On May 22, 2006 Nassau County got its dedicated DWI Part. An important piece of newly elected DA Kathleen Rice's personal war on DWI, the part is meant to speed up the time between arrest and adjudication of DWI cases. The fact is, if you are arrested for DWI in Nassau County NY, guilty or not, it is going to cost you a lot of money.
In her press release and in interviews about the new court, Rice has spoken about rehabilitation for DWI convicts, she has also spoken about harsh punishments, giving criminal records to otherwise law abiding people, and taking a zero tolerance attitude toward people accused of the crime.
In court I have seen an increase in the number of times bail is sought in these cases as well as an increase in the amount of bail requested by the district attorney. This of course unfairly burdens the poor, who are no less likely to come to court than their rich counterparts, but who can rarely afford the bail of the more wealthy. Rice's minions have failed to address the issue. Then again the poor rarely vote.
As far as plea bargaining goes, the conviction will have a far greater effect on the unskilled laborer or mid level working poor than on their rich counterparts. Loss of their vehicle will be more of a disadvantage. Rice doesn't seem to care, based on her plea policy. She is taking a zero tolerance view. After all a poor drunk can kill just as well as a rich one can. However fatalities are the exception not the rule when it comes to DWI. Of course the media would have you believe otherwise but then again, that information doesn't sell newspapers.
That Rice doesn't look at the collateral consequences and their cost to the individual defendant disturbs me to no small amount. However she is only 1/3 of the equation. Another 1/3 part is now the one judge who is assigned in Nassau County to hear all the DWI cases in the District Court. Now note, felonies are much more serious, however no County Court judge would allow himself to get stuck handling DWI's as his whole docket. So we will put the court in misdemeanor land and make an example out of the guy who has had one too many and never even spit on the sidewalk otherwise. Afterall without the new part we can't have a press conference or make it look like we are really addressing an issue.
It is interesting that in the article cited above, the new Nassau DWI supervisor, Maureen McCormick, talks about some guy who killed someone or another guy who has 11 previous convictions. These guys will never see the inside of the new DWI part. Here again we have to wonder why the fanfare and the inconvienence of this new "initiative." As I noted above, the truth doesn't sell papers or buy votes. It does corrupt justice however.
The problem with a dedicated part with only one judge is that a judge seeing only DWI's and seeing the same ADA's all the time is more susceptible to being subverted by the government's position. It is human nature to want to get along with the people you are working with. If the only people he sees day in and day out are the six assistants in the part subversion is likely. Moreover, the oppportunity for inadverdent ex parte communications rises precipitously. That further prejudices a defendant who we should remember is only charged with the crime. A further problem isolating this jurist is that it is also unlikely that there will be any dissenting opinions being decided in the court on the issues of these cases that he can rely on (or that can be argued) to persuade him to decide issues differently. This judge becomes the only law of the land as to the issues on these cases. An almost supersupreme court for DWIs.
What makes DWI so damn different? Why does it need its own court and not assaults in bars (also often caused by alcohol) Reckless endangerment, resisting arrest, or any other alcohol or drug related crime? Hell there would be almost no crime if it were'nt for intoxicants. Under the District Attorney's theory all the cases should be in one court and one judge.
Because DWI crosses the lines of Race and Class. It sells papers, it makes one look like they are doing something about a dangerous situation, even when the opposite is true. It buys votes.
Kathleen Rice is a smart Politician. I already knew that when she beat Dennis Dillon in the last election. She has yet to show me she is a good District Attorney. This latest power grab hasn't helped. It is like taking candy from a baby. I want to see her conviction rate in felony DWI cases. I want to see her recidivism rate there too. After all you can only lock them up for so long. Her success on this issue shouldn't be measured by how many she can lock up or coerce into a plea. It should be measured by her success in getting them into a rehab and attacking the reason why people drive drunk. Crippling their chances at making a decent living is probably not a step in the right direction... Then again solving the problem through a real rehabilitation program that carries a carrot along with a stick wouldn't sell papers...or buy votes.
If you are handling your first DWI case and would like to discuss your dwi case with me, feel free to call me at 516-741-3400 or send me an email at catlaw1@yahoo.com. If you or a loved one is charged with a DWI click here to see if we can help. We are available 24 hours a day 7 days a week 365 days a year. Whatever you do, don't wait to find a lawyer. Call in the middle of the night. The faster you have a good and knowledgable Criminal Lawyer, the better chance you have of beating the charge of DWI.
