Tuesday, September 26, 2006

More Horror Stories From The NY Times On Life In The Small Towns And Village Courts Of New York

 The Times has part II of its series on injustice in the Town and Village Courts.  Part III is here . I think the answer is simple. Make it a requirement that the Towns and Villages hire only people with law degrees for the job and pay them according to 18b rates for felonies ($75.00 per hour) then require they get clerks and hire them for $10.00 per hour.  Average village court runs 2x per month about 5 hours for the night.  That would cost about $425.00 per session, or $850 per month. Total cost for each court per year? $10200.00. They take more than that in fines every month.

Monday, September 25, 2006

NYT Declares Trouble In NY State's Village And Justice Courts

 This article in the NY Times effectively puts together the issues facing country lawyers in courts where the judges are more likely to be retired truckers than law school graduates. I have never been a fan of the State Commission on Judicial Conduct. I have a problem withbureaucratss being able to unseat elected officials, however until NY agrees to have all judges at least be members of the NY State Bar, I think that the Commission needs to be better funded.

Just a couple of notes:  

Larry Goldman, past chair of the commission calls for all judges to be lawyers. Goldman is right.

Second the picture of the Cholchester Court House (a garage really) on the front page of the article is unfair. It actually is spacious and having litigated there, the Judge and his wife/clerk were fair and polite to me even when I was very late. Having court in a garage (or barn as in Lloyd Harbor on Long Island) is weird though.

Wednesday, September 20, 2006

No Jurors=No Trial=Another Post: Prosecution Must Have a Hearing To Keep A Vehicle For Evidence & Court Refuses To Dismiss Reckless Endangerment Chg.

Well I guess Nassau County(NY)District Attorney Rice is getting her wish, more trials. There isn't a juror to be found in the District Courthouse. Hence, for the second day, we wait for jurors to show up so we can pick our jury. As I had no court today, (we are technically engaged, so we had already sent out our affidavits of engagement, so we worked on jury instructions)I had time to peruse the Law Journal and noticed a couple of interesting stories.

The first one is a pet peeve of mine. District Attorney's refusing to return cars as part of their never ending attempt to screw defendants not convicted of crimes. It seems more and more, District attorney's are trying to hold onto cars of defendants as "evidence." It is a bush league move but judges routinely throw up their hands and say "what do you want me to do, I have no jurisdiction." Well, according to the US Court of Appeals for the Second Circuit, now they do.

In Krimstock v. Kelly,05-6691, (2d Cir. 2006) the Second Circuit ruled that prosecutors cannot keep vehicles, pre-trial, without the permission of the court.

While the court seems to permit an ex-parte motion for same, it seems to me that the legislature should require a hearing and place the burden of proof on the prosecution as the public policy issues (the ability of accused people to posess their property while presumed innocent and the ability of accused individuals to maintain their jobs and thus pay their own attorneys) outweigh the governments need to hold the vehicle pending trial. After all, in most cases the vehicle is never placed into evidence. It is merely held for pictures. It is just another way for prosecutors to inconvienence defendants so that they cannot afford those pesky defense lawyers who stand in the way of the Government and its railroading of the people they accuse of a crime.

As for the second article, seems our favorite former judge Kenneth Gartner has another post-retirement decsion published. This time Ken, we don't agree with your holding, but we do like your reasoning.

In People v. Schulz, (Nassau District CNo. 6114dex No.6114-05) the defendant is charged with discharging a gun within close proximity to a crowd of people (whom he suggests was after him.)It appears that within the decision it is agreed that the blast was fired up into the air (ala The Three Amigos) and that no one was injured.paraplegicparapalegic from an earlier racially charged assault is charged with Reckless Endangerment 2d, a Class A Misdemeanor, which carries up to a year in the county jail.

The law on the issue of whether or not a gun fired at noone and shot up into the air, is reckless endangerment, is muddy at best. After all such a shot could be a warning shot, or a shot in celebration, calculated not to injure anyone.

Judge Gartner reasoned that he could not decide whether the shot was illegal because the charging Information does not contain sufficient indicia of how close the crowd was to the weapon when it was discharged. He therefore held that the issue had to be decided by a jury.

Uh no judge, the people draft these Charging Informations. It is their job to get them specific enough to charge an offense. A jury shouldn't be left to decide what is clearly a legal decision.

