Long Island (Criminal) Trial Law

Two (Ethics Related) Articles Worth Looking At

2010-07-11T11:22:00.000-04:00

I was touring the Internet and saw a couple of interesting Ethics articles that I thought ought to be brought to the attention of all criminal defense lawyers. I know you all find them boring. Well these aren't and either way it is good for you...

The first was written by my good friend Tom Mighell. Tom for those of you who do not read "tech" blogs is one of the grandfathers of the "Tech for Lawyers" revolution. Tom, Dennis Kennedy, Marty Swimmer, and Denise Howell among others are really the inspiration for my blogging.

Anyway, now that I have dropped a few names, Tom's article is a primer for how to keep your e-mail and computer files private and protected. It is simple to read and simply following a few of the suggestions will keep you out of a grievance or malpractice action. For those of you who want to find interesting sites and a few fun ways to waste a little time while on line (as if we needed more ways) Tom is the Author of the very popular "Inter-alia" blog and you can sign up for a weekly digest of the best stuff he has found on the Internet by going to the link I gave you above and finding the sign up for the Mighell Marker.

Now the second article is a news piece about a lawyer who evidentially was unaware she was moving a "hit list" from the jail to a hit man on behalf of her long time client. Often we are asked to make third party calls and get mail to other people without going through prison system security. I will usually refuse the former and always refuse the latter. I will allow my office phone to be used to contact a mother of a kid under 21 or a call to a therapist. I will let a guy call his young kids (often they cannot afford the collect bill) but I always monitor the call. Further I usually contact the facility there after to make arraignments for non-collect calls to be available. If the facility is being stupid about it, I go to the judge and ask him to order the calls be allowed. Usually the jails and prison make arraignments (after all most of them are parents too.)

Vigilance is the key. Clients do not generally care about your license to practice. They have an agenda and see you as part of it. You are not part of their agenda, you are a "legal" representative. You do not represent the crime or the plan or scheme, you represent the client in his pursuit of his rights. There is a large difference but often we get caught up in the action and forget what and who we are. You must protect yourself and your practice. Never pass mail through your privilege as an attorney. Ever.

Do not carry messages. Even the most benign could be encrypted. It is simple, although many of the rules seem heavy-handed and inconvenient, they are there for usually good reason's other than sloth or avarice. Find out the reason for the rule and then seek a solution to help your client. Self-help holds way to many pitfalls.

Hattips: Inter-alia and ABA Journal Law News Now

A Primer on Mortgage Fraud Prosecutions and Why Every Homeowner and Mortagage Salesman Ought to See a Criminal Attorney Right Away.

2009-11-28T03:22:00.003-05:00

I wrote this about a year and a half ago. I was right on the money. I published it on That Lawyer Dude blog, but I am putting it up again with a few "Fixes" that do not change the prediction but do help make the post a little clearer.

Again IF You or someone you know, think you may have "made a mistake on a mortgage loan app", or if you signed a few documents without writing on them, allowing the mortgage broker to "fill in the blanks at another point in time" or if you are a mortgage broker or loan officer or someone else in the business who is afraid that there were shenanigans going on at their office, NOW is the time to hire an Attorney. DO not wait for the FBI to come knocking on your door.

Okay I am now going to explain the Mortgage Fraud Prosecution time- line for you by repeating our old article. Leave a comment if you have any questions:

"Sub-Prime Mess Leads to Mortgage Fraud Prosecutions: The Millionaires Play While the Homeowners Will Pay With Their Freedom

On Friday (4/18/08)the FBI announced that the sub prime mortgage mess is going to lead to an up-tick in mortgage fraud prosecutions.

Now what that translates into is that everyone who did something to help homeowners buy houses that they could not afford will be prosecuted, while the banks that profited all those years will pretend that they were unaware of the rampant fraud in the marketing of mortgages so that they can get as much of their money back while little players go to Federal prison.

I know that many of you are confused by the sub-prime mortgage mess. In a nutshell, the banks lent money to homeowners and buyers without requiring that they have any equity in the house. Now the mortgagor (the owner) can no longer afford the mortgage and has no equity (a reason to keep the house as an investment) in the home so he walks away from the debt leaving the bank holding the mortgage and the house.

Now why can't the bank just sell the house? Because it is worth less than the amount owed on it and so the bank will take a loss. Do that over and over again, and voile you got a mess of banks going belly up. The most recent failure was at Bear Sterns (hereinafter BS, for so many reasons).

Well, you may say, "sounds like they made bad investments. They should have to pay for using bad judgment." Yeah Right. They completely screwed up and yet you should see how they were rewarded before they went under. Lets look at some of the principal players at BS:

Alan Schwartz: is the CEO, President and basically the chief honcho.

Sam Molinaro Jr.: is the COO and the CFO and is basically the number 2 guy

Mike Minikes: is the treasurer of B/S

Mr. Michael S. Solender: is the attorney.

A fast review of their recent (last 6 months) trading of their options (which they received gratis as part of their "salaries") goes like this:

Schwartz made Six Million Dollars on the sale of his options of stock on Dec. 21 2007.

Molinaro made 2.5 Million Dollars on his sale the same day (he sold less).

Minikes made 2.3 Million Dollars on his sale.

Solender made 185 Thousand Dollars on his sale of options.

This is all in addition to multi Million Dollars salary and benefit packages they get!!

So the government is going to get these guys to give back the money right?? WRONG. They are going to get to keep the spoils of being horrible business people who cost their little shareholders millions.

So who is the government looking for? The favorite scapegoat... the little guys.

You see, BS is pretending that they never heard of inflating an income or an appraisal in their lives. ("I'm shocked, shocked to find that gambling is going on in (Casablanca)!)

For years BS (and others, I am not just picking on Bear Sterns they are just one example) made a fortune on the lies of brokers and homeowners. They knew of them, and allowed them to continue to lie about income and equity, until the bottom of the market hit like the end of a Ponzi scheme. Only difference is that the company was left holding the bag along with a lot of people who are or are going to be homeless.

You may be asking how this means homeowners are going to jail. Here is the answer:

Many (if not most) homeowners over the last 10-15 years have been playing a game that allows them to get the equity out of their homes and use the homes like an asset. By refinancing they received 100% equity and sometimes more. They used phony appraisals (which would "convince" the banks that the home was worth more than it was) and over estimated their incomes (to "convince" the bank they could pay the monthly payment.)In some cases they allowed mortgage brokers to write in the information for them on documents they signed in blank.

In other words, they lied on application documents. These banks have federal funding and insurance... Hence you have a federal case. Thanks to the advent of the US Sentencing Guidelines, prison is always an option. Now the government doesn't really want to put all that many people in prison. Just enough to scare the bejesus out of everyone so that they begin to tell on their partners in this venture, the appraisers and the mortgage brokers.

Now let's face it. When a homeowner went to the broker, he wanted more money than he had equity. The broker who could get the loan for him was going to get the business and make a commission. Now the broker didn't want the buyer to go bankrupt. He usually thought the homeowner could afford the mortgage. Why did he think that? Because the homeowner was lying about his income. Usually not a big lie, often under Fifty (50) Thousand Dollars, just to make sure that they could qualify for the loan. After all a person can over-estimate a little, no?

So the Broker needs to find an appraiser who will fudge the numbers a little. It isn't hard. The appraiser wasn't making much for his work. So the Mortgage broker found a few who needed extra money and offered them a piece of any deal they helped get for the broker. Often the homeowner "tipped" the guy as well. After all a person can over estimate a little, no?

Then the salesman goes to the hungry loan officers or underwriters whom he the broker pays...(this is the proverbial fox watching the hen house) with a bunch of these loans and these "safety valuves" sees a big commission check coming and they take on a bunch of seemingly good loans and a few bad ones cause after all a person can be off a little, no? Besides the company is just going to bundle them up (the loans some good and some bad) and sell them to a hedge fund owner so he will bear the loss and he is insured by some outfit known as AIG... (Now you ought to be able to see where this is leading...)

Now to "get" the people who made money here, the government needs to make the case against them from the bottom up. First they will go to anybody who over-estimated their income and look to turn him against the broker and the appraiser.

It will work like this:

They will send an investigator to the door of some home in say Queens, Nassau or Suffolk County. He/she will ask if you are the homeowner and they will then question you without giving you Miranda rights. This is legal. You only get Miranda card readings when you are under arrest and questioned.

They won't tell you you need a lawyer, they will only tell you how much trouble you're in. They may even threaten to arrest you if you do not speak to them. DON'T DO IT. They are going to arrest you anyway.

Then they will offer to let you off easy if you will implicate the broker. After all you're not smart enough to over-estimate your income. The Broker told you what to write down RIGHT??

The Broker got the Appraiser right? The appraiser told you he could make the appraisal look good for you for a little "tip" right?

Now "tell them what they get for trying to own a home on Long Island Johnny." "Well Bob they get to hire a Criminal Defense Lawyer who is going to cost them 25 thousand dollars or more, AND they get to implicate the people who helped them afford a home in Queens, Nassau or Suffolk County, maybe even a relative or friend who was a mortgage broker or appraiser, and face a criminal fraud conviction and the possibility of Three year vacation in a Federal Prison!!!"

"Hold it! Hold it! Hold it" you say. "I am paying my mortgage. I have nothing to worry about."

WRONG. When the FBI gets the names of the brokers from the lenders, they will look to see what loans were generated by those guys. Did they use the same appraiser each time (usually they do)? Then they will look at those applications. Check the information in the apps against what they have on file for you (you know, your IRS Form where you tried to limit your income) IF (When) they find discrepancies, they will come for you too, to get the people who sold loans.

In fact, if you are still in your beautiful Long Island residence and haven't defaulted, you are easier to get. You don't already have a lawyer (so now there is none of that ugly "statement suppression" issue) and they know where to look for you (your not homeless yet.)

So you testify against your friend or loved one and then one of them turns on the others and in the end of the game you all have to pay "restitution" to the "defrauded" banks and the guys who knew all of this, and who profited from it the most, keep their millions. You on the other hand have a criminal record, have to hire a lawyer and lost your house and maybe met some new friend in prison named Bubba.

Don't let this happen to you. If you are a Mortgage Broker, Appraiser, or Homeowner/mortgagor, get to a Criminal Defense Lawyer now. Even if you are sure you will not be a target of an investigation, it is smart to get a lawyer and let him speak to whomever he thinks will help you to win the day. Let whoever comes knocking on your door from the federal government know that you have a lawyer on retainer. CALL YOUR LAWYER as soon as the investigators come to the door. Do not say anything to them without your lawyer being with you.

If you follow these simple steps you will be able to sleep through much of this crisis, and you will continue to enjoy the simple life of a homeowner on Long Island.

Although I focused on Long Island and specifically the counties of Queens NY, Nassau NY, and Suffolk NY, the scenario and advice is good throughout the country.

You have been warned, heed the warning."

A little addendum. This is the way many Mortgage Fraud cases on Long Island will come down. IF you knowingly were involved in "Flipping a home", acting as a "straw man", providing proof of employment for a friend, misleading the lender about who owns or occupies a loan, inflating rents, or any other fraudulent activity on any home sale, then it goes without saying you NEED A LAWYER NOW!!!! That goes for Real Estate Attorneys too!!!! Uncle Sam is coming and he is coming hard. Will you be ready if he comes looking for you??

You may contact Fraud attorneys at our office by calling us at 516-741-3400 or writing to me directly at catlaw1@yahoo.com

White Collar Crime and the Solo/Small Firm Practioner: Why Going "Small Law" Makes Sense

2009-01-19T15:00:00.000-05:00

If history is to be believed, Dreier and Madoff is the tip of the iceberg in the prosecution of White Collar crimes. If the Junk bond debacle is any indicator of what is to come, a lot of people are about to be investigated and indicted. Many of these folks will be in New York, but there will be cases in many smaller legal venues as well. Many of those who are arrested will make the move to hire big law firms and big legal names. This time however, that may be the biggest mistake they will have made.
Wall Streeters and other white collar clients, who seek out big firms are usually thinking that :

1. Only big law firms will have the resources to handle the kind of paper and evidence that accompany the big white collar crime cases.
2. They want lawyers who are familiar with the "way things work" on the street.
3. They also want lawyers who have worked on the "other side" of the law. In other words, they want lawyers who have been Former Assistant US Attorneys.
4. Finally some believe You get what you pay for. The more you pay, the better the lawyer.

While each of these myths have some validity, the truth is that in today's white collar cases, all those instincts may wind up guaranteeing a conviction.

First of all, there is the myth of that the solo small practice cannot handle the paper. While that may have been an issue 20 years ago, modern technology has more than helped the solo and small firm criminal defense attorney keep up with the paper in these cases. Moreover, thanks to the invention of intranets, many small firm practices make use of the same off shore attorneys used by the big firms for cataloging and sorting the myriad of reports, e-mails, documents, and other evidentiary items that make up the thousands of pages and tens of boxes of evidence in most modern White Collar cases.

Second, I think that knowing how things "work" on the street is a hindrance to helping to win in court. Main street and the people who live around Main street are going to be your jury. These people have a fundamental issue with the way things work on "the street." In fact most think that "the street" is geared to hurt them and it is the Wall Street mentality that "greed is good" that put the defendants in the soup to begin with. This is further complicated by their own anger that Wall street and Wall street lawyers took down the little guy with everyone else.

A lawyer who regularly works on regular criminal cases, can bring an air of truth and appreciation for what a local feels and may be in better position to explain that a Wall Street executive's behavior was at the worst not meant to harm a little guy (like the juror) but to protect all the little guys that were in the market. It may be nothing more than an idea that just failed. Further it may be hard for a Big firm lawyer whose starting salary is three times the national average salary (not the national starting salary) to convey to people who will never earn that much money in a decade, how the white collar criminal is no different than they are, and how they and he are just, after all, neighbors.

Thirdly, there are lawyers who worked for the Government who did not go the Wall Street route. Now I am not enamoured of former prosecutors. I think they often fail to see the defects in the prosecution's case because they never saw them as prosecutors. Many are so sure of the governments superiority, that they are afraid to take them on in court. Some fear it will hurt their relationship with their former mates in the office whom they rely on to get good plea bargains.

On the other hand, there are some that are very good once they make the switch. Either way, whether you need a former prosecutor or not, they work on "Main Street" too.

Finally there is this idea that you get what you pay for. I guess some of that is true. The question I have with most Biglaw firms is, Do I need what I am paying for? Do I need a lawyer at Four Hundred Dollars an hour reviewing files and notes? Do I need him to summarize documents? Do I even want to pay someone on the hour to do this? Is an hourly rate the best way of paying a legal fee for me and my family?

These are questions that most Main Streeters ask before they start thinking about fees. It doesn't help you much if you win the case but lose your home in the process.

Finally a big advantage to a Main street lawyer, is the opportunity to be his biggest client. You are the priority case, there is always someone working on your file and only the most senior lawyers are assigned to the file. There is a benefit to being able to speak to your lawyer quickly and to know, he knows, everything there is to know about your case.

In all, the White Collar Criminal Defense Client has a lot to gain, and nothing to lose by coming with his case to a local Main Street lawyer. Now if they only read this before they lose all their money to Biglaw.

Lawyers Help. How to Answer the Question: What Do You Do For a Living?

2009-01-13T07:00:00.002-05:00

Laser speech; elevator talk; hooks. These are all concepts that Public Relation experts have introduced into the lexicon of the lawyer. We are told at countless "Marketing Seminars" that we have to develop a way to tell people what we do in a short, attention grabbing way. I found this a little challenging at first. I am not a man of few words.

I am a story teller. I like to tell them and I like to hear good stories told. If you think about it. Story telling is what I do. I mean I do it in part. I tell the client's story as well as I can to a judge, a jury, an adversary. I tell it to a claims adjuster and to investigators and police. Sometimes I tell it to the clients family too.

But I do more than that do I not? After all, I am a Doctor of Laws. I am a "Man of Letters." I have been "hooded." I guess if asked what I do, I could say I write letters.

In fact of course I am a trial attorney. I handle criminal cases and civil cases. I am a Matrimonial lawyer. I handle crisis. I do so many things in the course of a day, I am unable to really find a way to tell people what I do in a short pithy manner.

The best way for me to explain my dilemma is to tell you a story:

Last week, a I received a phone call from a distraught mom. Her child was arrested for shoplifting. The child, a college senior has always been a great kid and gifted student. She has dreams of grad school and some kind of a professional license. Although time was tight, I decided to see her the same day. She and her parents came in. As they walked in, I could see what had happened and why. When they entered, Dad was on one side of her mom on the other. Mom was a wreak and the young girl, though apologetic was the calmest one in the group. She was huddled in a heavy coat and while it was cold outside, it was temperate in my office. The coat was a giveaway as to what was to come.

After a few pleasantries I asked the mom and dad to leave the office. I noticed that when they left, the client sat back a bit in her chair. She was still bundled in a heavy coat but it was not that cold in my office. It was almost as if she were hiding from me behind her coat. I asked if she was cold but she said no. I then asked her about what had happened the day before. I tried to ask her questions in a non-cognitive way. That is to say, I took things out of order and mixed in questions that had nothing to do with the previous question or even the facts, so as to keep the client from feeling too comfortable and developing a "rhythm".

The kid readily admitted she stole the item from the store. She had almost no emotion in telling me this. She seemed to have no insight as to why she even took the item as she was more than capable of paying for it. I used this as an opening. I asked her if she was ever overweight. She acknowledged she had been and felt she was presently a little "fat(ter)" than she wanted to be. Personally I thought she was beautiful. As a result I felt the next question would be a gateway to determining what had happened here. I asked her if she used binging and purging as a way to control her weight. She thought for a second about admitting this but then she acknowledged she had for a while, had stopped and then had begun again about a month ago. This would soon become significant.

After her admission on the binge/purge phenomenon I asked her point blank when she had been assaulted. She immediately denied ever being assaulted or abused. I waited a moment and looked her in the eyes. She hesitated, and the tears filled her eyes. She then admitted she had been attacked by two strangers outside of her dorm a few weeks into her freshman year. She had been drinking. She said she was not raped because a boy she knew happened onto the scene and broke it up. She had told no one about it. She told her new boyfriend about it just before winter break, a month ago...

Now in full sobs, she didn't want her parents to know. They are old and would be upset and she didn't want to upset them. She was afraid they wouldn't let her return to school. That they would be angry at her because she "let" herself be put into a situation she lost control over.

Of course I knew that they would be upset because she had been hurt and that if they found out they would readily understand what had happened and why the petty theft had occured. I knew they weren't going to pull her from school and that she needed to tell them. I also new they weren't going to fall apart. They weren't that "old". In fact they were MY AGE!!!! It never fails to amaze me how our children think their parents feeble when they turn eighteen...

Anyway, upon the parents return, she and I spoke to them. They were confused until she gave me permission to tell them what had happened. Then the waterworks started, and she got the love and support she needed. Her mom hugged her and cried. Dad was obviously concerned and upset but he handled it just right. I knew they were going to handle it well, they had produced a brave, smart, wonderful child and that didn't happen because they were judgemental, unsupportive or feeble. While it was tough to do, and not easy to handle, healing was beginning before my eyes.

I referred the parents to a Psycotherapist that handled sex crimes and victims so that they could process their feelings and then I referred the client to her Mental health facility at school. I am now going to seek dismissal of the case with the District Attorney and this kid will go on to achieve her dreams and fufill the promise she displayed. She is again her parents "golden child."

I am not a shrink, nor do I play one on TV, but I am a gatekeeper. I am a person who has some streetsmarts and life experience. I am a student and a teacher. I am a parent and a spouse which was the main reasons I handled that situation as well as I did. (It helps that my sons are the same age as my client above.)

I came home and was telling the story of what happened to my family. Both of my sons work with me in the office, and my wife still helps out with "managment issues" when I need her to (she was the best secretary I ever had). My youngest son, Frank, looked at me and said " Hey dad, I have a new laser speech for you." "I'm a lawyer and I help." I had to smile. In six words he encapculated exactly what I do, and what I aim to do. He says he wants to be a lawyer too, but he may have a career in public relations.

I have a new answer for the question "What do I do for a living?"

"I'm a lawyer, and I help."

Vior Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert. Part One

2008-07-20T17:00:00.001-04:00

Expert witnesses in criminal trials are often members of police forces and Medical Examiner's offices. The County or State spends a lot of money to train these folks and they go to classes and they attend seminars. They have been on the job (especially in the police detective's case) for many years and often personally know the judges they appear before. They also have been found to be experts in dozens of other cases before the one you're trying so that their being named an expert now is a forgone conclusion. I have watched as they routinely are offered up as experts with nary a sound toward their preclusion as an expert. Why are we defense lawyers giving these people a free ride?

I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:

1. They almost always get named as experts so we don't bother to try to keep their testimony out.
2. We often expect their testimony, and so we build it into our case.
3. We do not have the tools available to us to get the background and to do a proper Voir Dire.

As noted scientist, author, and attorney Gil Safir writes, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion. This short series of posts aims to begin changing that. Today I am presenting part one of this two post presentation. Please feel free to add whatever you can in the comments.

I. Preparing the attack.

A. Frye or Daubert?

The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony.
Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).

Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.

Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).

Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.

B. What kind of expert do we need? Consultants v. Testimonial experts.

This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct.

First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts.

Why not let him testify?

Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)

I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well.
Why? Because he or she will have inside dirt I can toss at the other side's expert.

In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.

In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.
Remember, to get this witness qualified you are going to need:
1. Educational/academic degrees
2. a present position in the field, or recognition within the field.
3. Board Certification
4. Publication
5. Peer review of research
6. A lengthy career
7. Teaching/Lecturing within the field to other experts or at least to beginners.
8. Professional Associations and time within them.
9. Positions held in these associations.
10. Awards and honors achieved within the field and with in any sub-specialty.
11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)

Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness.
Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.

If a witness is a smart guy who also is a regular "Joe", all the better. One of my favorite witnesses was a short older German or Austrian Jewish woman who spoke with a heavy accent. She was named Dr. Ruth Finch. Now she was a wonderful character. As easily the Medical Doctor as she was your aunt Sadie. It took no time for the court officers and then the jurors to start speaking of her as Dr. Ruth (after another popular Shrink/sexologist Dr. Ruth Westhiemer who was the rage back then.) She educated the jurors, charmed them and completely frustrated the prosecutor. (Need I say it was a defendant's verdict.)

Now that we have figured out what standard we are going to use to determine if the testimony is going to come in, and we have determined what we need as far as an expert goes, and who (more or less by credentials) the witness will be, we are ready to try to keep the other side's witness off the witness chair, or if they do get up there, make them seem incompetent enough, that no self respecting person would send even an enemy to see them.

And that will be in Part II.

Tomorrow I Begin Posting Here Again.

2008-07-19T23:33:00.002-04:00

After closing this blog for over a year, I have decided to start posting on a weekly basis with updates as are necessary or as I feel like it.
Every weekend I will endeavor to get up a post on some area of criminal trial law that informs or even educates. I am also open to guest bloggers who have something to say but do not want to open their own blog.
So later tomorrow night. I will be bringing you Part I of what I think will be a two part posting on "Attacking the Credentials of an Expert.

Let me know what you all think.

