Sunday, October 29, 2006

A Few Notes: A New Legal Theory For Collection of Fees & Prostitution Stings Bring a Call For Reform

Some interesting reading this week in the NY Law Journal:

I. Law Firm Can Sue In Fraud To Collect Treble Damages In A Failure To Pay Fee Case

In an issue that has become near and dear to my own heart, I am happy to hear about the decision in Chadborne Parke v. Bowen. Evidentially, even big firms like Chadbourne Parke get clients that will "gladly pay us Tuesday for a Hamburger today,". Bowen kept promising payment but never intended to pay. His bill topped $300k before Chadbourne partners had enough.

They sued in Fraud and the judge agreed to let the suit go beyond summary judgment. Seems Bowen worked for a deadbeat named Holt. Holt hired Chadbourne and then told them to deal with Bowen who kept stringing them along. If Chadbourne is successful, they could collect 3x what they are owed from Holt through suing Bowen who acted as his agent. Now clearly these are exceptional circumstances. Or are they? How often does a family member string you along on a case so that you won't drop it promising a check any day? No this is not that strange a situation. Happens all the time actually. We should see if Chadbourne wins its case and get their money, we might see more of this type of case to recover from a deep pocket.

II. Suffolk County New York is Cracking Down on Prostitution.

I saw this article when perusing the net the other day. Seems Suffolk and Nassau got some money from the Federal Fisc to go after prostitution to hopefully undermine the sex slave trade out of the far east. On the first day they arrested 21 people who allegedly worked and owned alleged massage parlors. All were Asian as reported in Newsday. On the next day, Suffolk went after 25 Johns. Well at least it doesn't seem to be sex neutral enforcement. It used to drive me nuts when I was at legal aid and representing street walkers that the "John" was never so much as arrested as long as he gave information v. The girl and agreed to come to a trial which never took place as the girls couldn't wait to hit the streets again.

A streetwalking problem and an incall house working in a residential area are problems to the neighborhood. That said, these types of raids are a waste of effort and taxpayers money.

A solution might be a red light district with licensing of houses of prostitution or of the prostitutes themselves. Anyone not getting a license would face a civil rather than a criminal penalty. Getting to the women and making sure that they are safe should be a number one concern. These "providers" need a number of social services that they cannot or do not know how to get. At the Asian massage parlors there is a concern about sex slavery, not so with so called escorts who work out of their consumers hotels. There the problem is more often robbery of the john. Licensing would curb that issue quickly. In the incall situation a district put aside somewhere in an industrial area with curfews and proper police surveillance could infact aid police in controlling crime, through license plate checks, observation and tips earned by knowing and seeing the providers of these services regularly.

The Tax ramifications could in fact offset if not eradicate any cost associated with the proposal. Of course the problem is that the political culture of areas that practice this proposal would have to be such that people could in fact decide their fates for themselves. Policing ethics and morals has never worked in the United States, but there are arguments for trying anyway. From a criminal defense standpoint however the sex trade will never be wiped out, and present criminal enforcement only punishes those most in need of help, and marginalizes them as well. Basically it victimizes the victim. Maybe the answer lies in legalization or at least decriminalization. Our present "solution" is only making matters worse at a great cost, to both the community and the accused.

Wednesday, October 18, 2006

That Lawyer Dude Says The Heigden Verdict Is Going To Be Overturned

Nassau County (New York) District Attorney Kathleen Rice gets a temporary victory and a bully pulpit for her crusade against driving while Intoxicated with the conviction of Martin Heidgen for murder by depraved indifference. I wonder (again) how she will explain the waste of taxpayers money when the case is overturned on appeal.

