Wednesday, January 25, 2006

Live From NY: It's The New York State Bar Association Annual Conference

Hello everyone. I am coming to you live from the Harlem Room of the NY Marriot Marquis in Manhattan NYm giving you the "scoop" for the Annual NYSBA Conference. For those of you not in the "know", every year during the last week of January, the State Bar (usually located in Albany) comes to NYC for a soriee that is very educational and often fun. Even if you are too cheap, ( or poor) to afford the actual attendance fee, there is a lot to do, and learn just hanging out drinking the free coffee.

Almost every section and special committee holds a meeting where legislation and other initiatives are discussed and debated. There are always a bunch of politico's and legal giants are present and their atmoshpere is a lot like MY Supreme Tap part times 10.

Anyway, I am writing today's column in advance of tomorrows big show. The Criminal Justice Section Meeting CLE and Luncheon is a not to be missed event. Of course I have a couple of judges who do not agree so I will unfortunately be absent from the business meeting to be held at or about 11am. The real work gets done in the exec meeting which starts at 8:30am anyway. I hope to get back for the Lucheon however which is scheduled to begin at 12pm

The luncheon honors those that have made substantial contributions to the field of criminal law over the past year or over their career.

I have a special dog in this hunt. My old friend and Contracts Professor, legal ethicist, Monroe Freedman is getting the award for contribution in the field of Criminal Law Education. The truth is, Monroe (as of yesterday he made it clear I am not to refer to him as Professor Freedman anymore or he will have to call me Mr. Colleluori and it is a hard name to pronounce) is more than just a Criminal Law Educator. In fact to my knowledge he has not taught a full time criminal law class in over 25 years. He does however provide a moral compass for those of us who practice criminal law and must participate in the everyday real life practice of law.

Ethicists tend not to engage in the day to day struggle. They are not bound by realities of human strife so they can propound difficult standards to hold the rest of us by. Monroe from the beginging has been aware of the practicalities of these standards. His seminal work Lawyers Ethics in an Adversarial System is one of the all time best sellers on the work. It possess the great trilemma how one can defend someone without being told the truth and then once told the "truth" how he can defend that person if he wants to get on the stand and tell a different story. Monroe's take on the issue is a minority view, at least from the viewpoint of the ABA. Most criminal defense attorneys however would beg to differ. Having Monroe's leadership and logic as our defense to prosecutor's challenges has come in very handy to many of us who want to fulfill our duty to both the law and the client.

In addition to Prof. Freedman's award there are a number of other people and organizations being honored. A list of the Honorees can be downloaded here. I do however, want to point out that the Crimi Award, given in memory of the Late Charles Crimi of Rochester NY is being given to Donald Thompson. Don is a courageous champion of the rights of the oppressed. He is a witty and able attorney and a tremendous teacher and mentor to younger criminal lawyers. The Crimi honors the best criminal defense attorney in the state. It is fitting that it should go to Don.

Now lest you should think that this annual meeting is all hail and fairwell, there is also a tremendous CLE opportunity here. After Lunch the section is co-sponsering a 3.5 hour CLE program which will also cover 1 hour of Professional Ethics. The Program is entitled "THE DEVELOPING ROLE OF THE MONITOR IN CRIMINAL, CIVIL AND CORPORATE PRACTICE". It really is everything you wanted to know about Monitors but didn't know who to ask.

The sylabus includes topics such as What is a monitor, how a monitor is appointed, the ethical duties of a monitor, and how to become a monitor. Lest you should snicker about the last item, the last case that I had where the court appointed a fiduciary, the impartial monitor earned well into the six (6)figures. He also had to fly to a couple of exotic locales to secure the corporations assets. Not to shabby if you ask me.

The speakers is a veritable whose who of the NYC white shoe bar. I have heard a few of them speak before and I know if you have any interest at all in the subject you will not be disappointed.

So with that, I commend to you the Criminal Justice Section of the NY State Bar Association's Annual meeting, ongoing at the Marriot Marquis in NYC on Broadway and 46th streeet. The exec meeting begins at 8:30 and the general meeting is at 11am. The luncheon will begin at 12 sharp to be followed by the award presentations and a really good CLE opportunity. I hope to see you there.