Over-confident Witness Can Turn Off A Jury

2007-03-21T02:01:00.000-04:00

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

2007-03-12T11:28:00.000-04:00

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

2007-03-06T22:33:00.000-05:00

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

2007-02-26T20:24:00.000-05:00

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

2007-02-26T00:00:00.000-05:00

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

2007-02-25T18:49:00.000-05:00

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

2007-02-20T22:32:00.000-05:00

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?

2007-02-18T23:21:00.000-05:00

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.

WE'RE BACK!!!!!!!!

2007-02-15T19:10:00.000-05:00

I am very excited to announce that this formerly solo blog is back and going to be better than ever. If you are reading carefully, you saw the word "formerly" in the last sentence. That is because LICTL is becoming a group blog. Two of my Associates, Amy Hsu and Diane Petillo are joining me. I would like to introduce these talented women to you.

Diane Petillo is our Sr. Associate and leads our Civil Litigation Department. Practicing in the personal injury field for most of her 13 year career, Diane has been a plaintiff and defendant's lawyer. For the last year, she has concentrated her work on civil matters as diverse as mistreatment of prisoners to the devastating injuries caused by motor vehicle accidents where drivers were not taking sufficient care of themselves or of their vehicles. Diane's case load is extremely diverse. She can be working on behalf of a victim of government misconduct one day, and working on behalf of a wrongfully accused corporation on a civil Rico case the next. The Defamed, victims of Assualt, False Imprisonment, Sexual Abuse; Whistleblowers and those discriminated against because of their religious beliefs, race, age or sex, all wind up in Diane's office. As a co-blogger, I expect to see Diane writing on a lot of the cases and issues that appear in her case load. A hard nosed trial lawyer (as opposed to a litigator, trial lawyers actually try cases)Diane is a good teacher of trial techniques as well. I look forward to her teaching posts.

Amy Hsu is another associate in our Office. Amy is in charge of Appeals. In our offices we all try cases and we all write motions and appeals. It's just that Amy writes better than most. Formerly a law fellow for the Honorable William Donnino, This year's NYS Bar Association's Vincent Doyle award Reciepient As Outstanding Jurist, Amy has studied and learned at the elbow of one of NY's finest trial judges. Since joining our firm in September of 2005, Amy has tried two cases to verdict and sucessfully achieved dismisals in many others, thanks to her well crafted and ingenious motion practice. In addition to her work here at The Law Offices of Anthony J. Colleluori & Associates PLLC Amy works on legal articles and CLE Programs for the Nassau County Bar Association's Academy of Law. She is fluent in Mandarin Chinese and understands Taiwanese as well. I look forward to her insightful commentary on criminal cases.

As both young women are new to blogging, I expect we will be starting out slowly but I hope you will find nearly daily blogging by members of our team soon.
Please encourage these young writers and comment on their work as often as you can.

This Blog is on Temporary Hiatus

2006-11-22T00:09:00.000-05:00

With a bunch of changes being planned, I have to put Long Island (Criminal)Trial Law on Hiatus Until January 2007. I hope to start group Blogging with collegues who will concentrate on journalling on cases while I spend my time adding trial technique work to the blog. In the meantime why not hook up with our Sister blog That Lawyer Dude?

SCOTUS TO TAKE UP SENTENCING GUIDELINES AGAIN!!!

2006-11-04T23:07:00.000-05:00

Doug Berman has a bunch of columns (here here, here, here and here) devoted to the US Supreme Court's (SCOTUS)decision to take up the issues of reasonableness within the US Sentencing Guidelines (USSG).

After the court's landmark decision in Blakely v. Washington, which held mandatory sentencing by guideline to be a constitutional violation based on a case known as Apprendi(Wikipedia's brief on the case.) For 20 years the court had upheld the mandatory nature of the US Federal Guidelines. As Blakely only applied to state guidelines, the court took up the matter of the application to Federal Sentencing in US v. Booker and US v. FanFan.

In the latter decision, the Court decided that Mandatory guideline sentencing was a violation of the 6th amendment and so remedied the situation by declaring the US Federal Sentencing Guidelines non-mandatory. Instead it instructed courts that the USSG were to be considered as one of a number of factors under 18 USC 3553A. It also instructed that sentencing courts were to decide if the sentence that they were giving to an individual were appropriate to support the purposes of sentencing someone, and appellate courts were to decide if such sentences were reasonable.

Since then the circuits have been split as to if a sentence given under the guidelines was per se or presumptively reasonable or does the judge have to give a good reason for sentencing someone to a guideline sentence.

The cert decision, requires that the attorneys arguing the case address 5 questions that the court has posed. They are:

In Claiborne, the Court asks:
Was the district court's choice of below-Guidelines sentence reasonable?
In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to require that a sentence which constitutes a substantial variance from the Guidelines be justified by extraordinary circumstances?

In Rita, the Court asks:
Was the district court's choice of within-Guidelines sentence reasonable?
In making that determination, is it consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption of reasonableness to within-Guidelines sentences?
If so, can that presumption justify a sentence imposed without an explicit analysis by the district court of the 18 U.S.C. Â§3553(a) factors and any other factors that might justify a lesser sentence?

(HATTIP: Sentencing Law and Policy Blog

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

2006-10-29T01:22:00.000-05:00

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.

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

2006-10-18T23:51:00.000-04:00

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.

The Law Of Gilligan's Island

2006-10-07T21:01:00.000-04:00

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.

Our Monthly Newsletter Is Now Available

2006-10-01T10:43:00.000-04:00

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.

2006-10-01T00:17:00.000-04:00

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.

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

2006-09-25T01:49:00.000-04:00

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.

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

2006-09-20T01:37:00.000-04:00

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.

WHY? WHY?? WHY???

2006-09-19T09:12:00.000-04:00

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.

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

2006-09-06T02:30:00.000-04:00

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.

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

2006-09-04T23:59:00.000-04:00

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.

Patterico and His Readers Discuss Jury Nullification

2006-08-28T23:18:00.000-04:00

Seems my discussion on Patterico's Pontifications here and at our Sister Blog That Lawyer Dude (here), on the rights and obligations of juries to nullify has set off quite the discussion at Patterico's blog.

Patterico took me on (See note 52-57) and then decided that the issue was important enough to blog separately (check it all out here) He had over 90 responses before I left my response.

Here is Patterico's position on Nullification:

"Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?"

And here is my response (I am number 92!! Who knew people cared about jury nullification so much):

"Ah Patterico, I am loving you. Thank you so much for sponsoring this most interesting debate. Over 90 responses. Outstanding.
Ok you posit as follow:

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

Yes I would take the oath. I would mean it when I say it and I would hold to it. I can still nullify under it. Remember there is an instruction (I believe Johnny Cochran spoke about it during his brilliant summation in Simpson. It is known by its Latin name: Falsus in Unum, Falsus in Omnibus. In NY that reads:

If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

A verdict that rejects testimony in full because it is false in part is fine with me. Even when other evidence may lead to a diferent verdict. The problem with evidence that is false is that it often in real life casts doubt as to other evidence that might be truthful. Let’s assume that the police officer says that he gave Miranda warnings at 10 am. Lets further assume that there is proof that that a truthful statement was given by the defendant at 10:49am. Further lets assume that it is proven that the Miranda warnings were not given until 11am. Finally assume that the police officer testified to seeing blood in the back seat that matched that of the dead person and said that he thereafter found the murder weapon two days later looking into a hollow tree in the park next to the defendant’s home.

The statement goes out, but the jury would be well within the law and instructions to reject the evidence about the blood and the weapon find, and I would say that if they really find some of the government’s case to be built on lies, the jury would be well within it’s rights to reject the side that argues the testimony that is a lie.

Once again thanks for this very interesting discussion. I wish I could get this type of stuff going on my own blog. It is an important discussion that criminalists have been thinking about a lot since Simpson."

I think the right of the jury to keep the government in check is an important jury right. It is not to be used all the time. I would have no problem with it being used in extreme cases. I believe that testilying by police hurts the criminal justice system far more long term than does any one verdict that allows a guilty person to go free. In the right case it can change the way courts and prosecutors do business. It can change the way certain police departments react as well. I do not think the Simpson jury nullified so much as I think they just didn't know what to beleive so they chose to believe none of what the prosecution offered. It is important to know however that the verdict in Simpson changed the face of how evidence is handled in LA and in many other parts of the Nation, and that is good for everyone, especially the innocent.

What a fun and interesting exchange.

Sui Generis' Monday Blawg Round Up a Must Read

2006-08-21T23:29:00.000-04:00

If you click on the above title you will come to one of my favorite blawgs for lawyers. Nicole Black's Sui Generis. Every Monday (well at least she tries for Mondays) Nicole blogs about the best of the NY Blawgs the week before. She tries not to leave anyone out. She raises hits for us all. More importantly she helps us to keep current.

Nicole is a really good writer and she writes clearly and crisply. She is funny too! Her Blawg features regular comedic breaks that include the ridiculous things people say on the witness stand. A lot of the stuff comes out of the mouths of attorneys too.

Wednesday is a newspaper round up of the things she finds the state's newspapers are writing about.

Finally nearly everyday Nicole writes her own blog, disecting the cases and teaching us how to use them. Nicole does great work. If you are one of the lawyers who frequents my blogs, go to my blogroll and click on Sui Generis, I am sure you will not be disappointed.

By the way today Sui Generis has links to our blog and to Second Circuit blog's story on the US Court of Appeals for the 2nd Circuit ruling that a judge could not reject the 100:1 Coke to Crack ratio in fashioning a sentence, Sui links to Small Towns Lawyer Blog who writes about the amendments to the Freedom of Information Law in NYS, and there are links to a bunch of other stuff on there too. Enjoy.

Week in Review Vol. I No. 1: 2 New Blawgs; The Upcoming SCOTUS Calendar; JUST US Opposes Habeas For Innocent Man; & NY's New Court of Appeals Judge

2006-08-20T23:40:00.000-04:00

All week I read a thousand web posts, articles, and such, wishing I had the time to blog them all. Of course I could never do that and still practice law and spend time with my family. I decided to try to put together a post on a weekly basis that let's me bring the posts to your attention and throw in my two cents where I have the change in my pocket. (Tribute to the NY Times Sunday edition whose Week in Review Section has been my favorite read for over 35 years.) I will be doing the same at our sister blog That Lawyer Dude. The difference will be the items chosen in each post will usually be a little different. Thus without further adieu here is Volume I No.1:

A. Two New Legal Blogs of Note

I want to bring to your attention two new legal blogs (or Blawgs as they are often referred to.)

The first is from down Texas way. It is aptly named The Texas Law The writer Bryan Owens is a Texas lawyer with a New England upbringing and a degree from Harvard University undergrad and Loyola Law.

I like the blog. Especially the dual civil and criminal tracks it takes. If you are interested in reading a new voice in the Blogosphere or just want to see what's happening down in the Pecos, check out The Texas Law Blog.

A new and interesting niche criminal blog is on the scene. The Environmental Crimes blog covers crimes against the environment. It is written by Walter James a former BIG LAW Partner who has decided to chuck the baggage and deliver service to clients from the point of view of the solo/small firm lawyer.
Here is Walter's take on the POV of his blog:

"This blog will explore, on different levels, environmental crimes - how they are investigated, charged, tried and appealed. We will explore what the criminal mens rea is and how it evolved. We will explore the responsible corporate officer doctrine and the open fields doctrine. We will discuss how to prepare for the environmental criminal inspection and the service of a search warrant. And we will explore other avenues of what goes on in an environmental criminal investigation."

It has been in business a couple of weeks but from what I see it looks like a well researched and well written blog. I welcome Walter to the Crim blog part of the Blogoshpere.

B. The Upcoming SCOTUS October Term

Howard Bashman (author of the authoritative How Appealing Blog, as well as a writer for Law.Com, and a practicing appellate lawyer in Philly)has this column about the upcoming SCOTUS October term argumentss at Law.com.

Howard notes that the term has a number of criminal law cases on the docket.

Of one set of appeals to be heard during the first week of the new term, Mr. Bashman writes:

"The question presented in the consolidated cases of Lopez v. Gonzales and Toledo-Flores v. United States is whether an alien who is convicted of a drug crime that is a felony under state law, and has been sentenced under state law to more than one year of imprisonment, has committed an "aggravated felony" for purposes of federal immigration law even though the same offense is generally punishable under federal law only as a misdemeanor."

October also features a death penalty appeal from California and a sentencing case that asks the question: "(Does) California's Determinate Sentencing Law violate the 6th and 14th Amendments to the U.S. Constitution by permitting California state court judges at sentencing, to impose enhanced sentenced based on their determination of facts neither found by the jury, nor admitted by the defendant?"

The whole column is an interesting read. I would note that keeping an eye on the SCOTUS calendar is a good idea. Especially in the sentencing area as the court tries to help the circuits an district courts make sense of the Booker/FanFan decision.

C. US Opposes Habeas Relief For An Innocent Man: or The Third Biggest Lie In The World, "I'm From The Government, I Am Here To Do Justice."

Duarnis Saul Perez gets deported. Why? It really doesn't matter. Why not? Because he is an American citizen and cannot be deported. He comes back to his homeland the good ole' US of A. He gets arrested for illegally reentering the country. He sits in jail for 57 months convicted of a crime HE CANNOT COMMIT. As he is about to be banished a second time, ICE (formally INS or Immigration) realizes the error.

Perez files a Writ of Habeas Corpus to expunge his record because HE DIDN'T COMMIT A CRIME!!!!!! His country's response after putting him out and jailing him for crimes he couldn't commit?

Of course, they oppose his request. What is up with that? How about we say "Sorry son. Maybe we screwed up?" "We didn't mean it?" "Here's a couple of years wages to help you get on your feet after five years of wrongful prosecution?" (After all we can afford that, look at the size of the handouts we give Haliburton.)

Karl Keys has more overhere at Capital Defense Weekly. There is a link to the NY Law Journal article but you may need a subscription. I hope someone is bringing a 42 USC Section 1983 action on Perez's behalf. Sometimes JUST US disgusts me.

D. New York Court Of Appeals Slated To Get A New Justice. Black Voters Lose only Court Of Appeals Voice, As Pataki Rejects Bundy-Smith's Attempt To Be Reappointed.

Amid a sure NYS Senate Vote to confirm his appointee, New York Governor George Pataki has nominated upstate Appellate Division Presiding Judge Eugene F. Pigott Jr to take the place of George Bundy Smith the courts only sitting black judge. Smith has been a friend to the defense bar, but I wouldn't grieve his loss at the expense of Pigott just yet. Pigott is a former civil plaintiff's guy and a former President of the Erie County Legal Aid Society. He has a very conservative/libertarian justice sitting right next to him in Judge Robert Smith who could pull him toward the defense on libertarian and constitutional issues.

If Elliot Spitzer (who right now seems destined to become our next Governor...can anyone even name who his Republican opponent is?) nominates the usual suspects to replace Chief Judge Kaye and the others on the more liberal end of the court, we could see a lot of 5-2 and 4-3 decisions in favor of liberty.

And now, an extra article for those that hung on until the end:

E. Now Just Talking About Government Secrets Is A Crime.

This Washington Post article is chilling. There has never been a "Government's Secrets Act" in US history, however our friends at Justice got a court to recognize one, even though Congress never passed one. (Remind me again... Bush is the one that wanted non-activist courts right?? How hypocritical.)

Some judge in the US District Court in Virginia (otherwise known as the Bush Rubber Stamp Court) agreed with the administration that it was a crime to have government "secrets" (no definition offered) and talk about them with others even if there was no intent to commit espionage.

Now while that may make some sense at first blush, it seems that it would mean no more reporting such as that done on the NSA Domestic Spying Case and could one even testify about it before the Congress? What about if a piece of information came to a reporter inadvertently, that showed the government was torturing American citizens??

There is a reason no court has ever held this law to read this way, even though it has been on the books since before 1920. There is a reason Congress has never passed a Government's Secrets act. It is patently unconstitutional. It is a complete violation of the First Amendment (you remember..."Congress shall enact no law...Abridging the freedom of speech, or of the press...")

In this time of abject government fear of terror, they let the terrorists win. Americans don't want a leader who fears our opponents so much that he would put our freedoms asunder. We want a leader who will cherish our freedoms and protect our freedoms in the face of attack by others. We would die for our freedom. Not our standard of life, our way of life. I know I would be willing to die for those principals.

I wonder if America will ever be America again.

A Few Decisions of Import To The Criminal Trial Lawyer: A Big Week For The Prosecution

2006-08-07T11:33:00.000-04:00

Being on Vacation, I have had some extra time to read. I just ordered the e-edition of the New York Law Journal, not to be confused with its sister e-publication NYLJ.com. The edition I ordered is in fact the whole actual paper downloaded onto my computer. I read it using a "reader" called NewsStand reader. It seems you can get a lot of major newspapers and magazines this way. I am still playing with it, but so far-so good. A fast round up of interesting decisions is what now follows:

PROBABLE CAUSE FOR CAR STOP

As announced last week on our sister blawg That Lawyer Dude, one of my favorite judges has decided to resign from the bench. Judge Ken Gartner is resigning. I will miss appearing before the judge. It was always a good experience win lose or draw. He had a tremendous judicial demeanor, and was good natured on and off the bench. On behalf of myself and my staff at The Law Offices of Anthony J. Colleluori and Associates L.L.C. we wish him well. As a final goodbye, the judge leaves us with a case. In People v. Vonthaden Nassau County District Court Case No. 2494/04, the court was faced with a car stop based on an officer's decision that the car's window tint was too strong. Stating that the tint made it impossible to see into the car, he stopped the vehicle ostensibly to issue a summons. (In NY one cannot have a window tinted that blocks more than 30% of sunlight). On stopping the vehicle the officer observes that the driver has glassy eyes and a strong odor of Alcoholic beverage on his breath. He arrests the defendant and a Intoxilyzer 5000 finds a .19 BAC, more than 2x the legal limit of .08 BAC.

The defense attempted to suppress the findings and all statements noting that the officer had no special training in judging Window tint percentage and did not have a tint meter in his vehicle to aid him in determining the percentage of tinting. Relying on People v. Tompkins 6 Misc 3d 30 (App. Term 2d Dept. 2004)the defendant argued that since the police officer was not trained on detecting the proper amount of tinting on windows and did not have an appropriate tool to help him in such a determination, he would be unable to issue a ticket for the infraction.

The court did not agree. It cited the case of People v. Andeliz 3 Misc. 3d 384 (Sup. Ct. Kings County 2004) in which a court held that untrained police officers could still stop a car even if the officer could not ultimately sustain the charge.
Noting the difference in reviewing a case for proof beyond a reasonable doubt (as was the Tompkins court) and reviewing evidence for determining the legitimacy of a stop the court held that while the observation may not have been sufficient as proof beyond a reasonable doubt to prove a violation of the Vehicle and Traffic law was committed, a lesser standard is used for determining whether a stop is good. That standard is whether the tinting was sufficiently obvious enough, something a common sense observation could sustain. Noting that the officer said the window was so tinted he could not see through it, the court held that such a condition was sufficiently obvious enough that common sense could determine the appropriateness of the stop.

Practice Tip: Calling a Auto mechanic or even another observer, could have negated the police officer's testimony. While this was not a close case, all things being equal, the prosecution would not carry the day if the officer's testimony is properly challenged. The defendant has promised an appeal, I think the decision will probably stick though it seems that if you can't prove the violation, you are giving somewhat free reign to police to stop cars pretextually. Courts really need to be vigilant when faced with this type of testimony that the stop was in fact based on real evidence of a substantially obvious violation. Either way LI(C)TL says goodbye to Judge Gartner. Good Luck your Honor.

SORA REGISTRATION

In the Bronx Judge Megan Tallmer ruled that despite the fact that there were no allegations of sexual conduct, where children are placed in a situation where the could be sexually abused there is a constitutionally rational basis for requiring that the defendant be required to register as a sex offender.

In People v. Citron 7821/87 (Bronx Sup. Ct. 2006)the court heard a motion from five defendants whose cases seem to have little/nothing to do with a sex offense against the children who were unlawfully imprisoned or kidnapped in the cases. Noting that there are two other cases from lower courts on the issue which set different standards for applying the law, Judge Tallmer refused to get involved with setting a judicial standard for when to apply SORA to a defendant's case. Holding that treating kidnapping and unlawful imprisonment of a child a sex offense for the purpose of SORA is rationally related to the legitimate government objectives underling the reason for SORA.

The court's final "advice" to unhappy defendant's is to take it up with the state legislature or stop committing crimes that create a risk of sexual abuse. Some advice for the judge, stop trying to fit square pegs into round holes. If you want to expand SORA to include any crime against children, take it up with the Legislature. When appealed, I predict this case is going to be overturned, at least as to four of the five defendants.

DNA TESTING

In People v. Byrdsong 2001-05643 the Supreme Court Appellate Division Second Department held that a Defendant who pled guilty to Murder, are not entitled to test DNA that may show they are not the person who committed the crime. Writing for the majority, Judge Gloria Goldstein held that a defendant who pled guilty is not entitled to relief under Criminal Procedure Law section 440.30. She also suggested that the defendants address their complaints to the state legislature.

I am concerned that the court ignores two realities of criminal law: one is that people faced with possible death or life imprisonment will take the lesser of two evils and plead guilty to something they didn't do rather than chance a more terrible sentence. The second reality is that, Convicts have no lobby. The legislature could usually care less. It seems that the Court should care that, where there are issues, we get the right answer. Public policy demands we not keep the wrong people locked up for crimes they did not commit even if they swore that they did. It is a waste of taxpayers money. I truly wonder when I see decisions like this one, if anyone cares about that. No wonder the guy on the street doesn't understand the judicial system...Sometimes I don't either.

A Couple Of Sentencing Decisions Discussed over at That Lawyer Dude

2006-08-01T13:45:00.001-04:00

I have been blogging about the inherent unfairness in the Federal Sentencing Guidelines for most white collar crimes based on the national over-reaction at our sister blog That Lawyer Dude. Today's post deals with a very thoughtful and correct decision by SDNY Judge Rakoff. You can catch the discussion by me, here, or an even better treatment over at Second Circuit Sentencing Blog here.

A Couple Of Sentencing Decisions Discussed over at That Lawyer Dude

2006-08-01T13:45:00.000-04:00

I have been blogging about the inherent unfairness in the Federal Sentencing Guidelines for most white collar crimes based on the national over-reaction at our sister blog . Today's post deals with a very thoughtful and correct decision by SDNY Judge Rakoff. You can catch the discussion by me, here, or an even better treatment over at Second Circuit Sentencing Blog here.

Appellate Division Overturns Conviction for disseminating Indecent Materials To A Minor: Law Requires Images, Words Alone Are Insufficient

2006-07-29T19:15:00.000-04:00

A unanimous Second Department Appellate Division panel overturned the conviction of Manhattan attorney Jeffery Kozlow, who was convicted of sending lewd e-mails and instant messages via the internet to a reader he thought was a juvenile but was, of course, a police officer.