Tuesday, May 30, 2006
Sunday, May 21, 2006
2d Circuit Rules Reverses Summary Judgment On High School Co-ed's Strip Search: Phaneuf v. Fraikin et. al.
A US Court of Appeals for the Second Circuit panel reinstated the complaint in PHANEUF v. FRAIKIN et.al. (Docket No. 04-4783-cv) on Friday, overturning a District Court decision from the Conneticut District Court (see 330 F. Supp. 2d 74 (D.Conn.)for the decision below.) The lower court ruled that the strip search of then eighteen year old Kelly Phaneuf was not unreasonable under the standards set by the US Supreme Court in New Jersey v.T.L.O 469 U.S. 325 (1985).
In June of 2002 Ms. Phaneuf was preparing to board a bus for a school sponsored picnic. During a previously announced search of handbags, (presumably for alcohol) Phaneuf was found to be carrying a pack of cigarettes and a lighter. Though legal for the 18 year old Kelly to possess, both are contraband in school. Another girl told a gym teacher that Phaneuf told her she was going to hide marijuana down her pants to get past the search. The gym teacher found the snitch to be credible and brought the information to the school principal. The principal may or may not have known who the tipster was, but she also found the information credible. When confronted with the snitches statement, the plaintiff's denial appeared, to the veteran principal, to be evasive. Evidentially knowing that Ms. Phanuef had been a disciplinary problem in the past (though never for drug use), the principal decided that a strip search was in order. Thereafter she re-searched the pocketbook again finding the contraband.
Ms. Faiken, the school nurse was ordered to do a full strip search of the student. She at first Faiken refused, as she felt a full nude search was overly intrusive (Always go with your first impression Ms. Faiken), but the principal insisted, so they called the plaintiffs mother down to conduct and observe the search. The mother also objected, but was told that if the search was not conducted, the Plaintiff would be expelled. The search predictably yielded nothing, except for the lawsuit.
The District court while noting that a strip search of a student by public school administrators is subject to higher scrutiny than a search of a student's possessions, held that the search was reasonable at it's inception and reasonable in scope. The District Court found that the reliable tip and the suspicious manner of the denial alomg with the history of the prior trouble plaintiff had been in, permitted the recheck of the handbag. The presence of contraband (the already found and not confiscated cigarettes and lighter)raised the level of suspicion sufficiently to allow the stripsearch.
The Second Circuit disagreed. In a decision by Judge B.D. Parker writing for a unanimous panel, the court held that the search was unjustified in its inception.
The court acknowledged and settled the question of whether T.L.O's reasonableness standard was appropriate for the strip search issue. The court, noting that the T.L.O search was of a pocketbook, decided that the Second Circuit would join the other circuits that have taken up the issue, and apply the T.L.O flexible reasonableness standard to stripsearches as implied by the dicta in T.L.O..
The court analyzed the Supreme Court's test as trying to strike a balance between
"the schoolchild's legitimate expectations of privacy and the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. 469 U.S. at 340, 339. SCOTUS decided that the necessary balance was not to require probable cause to incur a search but to require that the search be reasonable under the circumstances.
The SCOTUS set up a two part test. In part one, the court held that a search of a student will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O., 469 U.S. 341 at 342(emphasis added)(footnote omitted);
The second part requires that "the student strip search must be reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341 (quoting Terry, 392 U.S. at 20). A search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. See T.L.O. at 342.
The Second Circuit panel mindful of its pre T.L.O standard requiring probable cause for student searches and noting the discomfort with stripsearches it shares with the Seventh Circuit, stated that in applying the reasonableness standard it would do so with an eye toward the fact that what may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search. Cornfield by Lewis v. Consol. High Sch. Dist., 991 F.2d 1316, 1320-21 (7th Cir. 1993); Hence as the level of intrusiveness goes up so does the level of what is necessary to know before one decides the stripsearch is reasonable.
Applying the sliding scale of reasonableness for nudity, to the facts of the Phaneuf case, the court held that looking at the four reasons the School district gave for the search there was less than the necessary requisite knowledge to find the search reasonable.
Now I am at a loss to really advise a school district as to how it would act, given this decision. The Court reviewed the tip and found that the pleadings were conclusory as to whether the tipster was reliable. It questioned how much reliability ought to be given the tipster even if her reliability were to be established. Noting that she had not seen the drugs or any indicia of the drugs and the understanding the vagaries of the (generic)student tipster, the panel found her not reliable enough for stripsearch use.