Sunday, January 22, 2006

Some Interesting Posts For Trial Lawyers

It has been a busy week here at The Law Offices of Anthony J. Colleluori and Associates so I haven't had a chance to really look and see what is being decided in the area. Hopefully we will look at a couple of cases later this week.

In the meantime here are a few posts by fellow bloggers that I think Trial lawyers might find important. Check out the links in these posts when they are available. It amazes me how much information is available to us. Anyway here we go to the "Roll":

Over at the Non-billable Hour this post links to a couple of articles that will help you to make the office more efficient and help out those of you who have some speaking gigs coming.

SHAMELESS PLUG ALERT: I am speaking at two upcoming CLE programs. On Sunday Jan. 29, 2006 I will be at the Nassau County (NY) Bar Association "Bridge the Gap Weekend" from 12-2 on Pretrial Criminal Law. Link here to get registration material and solve all your CLE requirements in one weekend. My co-presenters are Joe Gentile and Hon. Leah Russian. The program coordinator is our own AMY HSU from our office.

I am also speaking on the weekend of February 8th-11th at the NACDL Midwinter Meeting. I will be talking about what works in legal marketing. I think the idea is for people to learn from my mistakes. It is a good panel. I will make my materials available as soon as the program is over.

How To Trace An E-Mail
Ever find a need to trace an e-mail back to the sender, I can do it by following the link found at Dennis Kennedy's blawg. Find it by going to this post and following the link there.

The Future of Sentencing In America
This post by Prof. Doug Berman leads you to a very interesting debate on the future of the US Federal Sentencing Guidelines. It is a must read for all lawyers whether you practice in federal court. What happens there often trickles down to the states. Mandatory minimums, Justice Dept. Responses, and other ideas are all covered by these two very knowledgeable sentencing wonks. It is a mandatory read I think.

Fee Splitting Agreements
A discussion about fee splitting agreements in the personal injury area that will affect lawyers handling Civil Rights cases Civil RICO and other contingency fee cases can be found at this post.

Jim Calloway Helps Ring In Corel's New WordPerfect Release
Corel has a new Wordperfect release. Jim's site should be checked out generally and for this information specifically. Find the post here.

Forget About "How I Can Defend 'Those' People?" How About "How Can I Belong To The ACLU?"
Professor Eugene Volokh is a conservative law professor and a darling of the right. He is (mostly) also a libertarian. (Actually all of us who claim to be libertarian are just mostly libertarian, after all complete libertarianism usually leads to anarchy. I like to think of libertarianism as the real vision of the Founding Fathers.) With honest to goodness conservative bona fide's he is someone whose defense of the ACLU is a great defense of an organization that is controversial, misunderstood, and oft maligned. To belong to the ACLU does not mean that you by into all of its positions. It does mean that you have a real understanding that to believe, really believe in liberty, sometimes you have to stake out positions that you abhor. I recommend this post to you.

Ok the AFC Championship is about to begin. But as I sign off, I want to invite you to check out our posts at our sister site That Lawyer Dude. We have been doing some interesting things there too.

Sunday, January 15, 2006

A Crawford v. Washington Decision Out Of The Appellate Division Second Dept.

In People v Cioffi, 2005 NY Slip Op 10145 the defendant was charged with nine (9)counts of Falsifying Business Records and one (1) count of Conspiracy in a stolen car parts case (probably a chop shop.) The court let in the FIFTEEN (15) plea allocutions of defendant's alleged co-conspirators(assumably all of them named the defendant as an accomplice).
There was no objection from defense counsel. Nevertheless the Second Dept. took up the issue in the interest of justice. The court held that the plea allocutions were testimonial in nature, and that since there was no opportunity to cross-examine the co-defendants who gave these allocutions, the court held that it was reversable error not preclude their admission.

A word to the wise, preserve the error. Crawford is not going to be a new decision forever.

Thursday, January 12, 2006

To Sustain A "Bivens" Action Or Not To Sustain a "Bivens" Action... That Is The Question...

Faced by the SCOTUS yesterday in the case of Hartman v. Moore,. A nice write up of the case can be found at the SCOTUSblog.