The panel held in People v. Kozlow (linked here) that the law (Penal Law Section 235.22) required the sending of "visual" sexual images of sexual conduct. Descriptions of sex are not enough to trigger the statute. The actual statute reads:

" ÃÂ§ 235.22 Disseminating indecent material to minors in the first degree.
A person is guilty of disseminating indecent material to minors in the
first degree when:
1. knowing the character and content of the communication which, in
whole or in part, depicts actual or simulated nudity, sexual conduct or
sado-masochistic abuse, and which is harmful to minors, he intentionally
uses any computer communication system allowing the input, output,
examination or transfer, of computer data or computer programs from one
computer to another, to initiate or engage in such communication with a
person who is a minor; and
2. by means of such communication he importunes, invites or induces a
minor to engage in sexual intercourse, oral sexual conduct or anal
sexual conduct, or sexual contact with him, or to engage in a sexual
performance, obscene sexual performance, or sexual conduct for his
benefit.
Disseminating indecent material to minors in the first degree is a
class D felony."

District attorney's around New York are "outraged", as are parents who do not properly control or supervise their children's internet use, along with everyone else who doesn't understand the importance of the First Amendment and the plain meaning of Congress shall inact no laws abridging the freedom of speech.

The rest of us (mostly defense and civil rights attorney's) are pleased to know that words alone are not enough.
I only wish the Appellate division had taken the time to write on the importance of the decision in light of the first amendment. Maybe explaining the ruling would have shut down a few District Attorney Public Relation hacks.

What Not To Say When Taking A Plea OR The Need To Prep Your Client For His Plea Allocution

2006-07-08T20:17:00.000-04:00

Jeffrey Blunt, 23 years old, was taking a package plea that was going to net him a total of 9 years in jail. While he was admitting to the crime, the court asked him the standard question of whether he had taken any narcotic that may negate his ability to understand the plea. He admitted he had...Marijuana...While he was incarcerated at the Monroe County Jail!! He had already plead guilty to one of the crimes. The judge gave Jeffrey 15 years on that charge and must have threatened to give him the whole 19 years he faced because the Manslaughter 2* case starts on Monday.

There is a lesson here aside from the fact that Jeffrey "found God" a little earlier than he should have... Plea allocutions are often overlooked by busy defense counsel. The results could be, as in this case, devastating. Plea deals get lost, days in court are wasted, and counsel looks like an ass. (So does the client of course but in a case like Blunt's we didn't expect much more.) Potentially the client could lose a plea bargain exposing him to a lot more time as in the case above. He could also blow his chance at getting a substantial assistance departure, or could, under the right circumstance, earn himself a perjury charge. He could talk his way into a confession on a new charge (in the Blunt case above, promoting prison contraband.)

Blowing a plea allocution is not something that is a rarity either. As a Legal Aid lawyer back in the 80's, (can it be that long ago???) I used to see it happen a few times a week. The reason? Not taking the time to review the questions that the client will be asked.

Under Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court set a standard for all plea allocutions. The NY Court of Appeals weighed in with its decision in People v. Harris, 61 NY2d 9 (1983). The standard requires that the defendant at the time of allocution make a "knowing, voluntary and intelligent waiver of their constitutional rights" (to a jury trial; to remain silent; to not have to present a defense but to put the prosecution to their burden; to a lawyer even if they cannot afford one.)

The Harris court stated that "a uniform mandatory catechism of pleading defendants is not required, and a sound discretion exercised on an individual basis is preferable to a ritualistic uniform procedure. A record that is silent will not overcome the presumption against waiver by a defendant of constitutionally guaranteed protections, but the record must show an intentional relinquishment or abandonment of a known right or privilege. A detailed articulation and waiver of the rights to a jury trial, the privilege against compulsory self incrimination and the right to confront accusers is not constitutionally mandated, although the Trial Judge must make sure that the accused has full understanding of what the plea connotes and of its consequences."

The record must be clear enough so that there is some evidence on the record which affirmatively discloses that the defendant understood the alternative to pleading guilty. (See Hanson v. Phillips, 442 F.3d 789 (2d Cir., 2006.)

Understanding that there is no hard and fast "script" that a judge must use, most ask at least the questions that a defense attorney in a civil deposition might ask a witness to satisfy the "knowing, voluntary and intelligent waiver part of the allocution. Hence, after asking about whether a defendant has been advised of their rights to: silence, to an attorney, and to a trial of their peers, the court will inquire if they understand they are entitled to those rights; if anyone has forced them to relinquish those rights; if any promises have been made to obtain the waiver (a smart defense counsel will pipe up, if the court doesn't, that there was an agreement to plead guilty to "X" crime for "Y" sentence wherein the court will ask "other than the plea agreement entered into, was there any other promises made by anyone to convince the defendant to take the plea); is the defendant acting voluntarily (that no one coerced him to take the plea); and it will often ask if he is in good health or has taken any drug or alcohol that would impair his ability to understand the proceedings.

Counsel for the defendant should review these concepts and ask the actual questions of the defendant even on the day of the plea. Make sure the defendant is ready to give the answers you want him to give. IF he fails to give those answers then you must determine why. You cannot advise him to lie to the court. You can however ask for a continuance, (which is what the attorney for Blunt above should have done had she known he had used cannibis that morning) or explain to the defendant his rights, what his answer will do to the proceeding, and if he still wants to plead guilty.
If necessary an Alford, (North Carolina v. Alford, 400 U.S. 25 [91 S.Ct. 160, 27 L.Ed.2d 162 or Serrano(state court) (People v. Serrano, 15 N.Y.2d 305 [196])plea should be entered into for the purpose of getting the deal done.

Taking the time to prep the defendant for the plea won't always result in a successful outcome. A defendant entering a plea who, either doesn't think he is guilty, or doesn't like the plea bargain, may still destroy the allocution, but at least you will know that you did what you could to save him from himself.

Judge Treats Repeat DWI Offenders "Like Human Beings" and Gets Great Results: Now There's A Concept!

2006-07-07T00:20:00.000-04:00

Memo to Nassau County District Attorney Kathleen Rice and Suffolk County District Attorney Tom Spota:

From our friends over at the CrimProf Blog, There is a judge who understands the concept of "Carrot and Stick" in Minnesota. The judge will take repeat offenders and spread their jail sentences out over years. He jails them for a month at a time in July and December. If they can prove to him that they have maintained employment, therapy, and sobriety, they miss that months jail until the next time when they have to do it all over again. Records show recidivism has been cut in half!!

Think about this. It encourages good behavior, it does away with the need for a probation violation hearing, it saves money on incarceration costs (because often the first time a repeat offender sees jail is on the felony conviction)and it reduces the need for costly trials which depend on a faulty machine working on voodoo science which often wind up with the prosecution losing.

Hmmm. Saves money, effectively reduces recidivism and isn't punitive. Come on guys. Do you have the guts to actually do something about the DWI problem? Or is it all a show for your MADD supporters?

Money quote Judge James Dehn said "It's about treating them (repeat drunk driving offenders) like human beings," Whoa, what a concept!

Some Interesting Things From The Week That Was

2006-06-20T03:07:00.000-04:00

Well, as expected, there was barely time to read the paper and the blogs much less write for you all. I had a great time at Colonial Inauguration while at The George Washington University. I have to admit Orientation has come a long way since I went to college (for example Freshman no longer have to wear beanies.) Any way GW put on quite the show. A lot of information, comradery, and entertainment. I especially enjoyed President Steven Joel Tractenburg's welcome to the class of 2010. I think my son will be very happy here.

As for the "News" this week, I guess the lead off story would have to be the SCOTUS decision in Hudson v. Michigan. Contrarian that I am, I will end this post with some thoughts on that. First a few words of advice to lawyers about a couple of Ethics cases.

I. Beech v. Lefcourt: Can an Attorney be forced to return a collected fee for failure to obtain a retainer agreement or send a letter confirming same?

First there was the civil court decision (found here)in Beech v. Lefcourt which, while not binding is a very sound decision and one that I hope will be followed. It deals with how we should handle the failure of an attorney to have a retainer letter in a case.

Mr. Beech retained the well-known and highly regarded Gerald Lefcourt to represent him in Nassau County on a Drug charge. The Fee paid was Fifteen Thousand Dollars. There was some question as to whether the fee was for representation or remaining available to consult on the case presumably with local counsel.

Beech sought return of the funds because Lefcourt did not give him a written retainer as is required by 22NYCRR Sec.1215.1c. The court held that while the defendant (in this case Mr. Lefcourt) could not sue to obtain his fee, he did not have to return any of the fee already collected. This case appears to be a case of first impression. There are a number of cases that have held that sans a retainer letter or agreement a lawyer cannot collect his fee or any unpaid portion thereof, there was no decision as to whether 1215.1c required forfeiture for sums already submitted. This is not to say that the plaintiff could not try to recover the sums as part of a quantum meruit recovery but 1215.1c will not act as an opportunity for a windfall for the plaintiff.

A fair moral for this story is...get a retainer letter signed by the client or at the very least send a letter of engagement so you're covered. That is not to say that sometimes things fall through the cracks. Which leads us to case two:

II. In the Matter of Aranda: Failure to tell client attorney has "blown" his Statute of Limitations causes 1 year suspension.

Lessen two for lawyers comes at the expense of a small firm practioner who was spread too thin. The attorney in Matter of Aranda (First Dept decision here)has made a career of taking on the hardest litigation, on behalf of a truly legally underserved community in Washington Heights in upper NYC.

Aranda evidentially had let too many things fall through the cracks and had neglected a client's case for false arrest letting the statute of limitations run. He also failed to tell the client that the statute had run. While handling this matter, Aranda was also securing the release of one of NY's innocent convicted, Olmedo Hildago (case synopsis here.)

At his hearing, Aranda took responsibility for some of the problems in the office but also complained of some problems with help and staff. The referee recommended a year suspension. The Grievance counsel wanted an 18 month suspension. A hearing was held before the grievance committee and the committee recommended a 5 month suspension as this was not a first offense. The court upheld the committee's dismissal of two counts of the complaint and then sentenced to 1 year's suspension anyway. What I found most disturbing is that they reached back almost 17 years to some really early discipline to make their case for the longer suspension. There was little proof that the Appellate Division First Department looked at the accused attorney's record or considered the substantial amount of support the individual had from jurists, clients, fellow lawyers or even a legislator. If I were on the committee that had ordered five months suspension I would be pretty ticked off too.

I think the better way to handle the discipline of attorneys would be to have the courts appoint the committee, have the committee hold the hearing and only disturb the hearing committee's decision if it were an abuse of discretion. It has got to be difficult for judges of the Appellate Division to remember the hard times of practicing law. They have usually been judges for so long it isn't easy to put oneself back in that venue (assuming they ever did practice law in a firm or private bar setting.) Moreover, even if they can remember and empathize, the economics and culture of the private law practice has changed so dramatically that they are out of touch with it. A practioner's panel is better suited to determine the punishment necessary to correct the behavior. I also think that the question of whether the lawyer carried malpractice insurance should be part of the equation. If the client can still be made whole then that should dampen any punishment.

I doubt the court would ever voluntarily give up the power to punish the behaviors of attorneys but the rule ought to be changed. Maybe there is a legislator who would put a bill in that may get the court's attention. Maybe it will be the Assemblyman who testified and who was ignored by the court's decision.

III. App. Div. Chiefs call for comment on new rules concerning Internet and personal injury advertising.

The Presiding Judges of the Four Appellate Divisions have promulgated a slew of new disciplinary rules to govern attorney advertising and solicitation. You can find the new rules here. Most of the rules mirror those proposed by the State Bar Task Force on Lawyer Advertising and Solicitation aka the Lieber committee.

The proposals are far reaching, and concern everything from the length of time attorneys must keep their advertising to coverage of attorney's from outside the state who solicit clients within the state. It forbids the use of certain trade names and advertising ploys such as paid testimonials and endorsements.

I have given these rules a tertiary review and find them objectionable in a number of ways.

1. I think the waiting period for soliciting a client in a tort is way to long. In 30 days (the amount of time the attorney must wait to solicit a tort client)the insurance company can inflict major harm to the client's case. Without quick contact by a lawyer, a client may sign a statement that is not phrased in his interest or may be inclined to sign a waiver of claim or even a settlement. Many tort clients are poor and uneducated. They are far more open to being coerced or unfairly pushed by unscrupulous insurance adjusters to settle a case before an attorney can get to them or they to an attorney. A five or seven day wait is far more reasonable and will stop the client from being overwhelmed in most cases.

2 a Three year waiting and holding period is again to long a period to have to hold on to your ads. Especially since our websites change daily with news feeds or newsletters. The rules seem unclear if I have to print out the links to my news feed or if I just need to print the feeds themselves. Nevertheless this will still force me to hold onto 800 pages of paper a year. What about a lawyer's blog? Do I have to copy and keep every page of it. Not only is that a waste but it is shows the court is not acquainted with the concept of cache copies.

3. The court wants us to hold onto the lists of all of those who are solicited along with a copy of the individual solicitation. This seems to be an attempt to control spamming clients. It is not on its own a bad idea. However what about if the list of those solicited includes people involved in a bad act or in other risqué business that they ultimately are never prosecuted for? How are we to be assured their "business dealings" or names will not be revealed to authorities?
What effect would an e-mail from a criminal lawyer do to them if the authorities found out they were being made aware of the lawyer's availability.

I may have more on this after I have had a chance to digest the document further.

IV. Hudson v. Michigan:Wither the Knock and Announce Rule?"

There is a lot of hand wringing and fear being bandied about on this decision which holds that exclusion of evidence is too harsh a remedy in a situation where the police have a warrant to search a place but fail to wait the right amount of time before forcibly breaking into a person's home. AP handles the decision
here.

Professor Orin Kerr has a number of posts here,here, and here. An even more thorough analysis is found at SCOTUSBLOG here The discussion in the comments also are very though provoking. BTW you can link to the actual decisions here.

I think this decision is a tempest in a teapot right now. Sure it can be seen as if it portends more chipping away at the exclusionary rule but for the reasons Prof. Kerr points out it is not out of whack with the courts recent rulings on suppression issues and it does preserve the right to suppression in other Fourth Amendment settings. I also think Scalia and Kennedy's decisions will go a far way in getting better instructions in 1983 actions.

That's all for now.

Civil Rights Issues Dominate This Weekend's News

2006-06-12T04:00:00.000-04:00

I noticed a number of articles in Friday and Saturday's paper that focused our attention on the concepts I work on in the other half of my practice, Civil Rights litigation.

Though I trained as a criminal lawyer, I saw a real link between criminal cases and civil liberties issues. I always felt that those civil cases should also be a part of the criminal lawyers case load. Hence I started to add them to our work about 16 years ago. Now Civil rights cases make up about 30 percent of the total work we do in our office and about 60 percent of our civil caseload. (The other 40 percent is made up of Family and Matrimonial cases that are founded in Domestic violence, Civil Rico claims, Construction claims and Qui tam (aka whistleblower) cases.)

This weekend's new saw a number of Civil Rights stories.

For example there is a new attempt to legitimize racial profiling. State Senator Serf Maltese and Assemblyman Dov Hikind both are supporting a bill (S. 8057/A.11536), that would allow police to stop and question, as well as search, people based on their religious and ethnic backround.

According to Newsday (link here) "The proposed legislation would authorize law enforcement officials to "consider race and ethnicity as one of many factors that could be used in identifying persons who can be initially stopped, questioned, frisked and/or searched."

I guess I should be shocked that Hikind would support this type of measure. He of all people (being an Orthodox Jew and representing the Boro Park area of Brooklyn which counts many Hasidic and Orthodox Jews from Eastern Europe among his constituents) should fear any legislation that makes it legal for the government to hassle citizens based on their ethnic or religious heritage. Is Kristallnacht forgotten so soon?

I can understand how the legislation makes sense to people at first blush. After all most terrorists today seem to be Muslim and we are actively engaged in a war in two predominately Muslim countries. Most Muslims however are not terrorists. Allowing the police to just go up to someone and stop, frisk, or search them (much less arrest them) gives those citizens far fewer rights than the rest of us have, without them having done anything besides being birthed.

Racial profiling also doesn't work and it tends to make police departments lazy. The last thing we need now in these hours of vigilance is for the police to become lazy. Racial profiling tends to keep police from looking at people who do not fit the profile. That can be dangerous. While it is unlikely that a Ninety year old Presbyterian woman will be a shoe bomber, there is some efficacy to making everyone a little nervous about the chance that they may be investigated randomly.

Would Hikind and Maltese support a bill that allowed greater intrusions into the life of Blacks or Hispanics? If our nation is willing to start to segregate people for their ethnic and religious upbringing, isn't that giving the enemy what they want? In a sense guys like Senator Maltese and Assemblyman Hikind are really traitors to the American way of life.

This is unsound legislation that is probably causing Benjamin Franklin to turn in his grave. He said it best. I keep repeating it. " A nation that sacrifices freedom for security, gets not the latter and deserves not the former."

Now for a politician who seems to understand Ole Ben just fine, we have New York City Mayor Michael Bloomberg giving the commencement speech at the University of Chicago. Now I am a bit of a fan of the mayor's even though I would disagree with him on a number of things his police department has been up to, However in this article the Mayor does us proud. Without singling out any specific person, Bloomberg sticks it to the far right neo-con wing of the Republican party. Here is the money quote:

""We all have to get together in this country and stop this right now and stand up to those who would demagogue." "There is nothing _ absolutely nothing _ wrong with criticizing our government, on any topic, and challenging it to live up to the democratic ideals. It is not unpatriotic. In fact, what could be more patriotic?"

Right On Mr. Mayor!!!

On the other hand, what good is protesting or criticizing the government if no one can hear you? In this article, a Queens man, Geoffrey Blank, is facing a felony for using a megaphone (a ten watter) to lead anti-war peace rallies in Mayor Bloomberg's own NYC (Union Square to be exact.) He is alleged to be starting a riot and using his amp without a proper permit. He claims he has asked over and over for the permit and is continually turned down. Police say it is because he doesn't follow procedures. You see, to use a megaphone in a park, you first have to get permission of the Parks Department THEN you ask the police. He has been arrested several times. His first case is coming to trial next week.

It's a big city with a lot of people in it. There do have to be rules so that when Mr. Blank is protesting the war, I can still listen to Coltrane on my ipod or walk my dog or play with my kids. I think however there is a way to coordinate political rallies without having to go through at least two different agencies to get the proper permit. This isn't the same as putting on a concert in a park or even organizing a run. In political speech, time is of the essence and there should be a streamlined way of getting the paperwork accomplished. Moreover, I am not sure how much noise a 10 watt megaphone makes, but I would have to be pretty sure it was really annoying before I would use a rule like that to put First Amendment rights asunder.

Now while I have been rattling on about these happenings I should also mention that there was another case where First Amendment issues and criminal law were implicated. That was in the conviction of Nick Minucci a kid in Howard Beach that beat up a black guy who was looking for a car to steal in that neighborhood.
Not only was Minucci convicted, he was found guilty of a racially motivated attack which carries with it enhanced penalties.

According to the press Minucci said "I'll teach you Ni--ers to rob white people" or words to that effect. I have a problem with race crimes based on words alone. I assume Minucci was guilty of assault because if he acted in self defense or defense of property, he would not be convicted. The question I have is would Minucci have acted differently had the potential crook been white or hispanic? Would he have just walked away? If there is not proof beyond a reasonable doubt that he would have acted differently, then isn't it true that we are enhancing his punishment because he holds opinions we as a citizenry frown on.

It is not unconstitutional to be racist or to say racist things. It is politically incorrect however. It seems to me that if the only reason this becomes a race crime is because of the N word said in the heat of an argument or fight, then that would be an example of the legislature making a law that restricts speech. It seems that enhancing penalties only because of something a person says, is in fact, unconstitutional. I really think these race motivated crime statutes need to be rethought by the legislature, and this one needs to get tossed out by our courts.

Head of Homicide Fred Klein & Nassau District Attorney Rice Part Ways

2006-06-12T00:12:00.000-04:00

This came as no suprise to me, having been watching the goings on over on the second floor at 262 Old Country Road, Mineola. I was just suprised it didn't happen sooner.
Nevertheless, as much as it may suprise some, I am not going to use this post to criticize Rice for the decision.

Rice is newly elected and she has a right to her own people. Klein served her predessor (and our county) well. He is a brilliant and hard working attorney. I have often disagreed with him on cases but I always considered him a friend. As such I will miss him. On the other hand I hope that Rice intends to fill the shoes she has caused to go vacant with another outstanding lawyer and not another administrative crony.

What made Fred Klein so effective as a leader and as the Head of Nassau County's Major Offense Bureau was that he tried cases. He could evaluate the matter and when plea bargaining the case with him, you knew he had a good handle on its viability at trial. Hence even when you thought you had a good case, you had to think twice about it if Fred wasn't willing to get rid of it with a fair plea bargain. Even after he took the job as Bureau chief, Fred kept trying cases. It was one of the things I admired about him. I don't know what Fred plans to do now that he is done at the District Attorney's office. I do know that he would make a great private lawyer, assuming he can make the switch from prosecutor to non public trial lawyer. If he decides to stay in public service it will be to the good of all of us.

The Newspaper said that Rice and Klein didn't see eye to eye. OK like I said she is entitled to her own people. As a taxpayer and citizen however, one who has paid for Fred Klein's training and has benefitted from his work, the newbie doesn't get a honeymoon. He or she better know what they are doing from the jump. This work is too important to learn on the job.

Live From Miami Beach: Pleabargaining Post Booker UPDATED

2006-06-04T12:47:00.000-04:00

I finally updated and corrected my final post from the 15th Annual National Federal Sentencinig Guidelines Seminar. This was the best of the 5 breakout sessions I attended. I strongly urge any and all Defense practioners to review some of the sections of the Guidelines especially those that have recently been added. I will be posting some final thoughts about Miami a little later today or this week.

Live from Miami IV: Plea Bargaining Post Booker

2006-06-02T13:11:00.001-04:00

Live from Miami IV: Plea Bargaining Post Booker

2006-06-02T13:11:00.000-04:00

I found this to be an excellent and well prepared panel probably the best of the conference to this point.

This panel features ABA CJS Committee chair on Sentencing and Incarceration Barry Boss
Hon Judge Downes (replacing Judge Lee of the ND VA.)
Jeff Sloman Chief of Criminal in SD Fl.
Les Zorn- US Dept of Probation

The panel begins with a review of the stats in the Courtroom: Beryl Howell USSC:
DoJ feared more trials govt would have less leverage to require snitches and less incentive to plea out early:

1 year later the stats show:
a. crim trials are up slightly to 5.5% from 4% of 70K+ cases this is statistically insignificant.
b. Gov't sponsered departs and substantial assistance motions is flat 14% same as before AND
c. early plea is still up at 68% well over 63 and 62 percent in 03 and 02 respectively.

Barry Boss Defense attorney:

Post Booker remains an uphill battle. There are 2 types of plea agreements: 1 where we agree on a sentence and 2 where we think it should be probation and they think it is life.
Often however you and pros agree but the guidelines stand in the way.

In the second situation we should be trying to get an opportunity to litigate our differences and so we may not want to sign the plea agreemt Post BOoker unless we can preserve our right to a Fatico hearing.

Barry spoke about waiving the right to appeal. He noted that Post Booker you may want to waive your appeal w/ the Prosecution. If you know your judge and if you are comfortable with the strength of your 3553a material you can waive appeal and a judge might be more willing to give you what you are looking for if he doesn't fear appeal.
Barry also warned that the Rights to victims act may have some very difficult results in sentencing.
18usc 1871 Rights to victims act which allows a mandamus by the victim against the court with in 72 hours of the sentence.