The panel then rejected the knowledge of prior bad acts, because they were not for drug use either. Finding that the only reason for the search was to find drugs, past bad non-drug acts do not help (and might mitigate against) the cause needed to justify a search of this coed for drugs.
In reviewing the suspicious manner of denial, the panel notes that the record is devoid of what that means. It found the principal and teacher's suspicions to be conclusory plead and hence useless. Here I think they are right. That was bad pleading and bad lawyering. We really have to layout what we are talking about. That said, everybody does it. The only way to avoid it is to have others go over your pleadings like they are second year law review cite checkers. In fact it is the only reason I can think of for hiring a notes and comment editor. (Just joking guys.)
Finally in reviewing the contraband in the purse, the court found that the finding of cigarettes was only tenuously attached to the possibility of finding marijuana in plaintiff's panties. Additionally the first time they saw the contraband, they let it go during the announced pocketbook check which was to find contraband in the first place. It was only found the second time after the decision to do the stripsearch had been set in motion by calling plaintiff's mother. However area of discussion did produce my favorite line in the decision:
"Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin."
Imagine what Mel Brooks could have done with that line!
In June of 2002 Ms. Phaneuf was preparing to board a bus for a school sponsored picnic. During a previously announced search of handbags, (presumably for alcohol) Phaneuf was found to be carrying a pack of cigarettes and a lighter. Though legal for the 18 year old Kelly to possess, both are contraband in school. Another girl told a gym teacher that Phaneuf told her she was going to hide marijuana down her pants to get past the search. The gym teacher found the snitch to be credible and brought the information to the school principal. The principal may or may not have known who the tipster was, but she also found the information credible. When confronted with the snitches statement, the plaintiff's denial appeared, to the veteran principal, to be evasive. Evidentially knowing that Ms. Phanuef had been a disciplinary problem in the past (though never for drug use), the principal decided that a strip search was in order. Thereafter she re-searched the pocketbook again finding the contraband.
Ms. Faiken, the school nurse was ordered to do a full strip search of the student. She at first Faiken refused, as she felt a full nude search was overly intrusive (Always go with your first impression Ms. Faiken), but the principal insisted, so they called the plaintiffs mother down to conduct and observe the search. The mother also objected, but was told that if the search was not conducted, the Plaintiff would be expelled. The search predictably yielded nothing, except for the lawsuit.
The District court while noting that a strip search of a student by public school administrators is subject to higher scrutiny than a search of a student's possessions, held that the search was reasonable at it's inception and reasonable in scope. The District Court found that the reliable tip and the suspicious manner of the denial alomg with the history of the prior trouble plaintiff had been in, permitted the recheck of the handbag. The presence of contraband (the already found and not confiscated cigarettes and lighter)raised the level of suspicion sufficiently to allow the stripsearch.
The Second Circuit disagreed. In a decision by Judge B.D. Parker writing for a unanimous panel, the court held that the search was unjustified in its inception.
The court acknowledged and settled the question of whether T.L.O's reasonableness standard was appropriate for the strip search issue. The court, noting that the T.L.O search was of a pocketbook, decided that the Second Circuit would join the other circuits that have taken up the issue, and apply the T.L.O flexible reasonableness standard to stripsearches as implied by the dicta in T.L.O..
The court analyzed the Supreme Court's test as trying to strike a balance between
"the schoolchild's legitimate expectations of privacy and the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. 469 U.S. at 340, 339. SCOTUS decided that the necessary balance was not to require probable cause to incur a search but to require that the search be reasonable under the circumstances.
The SCOTUS set up a two part test. In part one, the court held that a search of a student will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O., 469 U.S. 341 at 342(emphasis added)(footnote omitted);
The second part requires that "the student strip search must be reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341 (quoting Terry, 392 U.S. at 20). A search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. See T.L.O. at 342.
The Second Circuit panel mindful of its pre T.L.O standard requiring probable cause for student searches and noting the discomfort with stripsearches it shares with the Seventh Circuit, stated that in applying the reasonableness standard it would do so with an eye toward the fact that what may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search. Cornfield by Lewis v. Consol. High Sch. Dist., 991 F.2d 1316, 1320-21 (7th Cir. 1993); Hence as the level of intrusiveness goes up so does the level of what is necessary to know before one decides the stripsearch is reasonable.
Applying the sliding scale of reasonableness for nudity, to the facts of the Phaneuf case, the court held that looking at the four reasons the School district gave for the search there was less than the necessary requisite knowledge to find the search reasonable.