The basic facts are, that Moore is the CEO of a business that makes the scanners that read barcodes. When the US Postal Service decided to go to the zip+4 zip code, the "specs" for reading the barcodes required single line readers. Hartman's company made multiline readers. He spent a lot of time and effort lobbying and advocating against the specification.

As it turns out USPS Board of Governors agrees with him and writes dual line readers into the specs. Turns out bribery played a part in the decision. A number of people are arrested and charged by the Postal Inspectors including Moore. He is acquitted. The question as to whether there was probable cause to prosecute him will probably not be decided by the court ( at the request of both sides). The case is really about whether the Postal Inspectors can be sued for a violation of 42 USC 1983 for retailating against Moore advocacy by arresting him, even if there was probable cause for the arrest.

Plaintiff maintains that any prosecution brought even in part to stifle someone's dissent, is a violation of Section 1983 whether or not there is probable cause to arrest. Even if that is not the primary motive.

Defendant maintains in part that denying summary judgment where there is probable cause to arrest will expose law enforcement agents to expensive litigation that will ultimately fail because there is no retaliatory motive where there is probable cause.

Now on its face most of us probably did't know the whole "zip+4" thing was so controversial as to create a need to retaliate (evidentially it was, take a look at a the write up here.) To an outsider, it seems that the prosecution was probably brought because there was sufficient smoke around the plaintiff to suggest to already suggestible prosecutors that plaintiff, by the voraciousness of his advocacy in the area and his supervisory interest in the firm, must have been involved in this scheme. Hence it would seem that the defense is right and the DC Circuits rule will open law enforcement to expensive discovery before a dismissal can be attained. Of course things are never that easy. Even so this case is not a bright line test.

In the winter of 1991 I had a case of a woman who is protesting the closing of a homeless shelter by the administration of the first black mayor ever elected in a town. She embarrasses the mayor and "shames" him. The Police force in the town looks into the woman's record and finds she neglected to pay a Three($3.00)Dollar fine levied a few years before when she was a vagrant and a prostitute. After she cleaned up her life, she volunteers at the shelter and she forgot about the small nearly insignificant fine. Police go the very next day after her speech at town hall and arrest her for not paying the fine. Now tell me that arrest is not about trying to stifle one's free speech. She was so frightened, that after I won her release and a dismissal (followed by an apology) she refused to sue. I wish she had, maybe That Lawyer Dude coulda been arguing in Washington DC today.

Monday, January 02, 2006

Nassau District Court Says If You Can't Get Consent To Take A Blood Test Within Two Hours Of Arrest... Change The Time Of Arrest

I guess the good news is that: the Nassau County District Court in People v. Steffens acknowledged that the Two Hour rule means that the prosecution can only use a blood alcohol test taken more than after arrest if the defendant consents to taking the test. See our recent post on the "Two hour rule."

The bad news is that the court has undone years of jurisprudence that define when someone is under arrest, in order to save the blood test and justify the arrest made by a police officer, that the court acknowledged was not candid (lied?) in his testimony.

In Steffens a Nassau County NY Police officer on routine patrol, comes across a driver who has decided to sleep off a night of drinking on the side of a road. It is 3am and snowing. An inch of snow is already on the ground. The officer, notices the car has a tire up on the curb and that the driver is slumped over the steering wheel. It appears the car skidded in the snow prior to coming to a halt. The car was not running, but of course the keys were in the ignition.

The officer, who claimed he stopped to see if he could render assistance, calls for a backup and waits until it arrives before he wakes the driver. (Maybe it's just cynicism on my part but if it were an emergency, should you wait that long? Or was that "assistance" thing just a ruse for why you stopped and intruded upon an otherwise "innocent" citizen? But I digress.) Of course the car had a strong odor of alcoholic beverage emanating from it. The officer asks the driver out of the vehicle and has him take part in a field sobriety test(including the often criticized Horizontal Gaze Nystagmus)test which by all accounts the driver fails.

