Thursday, March 30, 2006

Two Cases Courtesy of Decision Of The Day Blog

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.

Wednesday, March 29, 2006

Two Cases Courtesy of Decision Of The Day Blog

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.

Tuesday, March 28, 2006

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

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

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.

Friday, March 24, 2006

A Quick Note.

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.

Tuesday, March 21, 2006

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

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

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, 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.

Sunday, March 19, 2006

Speedy Trial Dismissal Ordered Where Defendant Hasn't Been Arraigned

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.

Monday, March 13, 2006

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

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

Sunday, March 12, 2006

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

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.