Now I am at a loss to really advise a school district as to how it would act, given this decision. The Court reviewed the tip and found that the pleadings were conclusory as to whether the tipster was reliable. It questioned how much reliability ought to be given the tipster even if her reliability were to be established. Noting that she had not seen the drugs or any indicia of the drugs and the understanding the vagaries of the (generic)student tipster, the panel found her not reliable enough for stripsearch use.
The panel then rejected the knowledge of prior bad acts, because they were not for drug use either. Finding that the only reason for the search was to find drugs, past bad non-drug acts do not help (and might mitigate against) the cause needed to justify a search of this coed for drugs.
In reviewing the suspicious manner of denial, the panel notes that the record is devoid of what that means. It found the principal and teacher's suspicions to be conclusory plead and hence useless. Here I think they are right. That was bad pleading and bad lawyering. We really have to layout what we are talking about. That said, everybody does it. The only way to avoid it is to have others go over your pleadings like they are second year law review cite checkers. In fact it is the only reason I can think of for hiring a notes and comment editor. (Just joking guys.)
Finally in reviewing the contraband in the purse, the court found that the finding of cigarettes was only tenuously attached to the possibility of finding marijuana in plaintiff's panties. Additionally the first time they saw the contraband, they let it go during the announced pocketbook check which was to find contraband in the first place. It was only found the second time after the decision to do the stripsearch had been set in motion by calling plaintiff's mother. However area of discussion did produce my favorite line in the decision:
"Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin."
Imagine what Mel Brooks could have done with that line!
Wednesday, May 17, 2006
New York Lawyer Uses DNA To Overturn Murder Conviction Based on False Confession. Renewed Calls For Mandatory Videotaping of Confessions in Homicides
Rochester, New York Criminal Defense Attorney Don Thompson and a team of lawyers working with the Innocence Project (funded by the Benjamin Cardozo Law School of Yeshiva University in NYC, has overturned the conviction and won the immediate release of Douglas Warney.
Warney, who confessed to the crime after being fed non public information about the crime scene by now deceased (in March 2006) Rochester Police Detective Sgt John Grop, suffered from dementia and aids. He was interviewed by Grop alone in an interrogation room and was suffering from pain and dementia when he was arrested. Warney has but an 8th grade education. He has spent more than a decade in NY prisons for the murder of Community activist William Beason. Warney originally faced the DEATH PENALTY for the crime which was committed by another man who is incarcerated on other charges.
Warney's other lawyer Peter Neufeld of the Innocence project called the behavior of Rochester Police and prosecutors "criminal". Warney's confession was filled with inacurracies yet with little more than that and the word of Grop the District Attorney's office had Warney sentenced to 25 years to life. A sentence the AIDS ridden man was never expected to live out.
Thompson and Neufeld went to prosecutor Monroe County Prosecutor Michael Green with proof of the wrongful conviction over 2 years ago but Green refused to test the DNA with new stronger DNA Probes. His arbitrary and capricious decision cost the taxpayers of the State of NY over One Hundred Fifty Thousand (150,000.00) Dollars for unnecessary incarceration and health costs. Not to mention the wasted money trying to force Green to act.
Now wheelchair bound, Warney was rolled into the Monroe County Court to hear the words he has waited over 10 years to hear. The judge released him immediately. Upon the release, NY Criminal Defense Lawyers throughout the state have renewed their call on the Legislature to require mandatory videotaping of all confessions in homicides and other major crimes.
In a letter to his colleagues on the NYS Association of Criminal Defense Lawyers listserve(which I reprint here [in full] with the permission of Mr. Thompson) Don Thompson reveals eloquently the struggles of the everyday non-celebrity lawyer. I hope this victiory is one Don can savor for a long time. His words express his emotions and feelings far better than I can. Here they are:
"I have eaten your bread and salt,
I have drunk your water and wine,
The deaths you died I have watched beside,
and the lives you led were mine. Rudyard Kipling
It's been quite a day. To you, who have lived my life, and whose lives I have lived, thank you for your kind words and support. How often I've said "This sucks, fuck it" then someone - Marty or Cappy or Bill or Gary or Greg or Jim or Ray or Dan or Janice or Howard or Dennis or Beth or some other of our merry band - my heroes - will say something intelligent, or inspirational, or just damn funny, on the phone, or in the hall, or on the listserv that leads to reconsideration and then "Oh what the hell, I'll give it one more day. Let's see what happens tomorrow." Your support made this victory possible. We share in it together.