Zorn: PO needs to look to the plea agreement and digest but the PO cannot end there. POs must still must do an independant inquiry. Probation's main objective is to get information that we feel should go to the court. We prepare our reports for our judges not the Prosecutor or Defense lawyer or even the victim.

One element we deal with is 3553a factors do not appear in the plea agreement. Our job is to bring that information to the court as well. Def atty should Bring the issues to the PO Early on. We will make every effort to look into those issues.
Plea agreements are getting more detailed which include guideline calcs. We though have to check those and advise the application provisions to the court.

Sloman: DOJ Disagrees with what the stats show. AG Gonzolez says he is still supporting the topless guideline Proposal. There is also concern with the sexual abuse issues because of the rise in non guideline sentences.

(NOTE TO READERS: DoJ and Sennsenbrenner are saying that there is a 600% rise in non guideline sentences [variances] but the number went from 3 non guideline sentences to 24 which is again statistically valuesless given the thousands of sentences in the area. I will be posting about this and other Lies our Justice Dept. Tells Us next week at That Lawyer Dude.)

Judge Downs respectfully disagrees with AG Gonzolez on the sex crime issue. There is not a great disparity in sentences. Judge Downs is not a liberal judge especially on sex crime cases. (He gave a very powerful speech on guideline sentencing in sex crime cases earlier in the day in which he related his experience in a sex crime case he was involved in.)
There is a power struggle going on tween the DOJ and the A3 judges. Downes respects Gonzolezes job but it alarms judges that before we let dust settle on Booker
There is a need to get a "fix" before we know we need a fix.
A few Article III judges are doing goofy things, but the Ct of App will reach the right result and the Supremes will straighten out the conflicts.

SOme members ( of Congress) are pandering in certain types of crimes. Esp Sex Crimes. (Hmm Congressman Sennsenbrenner, could he be talking to you? I think he is.)
Relying on antedotal evidence to make policy is bad government.

Downes doesn't know of a signle mandatory mininimum sentencing study that says that a mandatory minimum not antithetical to sound sentencing policy. The experts are telling them that this (topless guidelines) will wreak real havoc and will undue the sentencing guidelines ultimately.
Judges don't have to accept FRCrP 11c1c agreements. But there is some sense in doing it if you look into the agreement and are assured everyone is doing their job.
Historical drug conspiracy cases are seeing alot of these C1c dispos.
Pleas that contained Stips as to relevent conduct and stips to a specific sentence guideline may be acceptable where the agreed sentence is within the guideline range or if outside the court is convinced the reasons for same is sound.
If I am going to reject then I must give notice and then deft can withdraw the plea. IF deft. doesn't withdraw, he has to be put on notice that he may not get the dispo he thought he'd get.
There will be more binding 11c1c agreements in the future. The court should not just reject them willy nilly but it should require the writer of the report to do the job of investigating both the guideline sentence and the 3553a basis for a variance where that is the agreed deal.

Moderator asks:
How do you insulate a stip from the court and PO?
Boss: On C1c pleas, both sides want to get stability and predicability. ON C1c pleas you must look at guideline 6B1.2, however while it applies to C1C pleas, it is antiquated and not adjusted for Booker. It is no longer accurate. So you can get the court to accept a departure or a C1c agreement now even if the departure would not be a justifiable departure in the guideline book. This is an especially good place to waive the right of both sides to an appeal.

Stipping factors of 3553a material into the factual portion of the plea agreement. Covering these factors in the agreement
with Regard to particular stips will maximize the chance it sticks.
Word the stip to say that the prosecution cannot prove the fact of an upward adjustment beyond a preponderance of the evidence. Unless the judge holds his own hearing you're good.

Sloman: Deft.s looking for a slant on a case can be dangerous. There may be a witness who can hurt your stip. However in a case say where a witness can't be cooberated, you can keep your stip without being intellectually dishonest by getting on the record that the case can't be proved beyond a preponderance (if the AUSA can't cooberate the wits fact then he can honestly say both that there is some proof of XYZ but that he as the prosecutor doesn't feel he can prove it Beyond a Preponderance of the evidence, hence the stip is not intellectually dishonest.)

Moderator: DoJ has a long standing fear of 5k1 adj being given without a govt motion. Have you seen situations where the judge has granted a downward departure where the govt hasnt sponsored it because the cooperation provided didn 't rise to the level of substantial assistance.

Boss: Booker will not affect the cooperation numbers because someone who wants to cooperate will go down the government's road. The 5k departure will only count with "imperfect cooperation"

Sloman: My concern is not with the guy who tried his best and goes as far as he can go but with the guy who is in a long term cooperation agrerement has done a lot of really good stuff and maybe has stuff he is working on but comes to sentencing and says let me tell you what he has done. With work out there to be done it is not a full picture of the defendant and he fears the health of his last few cases. He then tells an anticdote about a guy who turned and indicted 14 other guys. 13 plead guilty the other one went to trial and exposed the Snitch as a liar. Now that guy would have gotten the benefit of the 5k1 had Booker been the rule. (He failed to say if the other 13 got to take their pleas back...)
Of course where a guy is only facing 36 months and your in your 19th month with 2 trials to go then maybe you have no choice but to push it/ and the court should hear that under Booker but the AUSA has to also consider that in his decision to grant the 5k1 also.

(Note there are only 28 cases system wide where 3553a variances were given just on cooperation issues alone.)

Crime Victims Rights Act of 2004.
Grants victims a rt to be heard (ussg 6A1.5 reflects the act)
How is CVRA playing out in the courtroom and in plea barginging.
Barry Boss: you have to know the victim has significant rights you may want the AUSA have them sign off on the agreement not to participate in the process. This is especially true where the victim has an attorney (think in a corporate setting)
Sloman:
Crime vic is not always the prosecutor's best friend. A Botox posioning case (fake botox) victim thinks the death penalty was too good for the deft. but the AusA did come to an agreement. The victim came in and railed against the pros and the deft! Fortunately the judge ignored them.
Prosecutors must remember that they can face disiplinary charges for willful and wanton disregard for the victims rights.

Zorn spoke to the PO as a victims voice in the probation report, We see there is another level of reporting. Probation thinks it adds to the information the court has and likes the new law.

Boss: Under the circumstances where you think the victim is going to not go with the plea, you should seek out a C1c plea. C1c is not only good as to the actual sentencing but to the sentencing factors. Maybe the thing to do if you can't agree on the actual sentence is to get the facts in a stip to protect from the victim.

As I said earlier this was one of the best of the breakouts I saw. I think there were some real learning experiences here especially in trying to sell C1c pleas and using them to insulate the sentence from the Probation report and from the new rights Congress has given to crime victims.

Corrected material is now up

2006-06-02T10:43:00.000-04:00

FOr those of you who are having trouble following my notes I have gone back and looked at the notes from Session one (the best one of yesterday)and it may make more sense to you. I will have Session 2 up by lunch and maybe the relevant Conduct session (session III)So feel free to look again and ask questions if you have any. I have a whole new respect for people who do this live blogging thing well.
See you later. I will be blogging about Plea barginning Under the Guidelines. Today at 2pm

Live from Miami III: Its Relevant Conduct

2006-06-01T15:23:00.000-04:00

Kealin Culbreath Esq and Rusty Burress. Both of the USSC. It is said that Rusty Burress is the only man in America who understands relevant conduct. I took his class yesterday and he starts out great... then he remains great but he starts speaking in greek...Maybe it's cause he is from South Carolina :)

Here we Go. Culbreath leads off:

Post Booker does relevant conduct still play a part? Yes Justice Breyer said so in the second part of Booker. Well how do you find relevant conduct under Booker?

Well in the first part of Booker, when guidelines are mandatory the Deft. either admits or the jury will make the determination. Under advisory guidelines the judge still makes the call and he makes it still by the preponderance of the evidence.
That applies to the issues of Uncharged conduct, Dismissed conduct and Acquitted conduct as per US v. Watts 519 US 1144(1997)

In the Second Circuit the US v. Shiek 433 F3d 905 case holds that judicial fact finding is still the norm. Second circuit upholds the use of Acquitted conduct in People v. Vaughn 430 F3d 518.

Who has the burden of persuasion?
Burden of persuasion falls on the party seeking the adjustment
Rules of Evid doesn't apply the Evidence must have a sufficient indicia of reliability.

Relevant Conduct USSG 1B1.3(a)

(a)(1)& (a)(2): Analysis to establish Relevant acts

The analysis starts with looking at two elements Who and WHen.

WHO?
Are we holding the Deft. responsible for her own action? Then its (a)(1)(A)

Now When? Offense of Conviction
In prep of the crime, During the crime or to Avoid Detection.

Now we want to come up with the total loss of a crime
take a bank Robb. The day before she steals a getaway car. what is the total law, we get the robbery (say 10k) and then the car value 5k =15 k loss

Now lets say the who is to hold the deft

query 1 what did the deft agree to do. Scope of Liability in our ex she agreed to rob a bank
query2 IF the acts were in furtherance of what the deft agreed to do
query3 IF the act were in the furtherance of what she agreed to do AND it was forseeable to the Deft inconnectionwiththe defts undertaking.

The When is the same as above

Scope of Criminal Activity is not necessarily the same as the scoe of the entire conspiracy

Try one:
3yr conspiracy where med clinic billed insurance companies for procedures never performed; Fraud billings of 500k per yr of a tot of 1.5 mill
During the course of the conspiracy the clinic had three doces each there for a single yr. one doc starting when the previous one left.
Doc 2 was at clinic for the second yr.
What is scope of DR.2 undertaking? 500K the one year.

Reasonably Foreseeablity 1)is only applied to the work of others. Not to the actual actor
RF is only one part of the 3 part anal. if you dont also have Scope or furtherance it don't matter.

Another example:

THree yr drug conspiracy distributing one K of Coke a week
Deft B was one of 10 individuals working togethr
Some of the participants carried firearms but B didn't ever.
do the Analysis'
Scope- drug seller
Acts in the furtherance of the conspiracy? yes
Reasonably forseeable? yes
Then will the firearm specific offense characteristic at 2D1.1 be applied? Yes

Once more with gusto:
Three year Drug Conspiracy to distibute 1kilo of Coke a week
Deft C was one of 10 people working together to distribute
Deft C was only in Conspiracy for the first year
None of the participants carried firearms in the first year but they did talk about the need to have guns
after 1st year they carrt
were the firearms reasonably foreseeable to C_Trick question you don't get there because the guns weren't during his scope.

"Expanded R.C." (not the phrase but a usage thing)
ie 1B1.3(a)(2)applies for Offenses included at 3D1.2(d)
WHat is included: Drug Trafficking, Fraud, Theft, Embezzlement, Money Laundering, Firearms a2 applies.

Whats excluded: Robbery, Assault, Murder, Kidnapping. a2 does not apply to these
will the firearm SOC at 2D1.1 be applied

OK in order to be psart of this expanded relevant conduct,you need two things
is Rule (d)grouping would it apply
and Same course of conduct or a commonscheme or plan
Well how do we know if it applies to rule (d)
3d1.3(b),App. note3
IF the counts use the same or similar guidelines

and if that guideline is included at 3D1.2(d)
use the aggregate quantity and combinde offense behavior, apply the guidelines asif for a single count

Ex
convict theft a nd I have more acts of theft
ok you have expanded rel conduct acc to 1b1.3(a)(2) you got grouping.

Now you have conviction for fraud with addition acts of theft: still good because the two use 3D1.2(d)
Now you have cconviction for fraud with additional act of burg.: no good. You can't use it it won't group under Rule (d)even if it was under course of conduct and foreseeable

Now Drug trafficking with acts of Drug sales - Ok you got expaned rel conduct
but now try this
Conviction is drug Trafficking with additional acts of passing counterfeit currency?Drugs are at 2B1.1
2b5.1 is for counterfeit money and both are in 3D1.2(d) you can't group under rule (d) so no expansion'

Convict is for Robbery with additional acts or theft. Robb is excluded from Rule (d)

Conviction for Bribery of Public Official 2c1.1 w/ additional acts of commercial bribery now you get 3d1.2 both are there So it may or maynot make it because they are different guidelines but they measure the same thing so they may group.

Conviction Tax Evasion with acts of Fraud. It seems to work but it doesn't really get together because you are measuring money but you are measuring different types of loss. One measures tax loss the other is a loss for a different type of loss. Second circuit doesn't see the difference and groups them.

Ok Now IF you can group under rule (d)do you have a common scheme or plan or the same course of conduct?
If you are looking at common scheme the offense must be conneted to each other by at least 1 common factor common victim accomplice or purpose or modus operandi

IF you are looking at same course of Conduct do you have similarity AND regularity (repetition)AND Temporal proximity.

Lets try it together
YOu have an offense of conviction: theft form interstate of shipment of sporting good store 17k val
additional theft next two weeks and previous two weeks

value 6k of lawn equiptmenet from a transfer truck off a train.
value of 12k on appliances from a rail cr at rail line
balue of 5k from another transfer at rail car
value of 12 k from rail car aon rail line
then thertof appliances from store loading dock after coming off the transfer truck.

Well the thefts all seem to meet and then it seems to be similar and regular and in temporal proximity now though the thefts aren't exactly similar you have strong regularity and temporal proximity so they very likely all group. And come in under the expanded rel.cond.

Now try this:
offense of convict: Sale of 1kilo of Marijuana to street level distributors
additional drugsales on the preceeding 12 weeks and on 8 afterward as follows
16 sales 1k apiece of maryjane. this will be included. It groups and is similar regular and temporal
four sales of 200grams of hash to street level distributors: this groups and is a little less similar but pretty close and is regular and temporal
additional sales of 1000 capsules of amphetomines sold individually to fellow college students ovr two semesters four years earlier: Probably not gonna be used for relevent conduct because its not temporal or even similar.

WHat about Relevant Conduct and Criminal conduct

You have a conviction for bank robbery and a state sentence for assault on a seller.
Well is it a Prior Sentence
Well 4A1.2(a)(1)& App. Note 1 says "a Prior Sentence is one previously imposed for conduct not part of Relevent conduct. So to determine you run thru the analysis of relevent conduct and you see that it was relevent. It was the defendants act and the assault was during the crime of bank robbery. The assault is used as relevent conduct.

but

You have a felon in possession and a state sentence for DUI but the stop of which gave probable cause for discovery the firearm that is the basis of the fed conviction.

During must be more than contemporaneous it should also be in furtherance of the offense of conviction(See amendment 3 or 439) the DUI is not part of the before after or during the crime so its not relevant but it is a prior conviction.? yes it is. So if the court is going to use it it is in the criminal history.

Live From Miami: Part II. The Breakout Sessions: USSG Departures & Variances under 18 USC 3553(a)

2006-06-01T13:22:00.000-04:00

The Afternoon Sessions of the National Seminar on the Fed Sentencing Guidelines has breakout sessions. There are about 7 choices but you can only go to two (unless you have a clone.) This one is on Departures under the guidelines and Variancese relying on 3553a factors. I am hoping they focus on how to work the departures down using what appears to be the courts reluctance to move away from the guidlines. I think our best chance for sentencing fairness is to convince the court that the variance you want is in the guidelines, get adjusted guideline assessments (Corrected guideline assessments is a better term) then push for the 3553a adjustment if you still need it. If you are only looking for a slight adjustment you are not going to need a whole lot of reason for it. Hence you may get it and not get an appeal of it either.

Our panel is about to begin.

Intoductions
Dave Axelrod from Forensic Dispute Services Columbus OH
Hon Paul Borman ED MICH
Ron Tenpas DOJ
Larry Nathan Nathans & Biddle Baltimore Md.
Hon John Steer Vice Chair USSC

First issue: Are the guidelines really advisory?
Judge Borman: A lot of judges are afraid to vary from USSG. You calculate the Guidelines but if they don't do enough, you can use 3553a
Even in Presumption of Reasonableness Circuits you can still get to where you want to go. You must remember the district court must sentence not more than is necessary to fufill the meaning of the guidelines. In the end you will see mostly guideline sentencing. If it is within the guidelines, it will more than likely be reasonable too.
The Sentence must be the judges sentence and not from somewhere else.

Larry Nathans: When Booker came out, there was confusion but now the courts look at the guidelines and then the departures, then the 3553a factors.

Deputy AG Tenpas: The district court can more readily use the departure notes to get the 3553a factor in a little more easily without going to a variances

John Steer: Is there a blurring of the line between departure and variances?
Data suggests there is substitutability, Booker did not cause a reduction in downward departures but post Booker Judges are using 3553a as a reason in their departures. (In other words judges are getting more liberal in granting departures on things that might not have been a departure in the past. Look at the notes!!)

Nathans: My Judges are being real careful they want to hold loss and fatico hearings and they are anaylzing departures as departures. There are all kinds of 5h factors 3563a includes the 5h factors.
This is the ground for a departure if you can't find a departure then you want to go for the 3553a sentence
Axelrod: I always argued 3553a even before Booker but I think there is a better chance now that Booker is law. And you have a better chance in Ct of App.

Borman": You gotta look at the guidelines first. To the extent that lawyers use the guidelines to get to where they want to go, then the judge doens't have to go to outside the guideline for a variance. The Dist. Court's job is not to give a reasonable sentence but to give a sentence that is not more than is necessary to fufill the guidline's goals of sentencing. Reasonableness is decided by the appellate courts. (We have to train our judges that the new rules require him to focus on the client and let the Appellate guys worry about disparity.)

Probation is lagging behind in giving the courts reasons why it might want to grant a variance.

Moderator Prof Sara Sun Beale Duke Univ. asked:
What should the Probation Officer do as to 3553a factors.
Ron Tenpas: Many of the things pointed to for variance are facts in the body of the report. There ought to be some care given to reported facts that would support variances. There are three options one is avoid the 3553a material all together. One is to restate the parties views and then a third option where the probation officer gives potential reasons for departure. It would upset the the DOJ if PO's started coming up with ideas as to why the court should go outside of the guidelines. (Funny when they talk about a certain crime requireing more than guideline time, they don't complain.)

Borman: In my reports there is a form box for the court to consider Factors that may warrant a variance.

Nathans: Probation officers are always making factual determinations that concern the prosecution but should also put in the defense concern.

Tenpas: I disagree that PO is making a factual determination. It is the court that makes these decisions. It is appropriate for the po to put factors a party brings to its attention but wrong for probation to find this stuff themselves.
Booker was particular about the remedy and it took out specific rules. It didn't change the rules as to presentence report. The report was to let both sides know in advance what is coming and what they had to address at the sentence.

John Steer: PO is trained to know what is in the USSG and what was in the pre-booker cases too. They can also be trained to note a few of the things that might get pointed to a variance, but to go too far further (like suggesting a reason for the variance.)

Axelrod: POs make this type of fact decision in determing loss or for almost any number of things. I think it is reasonable to say to them you can make factual determinatins. Nothing prevents a po from reading 3553a and using it. Where they think they're present, that the factors be included for the judge to use.

Beale: An Amendment to rule 32 will be to order the po's to make certain findings or at least protect the court by letting the court tell probation what they want to know.

Borman: Thats not new. most judges either ask for more information or to make some finding of facts. Parties have to do their jobs. Probations job is to take information, the work of the court is to bring the information to the court but the parties need to do the work and get the information to probation and the court.

US v. Walker carves out a place for judges to give an advance notice of when the court will depart. It should happen all the time but notice is rarely given.

5k departure for substantial assistance. Is the court now allowed to decide on a defense motion for substantial assistance?

DOJ is really concerned about this type of departure.

The war or fight we will encounter will be about what PO should and should not put into the report. Should PO include the 3553a material? If yes, should it be proactive or should they depend on and or report what the attys send them. Borman is of opinoin it is not necessarily job of PO to find the informatin by itself and that if the advocate doesn't do his job too bad.

The audience made up of mostly PO's liked that position.

The main message I walked away with was how important it is that we dig out the issues and look for the 3553a and departure material. You have to study the departure notes and the cases.

Next up?

Live From Miami: It's The Annual Federal Sentencing Guidelines Seminar

2006-06-01T10:45:00.000-04:00

I am here in Miami Beach trying something entirely different for me. I am trying to live blog the conference. It is a huge conference with judges, prosecutors, probation officers, defense attorneys and even a couple of defendants in attendance. I am going to apologize in advance. There are going be misspellings galore and really bad grammer and I will fix it all tonight. I just want you to get this stuff ASAP.

Click on the title above and you will be brought to Doug Berman's phenomonal Sentencing Law & Policy Blog. Doug is on the next plenary panel. There are breakout sessions in the afternoon. You will have to go to the sessions I attend. I have never met Doug Berman before. He has indicated that he will be easy to find. He says he is a young Paul Newman look-a-like tall and handsome. I am looking forward to our introduction.

I also do not go to every part of the program. Some of it is just not fun, and sometimes I have stuff from the office to attend to. Besides its Miami Beach for God's sake!! With that said here goes.

My first panel dealt with the History of the US Sentencing Commissiion. All of the chairs in attendance spoke about their trials and tribulations. The best part of this was Judge Diane Murphy's observations about trying to fight off Congress. They thought they could do the job of the guidelines and the Commission better than the USSC. Then they gave us the Protect Act...

More on these guys later Now the panel on a Review of Post Booker Data and Case Law:

Moderator introduces panel and asks : Given the data, I ask what is your view of what the data is saying about sentencing?
{NOTE: I will be paraphrasing most of these so please don't take them as quotes:}

Doug Berman: I now have more respect for the work the USSC does on data collection. They do a terrific job. My view is that the data confirms what the case law says we have a culture of guidelines compliance and it is a cultural story more so than a legal story.
We could have had a moment after Booker where the guidelines could have faded from the preeminence they had for last 20 years. Most of the bench and bar has not practiced without them and that culture has meant that we havent seen that fading away. The patterns are the same.
Sentence length has actually crept up a bit.
We see extrodinary stability throughout the system.

Statistic that is most suprising? The huge variation on govt't initiated departures and this is the place of the greatest disparity. Booker will likely lessen disparity because judges in a place where prosecutors do not ask too often for much of a departure, will lossen up and in the opposite case the judges will not feel the need to depart as often.

I am most disappointed that we do not hear from USSG or the US Congress on the other actors in the system and what they are doing. It is focused on the courts

US Atty John Richter W.D OKlahoma : He thanks the commission. From the DOJ Position and in speaking to Prob officers: The impact is not suprising. The guidelines are being followed but less than before which was predicted in an advisory system, they are less complied with.
The degrees of disparity is cropping up, there is a (Guideline)culture but that will erode and definitely not last.
we Don't only see disparity in classes of deft. but across circuits. Ending disparity was high in the minds of congress and now the sentencing which was less disparite is creeping apart.

The Data doesn't tell the whole story of the cases. It doesn't have the plea bargin info and how it (Booker) has changed the outcomes and the certainty of sentencing thereby slowing and questioning the process. It does show what can happen...
For example
EDNY (Basically Long Island) has the lowest overall compliance rate of 37% whereas in OK is 70%. Disparity is an underlying given. And our ability to keep it in check is limited. i.e. we (DOJ) can't appeal every case so we can't keep it from getting out of compliance. That is a problem b/c it will lead to a break with the Congressional goal of getting tough, consistant, fair, sentences. Those Goals remain the major concerens of DOJ.