I know this is difficult to understand. Depraved indifference to human life is a tough matter and the NY State Court of Appeals has made it as clear as they can. Here is the answer, yes the person who drives purposely the wrong way down a one way street at full speed not intending to kill anyone but not caring if he does and realizing he might is guilty of Depraved indifference. The person who either does not perceive the danger to others because he is intoxicated or metal ill, or lost, is not guilty of depraved indifference murder.See this decision

As written on a bulletin board service I am privileged to subscribe to, if a person goes up on top of a high rise and drops a bowling ball on a crowd below, that's depraved indifference. If he is so drunk that he goes to the top of the high rise and throws the ball down thinking he is in a bowling alley, he's not guilty. (A That Lawyer Dude thanks to Sufolk County criminal defense attorney John Powers for the example.)

Heidgen would have plead guilty to a offer of Manslaughter 2 which would have put him in for 5-15 years. It would have been the right solution to a really bad case, and saved the county taxpayers hundreds of thousands and maybe a million dollars.
Today Rice won, tomorrow taxpayers will lose. Politics as justice, Nassau's new standard.

UPDATE UPDATE UPDATE: The jury foreman claims she and another juror were coerced into finding the murder verdict. Another juror who voted for conviction says that the descriptions of violence in the jury room were correct but not coercive (yeah right) and he also admits those jurors who were for a Murder 2 conviction refused to debate (deliberate)the issue! You read it here, this verdict is getting overturned on appeal.

Saturday, October 07, 2006

The Law Of Gilligan's Island

It is Saturday night. I am in Washington DC with my family. It is the first time we have been together since the end of August. I wish I could say we are getting used to being 3 instead of 4, but in reality, we have felt a lot like a car hobbled by a tire with a slow leak, we get where we have to go, but it's just not a lot of fun.

So today we took the Amtrak Acela Express down here and are over-indulging our eldest child, as if he has just returned from being at war as opposed to being a freshman at the nation's most costly university.

He is showing us around town. "Kharzi spoke here." "I saw Mussaraf there." "Son's of Pitch" (the GWU male acapella group he sings with) "performed in this park last week, this is where the guys with the M16's stand when a dignitary comes onto campus"...(That one really got to my wife...)
He eats in restaurants as George Washington Univ. doesn't have a "cafeteria." He knows where to eat. Today Lindy's Red Lion (amazing burgers), tonight Giovanni's (unreal Osso Buco, veal stuffed tortellini in a panne sauce, Chocolate Mousse), Tomorrow brunch at Season's and Dinner at some French place near Capital Hill. Monday The Daily Grill. Then back to NY.

So long story short, I don't feel much like working. I am having too much fun eating, sight seeing, and watching football with my friend, my son.

Nevertheless, I came across this article that is fast to read and fun too. It is about the legal implications of Gilligan's Island. I dedicate this column to my son Sal. Gilligan's Island was one of his favorite TV shows.

Sunday, October 01, 2006

Our Monthly Newsletter Is Now Available

 Every month The Law Offices of Anthony J. Colleluori and Associates, LLC., publishes a newsletter which is compiled for us by the legal publisher, FINDLAW. I have found these Newsletters to be really well done. In fact they not only provide information on a number 0f important criminal law topics but they also provide really good checklists to help readers evaluate their cases.

This month there is a really good checklist on how to avoid behaviors that will attract the IRS' ire.
For example:
Claiming an exemption for a dependent whom you never supported.
Destroying your books to conceal tax evasion.
Creating false checks or receipts to support deductions that don't exist.

I am often suprised that people are being advised by others to do exactly these types of things. Some of the items on the list seem to be obvious (i.e. don't lie about your income), but I hear it regularly from people who ought to know better. Read the Newsletter by clicking here. Sign up for monthly updates by clicking here and following the directions.

I hope you enjoy the Newsletter. If you find you need to talk about something you read there, contact us by phone or e-mail by clicking here.

Congressman Sensenbrenner Goes Topless In The House Of Representatives: Lies Our Congressmen Tell Us.

This "Press Release" from Congressman James Sensenbrenner (or should we call him Senselessbrenner) announces his latest attack on the Supreme Court's Booker/Fanfan decision. It announces his new legislation, which calls for "topless" guidelines.