I guess District Attorney Rice's office "dodged a bullet" on this one... I crack myself up sometimes.

Maybe tomorrow we will get a jury panel.

Tuesday, September 19, 2006


Is it me or does anyone else try to get trials going only to be sacked by unavailable cops or vacationing judges ADA's or co-counsel and then after trying to get a trial going for 6 months just as your life gets really busy, everyone is ready on everything NOW!! Thank God I have had some understanding judges but really...
Anyway posting has been down a lot because of the trial schedule. To best keep up to date on NY and Long Island Criminal law, See Nicole Black's Sui Generis; Second Circuit Sentencing Blog; Second Circuit Blog; Second Opinions; Fourth Amendment Blog; Sentencing Law Blog; and Albany Lawyer.

See you when I can, and definitely on the flip side of the verdict.

Wednesday, September 06, 2006

Cato Institute Calls For Congress to Firm Up No Knock Raid Procedure After SCOTUS'Hudson Decision

With the "War in Iraq" losing the public's support daily, The Cato Institute a conservative and libertarian "think tank" has named the pre-midterm election "Security September."(See story here.

The thinking is, we will see the GOP while still in the majority in both houses, pass a series of bills in September (before the election) that again sacrifice our Liberty in the name of Security, gaining us none of the latter (and proving that if we return these people to Washington D.C. we deserve none of the former) but hopefully convincing the voter that they are the party that will assure the voter's safety. They figure this is their best chance at a fall victory and holding their majority in both the House and the Senate.

Noting that the chances of being killed or maimed in a terrorist attack is less than the chance of dying in a bathtub this year, Cato destroys the need for more "nanny state" legislation that will not keep us from getting killed, but is killing our democracy and our traditions of freedom.

A second article entitled "Wrong Door" describes in great detail the abuse of SWAT teams since 9-11-01. In 1981 SWAT teams made 3000 http://www.usdoj.gov/olc/noknock.htm entries into homes. That number jumped to over 40,000 per year by 2001. The number today is astronomical.

No Knock warrants allow SWAT teams to enter a home without knocking first often scaring the hell out of the inhabitants. Now I can hear most of you saying "who cares, criminals deserve what they get." The fact is however, that these SWAT teams are wrong about where they are going a good percentage of the time. When they are wrong the results can be devastating.

Cato points out that in NYC alone, there were over 15 mistaken No Knock raids. These raids have given people Heart failure and disturbed children. People are not safe from the government within their own homes.

These raids are commando style raids, battering rams, tear gas, automatic weapons, multi-force tactics are the style. In one raid in NY, after it was obvious that the police went to the wrong apartment, they continued to search the one they were in anyway. (Never give up the opportunity to intimidate the neighborhood I guess.)

Cato's thinkers went on to note that despite the warning in the SCOTUS decision in Hudson v. Michigan, (which allowed no knocks [in a 5-4 decision] but where the deciding vote, cast by Justice Kennedy, [and his written Opinion} and the Opinion by Justice Scalia, opined that the remnant for an abuse of the No Knock rule was a civil rights suit) few if ever is anyone disciplined for the mistakes. Homes and apartments are wreaked by the raids and everyone is intimidated.

What is really wrong is not just the 15-20 mistaken raids but even the use of the No Knock warrant in cases seeking to arrest none violent criminals.

Cato's writers cite the attempt to apprehend one Salvatore Culosi in Virginia. He was accused of wagering on sports with friends small wagers 50-100 dollars. A cop found out about the wagers and started to up the ante with Culosi (in other words he was manufacturing a crime that would not take place but for the cops influence.) When he finally got Culosi to wager enough ($2000) to clear a felony in Virginia, the officer went with a SWAT team to Culosi's home. He rang the bell and when Culosi (who was a 37 year old optometrist for God's sake) answered the bell and came out of the house some trigger happy SWAT team member, accidentally(?)fired his semi automatic and killed Culosi. Now the state is dragging their feet in giving his family the information they need to proceed with their civil rights case against him.

Query how many Virginia SWAT team members does it take to arrest a gambling optometrist??? How should he be compensated??

I wish this was an isolated incident. The Cato article points out that it happens way too often. The calls to my office seeking help in mistaken raids tells me it happens all of the time. It is time someone act...but noone will, after all we have to convince Joe Voter to return us to Congress or Senate or the Statehouse. How many Salvatore Culosi's do there have to be.