Ms. Rich (acting dir of leg affairs: for the commission) The data shows from USSC prespective we are taking the information to Congress. After Booker We saw an importance to get the information in more "real Time" the data goes out every 4-6 weeks. Congress is very interested in this. The Commisioners are working to make sure the data gets out there and is used well. The data has something for everyone. The Patriot act (recently reinacted) now demands all one statement of issues form be used nationally. It will make a uniform way to obtain the data. The nearly real time data collection has slowed down the debate. Rather than just running into "fix Bookers Fix" we were able to convince Congress to and let us look at what is happening rather than give in to a knee jerk reaction

"Looking at the case law issues":

Michael Drebman from Solicitor Gen. Office.:
One year down, the App Cts are building jurisprudence under Booker but they are disagreeing and it is creating confusion for Cts and POs. He notes that the apparent disparity in Ct of App law. He also states that disparity hasn't trickled down to the District courts. He too fears that will change.
For example:
Does a guidlines sententence attract a presumption of reasonableness? 6 Circuits say yes and 4 say no (but all have found the inrange sentences resonable anyway so maybe it's semantic. The four say the appellants have the heavy burden no matter what the appeal seeks.)Only the 8th has overturned a very strange fact pattern where two women in exactly the same case and in exactly the same position got widely varied sentences (I think from the same judge).

In the 8th and 2nd Circuits He notes they hold that the further the sentence under 3553a deviates from the guidelines the the more explaination the court give for the varience. He feels this will lead to keeping things in control.

ALso circuits are starting to decide what is and is not a proper 3553a factor., Courts are not making illegal departures for crack v. powder cocaine even though many are unhappy with the disparity. They will not let there be a different ratio from guidelines to 3553a at least in 4th and 1st. In other words finding the guidelines draconian would not let a court in those circuits vary out of the guidelines. That argument would not be a valid 3553a factor.

I wonder what will happen in 2 and DC'

Substantial assistance wo govt motion is going against the DOJ. The Courts are deciding there was substantial assistance as a 3553a factor as opposed to giving all the power to DOJ under the guidelines. DoJ says no substantial assistance, you can make your case to the district Court in the 2nd & 8th Circuits. Deputy Solicitor General Drebben does't like the argument that Federal sentences are harsher than the a simarly situated defendant might get in state court. You may not make that pitch in the 4th or 8th Circuit which has rejected the point undere 3553a. The point of the guideline system is to not have a disparity across the system. The USSG should yield no co-deft. disparity. Amendment 468 however says codeft. disparity is not what ussg addresses it is national disparity.

Finally don't make the arguement that your client would get out faster if he lived in a district with a fast track program thereby creating a disparity. The 7th cir. says the Disparity is not to compare to special programs like fast track. The goal of that program has a public policy that overrides disparity. Deft. disparity caused by special programs was not the type of disparity the USSG was supposed to address

Judge LEVI ED CAlifornia. What weight should courts assign to USSG when doing a 3553a analysis? Data shows we are all giving great wt. to guidelines.
Judges look to parties to tell us why USSG is not the appropriate place to start and end. Courts must ask the parties to tell him why not start and end there. Levi likes the system the way it is now but he notes some troubling cases.
In 9th cir US v Zavala 443 f3 1164 the court acknowledged that when one says the guidelines are a starting point it gives the impression that the court has an open mind. But a presumption of reasonablness means that the court has assigned a value to the USSG and is of a closed mind unless it is pried open. The 9th wants district court judges to exercise an open mind when sentencing.

Hence Judge Levi thinks that there is a misguided view that courts do not have to even consider USSG don't have 3553a issues considered. He worries leaves the Dist. Ct. judge out there on his own. He cannot assume the USSG sentence is a proper one. It is simply a starting point. As a Dist Ct. Judge, I am not entitled to give the same wt that the ct of Appeals can give it (reasonableness) . SO he says ct cannot rely on parties to come forward w/;infor on variances and the USSG is not more important than any other factor under 3553a, that leaves a lot of people working on their own as in pre guideline time.

In another 9th cir, decision the court held the Dist. Ct. must address the 3553a factors even if noone argues for a variance at sentence.
In US v. Terrel 445 F3d 1261 the Court said there can be a high degree of trust to the guideline and the party seeking to go out of the USSG must hurrdle a rebuttable presumption of the reasonableness of the USSG. THis seems to run counter to Zavala.

The Judge went on to state that Academics are saying that to give heavy weight to USSG is against Booker. Even in the Model penal code Revision they say that if a state has a mandatory usage then it must require jury finding on the guideline or a wide open guideline. The problem is most individual factors are not unique. Most Dist. Ct. judges did not want to deviate on crack guideline b/c then you have a guideline for each courtroom. That gives no sense security when entering a plea bargin.

Other individual factors are not unique enough to render a 3553a variance are elderly parents, and kids with learning disabilities. If the judge says he is going to vary in those cases, how does he keep track for when to vary the next time. Health issues work issues etc are all important but how unique are they to make variances disparent?

Variance concept should be a saftey valve but not the norm. THat will take us back to pre guidlines. WE don't want to go there. Levi claims that the factors in 3553a are already considered in the USSG (That is really not the case. They may have tried but there are too many things not available that are coming in under 3553a.)

Jim FELDMAN a private atty and a host of the entire seminar is asked "What is to come?: Jim points out that 95% cases are still in USSG compliance. It doesn't matter to Congressman facing election. Congressman Sennsenbrenner is playing to the DOJ He is introducing a bill to "restore sentencing fairness" ??? In fact it is called "Sentencing Fairness and Equity Restoration Act of 2006."

All it really is, is just a topless guidelines. They are trying to get around Blakley and Booker on the top end of the range. If there is no top you can't raise em' in such a way as to implicate the 6th amendment.
Sensennbrenner is hanging his hat on a SCOTUS Decison that went 4-4-1. Not a very stable precident especially since 2 of the four votes are gone.

US v. Harris asked "Can you lower the floor (mand. Min.) based on judicial finding. 4 said sure judges can find facts. The other 4 (the majority in Booker. said no in Harris.) The other judge, Breyer, was not ready to accept Apprendi rule. He said that he can not see the difference tween raising the top and raising the floor (ie going low.)But since he didn't accept Apprendi he voted with the majority. Now he may marginally recognize the Apprendi rule. IF the USC passes the statute that Sennsenbrenner wants constitutionality will be in real question.

From floor, the speaker stated: I am disturbed to hear that that speakers are saying that the USSG takes in all the 3553a factors. The guidelines don't incorp all the factors of an accused's history and character of the deft. The only one looked at in guidelines is criminal history. It is inaccurrate to say otherwise. THe USSG i are not presumptively reasonable. It is not true.

Levi responds: While the guidelines do take into consideration some 3553a material the guidelines do take some of 3553a off the table and there is a significant danger that as we look at that there will be disparity because some judges will make findings under 3553a and others will not.
If we consider cross cases it may lead to disparity On the other hand it is unfair to judge the guidelines by this only. Mental health can come in.
Aberent conduct, is considerable, mental health is not encouraged under 5h but there is availability for it.
There is a big diference in Cir, to allow departure. IF things are not unique to each deft. then we are asking for trouble if we use his circumstance to avoid the jailhouse, We will have disparity . Lawyers will be saying this is what you did last week now why not this week.

Next question :this is not about disparity isn't it about the power and who has it?
Berman says that in a perfect system it makes sense that the parties can easier settle a matter if their is certainty.
If we are going to have topless guidelines we need to also spend more money on prob officers and defense atty's. The real question is the founders had a vision of how power should be distibutive and the question is "Are we following that vision."

USA Richter says that what is really fundemental is what the view is of the sentencing reform act. From a policy standpoint anti ussg forces find they are in the minority in the debate. The guidlines embody just what congress intended.
Sentencing isn't about power between the branches it is about public policy. we are at a 30 year low in crime. At base its about a fair and just outcome but it is also about assuring the system of others not in the system of their safety.

Next question How much weight to give to guidelines? 3553a doesn't suggest guidelines and their comments are not entitled to more wt than other 5 factors.
This got a little hot but Levi answers that the sentencing commision was supposed to take in all the factors in 3553a as for systemic issues like protecting society it is a need to have a national policy it is not and cannot be left with an individual judge.
it is important to see where judges are variring and provide guidance by stating where and how they are varing and why. So that they have a way to determine if thier policies make a difference.

That ends the session. I am going down to lunch to mingle. Just one obstervation...:

It IS UNCANNY HOW MUCH PROF. BERMAN LOOKS LIKE A YOUNG PAUL NEWMAN!!! Or is that Alfred E. Neuman? I get them confused
LUNCH!!

I am going off to introduce myself to Doug Berman I will work to clean this up shortly.
Hope it helps you
Tony

Afternoon.

How the World Wide Web is Helping Me Get The Practice I Want.

2006-06-01T01:35:00.000-04:00

I am a big proponent of Web based media marketing. It has changed my practice and life for the better. There is a lot to know about it, and I will be the first to admit I am not an expert. I do know what is working for me. Additionally, what is the rule in other industries, is not always the rule in our Legal Profession, whether because of market conditions, history, or ethics rules.

I was on the net early in it's infancy. However like most net promises in the early stages, you tried things and learned mostly by failure. Still critical mass seems to have finally caught up with the net and I am riding a very happy wave.

Prelude: Why the net.

I want to keep this part short so I can hit the important stuff but my reasons for going to the internet were key to the decisions I made. I was tired of doing a good job and no one knowing about me. I often would come into cases at the end to clean up the mess some better paid publicity hound lawyer had made. If I had a dollar for everytime a client said "why didn't I meet you before I spent all that money on Mr. XYZ" I would endow a research fund for the Scleroderma Foundation. I couldn't find a way to get my story before the consumer. Yellow page and Newspaper display ads didn't give me the opportunity to teach what I was doing for clients. 30-60 second Radio or TV spots were not enough time for a prospective client to get to know me or my way of doing things, and sending out letters or pamphlets to people with legal problems just seemed...unseemly. The Internet provides enough depth that a prospective client can get a lot of information or a little but enough to get to know me. Hence, I really went for the best website I could afford (well hoped to afford, streaching a bit is important in the beginning just don't streach too far.) and added to it as money started to come in. It didn't take long.

I. Who Does What.

The large Legal Directory/web hosting companies (FindLaw* [FL] and Lawyers.com [LC]) are different than smaller more locale/specialty focused companies. They do different things. As such they should both be part of a well thought out marketing plan.

Many local law directories are trying to do a couple of things. They are trying to build websites, advertising and client base building as well as running a legal matching service (kinda/sorta.) (A legal profession “Match.com” if you will.) They are also trying to be affordable. They do each thing to differing degrees of success.

As best as I can tell, many small web design companies build nice looking websites, but I have heard a lot of negatives about their searchability. I also find that their content is poor because they either do not understand what lawyers do or what a lawyer's prospective client wants or worse, they have the lawyer provide the content. If you can't afford a better built site from a place like FL. (I mean a custom site not a canned site) then anything decent is good. It won't however, solve your problem of getting hits and clients. It will help if you have a large client base and want to give them a place to go and to send others to find out about you.

Some small directories try to compensate for their lack of searchability (though they do not acknowledge this) by advertising their directory and by sending clients that contact them to lawyers in their areas. The hands on phone answering service approach (think 1-800 DENTIST) acts like a reference for you. The client gets someone to look for a few good matches for them, and you share in the backslap that comes when someone says “this guy could be a good match for you.” I call it the Yente legal marketing technique.

II. Who appeals to whom.

Finally small directories and local web designers are also trying to build a client base. The web has billions of Websites. I have no idea where most of these local and specialized directories rank but it is far lagging Lawyers.com and that is lagging thousands behind Findlaw. (Findlaw ranks in the top 400 websites by hits and page views) However these are national companies, and their focus is on BIG PI (think asbestos and Vioxx litigation), Commercial, and high end divorce work. The directories play to these consumers. As more and more people use their sites, however, other more pedestrian legal needs (like Criminal and Family law) are finding a good home advertising in their legal directories. Findlaw does this in my opinion best because it is more than just a directory, but it is a really good source of Legal background material. I am already really benefiting from my affiliations there. In fact many, if not most FL consumers come to the sight in search of knowledge not an attorney’s name. I always enjoy interviewing with a FL referred client because they are generally more knowledgeable and sophisticated when it comes to purchasing legal talent. These companies also play up their customers and their own websites by strategic internet placement

Smaller companies, are taking their websites right to the “consumer user” of legal talent. That is to say DWI, state criminal defendants, Family court users, middle class divorce cases, bankruptcy consumers. They accomplish that by leafleting the courthouse parking garage, bus stop posters, yellow page and newspaper ads. They do it so you do not have to. That said, you do have to be advertising with them at least.

Needless to say these are generalities, and there is a large amount of crossovers but this is what I have found in my experience.

III. My experience

Now each company’s philosophy and marketing plan has its own up and downsides. More sophisticated shoppers will not really come from a local directory. Their matching service more than makes up for this, so while I find I retain 5 out of 6 Findlaw referred clients, I retain about 2 out of 6 clients from my local and specialized directory placements, as opposed to 1 out of 12 yellow page clients. Referrals from family, friends, former clients and other lawyers usually retain me 19 out of 20 times. (I've been tracking this stuff for more than two years so while these are estimates, they are pretty accurate)

I also find that Findlaw clients are not shocked by "real" legal fee quotes and are ready to pay for quality legal services. That is not always true for clients I am referred by my local and specialty directory placements, or family, friends or even some other lawyers. Former clients must share information because their referrals always know it is going to cost “real” money for "real" service. When it comes to paying for legal services Yellow page referred shoppers however, really are the worst. They are bargain hunting and price comparing. I want a person who is comparing quality then price. Hence I no longer take ads with the Yellow pages, yellow book, or Pennysaver. I also do not take ads in local charity books unless I want to support the charity.

V. Investments (Time and Money)

I made a large investment in the internet with my Findlaw web pages. I more than feel I have gotten my money’s worth. With my website and all its bells and whistles I pay about 2500 a month. It brings in 10 times the amount or more EVERY MONTH. My local/specialty directory ads drive approximately 5% of total traffic to my site. That is the most referrals I have received from any one site. I get nearly 25% of my hits from internal pages within my web site and default pages. Thus the local/specialty sight makes up a lot of the hits and inquiries I do get. The monthly cost of my local/specialty service (which is a listing plus the matching service) is about $300 per month.

In looking at ROI I feel that going entirely internet with my media marketing has given me more reach, gotten my message out, reduced the time I waste with shopping clients and created the most response I have ever received. I am tickled by the money I am making and the interesting cases that I get. Moreover I am able to attract the work I want and do not have to take everything that walks into my door anymore making it a lot more fun to go to work.

That said, I put a lot of time into media marketing, including writing two blogs, going on listserves and Findlaw bulletin boards, and sending out press releases that hype the site so it can edify my firm.Nothing goes out of my office without my website being on it. (I even put it on briefs. It got me hired by a court employee who saw the address and went on the site and hired me to represent a family member.) On the other hand, if you’re going to make a $30,000 yearly investment you better guarantee it returns value.

Good luck implementing your marketing plan.

*Full disclosure: I started using Findlaw in April 2004. About 15 months later, I was hired as a consultant for the company and aid their marketing department and sales team as well as comment on new releases. I was asked to come on board because I really liked the product and told my friends and collegues about it... a lot. If that makes me less credible with you here so be it. Not taking what I say here to heart would be IMHO... your loss.

Nassau County (NY) Now Has a Dedicated DWI Part. Will It Be a Part Dedicated to Fairness or Just a Rubberstamp for DA Kathleen Rice

2006-05-30T05:45:00.000-04:00

On May 22, 2006 Nassau County got its dedicated DWI Part. An important piece of newly elected DA Kathleen Rice's personal war on DWI, the part is meant to speed up the time between arrest and adjudication of DWI cases. The fact is, if you are arrested for DWI in Nassau County NY, guilty or not, it is going to cost you a lot of money.

In her press release and in interviews about the new court, Rice has spoken about rehabilitation for DWI convicts, she has also spoken about harsh punishments, giving criminal records to otherwise law abiding people, and taking a zero tolerance attitude toward people accused of the crime.

In court I have seen an increase in the number of times bail is sought in these cases as well as an increase in the amount of bail requested by the district attorney. This of course unfairly burdens the poor, who are no less likely to come to court than their rich counterparts, but who can rarely afford the bail of the more wealthy. Rice's minions have failed to address the issue. Then again the poor rarely vote.

As far as plea bargaining goes, the conviction will have a far greater effect on the unskilled laborer or mid level working poor than on their rich counterparts. Loss of their vehicle will be more of a disadvantage. Rice doesn't seem to care, based on her plea policy. She is taking a zero tolerance view. After all a poor drunk can kill just as well as a rich one can. However fatalities are the exception not the rule when it comes to DWI. Of course the media would have you believe otherwise but then again, that information doesn't sell newspapers.

That Rice doesn't look at the collateral consequences and their cost to the individual defendant disturbs me to no small amount. However she is only 1/3 of the equation. Another 1/3 part is now the one judge who is assigned in Nassau County to hear all the DWI cases in the District Court. Now note, felonies are much more serious, however no County Court judge would allow himself to get stuck handling DWI's as his whole docket. So we will put the court in misdemeanor land and make an example out of the guy who has had one too many and never even spit on the sidewalk otherwise. Afterall without the new part we can't have a press conference or make it look like we are really addressing an issue.

It is interesting that in the article cited above, the new Nassau DWI supervisor, Maureen McCormick, talks about some guy who killed someone or another guy who has 11 previous convictions. These guys will never see the inside of the new DWI part. Here again we have to wonder why the fanfare and the inconvienence of this new "initiative." As I noted above, the truth doesn't sell papers or buy votes. It does corrupt justice however.

The problem with a dedicated part with only one judge is that a judge seeing only DWI's and seeing the same ADA's all the time is more susceptible to being subverted by the government's position. It is human nature to want to get along with the people you are working with. If the only people he sees day in and day out are the six assistants in the part subversion is likely. Moreover, the oppportunity for inadverdent ex parte communications rises precipitously. That further prejudices a defendant who we should remember is only charged with the crime. A further problem isolating this jurist is that it is also unlikely that there will be any dissenting opinions being decided in the court on the issues of these cases that he can rely on (or that can be argued) to persuade him to decide issues differently. This judge becomes the only law of the land as to the issues on these cases. An almost supersupreme court for DWIs.

What makes DWI so damn different? Why does it need its own court and not assaults in bars (also often caused by alcohol) Reckless endangerment, resisting arrest, or any other alcohol or drug related crime? Hell there would be almost no crime if it were'nt for intoxicants. Under the District Attorney's theory all the cases should be in one court and one judge.

Because DWI crosses the lines of Race and Class. It sells papers, it makes one look like they are doing something about a dangerous situation, even when the opposite is true. It buys votes.

Kathleen Rice is a smart Politician. I already knew that when she beat Dennis Dillon in the last election. She has yet to show me she is a good District Attorney. This latest power grab hasn't helped. It is like taking candy from a baby. I want to see her conviction rate in felony DWI cases. I want to see her recidivism rate there too. After all you can only lock them up for so long. Her success on this issue shouldn't be measured by how many she can lock up or coerce into a plea. It should be measured by her success in getting them into a rehab and attacking the reason why people drive drunk. Crippling their chances at making a decent living is probably not a step in the right direction... Then again solving the problem through a real rehabilitation program that carries a carrot along with a stick wouldn't sell papers...or buy votes.

If you are handling your first DWI case and would like to discuss your dwi case with me, feel free to call me at 516-741-3400 or send me an email at catlaw1@yahoo.com. If you or a loved one is charged with a DWI click here to see if we can help. We are available 24 hours a day 7 days a week 365 days a year. Whatever you do, don't wait to find a lawyer. Call in the middle of the night. The faster you have a good and knowledgable Criminal Lawyer, the better chance you have of beating the charge of DWI.

2d Circuit Rules Reverses Summary Judgment On High School Co-ed's Strip Search: Phaneuf v. Fraikin et. al.

2006-05-21T22:00:00.000-04:00

A US Court of Appeals for the Second Circuit panel reinstated the complaint in PHANEUF v. FRAIKIN et.al. (Docket No. 04-4783-cv) on Friday, overturning a District Court decision from the Conneticut District Court (see 330 F. Supp. 2d 74 (D.Conn.)for the decision below.) The lower court ruled that the strip search of then eighteen year old Kelly Phaneuf was not unreasonable under the standards set by the US Supreme Court in New Jersey v.T.L.O 469 U.S. 325 (1985).

In June of 2002 Ms. Phaneuf was preparing to board a bus for a school sponsored picnic. During a previously announced search of handbags, (presumably for alcohol) Phaneuf was found to be carrying a pack of cigarettes and a lighter. Though legal for the 18 year old Kelly to possess, both are contraband in school. Another girl told a gym teacher that Phaneuf told her she was going to hide marijuana down her pants to get past the search. The gym teacher found the snitch to be credible and brought the information to the school principal. The principal may or may not have known who the tipster was, but she also found the information credible. When confronted with the snitches statement, the plaintiff's denial appeared, to the veteran principal, to be evasive. Evidentially knowing that Ms. Phanuef had been a disciplinary problem in the past (though never for drug use), the principal decided that a strip search was in order. Thereafter she re-searched the pocketbook again finding the contraband.

Ms. Faiken, the school nurse was ordered to do a full strip search of the student. She at first Faiken refused, as she felt a full nude search was overly intrusive (Always go with your first impression Ms. Faiken), but the principal insisted, so they called the plaintiffs mother down to conduct and observe the search. The mother also objected, but was told that if the search was not conducted, the Plaintiff would be expelled. The search predictably yielded nothing, except for the lawsuit.

The District court while noting that a strip search of a student by public school administrators is subject to higher scrutiny than a search of a student's possessions, held that the search was reasonable at it's inception and reasonable in scope. The District Court found that the reliable tip and the suspicious manner of the denial alomg with the history of the prior trouble plaintiff had been in, permitted the recheck of the handbag. The presence of contraband (the already found and not confiscated cigarettes and lighter)raised the level of suspicion sufficiently to allow the stripsearch.

The Second Circuit disagreed. In a decision by Judge B.D. Parker writing for a unanimous panel, the court held that the search was unjustified in its inception.

The court acknowledged and settled the question of whether T.L.O's reasonableness standard was appropriate for the strip search issue. The court, noting that the T.L.O search was of a pocketbook, decided that the Second Circuit would join the other circuits that have taken up the issue, and apply the T.L.O flexible reasonableness standard to stripsearches as implied by the dicta in T.L.O..

The court analyzed the Supreme Court's test as trying to strike a balance between
"the schoolchild's legitimate expectations of privacy and the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. 469 U.S. at 340, 339. SCOTUS decided that the necessary balance was not to require probable cause to incur a search but to require that the search be reasonable under the circumstances.

The SCOTUS set up a two part test. In part one, the court held that a search of a student will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O., 469 U.S. 341 at 342(emphasis added)(footnote omitted);

The second part requires that "the student strip search must be reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341 (quoting Terry, 392 U.S. at 20). A search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. See T.L.O. at 342.

