Wednesday, November 22, 2006

This Blog is on Temporary Hiatus

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?

Saturday, November 04, 2006


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. §3553(a) factors and any other factors that might justify a lesser sentence?

(HATTIP: Sentencing Law and Policy Blog

Sunday, October 29, 2006

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

Some interesting reading this week in the NY Law Journal:

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

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

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

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

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

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

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

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

Wednesday, October 18, 2006

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

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

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

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

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

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

Saturday, October 07, 2006

The Law Of Gilligan's Island

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

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

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

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

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

Sunday, October 01, 2006

Our Monthly Newsletter Is Now Available

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

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

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

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

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

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

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

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

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

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

Now here is the truth:

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 26, 2006

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

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

Monday, September 25, 2006

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

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

Just a couple of notes:  

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

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

Wednesday, September 20, 2006

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

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

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

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

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

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

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

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

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

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

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

Maybe tomorrow we will get a jury panel.

Tuesday, September 19, 2006


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

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

Wednesday, September 06, 2006

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Monday, September 04, 2006

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

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

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

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

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

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

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

B. Stress and Lawyers A Collision Waiting To Happen

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

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

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

C. Two New Defense Bar Blogs

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

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

The other is International Crimes 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.

Monday, August 28, 2006

Patterico and His Readers Discuss Jury Nullification

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.

Monday, August 21, 2006

Sui Generis' Monday Blawg Round Up a Must Read

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.

Sunday, August 20, 2006

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

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

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.

Monday, August 07, 2006

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

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 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:


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.


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.


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.

Tuesday, August 01, 2006

A Couple Of Sentencing Decisions Discussed over at That Lawyer Dude

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

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.

Saturday, July 29, 2006

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

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:

" § 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
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.

Saturday, July 08, 2006

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

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.

Friday, July 07, 2006

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

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!

Tuesday, June 20, 2006

Some Interesting Things From The Week That Was

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

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.

Monday, June 12, 2006

Civil Rights Issues Dominate This Weekend's News

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

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.

Sunday, June 04, 2006

Live From Miami Beach: Pleabargaining Post Booker UPDATED

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.

Friday, June 02, 2006

Live from Miami IV: Plea Bargaining Post Booker

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

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 up slightly to 5.5% from 4% of 70K+ cases
b. Govt sponsered departs and substantial assistance motions is flat 14% same as before
c. early plea is still up at 68% over 63 and 62 percent in 03 and 02

Barry Boss Defense attorney:

PB remains an uphill battle. There are 2 types of agreements 1 where we agree 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 section is trying to get an opportunity to litigate our differences andso we may not want to sign the plea agreemt Post BOoker

Post Booker you may want to waive your appeal w/ the Prosecution.
18usc 1871 Rights to victims acr which allows a mandamus.

Zorn: PO needs to look to the plea agreement and digest it but then you still must do an independant inquiry. our 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 is still with the topless guideline. There is concern with the sexual abuse issues.

Judge Downs respectfully disagrees with AG Gonzolez on the sex crime issue. There is not
There is a power struggle going on tween the DOJ and the A3 judges. I respect his 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.
Article III jdges doing goofy things but the Ct of App will reach the right result and the Supremes will straighten out the conflicts
SOme members aree pandering in certain types of crimes. Esp Sex Crimes.
Relying on antedotal evidence to make
I don't kjnow of a signle man min sent is antithetical to sound sentencing policy. The experts are telling them that this will wreak real havoc and will undue the sentencing guidelines.
I don't have to accept 11c1c agreements.
Historical drug conspiracys are seeing these 11c1c dispos
Pleas whats contained Stips as to relevent conduct and stips to a specific sentence guideline may accept that the agreed sentence if it is within the guideline range or if outside the court is convinced the reasons for same is
If I am going to reject then I must give notice and then deft can withdraw the plea. IF not deft has to be put on notice that he may not get the dispo he decided.
There will be more binding 11c1c agreements. the court should not just reject them willy nilly but it should require the writer of the report to do this

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/

Stip factors of 3553a material into the fact in the plea agreement to cover the factors in the agreement
with Regard to particular stips we can maximize the chance it sticks. Word it that the prosecution cannot prove the fact of an upward adjustment beyond a preponderance of the evidence. Unless the judge holds his own hearing your good.

Sloman: Deft. looking for a slant on a case can be dangerous. Now there may be a witness who can hurt your stip but getting on the record that the case can't be proved beyond a preponderance so that if the AUSA can't cooberate the fact then the opinon 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 sponsered it because the cooperation provided didn 't rise to the level of substantial assistance. 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's concern is not with the guy who tried his best and goes as far as he can go or 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.
Of course where a guy is only facing 36 months and your in your 19 month with 2 trials to go then maybe you have no choice but to push it/

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

Crime Victiims Rights Act of 2004.
Requires 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 and have them sign off on the agreement not to participate in the process.
Crime vic is not the prosecutors 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! judge ignored them.
They can face disiplinary charges for willful and wanton disregaurd 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.

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 but you can get the facts in a stip to protect from the victim.