I will let the Cato guys end this post the way they did their article:

"Most of the country is moving toward more militarization, more aggressive drug policing -- and less accountability when things go wrong."

Not on my watch...If you or a family member or friend has been the victim of Police overreaching, call my law office at 516-741-3400 or leave a message for me by clicking this link.

Monday, September 04, 2006

Week in Review Vol. No 2: "Brady" Violations; Stressed Lawyers;A Couple Of New Crim Law Blogs; Mel Sachs is gone

Not too much talking, just a lot of linking here. After all it's Labor Day.

A. Throwing the Fox Out of the Henhouse: Second Circuit Rules Prosecutor has no Right to Decide if Brady Evidence is Credible or Not.

The blogging Federal Defenders of NY are all over this one at Second Circuit Blog. In Disimone v. Phillips, Docket No. 05-6893-pr (2d Cir. Aug. 22, 2006) (Miner, Calabresi, Restani) the Second Circuit is looking at a habeas Corpus in a murder trial where the defendant may have only stabbed an already dead corpse. Two guys claim they killed the decedent. Prosecutor only charges one of them and chooses to disbelieve the other, thus he fails to hand over the "Brady" information until the case is nearly over. Defendant says it comes over too late to really use. Prosecutor defends saying (you gotta love the Chutzpah of this guy):

"the information contained in that affidavit was thoroughly investigated by my office and negated on several counts . . . [as] basically a lie." Op. 21. As a result, he claimed, Djonovic's statement did not qualify as Brady material: "[T]here may be situations in which a prosecutor, in his discretion, may fairly keep to himself knowledge of available testimony [apparently exculpating the defendant], which he views as mistaken or false."

Uh no, there are NO situations where a prosecutor may use his "discretion" when it comes to turning over favorable material. Especially when it is demanded by the defense counsel.

Judge Calabresi puts that in the right place when he says that allowing such prosecutorial discretion "would be to appoint the fox as henhouse guard."

B. Stress and Lawyers A Collision Waiting To Happen

This month's edition of the Complete Lawyer is focused on Lawyer's health. There is the usual advice: 8 hours sleep 2x per week exercise, lose weight, don't isolate, discuss your feelings get organized or get help doing it.

We hear it all the time. It's great advice. I try all the time, I fail usually. I am going to try to do it again this month. If your trying too, drop me a line or give me a call, maybe the buddy thing will work.

Be sure to check out the "stress navigator" just for lawyers link here just under the page fold, for a real scare.

C. Two New Defense Bar Blogs

The best thing I read each week is Tom Mighell's Inter alia which I also get e-mailed to me. Every day Tom identifies blogs and websites that help me. (Just like the Complete Lawyer cited above.) At the end of the week he compiles them into a list and sends it to all who sign up.

This week Tom led me to two new voices in the Criminal Law Blogsphere. The first is Georgia DUI Blog. It is well written and hard hitting. I think I am going to like stopping there.

The other is International Crimes Blog.com/ a well researched blog from McNabb and Associates. I visited the website too and found a number of things I liked there too. I actually learned a lot in a short time. Check these guys out.

Welcome to our world guys.

D. Mel Sachs Has Passed Away

For most New Yorkers, Mel Sachs was a funny guy. He was a lawyer with an "eclectic" wardrobe. He wore tweed and bowties. He was gregarious and always seemed absolutely delighted to see you.

He was so much more than that though. He was, as my Yiddish speaking friends would say, a "mensch" a regular guy, a guy you could count on, a friend. Mel and I taught together at Hofstra University Law School in the Trial Techniques program. We shared a client or two and co-counseled a case together. I sent him my law interns when I could not afford them anymore so that they would continue to get good opportunities.

He could be disorganized and a little "Meshugina" but he was thoughtful and funny and real. I never heard him speak ill of anyone. I saw him fight for people and I saw him cry for them. As a profession we were better for having had Mel with us, and we are less now without him. Personally I have lost a friend and mentor. I will miss seeing Mel as I do some of the others who have passed this way and crossed my road. I know however that Mel is looking down at us from above and will be one more guardian angel for defense lawyers here in NY. Good bye my friend, I will miss you.

The family has requested that in lieu of flowers a gift be sent to Sloan Kettering Hospital in Mel's name.