The Second Circuit panel mindful of its pre T.L.O standard requiring probable cause for student searches and noting the discomfort with stripsearches it shares with the Seventh Circuit, stated that in applying the reasonableness standard it would do so with an eye toward the fact that what may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search. Cornfield by Lewis v. Consol. High Sch. Dist., 991 F.2d 1316, 1320-21 (7th Cir. 1993); Hence as the level of intrusiveness goes up so does the level of what is necessary to know before one decides the stripsearch is reasonable.

Applying the sliding scale of reasonableness for nudity, to the facts of the Phaneuf case, the court held that looking at the four reasons the School district gave for the search there was less than the necessary requisite knowledge to find the search reasonable.

Now I am at a loss to really advise a school district as to how it would act, given this decision. The Court reviewed the tip and found that the pleadings were conclusory as to whether the tipster was reliable. It questioned how much reliability ought to be given the tipster even if her reliability were to be established. Noting that she had not seen the drugs or any indicia of the drugs and the understanding the vagaries of the (generic)student tipster, the panel found her not reliable enough for stripsearch use.

The panel then rejected the knowledge of prior bad acts, because they were not for drug use either. Finding that the only reason for the search was to find drugs, past bad non-drug acts do not help (and might mitigate against) the cause needed to justify a search of this coed for drugs.

In reviewing the suspicious manner of denial, the panel notes that the record is devoid of what that means. It found the principal and teacher's suspicions to be conclusory plead and hence useless. Here I think they are right. That was bad pleading and bad lawyering. We really have to layout what we are talking about. That said, everybody does it. The only way to avoid it is to have others go over your pleadings like they are second year law review cite checkers. In fact it is the only reason I can think of for hiring a notes and comment editor. (Just joking guys.)

Finally in reviewing the contraband in the purse, the court found that the finding of cigarettes was only tenuously attached to the possibility of finding marijuana in plaintiff's panties. Additionally the first time they saw the contraband, they let it go during the announced pocketbook check which was to find contraband in the first place. It was only found the second time after the decision to do the stripsearch had been set in motion by calling plaintiff's mother. However area of discussion did produce my favorite line in the decision:

"Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin."

Imagine what Mel Brooks could have done with that line!

New York Lawyer Uses DNA To Overturn Murder Conviction Based on False Confession. Renewed Calls For Mandatory Videotaping of Confessions in Homicides

2006-05-17T10:00:00.000-04:00

Rochester, New York Criminal Defense Attorney Don Thompson and a team of lawyers working with the Innocence Project (funded by the Benjamin Cardozo Law School of Yeshiva University in NYC, has overturned the conviction and won the immediate release of Douglas Warney.

Warney, who confessed to the crime after being fed non public information about the crime scene by now deceased (in March 2006) Rochester Police Detective Sgt John Grop, suffered from dementia and aids. He was interviewed by Grop alone in an interrogation room and was suffering from pain and dementia when he was arrested. Warney has but an 8th grade education. He has spent more than a decade in NY prisons for the murder of Community activist William Beason. Warney originally faced the DEATH PENALTY for the crime which was committed by another man who is incarcerated on other charges.

Warney's other lawyer Peter Neufeld of the Innocence project called the behavior of Rochester Police and prosecutors "criminal". Warney's confession was filled with inacurracies yet with little more than that and the word of Grop the District Attorney's office had Warney sentenced to 25 years to life. A sentence the AIDS ridden man was never expected to live out.

Thompson and Neufeld went to prosecutor Monroe County Prosecutor Michael Green with proof of the wrongful conviction over 2 years ago but Green refused to test the DNA with new stronger DNA Probes. His arbitrary and capricious decision cost the taxpayers of the State of NY over One Hundred Fifty Thousand (150,000.00) Dollars for unnecessary incarceration and health costs. Not to mention the wasted money trying to force Green to act.

Now wheelchair bound, Warney was rolled into the Monroe County Court to hear the words he has waited over 10 years to hear. The judge released him immediately. Upon the release, NY Criminal Defense Lawyers throughout the state have renewed their call on the Legislature to require mandatory videotaping of all confessions in homicides and other major crimes.

In a letter to his colleagues on the NYS Association of Criminal Defense Lawyers listserve(which I reprint here [in full] with the permission of Mr. Thompson) Don Thompson reveals eloquently the struggles of the everyday non-celebrity lawyer. I hope this victiory is one Don can savor for a long time. His words express his emotions and feelings far better than I can. Here they are:

"I have eaten your bread and salt,
I have drunk your water and wine,
The deaths you died I have watched beside,
and the lives you led were mine. Rudyard Kipling

It's been quite a day. To you, who have lived my life, and whose lives I have lived, thank you for your kind words and support. How often I've said "This sucks, fuck it" then someone - Marty or Cappy or Bill or Gary or Greg or Jim or Ray or Dan or Janice or Howard or Dennis or Beth or some other of our merry band - my heroes - will say something intelligent, or inspirational, or just damn funny, on the phone, or in the hall, or on the listserv that leads to reconsideration and then "Oh what the hell, I'll give it one more day. Let's see what happens tomorrow." Your support made this victory possible. We share in it together.

I don't know what the other counsel involved in this case got from it, but I can tell you what I got - as we sat in court this morning and heard the DA admit that Douglas Warney was wrongfully convicted and imprisoned for a crime he didn't commit and as we heard the judge vacate his conviction and order him immediately released, in those few moments every shithole apartment, every can of tuna fish (dry), every night shift at the steel warehouse followed by an 8:00 a.m. class, every fight with a creditor, every broken relationship that it took to get here; they were all worth it.

"Whosoever destroys a single life is as guilty as though he had destroyed the whole world; and whosoever rescues a single life earns as much merit as though he had rescued the entire world." This may be as much as we can hope for.

Still not guilty,

Donald M. Thompson
16 West Main Street, Suite 243
Rochester, New York 14614
Phone: (585) 423-0060
Fax: (585) 423-0890"

Congratulations Don

I will update this story with links as soon as I can. I have Court in an hour and have to go. Till then take a minute and call your NY State Assemblyperson or State Senator and tell them you will not stand for the state wasting anymore taxpayers dollars on wrongfully convicted people. Tell them you support Mandatory Videotaping of Confessions and Mandatory DNA retesting.

Some Odds and Ends: Stories About Judges Politicians and Death Row Vindication

2006-05-07T16:29:00.000-04:00

A few things we (Criminal) Trial Lawyers ought to know about:

I. Stroock partner Brian Cogan Named to EDNY Bench.
White Collar Lawyer Brian Cogan who specializes in Bankruptcy and accounting fraud, has been confirmed by the US Senate to fill the shoes of Judge Frederick Block on the US District Court EDNY. Mr. Cogan has had significant participation in the Enron, Parmalat and WorldCom cases. As a Partner in the Stroock Stroock and Lavan LLC law firm located in NYC, Cogan has served the as Vice Chair of the NYC Mayor's commission on the Appointment of City marshals and just completed a term on the grievance Committee of the First Department of the NY appellate Division. A graduate of Cornell University School of Law and an editor of its prestigious Law Review, Mr. Cogan has been the author of numerous articles that have appeared in the NY Law Journal and in ABA publications. He is also a co author of a bankruptcy protection chapter in Haig's business and Commercial Litigation in Federal Courts (West 1998.) That Lawyer Dude congratulates and welcomes Mr. Cogan to the Eastern District bench and looks forward to practicing before him.

II. Attorney General Spitzer Takes Aim at Liberty Mutual
The Wall Street Journal's Law Blog has reported (here) that NY Attorney General Elliot Spitzer has filed a law suit against Insurance giant Liberty Mutual for Bid Rigging in the insurance industry. The just of the complaint seems to be that Liberty made illegal payments and gave gifts to independent Insurance agents to push Liberty Products. Illinois and Conneticut AG's have joined the suit.

III. Federal Jury Speaks: Lying Cop Has to Pay 2.25 Million to Wrongfully Convicted Ex-Death Row Inmate.

Our friends over at CrimProf blog report on (this) CNN story concerning former Virginia Death Row inmate Earl Washington Jr. Who came within ten days of being killed before new scientific evidence unavailable at the time of his original trial showed that the real killer had different DNA. Then State investigator Curtis Reese Wilmore fed information to the slightly mentally retarded Washington, coerced lied and fabricated testimony which resulted in the retarded man's conviction and Death sentence. Though the law suit was brought against Wilmore's estate, it is predicted that the state will have to pay the award. Washington's attorney NYC Civil rights lawyer and DNA expert Peter Nuefeld notes that the Virginia AG hired a high price Washington DC law firm to defend the suit on behalf of the estate. Looks like it didn't help. Washington spent 18 years on Death row before his pardon by then Gov. Jim Gilmore.

IV. Queens Supreme Court Justice Dwyane Hart's Censure is Upheld by a Divided NY Court of Appeals (click here for decision)

A divided NYS Court of Appeals sustained the Public Censure (original decision here) of Queens Supreme Court Justice Dwayne Hart for misuse of his summary contempt powers. The Court's Majority focused on the Judge's lack of remorse for his misuse of his summary contempt power in supporting the Censure as opposed to a less severe admonition or private admonition. The Minority opinion authored by Judge George Bundy Smith and joined by Judge Susan P. Read questioned the severity of the punishment in light of other decisions rendered by the court in similar circumstances.

In this case Hart J. Was presiding (for the third time) over a trial which was, at best, contentious. After three mistrials he started testimony again and then adjourned the case for personal reasons for the afternoon. The Plaintiff asked for the next day as well because his son had a soccer game. The justice testified that he would have normally granted the adjournment but was miffed that counsel for the plaintiff had reported him to the Administrative judge for delaying their case. This is wrong. A judge needs to let counsel do what counsel feels he needs to do to protect his client's rights. It is a bad idea to take anything a zealous lawyer does personally. (It should in fairness be noted that Justice Hart dismissed the claim and, despite all the animosity here that could have gone into a decision to overturn the ruling based on court bias, the Appellate Division's Second Dept. Upheld the dismissal.) After ruling against him on the adjournment, and after the case was adjourned for the day, the plaintiff came up to the Judge in an enclosed parking lot to "discuss" the failure to give him the extra adjournment. Hart called a court officer and the plaintiff was led away, but not arrested. The next day when counsel for the plaintiff pushed the issue and tried to place the circumstances on the record Hart summarily held the plaintiff in contempt for 30 days and suspended the sentence until the end of the hearing. This is the second time Hart refused to let a zealous lawyer do his job. He even forewarned counsel that their attempt to muddy up the record would result in this reaction from the court. In other words this was an old fashioned pissing match.

Judges are human, but they should avoid these things because they will almost always lose them. The best thing a judge can do is take a deep breath and know his rights under the law, and use them. The Court should also not fear attorneys making records. Even when they think the attorney is making an unfair or misleading record, the court should without hostility let the record maker have his say, then the court can correct the record itself with it's own colloquy and let the appellate guys do their jobs. I wonder where the judges lawman was on this.

As Readers of this blog and our sister blog That Lawyer Dude know I am not a big fan of the Stern Commission which is how we lawyers refer to Commission on Judicial Conduct. I have a major problem with unelected people being able to undo what the public elects to do. In fact if I were a State Assemblyman or Senator looking to cut fat from the State Budget, I would begin my search right there. Nevertheless, this is a case that could have gone either way. That said, I would not have voted for the censure for the reasons given in the dissent. I am in agreement that the Judge overstepped his bounds by a lot and seems to have much to learn in the diplomacy area. Moreover, had he not pulled back his contempt, and actually jailed the plaintiff that would have been grounds to debench.

Nevertheless, I am just as disturbed by the act of a litigant approaching a judge outside of a courtroom and trying to have a off the record ex-parte conversation with that judge. The placing of this on the record the next day was rightly seen by the court as an attempt to further the plaintiff's record as to why the court should have recused itself and how plaintiff couldn't get a fair trial. Justice Hart was I am sure trying to stop the plaintiff from gathering an advantage from his own misbehavior.(In fact from the transcript of the judicial hearing into this matter the following Q & A took place: Counsel for the Commission: Q. Were they trying to set up an appeal based upon what their activities were, in your opinion?
Justice Hart: A.I have no idea, but based on Mr. Goldweber’s reputation, I could only believe he had something in his mind. [Tr. 220-21]) Again the best thing the court can do here is let him make his record and set up his appeal. In fact the Second dept. Saw through the rouse anyway. Counsel for the defendant though he was winning on this issue should maybe also protected the court by asking that the court not use summary contempt powers but go through the motions for a regular finding of contempt on notice. He also should have made the record clear that he felt that the other side was fabricating a record, and supported same (assuming that was true).

The better way for the Judge to handle this would have been to allow the placement of the statement on the record, give notice of contempt and allow a hearing, and then in the calm of a new day decide what should have been done. This did not happen and as a result he has been punished. Too severely in my opinion, but then again, my opinions never seemed to matter to the people at the Stern Commission, or the Court of Appeals. I wonder if my opinions matter to my wife...?

Anyway that's the end of our Odds and Ends round up for this week. Tomorrow (I hope) we are going to look at the Polygraph's return as an instrument of torture for defendant's and how defense attorney's should use those cases to turn what is good for the Geese flock known as prosecutors into something that is good for the Gander that is Defense lawyers.

UPDATE UPDATE UPDATE: Kenneth Starr Takes on The Bong Hits 4 Jesus Case

2006-05-07T01:57:00.000-04:00

You guys remember this Post from a couple of months back? Well it seems former Whitewater Special Prosecutor Kenneth Starr now Dean of Pepperdine Law School in San Diego has decided to take on the "Bong hits 4 Jesus" kid in the Supreme Court. He is volunteering to appeal the case. I just want to remind the School District here that the last time Starr "volunteered" for service it cost the American Taxpayer $52 Million Dollars to find out Bill Clinton cheated on his wife... Good thing they have oil in Alaska.

A Lot Of New Stuff To Cover

2006-05-06T11:40:00.000-04:00

If you read our sister Blog That Lawyer Dude you will know that I spent all of yesterday in bed reading e-mail and surfing the net. Well it was time well spent for readers of The Long Island (Criminal) Trial Law blog.

First there is Holmes v. South Carolina 547 US____(2006) Justice Alito's first written opinion. It is on a Criminal law case and the ex prosecutor found for the defendant!
Money quote: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’

Mark Mahoney past president of the NYS Association of Criminal Defense Lawyers has written extensively on this. I think the decision is very important in that it is a restatement by a unanimous SCOTUS that the defense has a Constitutional guarantee to present a defense. The use of this confrontation clause issue especially when looked at through the recent SCOTUS decision in Crawford v. Washington 541 U.S. 36 (2004), is a real hook for defense attorneys to get in the kind of evidence that can raise a reasonable doubt. Practioners would be wise to carry both decisions in their trial notebooks and to look for state cases that hold similarly. Argue them to your benefit.

Another big win for Long Island and New York defense attorney's is People v. Burton. There are a strain of judges that just didn't get it when it came to granting hearings. They were over requiring pleadings by defendants to get a hearing on a search. They were requiring the defendant to admit to possessing contraband in order to get a hearing on a search. Their theory was, if you didn't possess it then you had no right to challenge the search for it because your defense is not that the search was bad but that you didn't possess it. The problem with that tautological philosophy was that the defendant had to admit to the possession to knock down the bad search and if he failed to suppress he now could not deny possession. It was a win/win for the prosecution unless the police completely blew their hearing testimony.

Noting that allegations of facts may be provided by the accused or others under the statute (CPL 170.60)Burton holds that "the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were
sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression."

Pleading note: it is not enough to just plead that the defendant was standing and that he was searched and the police found drugs on him. "A defendant must
additionally assert that the search was not legally justified and
there must be sufficient factual allegations to support that
contention (see CPL 710.60 [1]). (i.e. that he was not committing any violation of the law.) This simpler pleading scenario does not resurrect the "automatic standing doctrine." rejected in the Ponder decision 54 NY2d 160 (1981). It certainly however makes pleading an illegal search under state law far easier.

I am going to cut this post off here because I want to discuss two new cases dealing with polygraph evidence in a separate post. However I want to tell you that beginning next week I will be starting a podcast to supplement my posts here and on That Lawyer Dude. I will post a link to the podcast a couple of days before we go fully on line. The Podcast will look at legal issues such as those discussed above as well as feature guests talking about these cases.

IRS Losses a Case in US District Court in Brooklyn

2006-05-04T02:40:00.000-04:00

This is a shocker. Seems the defendant a taxpreparer with tax fraud for advising clients that they could deduct their salaries penny for penny. The acquittal called into question the IRS's strategy toward taxpayer protests. I hope to have more on this tomorrow. Just wanted to get the case out there for you all to see.

ABA Litigation Section's Immigration Committee is Looking For Help: It's a Great Way To Get Involved and Market Your Practice.

2006-05-04T02:32:00.000-04:00

Long before there was lawyer advertising, the best way for a lawyer to get his name out among the public was to have other lawyers recommend you. In fact it is still my most predictable resourse of legal work. If I am reccommended for a job 9.5 times out of 10 that client will hire me for the work. One great way to be recognized by our peers is to be active in ABA committees. The Litigation Sections' Immigration committee has four active Sub committees in search of volunteers. Is this the year you make a difference?

A Preview of the NACDL Meeting in Philadelphia

2006-05-04T01:47:00.000-04:00

The National Association of Criminal Defense Lawyers NACDL is meeting later today in Philadelphia Pennsylvania. The first two days of the organization's Spring Meeting is dedicated to Continuing Legal Education. Thursday offers two tracks a White Collar track and a Criminal Trial Practice Track. Friday offers a plenary session entitled "The Perfect Jury: Selecting Connection and Winning Them Over." If you are in or around Philadelphia today or tommorow and practice Criminal Law, this seminar meeting is for you. If you are toying with the idea of practicing in this area of practice, this one's for you too.

For those of you who can't make it to the seminar, I will be reporting on the highlights of the meetings and programs I attend. I will be moving back and forth between the two tracks on Thursday and will try to bring you the highlights of the sessions I view.

UPDATE: A few of the seminar offerings for latter today include: Introduction and updates to Wire Fraud, Federal Tax prosecution, Healthcare Fraud, and Securities law. There will also be a post-Booker federal sentencing update all in the White Collar Track. The Criminal Trial Track offerings include the 15 Minute Voir Dire;
Jury Instuctions That Support The Themes of Your Case and Selling a Not Guilty Verdict with Non-Verbal Communications.
Next week I will have a suprise for you... Keep watching this spot to see if you can guess the suprise before it is announced on Monday.

A Few Things To Help Run Your Office More Efficiently

2006-04-17T12:02:00.000-04:00

Friends and family often ask me why I am enjoying the practice of law so much more recently. I have always loved being a lawyer, but I have to admit the business of law was not always so much fun. In 2002 when I decided to go back into solo/small firm mode, I was determined to do it differently than the last time I tried it. I wanted automation, and I wanted cutting edge, and I wanted to enjoy both the business and the legal part of running a law firm. I was lucky...kinda. I had been pretty sick in July of '01, so I took a good few months off to recuperate. It was during this sabbatical that I learned a whole bunch of things.

1. I needed the sabattical to learn how to do things better. Stepping away was the best thing I ever did. In the beginning, out of necessity, I spent the time taking care of me. That was very important. I learned things about my body that I didn't know. I renewed my energy too. Most importantly, I learned that I really missed being a lawyer. What I didn't miss was the B.S. that made up running a law firm. That would have to change.

2. I quickly learned that my most valuable association memberships were my local bar association's and my membership in the American Bar Association. Especially the submemberships in theGeneral Practice/Solo Division and the Law Practice Management Section. I remember fighting with my former partners about membership in these Sections and how they refused to pay for the Section's registration because the Sections "weren't about 'real' law." They were wrong then and anyone who thinks the ABA has nothing over their state and local bars are just plain wrong still. No magazine was more important to me over the last 5 years as Law Practice Magazine. Through it's pages I became acquainted with the likes of Dennis Kennedy and Tom Mighell. One of their year end review columns turned me on to the importance of a good website and to blogging as a business/marketing tool. The GP/SOLO division got me in front of Jim Calloway and Reid Trautz and others. I met a lot of other lawyers who were facing many of the challenges I faced. Again the Division's magazine GP/Solo is a must read each month for me. The articles and lectures I attended beat anything else out there for law practice management. I became more innovative and daring. I found a way to get my practice focused and to automate my "backroom". The taught me to market and run an office for profit and fun.

Suprisingly candid statement: It is more fun to pactice law if you make a decent living at it.

3. The next important alliance I needed was with a company that could properly promote what I do. I wanted a personal relationship with that company one where they would come to know me like my wife, maybe better, at least in the office. In my case I used the Company owned by West Publishing, Findlaw. From the first meeting with their local representitive, I found a partner in my success, rather than another salesman who saw my bank book as "lunch." My rep (Cindy LeClaire) not only took an interest in my web presence, but took the time to teach me how to maximize my results while holding the line on my budget. By feeding me with "White papers" on different web topics, I have built a new practice that is focused and exciting. I have found clients (or really they have found me) who want a lawyer who cares about their case and who are willing to compensate me at a fair rate for those services. Findlaw clients are more sophisticated and savvy than the run of the mill client. They have taken the time to educate themselves not only about their case and the law surrounding it, but about me too. They read my articles and e-newsletter. They read my weblogs and keep up with the news about me and my firm. They know what quality is and they know what it costs, and once they find it, they are willing to pay to get it. Nothing motivates like a good case, with a smart client, who pays her bills.

Over the last few months, I've become a "consultant" to Findlaw, and I am now helping their development team find new products to help small firm practioners. I have gone from being a neophyte to being someone "in the know." Yet there is so much more to learn.

Outsourcing for the Solo and Small Legal Firm.

The articles in this month's Law Practice Today deal with outsourcing. I used to think this was a big firm only type of thing. In reality though I have been outsourcing things for years. I use an investigator and an outside CPA. I increased my outsourcing to include an answering service that keeps me in touch with the practice and gives my clients a real live person to talk to 24 hours a day, without me always having to be "on call."

My newest foray into the outsourcing world was for heavy dictation. I am using a company that takes my digital dictation, and turns it into a finished product. I am working with LawDocs Express. I am sure there are others out there too. I found Law Docs at the ALM Legal Tech show in NYC. I was very impressed with their presentation, nevertheless it still took me almost a year to get over my digital "distrust" and call them.

While I employ a full time assistant, heavy typing under time pressure is not her strong suit. Besides, she handles the phone, some of the bookkeeping and billing, light correspondence, client relations, scheduling and work flow. She doesn't have the time to sit for hours listening to my dictation. For heavy pleadings and briefs, we use our Law Docs Express outsourced assistant. A team of 3 people are familiar with our work and handle it 24/7/365. We pay an upfront setup fee and then an hourly rate that is pretty high for us. Given the amount of typing we have for them however, it is much less expensive than hiring a secretary full time and paying salary, benefits and more for office space and equiptment. We just dictate onto portable digital recorders, plug them into our computer, send the audio file as a file attachment to our Virtual assistants at Law Doc, and we get a draft back. We correct it (either on the computer or by adding to the digital recording)send it back, and then we get back a final copy ready to serve. They will even send it digitally to our process server and he can download it and serve it for us. Given our usage, (which is not high) we probably save over 80% of what a regular secretary would cost us. In fact the more we use it the more we should save. Better yet, I can get them in the middle of the night. No overtime or complaining. In a criminal law firm where we do not bill for secretarial time, that savings is huge. It frees up our paralegal interns to research, write, interview clients, and help in the billing "department."