The Booker/Fanfan decision found that what we used to call "upward departures" were unconstitutional because a judge could sentence someone above the Federal Sentencing Guidelines recommendation for the crime based on factors that the judge 
would find outside of what the person was charged with or 
based on things a jury actually acquitted them on.  Booker/Fanfan decided that in order to bring these guidelines back into conformity with the right to a jury trial, such guidelines had to be non mandatory. 

Senselessbrenner's press release is nothing more than a return to the unconstitutional sentencing scheme we had. Under Senseless' bill, there are only "mandatory minimum guidelines and the court can go as high as it wants. So now the cap is technically life and
the bottom is whatever the guidelines say they are. Since there is no top, the court can't be denying a jury right when it sentences on the high 
end based on offense characteristics.  

Senselessbrenner must think we are idiots. Let's deconstruct his press release lie by lie:

Lie No.1: The guidelines have produced prodigious reductions in sex crime sentencing.
Senseless and his friends write ""The Sentencing Commission's report issued in March shows that in the last year there has been a large increase in below Guidelines range sentences for defendants convicted of sexual abuse of a minor, of sexual exploitation of a child, of sexual contact of a minor, of trafficking in child pornography, and of possession of child pornography,"
What unmitigated bull hockey.

Now here is the truth:

According to the US Sentencing Guidelines Report of March 2006, (the same one good ole Senselessbrenner quotes in his press release,) "The average length of sentences for cases sentenced under each of the criminal sex abuse guidelines has remained fairly constant (USSC March 2006 report, page ix)

In the next paragraph the commission notes "The rate of imposition of below-range sentences in criminal sex abuse cases is below the rate for all cases post Booker

And finally "the average sentence length post Booker" has increased in child porn cases.

Either Senselessbrenner can't read or he thinks we can't.

Lie No. 2.  According to Senseless: "The legislation introduced today will reverse this slide to ensure that the sentence administered depends more upon the crime committed than which courtroom is issuing the sentence."

Now think about this. Under the present guideline system, the sentencing court has to look at each sentence through a prism that determines what is fundamentally fair to each defendant. Circuit courts then review these sentences to make sure they are not disparate with one another.

If there is a "topless" guideline, then only the bottom sentences will be the same. It will still be a 
matter of what judge you are before to determine how severe your sentence will be. The only difference will be that nearly everyone will have to go to jail for a while. Under Sensenbrenner's bill, there will be even more disparagment in sentencing as appellate courts will no longer be looking at upward departures. Judges will not have to put their reasons for going to the high end of the sentencing chart on the record as they are no longer departing from the guidelines.

Finally we have our third and last lie. Lie No. 3: Senselessbrenner states in the release that "Two of the hallmarks of our judicial system, fairness and equity, have been undermined since the Supreme Court's Booker decision last year."

Well let's not take my word for it, why don't we look at what the bipartisan committee of the Constitution Project (Chaired by Reagan Attorney General Edwin Messe and Clinton's Deputy AG Phillip Heymann.) They said that "topless guidelines are unconstitutional."
Other commentators have noted that the guidelines now allow the sentencing courts to get the sentence right and allow the Circuits to keep everyone in line. See this post and the testimony of the conservative leaning Heritage Foundation's  Paul Rosenzweig, calling the Topless guidelines 
(or Bowman fix) "probably not a long term solution" to the sentencing issues presented by 
the Booker decision.

If Sensenbrenner really wants to protect children from exploitation, let him start on Capital Hill.

AN UPDATE: Ellen Podgar is blogging this over at White Collar Crim Prof. She makes a great point as to white collar crime and the courts reactions to a growing problem. Using Booker for the concept of the upward departure jail sentences are going up!!  We have to tell Congress, we want real truth in sentencing not this unconsitutional garbage. Sentencing surety is too important to the efficient running of the criminal justice system to leave it's constitutionality in question.