Even before the officer administers a road side sobriety test, (which most Long Island defense lawyers call a balloon test or PBT {portable breath test])the court finds the driver to be "under arrest" and suppresses a statement the driver makes about coming from a bar. (The court actually found that the police officer who asked the driver "how he got there" had been deliberately imprecise as to when in the investigation he asked the question). The officer claims to have placed the driver under arrest at about 3:30am. The court finds that the driver was not free to leave even before the PBT was administered sometime around 3:15am. After putting the defendant into his Patrol car for transport to the Central Testing Unit, the defendant complains of chest pains and appears to pass out. Instead of heading to CTU they take the defendant to a local hospital. The officer or his back-up now called for a "blood kit" to be brought to the hospital. It arrived at about 4am. The defendant's doctor refused to sign off on the medical clearance and refused to draw the blood. A nurse did agree to draw the blood. However, by the time they sorted it all out, the blood didn't get drawn until 5:17am arguable more than two hours after the defendant was found to be in custody at least for the purposes of Miranda warnings.

Ok so far it appears that the blood test should be precluded. But of course when it's a DWI it seems the rules change. Without any supporting case law, the court posits that:

"That Defendant was in custody for Miranda purposes does not, however, also mean he had been "placed under arrest" within the meaning of Vehicle and Traffic Law § 1194(2)(a)(1), a subsection of a statute that, like Vehicle and Traffic Law § 1194(2)(a)(2), sets forth a purportedly bright-line "two-hour" standard for determining the admissibility of the results of a chemical test of the breath or blood of someone whom police suspect or have reasonable cause to believe has violated Vehicle and Traffic Law § 1192."

Nevermind that not a single higher court has ever found that the time of arrest and the time of custody are not the same thing for the purposes of calculating VTL 1194(2)(a)(1). Nor do either leading NY Hornbook on DWI (Pete Gerstenzang's: "Handling the DWI Case in NY" Thomson-West Publishing and Ed Findach's: "Handling Drunk Driving Cases 2d" Thomson-West)distinguish a difference in the standards for determining when one is "under arrest".

The Judge in Steffans then decides that the clock begins when a "formal" arrest is made (ie. when the cuffs went on.) Without nary a bit of legitimate evidence as to what time that is, she "guesstimates" that fifteen minutes had to have elapsed from the time of the stop until the time of the de facto custody suppressing the statement. She then throws out two more minutes because..." it is likely that it took two more minutes for the formalities and to get Defendant in handcuffs..." (funny when they cuff them on TV it always takes what, three seconds?)

In one fell swope this judge does away with the issue of whether the statue was complied with, using only conjecture and a judicial fiat. Of course it didn't help that the judge also felt that the reason it took till 5:17am to draw the blood was that the emergency room doctor would not cooperate with the police.

In order for the court to reach the decision it does, it must also ignore the clear language of the statute that says in relevent part that the compulsory test must take place "(2)within two hours after a breath test, as provided in Paragraph (b) of subdivision one of this section (a PBT),indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member."

In the Steffens case the court found the defendant was in custody before the PBT was taken. It also found that the testifing officer was intentionally vauge in his timing of events and that he was at best poor at keeping proper documentation, Nevertheless she credits his arrest by deciding that the PBT was not the correct time to begin the clock but that it only happens not at the time of actual custody but at the time the police officer "formally arrests" the defendant. Hence, despite the lying of the police and their admitted failure to follow procedures and law, the court finds a nonexistentant rule to keep the proscution alive.

It is clear that many judges in this state (most of whom face re-election every few years) do not like the two hour rule. I am sure that they fear invoking the wrath of organized prohibitonists (MADD) or looking weak on the charge of DWI. No one wants to have drunk drivers on the streets, even defense attorneys, but failing to uphold the law and keeping a check on police just exacerbates the problem. It makes it possible for innocent people to be ramrodded through a system without protection. Whether Steffens is innocent is not the issue. The way this judge misinterprets the law to "get" him will someday be the same law that is used to "get" an innocent person. That is why it is so important to get the cases of the guilty right.

Given that a person accused of DWI loses his right to drive upon arraignment, has his car confiscated upon arrest, and therefore will often lose his job unless he can get back on the road right away, not to mention face exorbitantant legal bills for both criminal and civil defense, there is a very high plea rate in these cases. Hence there is little chance police activity is going to be reviewed. In the few cases their behavior is reviewed it is very important to hold them to their responsibilities otherwise there is almost no downside to their inability to follow what seem to be very simple rules. If there is no check on their power... well, it is said that absolute power corrupts absolutely.

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