Another kind of outsourcing is by way of our extranet. We use a secured offsite website to store client data and make it available to them. They log onto the site using a special code for their case only, and they can review documents, time lines, bills, and even leave messages the way they would on a blog.

Offsite disaster protection
Speaking of web solutions, after a fire devastated our offices two years ago, the concept of offsite data storage became important. By the end of this spring we will be backing up the computers to a CD and to an offsite storages facility. In the event of a catastrophe, we can be up an running as soon as we can get a data connection.

This required a commitment but was not hard

Using technology has not been an easy process for me. I am not data savvy. I had to train myself to be more comfortable with it. Just a little effort, and the help of the magazines and writers I cited above, and I have really joined the 21st century. Now things that used to keep me up at night are locked in a closet. I sleep better and I work smarter. As importantly, I earn more money which allows me to enjoy more free time. In a future article I want to write about how to keep technology from overcoming your freedom. For now, take a look at some of the vendors and magazines I have written about here. You will be suprised how much more fun life can be if you are just willing to invest a little time, and money, into technology.

Great New Podcast By Dennis Kennedy and Tom Mighell

2006-04-17T01:57:00.000-04:00

The aptly named Kennedy-Mighell Report is now on line and it is very well done. It has very slick production techniques and it is entertaining and informative. You need to go on there click the play button and hear it. It is about Techshow 2006 which is comming up in Chicago later this week. Whether you are going to Chicago or not get on to the Report and sign up for its RSS feed. It should be a regular listen. BTW Look for That Lawyer Dude/LI Criminal Trial Law Podcast to start I hope in about 3 weeks.

That's Why You Got Divorced In The First Place

2006-04-05T22:21:00.001-04:00

In Morad v. Morad, the Husband tried to nullify the couple's separation agreement because of duress and unconscionabilty. The source of the duress claim? She nagged him so much he just signed the thing to get her off his back.
The Court ruled that 1. The agreement was negotiated by counsel for both sides and was not unconscionable; 2. Waiting three years to try to undo the agreement rendered the duress claim ratified. If your pleading duress you have to do it quickly; and 3. Wife's "relentless pressure" on husband to execute separation agreement did not constitute duress that could support setting aside agreement.

After all, isn't that the reason he wanted the divorce to begin with?

A Test On The First Amendment In Public Schools. Another School Principal Screws Up The First Amendment.

2006-04-01T20:11:00.000-05:00

Notice to all School Administrators Principals, Assistant Principal and Deans:

You shall make no rule...abridging the freedom of speech.

Question for all School Administrators, Principals, Assistant Principals and Deans:
What Part of NO do you not understand???

Okay okay, I am a First Amendment Free Speech absolutist. However, shy of a real disruption of classroom activities, or worse violence, being an almost foregone conclusion, you really cannot pass rules that limit the freedom of speech and expression of your students.

In today's latest edition of "How to cost the Taxpayers of my School District unnecessary money because I do not really understand the First Amendment of the constitution of the United States of America", the intrepid school administrators of Latta H. S. somewhere near Florence South Carolina, have suspended, disciplined and otherwise harassed high school sophomore Candice Hardwick, who in remembrance of her forefathers who fought for the South in the American Civil war, wants to wear the Confederate flag on her breast. Her Mom appears to be part of the Order of the Confederate Rose(South Carolina chapter) which seeks to preserve the "history" of the old South. (I may have been generous here in my description, they may still be fighting the war for all I know, but it really doesn't matter for our discussion today.)

Now go back and read this and this in preparation for today's remedial exam. [Update:link repaired] Alright sharpen your number 2 pencils and begin below:

Please answer: Yes or No

Question 1. Can the student wear a black arm band in school?

Question 2. Can she refuse to stand and or salute the American Flag during the pledge?

Question 3. Can she wear a shirt that says I hate President Bush on the day he comes to her school to speak?

Question 4. Can She carry a copy of Michael Moore's Fahrenheit 9-11 DVD and watch it on her laptop during lunch?

Question 5. Can she support the Iraqi invasion by covering her book bag with pro-government stickers?

Question 6. Can she yell "Fire" in a crowded cafeteria (this one is a trick question)

Question 7. Can she bring a banner into the High school Gym and unfurl it during the state championship basketball game that says "bongs 4 Jesus"?

Question 8. Can she wear colors of a local violent girl gang?

Question 9. Can she stand in front of the school assembly wearing a shirt that says "Fuck the SATs"?

Question 10. Can she wear the Confederate flag absent any proof that the same will end in violent or otherwise disruptive behavior?

Answers:

1.Yes See the brief of Tinker v. Des Moines School District here. Again if the armband is otherwise disruptive there then the right to free
expression can be curtailed, but you better be really really sure.

2.Yes. In a 1943 decision, West Virginia Board of Education v. Barnette, the Supreme Court determined that a group of Jehovah’s Witnesses who objected to the flag salute and mandatory pledge recitation for religious reasons could not be forced to participate. (To read the whole answer click here

3.Yes. While schools can enforce a rule limiting the time place and manner of certain speech and expression, the rule must be content neutral.

4.Yes See 3. Above.

5.Yes. A variation on a theme. Just to see if you did your studying. If you got this wrong...Reread this.

6.No (unless the cafeteria is actually on fire)Scheck v. US was overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969)however yelling fire in a crowded cafeteria would probable cause a panic or even imminent lawless action.

7.Yes This also was a test to see if you reread the prior posts on topic. This case was discussed at this post.

8.NO. See the Brandenburg case above.

9.NO. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)(First
Amendment Center's case brief here.)

10.Yes. Yes! Yes!.

Actually there is an even better test than the one above. One that really tests your knowledge of the present state of affairs in school free speech cases. Take it by going here.

Stop persecuting free thinkers in America's High Schools. Learn the First Amendment.

Two Cases Courtesy of Decision Of The Day Blog

2006-03-30T01:13:00.000-05:00

So much to cover tonight I have no time for indepth analysis. It would be unnecessary thanks to the incisive and crisp briefing written by Rob Loblaw (yes I know that is his pseudonym)over at Decision of the Day. "Rob" has hit on two important US Court of Appeals decisions and analyzed them here and here.

Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.

Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.

Two Cases Courtesy of Decision Of The Day Blog

2006-03-29T23:13:00.000-05:00

Lookie What I Found... Part I: Second Circuit Sentencing Blog

2006-03-28T15:59:00.000-05:00

Talk about a specialty Blog! This is a blog devoted to the Sentencing issues decided by the Second Circuit US Court of Appeals. It is an excellent addition to the growing number of blogs watching law on Long Island (and in NY in general.) To that end there is an outstanding discussion of the recent Second Circuit decision in United States v. Roberts, Docket No. 04-6610-cr, 2006 WL 751879 (2d Cir. March 23, 2006). This is an abomination of a decision in that it yields the wrong result for the right reasons. The guy broke a law that was no longer a law by the time the case ended. SCSB does a nice analysis of the Roberts case and links you to the decision. There are a numbere of good posts there. Check them out.

Back From Beantown, Hello Long Island

2006-03-28T15:26:00.000-05:00

I have been trying to play (with some success) with shorter posts. I have just returned from Boston. It was a tough trip but one that I hope will yield real results in the Fight against Scleroderma. I will be leaving a few posts about other blogs which I think you should know about, and I hope to do an post about a new case here in the Second Dept. of the NYS Appellate Division.

It is always nice to see Boston. I can't wait to go back to my Twenty-fifth reunion from Tufts University in May. (Can it really be that long ago already.)Coming back to Long Island however is always great, especially if you take the ferry back from New London to Suffolk's Orient Point. I love being out on the Sound. Especially as Spring approaches. The Sound is just rough enough, and it is just crisp enough to let you know that winter has been here. Yet there is a gentleness to the sea breeze, and a bright sky with a lesser chill, to let you know that the Child that is spring, is peeking around the corner. There is nothing better than Long Island in the Spring. It's nice to be back.

A Quick Note.

2006-03-24T14:37:00.000-05:00

I am headed up to Boston for the Spring Meeting of the Scleroderma Foundation Board of Directors. (If you want to learn about the disease or make a donation to a very worthy cause click here) Hence since I was up all night at a raid of a Gentlemen's club in Jamaica Queens and have night arraignments in Kew Gardens, Queens tonight, and then the 5 hour drive to Foundation HQ and a full day of meetings tomorrow, I thought it best to get a couple hours of shut eye.

As I have been on something of a role, I want to keep it up so here are a few things I found interesting"

SCOTUS is debating Prisoner lawsuits and the whole issue of exhaustion of State remedies an here is Yahoo's take on it. As a civil rights lawyer, I think the 15 day requirement is pathetically too short. 90 days is often less than sufficient, however a really good rule might be based on the strength of the pleading so that good cases don't get knocked out a bad ones that cost the county money to defend can be disposed of quickly and inexpensively. If I had to come down on one side or the other, I would come down on the side that preserves the rights of the imprisoned to bring the suit, and rely on the wisdom of the court to bounce it SJ grounds as soon as it could.

Here is a really good and important article on the "prep Walk" and how to help avoid it especially for your white collar crime clients. Hat tip to White Collar Crim Prof Blog . Personally I do not see how these police orchastrated dramas are not poisoning the identification process (which is already tenuous at best.)

Ok ,there is more but I am falling asleep at the wheel here. Good luck eveeryone.

A Little Bit Of This, A Little Bit Of That...

2006-03-21T22:45:00.000-05:00

Just taking a jog through the Blogosphere:

Crim Prof Blog has the top 5 Law Review type papers. You can get them on your computer free. Just go to the Profs' blog and click on the article you want to read, then when you get to the article, right click and hit save. Read it while waiting to get on the plane, or even on the plane (after the pilot turns off the fasten your set belt sign above your head).

A day late and a dollar short. That's ME! I was thinking of writing a series of Blogposts on "How to Blog." Then, just as I am about to get started, I find these wonderful posts (try here, here, here, andhere) on my topic and feel like I have been pre-empted. Just like on the Law Review!! Thanks a lot South Carolina Trial Law Blog.

Capital Defense Weekly's Blog has the year's best Death Penalty articles from the Death Penalty Information Center. Check out the site while you're there. It has a lot of very good information for Criminal Trial Lawyers

Thanks For Nuthin' Mom!:
From Newsday:
"Zachary Gibian's mother did nothing to stop him when he told her he was about to kill her husband; instead, she left the room as the Hauppauge teenager got the sword he used to murder Scott Nager, a Suffolk detective testified Monday."
Need I say more...

Also in Newsday today, this story about 1200 new police hires. You know it's not a bad job for a lawyer. You can practice on the side. Meanwhile I cannot wait to get one of the newbies on the stand. Like shooting fish in a barrel.

The New York Times takes on the Patriot Act:
Sorry, there is just to much government interference in the new Patriot act passed last month by Congress. This NY Times article raises some of my(and others)concerns.

This is why I cannot support the President and his war time cabinet. I still cannot believe these people have so little regard or understanding of what it means to live in, and protect, a democracy. As of right now, if Senator John McCain is not the Republican Candidate for President of the USA, I may not vote. Me not voting for President says a lot.

Obviously not in it for the money:
I know law is not the easiest way to earn a living, but this is ridiculous. Hat tip: to NY Attorney Malpractice Blog.

Now this guy got it right. (Lawyer gives $200 Million to Columbia University.)

Then again maybe it's all in how you look at it.

Well that's it for me. See you in the Blogosphere.

SCOTUS Hears Two Crawford Definition Cases

2006-03-21T16:32:00.000-05:00

The Supreme Court took up two important cases that should explain and probably narrow the decision in Crawford v. Washington. Crawford was one of two important decisions in Criminal Law handed down in the 2003-04. In overruling Ohio v. Roberts, the Supreme Court reaffirmed the importance of a criminal defendant's right to confront his accuser. The decision received immediate criticism from Domestic Violence prosecutors because so many of their cases require the use of unavailable witnesses, many who are unavailable of their own volition (They refuse to cooperate or leave town etc.)The issues presented by the two cases ( Davis v. Washington and Hammond v. Indiana) concern statements that were given outside of the courtroom. Davis is a 911 statement, and Hammond concerns a statement written out by a victim while being visited by police.

At his new blog Orin Kerr.com, Professor Kerr of The George Washington University Law School has a short post on the arguments and a prediction that the court will distinguish between the two cases finding that 911 tapes will come in dispite the Crawford ruling, and the Hammond written statement will be found to be testimonial in nature and thus run afoul of Crawford.

I have to agree with Professor Kerr in that the 911 tape, under most (but not all)circumstances, would not be so much testimonial as it might be a "quasi" res gestae statement. In other words, if the call is made reasonably shortly after the event (like 10-15 minutes after the first opportunity to make the call) then it would seem this is more of a safety or reporting issue, than a testimonial issue. The witness is not giving information primarily seeking to convict the individual but more trying to get the information to police to obtain an arrest, redress or even safety of themselves or others. The Davis cases should be very fact specific and very Strictly interpreted as the Right to Confrontation is a basic right of the ,US Constitution. In Davis the witness called 911 and hung up. The 911 operator calls back and gets information and sends the police. The witness doesn't come forward to testify and the prosecution uses the tapes and the pictures of the beating. The Davis argument is interesting as it was aimed directly at Scalia and Thomas. Davis argued that even at the time of the Constitution's ratification, the confrontation clause was so important that the old hue and cry reports were not usable at trials. The originalist theory may carry the day with The Chief, Scalia Thomas and Alito but will it turn off a fifth vote?

The statement in Hammond clearly was taken as part of an investigation meant to nail down testimony and very likely to obtain an arrest warrant or a charging document. In Hammond investigators came pursuant to a DV report. They meet the witness who denies any problem. They say she appears frightened. They go inside and see the remnants of the fight. The defendant says the argued but it did not become physical. The police go back to the woman and again ask what happened and this time she tells them. They ask her to write it up.
It seems clear that the written statement was taken to be a testimony in the witnesses own words as to what happened. The statement was not necessary to help them identify a potential attacker or to get the witness to safety. Hence the only reason for the written statement was for evidentiary preservation. Uncrossable use of this type of statement appears to be exactly what Crawford was trying to stamp out.

There is an excellent treatment of both cases with links to the briefs and amicus at Scotusblog.

Speedy Trial Dismissal Ordered Where Defendant Hasn't Been Arraigned

2006-03-19T00:22:00.000-05:00

In People v. Hauben Nassau District Court Judge Kenneth Gartner dismissed a violation of Harrassment 2d where the defendant was summoned to appear in court more than 30 days after the case was filed.

The case is based on a mildly unique set of facts. A claim of harassment was filed on or about September 16 2005. The facts allegedly took place in June some 3 months earlier. A summons issued on September 30th from the court directing the defendant to appear for arraignment on October 20th 2005. Discounting the day the case was filed, the summons to appear for arraignment was returnable more than 30 days after the date the the case was filed.

The district attorney argued that the speedy trial rule was inapplicable in the case at bar as there is an exception to the speedy trial rule where a defendant is ordered by the district attorney to appear. However the court held that although the DA may have overseen the service of process, summoning a person to the courthoue for arraignment is not the same as receiving a letter from the District Attorney ordering you to come to the courthouse for arraignment.

There is a suggestion to the Legislature that the law might want to be changed however, I think that in a county where there is a ridiculous must arrest order on domestic violence allegations, cases where the facts take place long before the case is filed would be better served by sending a District Attorney request to appear thereby negating the speedy trial problem. The issue here is the District Attorney wanted to have her cake and eat it too. They wanted the protection against speedy trial violations that CPL Sec. 30.30 (4)(i) provides as well as the the right to enforce the summons provided in CPL Section 120.20.

There is good public policy behind section 30.30(4)(i). It is meant to encourage the use of the surrender policy without employing (and thereby incurring the cost of)the court, sheriff and others. It is a sound cost savings measure. Most of these cases play out in the shadows of a civil divorce case. Both sides are already represented by attorneys. There should be no problem obtaining a surrender. The filing of the case with the issuance of a summons a waste of efforts and funds and should be avoided. The CPL 30.30 rule thus takes into account that in cases where the defendant refuses to follow the direction of the prosecuting authority, the prosecutrix will not be punished unfairly for using the less formal and less costly method provided for in CPL 120.20.

Anatomy Of A Free Speech For Students Case Part II: Frederick v. Morse

2006-03-13T21:16:00.000-05:00

We now go to the frozen tundra (no not this frozen tundra, this frozen tundra,) In a scene out of Wayne's World 18 year old Joseph Frederick, clearly a bit of a slacker, was on his way to school one day, but never arrives. (Something about snow in Alaska.) He gets as far as the sidewalk across the street from the school when he joins a group of people including classmates who were dismissed early to watch the Winter Olympic Torch Relay. It is evidentially a big thing because the pep band and the cheerleaders are also out there.

Frederick and his cohorts are waiting for their big chance to get on TV. Their idea? To unfurl a banner that says "Bong Hits 4 Jesus." Why you may be asking? They have no articuable reason other than they thought it might garner sufficient attention to get them on TV. (Things must get really dull in the frozen tundra.)

The High school principal Morse is not amused. She orders them to take down the banner (because it violated the schools rules on offensive material and promotes drug use.) When they fail to obey she grabs it away and crumples it. She further suspends Frederick for five days. He reminds her about Thomas Jefferson and the First Amendment and she suspends him for ten! (And rightly so. The First Amendment was written (principally)by George Mason, Alexander Hamilton, and James Madison. Jefferson was in France acting as our Ambassador there (though he clearly supported the concept.) Maybe she should have been impressed that Frederick wasn't so burnt out that he remembered Jefferson was alive during the period.) Plaintiff also recounts that an assistant principal told him that students do not have first amendment rights. (Another bright light administrator. Geez how are they going to teach kids to respect the law if they aren't even mildly acquainted with the major concepts of it?)

Now there was 2 ways for the Ninth Circuit Court of Appeals to go on this one, both which could have reached the same place. The first was the easy one. This was speech not at school, or at a school activity. It was engaged in by an "adult" (this is an issue of age not maturity)and the school has no business in trying to interfere with the banner.

The Court rejects this. (Why? Because clearly the court wants to discuss students rights and draw a distinction from the Bethel School District No. 403 v. Fraser, 478 US 675 (1986) case.)

Instead it looks beyond the facts and decides that Marijuana use and law in Alaska is a political issue (see footnotes 4 & 5 of the decision). Not that Frederick was making a political or social statement per se but that it could be considered one. As such the Ninth sought to limit Fraser to just sexual innuendo and not to such "inoffensive" material as drug use. It also noted that the activity was not sponsored by the school so it was distinct from the other School speech case (Haxelwood v. Kulhmeier 484 US 260 [1988]) which has modified the seminal Tinker v. Des Moines Independant Community School District case found at 393 US 503 (1969). I do not understand why they just did not see this as a non-school speech case.

Instead the Ninth has split the school speech cases into three types: A) that which seeks to control vulgar, lewd, obscene and offensive speech which is interpreted by Fraser; B)School sponsored speech which is interpreted by Kulhmeier; and C) other speech which is looked at through the Tinker decision.

Under Tinker analysis the action of defendants clearly defy plaintiff's First amendment rights. Moreover, as Morse was aware of the rights and that such awareness could not have allowed her to mistakenly applied the rule, she was not entitled to qualified immunity.

I again do not think this should have been decided as a part of a school speech case. Once it was, I would have decided it against the plaintiff because the speech was neither clearly protected nor was there any chance someone seeing the conduct would have readily understood its meaning. That would have given the principal qualified immunity. Like I said, I would have found for plaintiff under the First amendment protections of off school speech by an adult. I guess I am not going to the Ninth Circuit as a judge any time soon.

If you are interested in more information about School student freedoms, check out The Fire, or contact me at www.colleluorilaw.com

Anatomy Of A Free Speech For Students Case Part I: Grzywna v. Schenectady City School District,

2006-03-12T10:27:00.000-05:00

This week was big for the First Amendment/Student Rights cases. We have decisions from the east and west coasts. Interestingly the court's decisions protect interests of students with political speech from both the political right and left. Since this is a NY Blawg, we will start in the US District Court of NY (N.D.N.Y.) In the interest of family life and in order to watch and fully enjoy the Duke v BC ACC championship game (and what a game it was), we will do this in two posts.

In Grzywna v. Schenectady City Schools 05-cv-0167 the plaintiff is a 12 year old middle school coed. To show her support of the troops in Iraq and to also commemorate the service there of four family members, she designed and produced a beaded necklace in Red White and Blue. Her school district told her to remove the necklace as it ran afoul of their anti-gang colors dress code. She refused they move to suspend her and Mom takes the case to federal court. (Way to go MOM!!)

Now the defendant school district files an FRCP 12(c) motion attacking the pleadings. They raise three points: 1)The district is entitled to 11th amendment immunity because it is an arm of the state; 2)The individual defendants (the school administrators) are entitled to qualified immunity because a)Plaintiff student has no first amendment rights or b)the wearing of a necklace conveys no particular message c)even if it does convey a message it is unlikely anyone will understand it; and 3) the school dress code policy is not overbroad.

The court handled the first objection very quickly, noting that the complaint must be very liberally construed and that it is not important on a rule 12(c) motion whether or not plaintiff will ultimately succeed but rather whether she can offer proof of her claim for a recognizable action. Put another way, does she have an action (she can prove)notwithstanding whether she would ultimately win or not.
Moving through the 11th amendment objection, the court followed the decision in Cohn v. New Paultz Central School District 363 F. Supp.2d 421 (N.D.N.Y. 2005)and held that it the school district is not immune.

Moving to the real gist of the case, the court addressed the issue of student free speech rights. Noting that a student does not get the full planoply of rights an adult gets (See Bethel School Dist. 403 v. Fraser 478 US 675 (1986)it also pointed out that kids as young as 13 have had a recognizable right to express themselves on matters of political interest.(See Tinker v. Des Moines independent Central School District 395 US 593 (1969). The court noted that the speech here was neither disruptive nor did it cause a disciplinary problem. Hence the question is not if the child has a free speech right, but whether the speech in question conveys a message and whether the message is readily discernible.

Moving onto that question, the court further bifurcated the former issue and asked, is the speech expressive conduct and does the district policy impermissible deny plaintiff of her First amendment protections. (Citing the Zalweska case (316 F3d 319) which sets out a two prong test that sets the lower limit for what constitutes expressive speech; a particularized message with a likelihood it will be understood by those viewing it. The court then went onto say that such speech in the context of a classroom also the Free Speech right had to be balanced by the equally important interest of the schools mission to further education.)

The court looked at the fact that the 12 year old told the district what her message in wearing the necklace was and the fact that it had a further meaning in terms of our nation's war position, when it decided that the conduct made out enough of a particularized statement to go on with the litigation.

Looking at the test's second prong the court noted that there was an objective consideration as to whether, under the circumstances in this case, the conduct would be understood by others to be about a particular message. Taking into consideration that our nation is engaged in a controversial war in Iraq and that these topics may be under discussion in current events classes and other places in the school the court help it could not rule out that others in the school would have understood the particular message.

