the bench. Taller and more patrician, Judge Cotter was one of the toughest and fairest prosecutors to come out of the Nassau County District Attorneys office. “Specializing” in homicides for most of his trial career Judge Cotter tried the very first DNA case in Nassau a gruesome murder of a young girl in Valley Stream by a neighbor. That case came on the heels of Court TV. It was one of the first telecasted hearings and trial. The atmosphere around the court house was electric and circus like. To all their credit, none of the three attorneys, Justice Goodman, then prosecutor Cotter or defense attorney Sal Marinello used the opportunity to further their career or even their case. Instead we all received an education in the science of the future. Moreover the case has stood the test of appellate review and has stood up. I have had the opportunity to work in a high profile case against Judge Cotter early in my career and found him to be fair and reasonable. I have not appeared in front of him however as a judge but have on occasion walked in to see him preside. He is courteous to counsel and accused. He listens to the arguments and he is not a rubber stamp for either side. Most of the lawyers on both sides of the case enjoyed appearing in front of him. Again his ouster makes no sense from a political or judicial sense

Our final Election Day casualty is acting State Supreme Court Justice Daniel Palmeri. Probably the least well known of the three, he also had the least criminal experience before taking this bench. I know from personal experience that did not make him unqualified to preside. Instead Dan Palmeri worked as hard as any judge to do the right thing on the bench. Though certainly conservative in nature, Judge Palmeri had guts. He did not cut corners and would not let the prosecution win just because they may be prosecuting a guilty person. He had a good Meter for those that could and those that couldn’t try a case. He was always a gentleman but he did not suffer fools and that made him sometimes seem distant. Nothing could be further from the truth. He was and is one of the most in touch judges I ever met. He has an insatiable curiosity about things. He worked hard and liked it when you did too. He listened to your arguments and read your briefs and was not afraid to say he didn’t know something and would then go and look it up. He was my favorite judge to try a case in front of on this bench because he let you try your case and stayed out of your way. He did not try to be the star attraction. He did not need to be so in control that the court room had the air of a concentration camp. And mostly he wasn’t afraid to ruffle feathers. His will be difficult shoes to fill on this bench.

When a lawyer leaves practice to become a judge he is giving up a lot. First his ability to earn a lot of money is destroyed. Even if a judge earns more money than he ever did in practice ( an anomaly to be sure) he gives up the chance to make a lot more. Second he loses his practice. His long time clients are not coming back after a decade or more on the bench. In addition he has probably not prepared to come back to practice; to set up an office; to market; to go out and get clients. Their sacrifices should not be tossed aside on just whim alone. Surely if the judge has done a good or excellent job we should want to keep him or her. These elections with their lack of information or real campaigning are worse than a Middle School Student Council election. At least there the candidates can campaign on a promise of no more homework.

I cannot discern by listening to the candidates or reading their campaign literature what the difference was between them or how anyone who did not know them personally could tell them apart. That may be okay in this instance because all six candidates were well qualified. I just do not think that this system would have excluded a candidate had he or she been not qualified.

I am of the opinion that the bench in the County Court of Nassau is a very competent bench. It is of the highest quality I have seen in my twenty plus years of practice. We are lucky in that at least on paper the three judges elect look good and have excellent credentials. I hope and pray that they can live up to the shoes they sought and succeeded in filling, for the sake of those that use the court, need the court, and work in the court.