As to the other two issues (whether the school infringed on plaintiff's first amendment protections and whether the district policy and the individual officials deserved qualified immunity)the court decided that the issues were too fact specific for the court to decide. Hence the court felt that a jury was better to determine whether district officials were aware of the message plaintiff was trying to communicate and thus whether their behaviors were actionable. As for the district policy, defendants didn't make it part of their submission, so the court didn't have it to analyze for the purposes of deciding if it was vague or overly broad.

In the interest of short posts I think it is best to post about part II of this thread in our next post hopefully tomorrow. Let's call this part The Rockets Red Glare. The next part is all about The Blaze.

By the way Hat tip to this post at our sister blawg That Lawyer Dude.

A Sunday Trip Around The Weekend Blogospere

2006-02-19T22:00:00.000-05:00

Most of the week I am so busy I can barely read all my friends posts much less get to mine. This past week I ran a mock Grand Jury presentment in a case that goes to the Grand Jury later this week, and of course handled the myriad of other cases in our office coffers. Finally we have a new attorney in the office trying her first case. I am trying to help her too. I hope by the end of this week I will get another trial practice post out to you all here.
Anyway, this is what kept my attention this weekend:

Blogging for fun and profit has taken on a real interest for lawyers. I have found it has really helped me get hits to my website and that in turn sends clients to our offices.
Blog related articles of interest can be found here,and here.

I liked this cause of action though I am not sure that there will be recovery after the default verdict. Hope I get the chance to bring one of these on behalf of an injured or fallen soldier. It would be an honor.

Evan Schaffer has some instructions for jury selection over at his trial practice blog

Evan also notes the trouble prosecutors are having in the Milbank Weiss case in getting convictions. It seems that it is hard to convict when you don't have a case. Anyway the government is blaming the usual suspects: Lawyers. Check it out here at Evan's other blog. (Two blogs... He is my hero)

Here is a really good primer on what a Public defender is. I especially liked the last paragraph on how we can defend "those" people. Check it out. Hattip to Skelly over at Arbitrary and Capricious. Dave Feige is steamed (and that's an understatement) over at Indefensible where a NY Times reporter clearly shows she doesn't understand what we do or why we do it. Maybe she should read Skelly's blog more often.

New Jersey is trying to limit peremptory challenges but fortunately the plaintiff's bar is stopping it. I wish the criminal defense bar could show the commitment the plaintiff's bar shows. Point of Law Blog hates the plaintiff's bar, but they did put me onto the story here.

This article bodes well for NY (and Long Island) Solo and small firm practitioners. My Shingle discusses the study here.

Speaking of Solos, check out this post and the cited article on the guy Vice President Cheney accidentally shot. He's had a great career. I have been thinking about the latest Washington tempest in a teapot and I have decided that I would rather go hunting with Cheney than driving with Ted Kennedy. Hattip to Michelle Malkin for the concept.

Thinking of taking on a civil rights case? Better read this post before wading into the water. A story with a moral: Never depend on Congress to be fair. I think they need to see the posts cited in the paragraphs above.

DWI Blog has an excellent post on how a breath testing machine can give a false positive on a substance other than alcohol. I had a case one time where the defendant blew a .20 and swore he drank nothing. Turned out he had been using paint and paint thinner all day. Read this post and learn what the prosecutor doesn't want you to know about breath testing. Now maybe you will understand why I think DWI cases can be won!

Professor Berman wants to know what to make of the SCOTUS silence on the previously argued death penalty cases in this post.

Finally I have been busy looking at our New Nassau County District Attorney Kathleen Rice. So far I am not really impressed. Read about it here.

Later this week (with any luck) I will write about prepping for trial.

Mary Conn's BLawg: Criminal Law and Bluegrass, What a Combination!

2006-02-12T08:50:00.000-05:00

Mary Conn is an long time friend and a helluva great lawyer. Formerly a lawyer in Texas she has relocated to Northern California. She is practicing trial law and is a well known lecturer who was Board Certified in Criminal Defense while living in Texas. She is concentrating her practice in Federal/State Criminal law, Family law, and general Trial work. Mary can try a case!

I am looking forward to Mary's wit and dry sense of humor as well as her insight into cases and life. Not only that, but she is also blogging about her love of bluegrass music!! This promises to be a fun and informational blog and I can't wait for her posts. You can visit with Mary here, or visit her soon to be revamped

The NACDL MidWinter Meeting in Charleston S.C.: Renovating the Way We Practice Law

2006-02-09T09:28:00.000-05:00

NACDL Midwinter Meeting: Renovating The Way We Practice Law
I am in beautiful Charleston, S.C. for the NACDL Midwinter meeting and I am excited. First of all I am going to be seeing a lot of old friends from around the country. All of them are tough and aggresive criminal defense lawyers. Somehow being all in one place and sharing our stories brings a certain relief and relaxation for me.

I am also excited because there is going to be some really great CLE and I will be bringing you the best of what I see. I will not see all of it because NADCL offers two tracks at each seminar on the first day and one plenary session on Friday. I will be going back and forth and give you what I see from track one: Creatice Trial Techniques and track two: The Business of Law.

Now of course I am most excited because I will be speaking at 2pm on a panel called "Advertising That Works And Doesn't Work." I will be focusing on site building and blogging.

I will try to bring regular updates throughout the day, and tomorrow so stay tuned. IF you happen to be in South Carolina try to get here. It's gonna be fun.

The Girl In The Cafe: On The Need To Be A Bull In The China Shop

2006-02-05T22:09:00.000-05:00

I studied International Relations as an undergraduate at Tufts University. I was intrigued by its academic rigor and the hope for the world that it provides (in theory). I was mystified by the way diplomacy was conducted. I was living in a liberal world and I was a conservative vold warrior. I was energized by Pat Moynihan who was willing to call out the Russians while the US Ambassador to the UN and I was not "Diplomatic" as many of my classmates were. I was seen as a "hawk" and a "bull in the China shop". Not diplomatic material in a staid world of international diplomacy. I was called "jingoistic" because of my unbridled position "My country right or wrong." Of course that was before President Reagan showed us all what it meant to be an American. I am perfectly good with criticism of my country from within it. In fact I think such criticism is part of being a good citizen. I will not however take it easily from some outsider who has no idea what it means to even be an American. So naturally I became a trial lawyer.

I have been enjoying the HBO Film "The Girl In The Cafe" which is technically about the "needs" of the worlds rich nations to forgive the debt and energize the poor nations of the world. It is set at a G8 Summit. The comedic part of the movie is how a British "commoner" gets into the summit and calls out the stuffy diplomats, using the plain talk and basic understanding of "the people." I am not writing to endorse or criticize the politics of the film. Rather I want to teach the power of the example it sets in the behavior of the commoner: the "Girl" in the cafe. Our usual Juror.

One of the lessons in the movie is the importance of making even the most difficult issues bite size and understandable while keeping them compelling. A second and even greater challenge is the need to acknowledge the "elephant in the room" in other words drop the veneer of Political Correctness and say exactly what needs to be said. It is both funny and painful to watch the Bigwigs in the film squirm when put on the spot by the "Girl's" simple questions. They don't want to give the simple answer which (in the film) is "we don't have the will to rid the world of poverty."

Now forget the political message of the film, and imagine a courtroom. The "Girl" is asking simple leading questions to which the only answer is "because we don't want to." However that answer is devastating to the position of the proponent of the answer. They try to evade it, by complicating it. She keeps asking the simple question. They say it is not that simple. They suggest she is dangerous because she has too little knowledge. She suggests too much knowledge keeps them from seeing the real problem. She keeps asking and soon enough everybody has to acknowledge the "Elephant in the room."

This happens in court all the time. Often we are just too polite to call out someone that needs calling out. I had a judge who was well known for turning his back on the jury when he gave the reasonable doubt jury instruction. No one knew what to do about it. He was a really cantankerous guy to begin with, and few young lawyers (or old ones for that matter) wanted to take him on, fearing losing the jury. One day while dishing about it at our local watering hole, we decided that the jury, the spectators, and God could see just what he was doing. The only people who wouldn't know about it were the judges of the appellate court. We decided that we would put it on the record the next time he did it. Not at side bar, but right there in front of everyone. He denied he was doing it for the record and he yelled and screamed at the lawyer but, he didn't turn his back on the jury when he gave the charge on any case where the lawyer had called him out on it. Just as it was uncomfortable to watch the "Girl" in the movie make social faux pas after faux pas, it was uncomfortable to have to call out this judge. It was also the only way to force the issue.

In Vior dire I see this failure to acknowledge the "elephant in the courtroom" a lot. For example: not wanting to offend, the defense attorney tells the jury they are going to hear some rough language on tapes and coming from the mouths of witnesses. Can they still give the defendant a fair trial even though they may believe he said some of those things? The jurors all say yes expecting to hear the venacular, the usual cuss words. Then a black juror hears the defendant refer to a black girl as a N---er ho, and he cannot forgive the defendant and the guy goes down because the juror was not faced with the fact he was going to hear the infamous "N word." Everyone in the trial knew the word was coming. It was the elephant in the courtroom. It has to be acknowledged.

Acknowledging the elephant in the courtroom is a way to make the jury believe in you. They do not understand much of what we are doing or why we do it. When we dance around the issues and do not go right for the point they realize we are either afraid of it, don't know it, or worse. It gets them off point and it allows the another player in the trial to misdirect their attention. Learning to deal with the unpleasant stuff upfront will make you the more trusted and believable advocate.

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

2006-01-25T12:19:00.000-05:00

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.

Some Interesting Posts For Trial Lawyers

2006-01-22T15:49:00.000-05:00

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.

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

2006-01-15T22:45:00.000-05:00

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.

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

2006-01-12T17:46:00.000-05:00

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.

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

2006-01-02T09:10:00.000-05:00

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 Â§ 1194(2)(a)(1), a subsection of a statute that, like Vehicle and Traffic Law Â§ 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 Â§ 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.

If you want recommendend a case for review here leave us a message at www.colleluorilaw.com

Nassau DA-Elect to Nassau Criminal Defense Bar: When It Comes To DWI, IT'S ON!!

2005-12-31T22:55:00.000-05:00

In her first policy statement since shocking Nassau County's legal circle with her election win over long time Nassau County DA Dennis Dillon , Nassau District Attorney Elect Kathleen Rice has announced that she intends to be tough on DWI. In her remarks before the New Year's day holiday, she has told the public that she intends not to plea bargain Felony DWI charges. Hence if you are arrested in Nassau County for Felony DWI you can expect to go to trial or go to jail.

Ms. Rice is not the first to notice that many Long Island lawyers who handle DWI's are reticent to go to trial. It will now be important not only to try Felony DWI's, but counsel should seriously consider trying all DWI charges, especially those at the misdemeanor level. Those first misdemeanor convictions are the predicate to a later felony charge.

Defendants in Nassau County often think that DWI's are unwinnable. Actually, if the money is invested into the defense, the cases are very beatable. I have won cases where the defendant was painting all day and went out to buy a cup of coffee. He was stopped and blew a .15 on the machine. I have won buy attacking the documents that support the arrest or the lack thereof. I have even won by showing documents and evidence was missing.

A major problem, is that many first time offenders do not hire expierenced DWI lawyers. They go with attorneys who have plea bargained a couple of criminal cases or who actually lie about their credentials. Learning to hire a real criminal lawyer, is one way to put a stop to prosecution edicts such as this one. Nothing stops expensive rules like this one than losing at trial.

Now the prosecution does not give winning information up willingly. We had to dig for it at hearings. We had to make motions, and seek discovery. We had to hire experts and we had to purchase manuals. We had to attend seminars. We had to go the extra mile (or two). Our clients were told ahead of time that the defense was going to cost over Six Thousand dollars and in fact some cases have cost over Twenty Thousand Dollars. Nevertheless, it was a better result than going to jail or losing an important job. DWI cases can be won. The machine is not perfect, in fact it is far from it. Many clients hired dump truck attorneys who bled them and pled them for a few hundred dollars. These people would return to us with even greater problems thanks to the half-ass efforts of prior non-criminal defense attorney counsel.

The facts are, that many, many, DWI arrests do not, and should not, end in conviction when the cases go to trial. The only issue is: Does the Nassau bar have the intestinal fortitude to be honest with defendants to tell them what the cost of a conviction really is, and how much a "real" defense is going to cost. Do clients, their families, and employers have the means and the trust to go forward with an attorney who knows how to handle this kind of a case.

Feel free to contact us at www.Colleluorilaw.com or leave us a comment below.

Happy New Year's Day to All :

2005-12-31T17:41:00.000-05:00

This is just a fast note to all our friends: defense attorneys, prosecutors, police and law enforcement officers, Judges, and especially our family and clients. From all of us here at the Law Offices of Anthony J. Colleluori and Associates LLC and Long Island (Criminal)Trial Law, we wish you all a happy and healthy New Year. We look forward to continuing to bring you the best in legal analysis on the net regualarly in the coming year.

DWI Refusal Precluded:Court Rules that Two Hours Rule Applies to Refusals

2005-12-29T16:36:00.000-05:00

Our office has had a victory precluding the prosecution from using a client's refusal to submit to a breath test offered him over two hours after he was arrested for Driving While Intoxicated.

The decision in People v. Cavaliere, Docket No. 3906C/04 Bronx County Marcus J. (December 14,2005), deals with whether or not the prosecution can use a DWI defendant's refusal to take a breath test when such test is offered to the suspect over two hours after the arrest.

In the Cavaliere case, the defendant was arrested after being involved in a multi-car accident on the Bruckner Expressway in the Bronx. The police claim to have smelled a strong odor of alcohol on the defendant's breath and witnesses claim that the defendant appeared intoxicated after the accident. The breath test was offered to the defendant well over two hours after the defendant was arrested.

The defendant moved to preclude the test refusal based on the NYPD's violation of VTL Sec. 1194(2)(a)(1,)in that the test was not offered to the defendant until after two hours from the time of the defendants arrest. See People v. Brol, 81 AD2d 739 (4th Dept. 1981). The prosecution argued that Brol was overruled by the Court of Appeals in People v. Atkins, 85 NY2sd 826(1995). It was the defendant's contention that Atkins is mistakenly described as holding that the "two hour rule" was no longer applicable in its entirety.

The court ruled that the breath test was not offered with in two hours and thus the refusal should be precluded. The People made a motion to reargue. Again arguing that the Brol case was overruled by Atkins the People filed an exhaustive brief discussing the history of the ill fated "two hour rule." It urged the court should join other lower courts in finding that the "two hour rule" no longer a precluded a test refusal from coming into evidence after an offer of a test post two hours from arrest. The Defense argued that such a rule would subject a defendant to a refusal if he was offered the test anytime after arrest and allow the prosecution to argue the test was refused because of a consienceness of guilt.

The Court in its decision again ruled the refusal precluded as outside the
strictures of VTL Sec. 1194(2)(a)(1). The court held that Atkins only permitted the use of a breath test taken more than two hours after the arrest when the defendant consented to taking the test more than two hours after the arrest. The court held here however that Atkins does not hold that evidence of a REFUSAL obtained more than two hours after arrest is admissible at trial. By holding that the test results obtained by consent are admissible the Court of Appeals did not announce new law or imply that the "Two Hour Rule" was no longer viable. Atkins only holds that tests consented to after two hours from arrest are admissible and that does not mean that refusals are admissible.

This win should be credited to John J. Marshall Jr. who won the original motion and Amy Hsu who wrote the major part of the response to People's motion to reargue both on behalf of The Law Offices of Anthony J. Colleluori & Associates LLC.

A few quick Blawg notes that I found interesting

2005-12-28T23:57:00.000-05:00

A quick look through my blog roll at some of the articles I think might be of interest to you Trial Lawyer types:

The Rochester Democrat & Chronicle had a really interesting piece on NYS Court of Appeals Judge Robert Smith, the courts conservative libertarian. (I knew there were more like me somewhere here in NY.) Follow this link. The article has a voting record on criminal appeals and notes that while Judge Smith is a big fan of Justices Scalia and Thomas up at SCOTUS, he mostly likes their libertarian streak. Me too.
UPDATE: Forgot to attribute the above to the really superb blog How Appealing by Howard Bashman http://legalaffairs.org/howappealing.

Our friends at DWIBLOG over in California have posted about how police organizations, with DOJ funding, are now going after non drunk drivers for being "Buzzed." Pretty soon MADD will try to get people who THINK about drinking and driving arrested. This post is very scary.

Professor Berman over at Sentencing Law and Policy writes here about a recent 7th circuit case that upholds a ridiculously long 40 year sentence for possession and sale of a moderate amount of cocaine. The decision reminds the district courts that Booker suggests a certain proportionality and that they need to give themselves room at the top of the USSG for the really bad guys.

Yuachung Lee does a very nice cover of the Second Circuit's decision in US v. Irving. The US Court of Appeals Second Circuit overturned a few counts that were based on uncooberated writings found in defendant's personal journal. It is a long post but Yuachung does the case justice here. See also his discussion of US v. Alaa Al-Sadawi which deals with when a person's leaving the jurisdiction constitutes flight as a consciousness of guilt.

You know those ridiculous "perp walks" that the police hold to show off defendants to the press like they were some kind of hunting trophy, and which really are meant to contaminate the jury pool and destroy the clients life before trial? Well White Collar Crime Profs Blawg has some good news... If you live in Colorado. Read all about it
at this post. Maybe we should bring this to the attention of both DA Tom Spota and DA-elect Kathleen Rice. Maybe we should bring it up with the legislature.

Then there is this cautionary tale about obtaining a legal fee in a money laundering case.

That is it for now. Feel free to contact us if you have any ideas for topics or columns for this blog at www.colleluorilaw.com, or leave a message below.

The Law of Partial Verdicts: People v. Echevarria

2005-12-28T11:09:00.000-05:00

The big news today is going to be the Court of Appeals decision on Depraved Indifference Murder. I however, think that Echevarria, 2005 NY Slip Op 09812, is more important to the criminal practioner hence...

In Echevarria the defendant goes to score drugs at the home of acquaintances and kills them while trying to steal their drugs. He is charged with Murder in the First Degree (multiple deaths) and Murder in the Second Degree. The defense argues intoxication.

Without objection, the court charges the jury with both counts. It gives no instruction as to the order with which to consider the counts; a plain error. (See People v Boettcher, 69 NY2d 174 [1987]). Thereafter, the jury announces it has a partial verdict. Wary of the fact that the jury could have considered the lesser charge first, the prosecutor argued that the court should not take the verdict and should order the jury to complete deliberations. (See People v. Fuller,96 NY2d 881 [2001]). The defense attorney told the jury that Fuller was not an issue and asked for the partial verdict. The court agreed.

The jury came back guilty on the Second Degree Murders. Then they were told to deliberate on the remaining charges. No objection by defense counsel. Next day the Murder in the First comes back guilty. Result of course is that the Court of Appeals upholds the verdict.

The law on partial verdicts holds that if the partial verdict comes in on the lesser included count, the higher charge is deemed acquitted. (See Fuller) The defense should have objected to the continued deliberations. However, after arguing that Fuller was not at issue here, counsel would be hard pressed to object. The defense objection may have been a low ball but should have been made anyway. (Yeah that would mean that counsel could never appear before that judge again but...)

The real error came in failing to require the court charge the jury to consider the counts in order; the most serious count first. This is probably the prosecutors burden. If the second degree murder charge was the lesser included of the first degree murder charge, it should have only been reached after the verdict on the first degree charge had been decided. If the jury impasses on the First Degree charge, and goes to the Second Degree charge and thereafter announces it's verdict as partial, the First Degree charge falls whether or not they convict or acquit.

If the Prosecutor fails to ask for the Boettcher instruction and then argues Fuller, defense counsel should argue the prosecutor waived Fuller by failing to ask for the Boettcher instruction. In the case at bar the defendant waived Fuller by arguing it was not at issue here. Of course it is hard to be perfect under the heat of battle. Hence spending a few hours on jury charges prior to trial begining is an important part of trial preparation.

If you have any Ideas for subjects or cases you would like us to discuss or if you just want to reach me directly you can contact me thru our website at www.colleluorilaw.com.

NY State Court of Appeals Applies Crawford v. Washington

2005-12-26T19:51:00.000-05:00

In People v. Goldstein,2005 NY Slip Op 09654 (2005), the New York Court of Appeals was confronted by a murder case where the defendant attacked a unsuspecting woman and threw her off a subway platform in front of an oncoming train. There was substantial testimony offered by both the defense and the government's psychiatrists. The Doctors all agreed that the defendant was mentally ill. However, the prosecution’s expert predictable decided that the illness did not render the defendant legally insane. Part of that doctor's testimony included the basis of the Doctor's conclusions. Rather than rely on just the statements of the defendant, this expert felt she should speak to non-testifying third parties who witnessed other things the defendant had done in his life. Those things supported her finding that the defendant was a predator, and not just an ordinary insane individual. Her testimony, which encapsulated the hearsay stories of six other witnesses, came in over defense objection.

On appeal, the Court of Appeals dealt with the junk science part of the case quickly but disconcertingly. It held that, although only a small minority of experts accepts the notion that third party accounts aid in diagnosis, enough find the approach to yield the kind of material that is reliable and widely accepted in the field.

I find that this is the biggest problem with the decision. It is clear in the decision, that the cross-examination of the witness on the issue of widespread acceptance in the field was not deep enough, to explore the level of professional acceptance. Now we will have prosecutors arguing for a rule that "Forensic study into the psyche of a defendant must include a review of the defendants past acts and interviews with witnesses to those acts" whose testimony would never be permissible in the governments' case in chief.

However, the court did not reach that issue here. In fact, it specifically refused to acknowledge that NY Law is the same as the Federal Rule of Evidence 703 with regard to that issue.

The Court of Appeals instead looked at the new federal issue raised by Crawford v. Washington, 541 US 36 (2004). It decided, that under the US Constitution the defendant's conviction here must be overturned. The court cites both the 6th amendment’s language in the confrontation clause and language in the NY State Constitution’ Article I Section 6, however it relied on federal precedent for its decision. (In fact the dissent noted that Crawford, was only recently settled law and that giving it too much weight at this juncture could expose this decision to criticism should the Supreme Court of the United States not go as far as the majority did here. I have no reason to think that this six to one decision would be different if it were decided on state grounds alone. In fact, given the strength of the language in the decision the state constitutional argument might yield an even stronger result.)

The court held that while out of court statements not offered for the proof of the matter asserted are still admissible with proper precaution, the jury could not give the prosecution’s expert any weight unless they also believed the truth of the statements of the out of court declarants. Hence, the evidence had to be hearsay. They then acknowledged that Crawford had done away with the absolute right to offer the statements of witnesses who could otherwise not be cross-examined.

The dissent strongly criticized the majority, noting that even if the jury rejected all the hearsay, the proof was overwhelmingly in favor of conviction. Hence, it called on the majority to apply harmless error analysis to the decision. The majority refused however. It did note how hard this decision might be for the victim’s family to accept. However it noted that the right to cross examine one’s accusers sits at the very base of American liberty and must be upheld in spite of the pain that this decision may cause the victims family. I am happy to see the court at least acknowledged that the victims were going to suffer in a third retrial. However, the same trend can also be scary. Appellate courts are supposed to decide these cases without prejudice and on the law alone. If a court thinks too much about the fallout or the effect of the decision, it could leave its duty on the table and do the popular thing and not the right thing.

If you have any thoughts on this or any other trial law case, feel free to leave a comment for me at www.colleluorilaw.com.

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