I don't know what the other counsel involved in this case got from it, but I can tell you what I got - as we sat in court this morning and heard the DA admit that Douglas Warney was wrongfully convicted and imprisoned for a crime he didn't commit and as we heard the judge vacate his conviction and order him immediately released, in those few moments every shithole apartment, every can of tuna fish (dry), every night shift at the steel warehouse followed by an 8:00 a.m. class, every fight with a creditor, every broken relationship that it took to get here; they were all worth it.
"Whosoever destroys a single life is as guilty as though he had destroyed the whole world; and whosoever rescues a single life earns as much merit as though he had rescued the entire world." This may be as much as we can hope for.
Still not guilty,
Donald M. Thompson
16 West Main Street, Suite 243
Rochester, New York 14614
Phone: (585) 423-0060
Fax: (585) 423-0890"
Congratulations Don
I will update this story with links as soon as I can. I have Court in an hour and have to go. Till then take a minute and call your NY State Assemblyperson or State Senator and tell them you will not stand for the state wasting anymore taxpayers dollars on wrongfully convicted people. Tell them you support Mandatory Videotaping of Confessions and Mandatory DNA retesting.
Warney, who confessed to the crime after being fed non public information about the crime scene by now deceased (in March 2006) Rochester Police Detective Sgt John Grop, suffered from dementia and aids. He was interviewed by Grop alone in an interrogation room and was suffering from pain and dementia when he was arrested. Warney has but an 8th grade education. He has spent more than a decade in NY prisons for the murder of Community activist William Beason. Warney originally faced the DEATH PENALTY for the crime which was committed by another man who is incarcerated on other charges.
Warney's other lawyer Peter Neufeld of the Innocence project called the behavior of Rochester Police and prosecutors "criminal". Warney's confession was filled with inacurracies yet with little more than that and the word of Grop the District Attorney's office had Warney sentenced to 25 years to life. A sentence the AIDS ridden man was never expected to live out.
Thompson and Neufeld went to prosecutor Monroe County Prosecutor Michael Green with proof of the wrongful conviction over 2 years ago but Green refused to test the DNA with new stronger DNA Probes. His arbitrary and capricious decision cost the taxpayers of the State of NY over One Hundred Fifty Thousand (150,000.00) Dollars for unnecessary incarceration and health costs. Not to mention the wasted money trying to force Green to act.
Now wheelchair bound, Warney was rolled into the Monroe County Court to hear the words he has waited over 10 years to hear. The judge released him immediately. Upon the release, NY Criminal Defense Lawyers throughout the state have renewed their call on the Legislature to require mandatory videotaping of all confessions in homicides and other major crimes.
In a letter to his colleagues on the NYS Association of Criminal Defense Lawyers listserve(which I reprint here [in full] with the permission of Mr. Thompson) Don Thompson reveals eloquently the struggles of the everyday non-celebrity lawyer. I hope this victiory is one Don can savor for a long time. His words express his emotions and feelings far better than I can. Here they are:
"I have eaten your bread and salt,
I have drunk your water and wine,
The deaths you died I have watched beside,
and the lives you led were mine. Rudyard Kipling
It's been quite a day. To you, who have lived my life, and whose lives I have lived, thank you for your kind words and support. How often I've said "This sucks, fuck it" then someone - Marty or Cappy or Bill or Gary or Greg or Jim or Ray or Dan or Janice or Howard or Dennis or Beth or some other of our merry band - my heroes - will say something intelligent, or inspirational, or just damn funny, on the phone, or in the hall, or on the listserv that leads to reconsideration and then "Oh what the hell, I'll give it one more day. Let's see what happens tomorrow." Your support made this victory possible. We share in it together.
I don't know what the other counsel involved in this case got from it, but I can tell you what I got - as we sat in court this morning and heard the DA admit that Douglas Warney was wrongfully convicted and imprisoned for a crime he didn't commit and as we heard the judge vacate his conviction and order him immediately released, in those few moments every shithole apartment, every can of tuna fish (dry), every night shift at the steel warehouse followed by an 8:00 a.m. class, every fight with a creditor, every broken relationship that it took to get here; they were all worth it.
"Whosoever destroys a single life is as guilty as though he had destroyed the whole world; and whosoever rescues a single life earns as much merit as though he had rescued the entire world." This may be as much as we can hope for.
Still not guilty,
Donald M. Thompson
16 West Main Street, Suite 243
Rochester, New York 14614
Phone: (585) 423-0060
Fax: (585) 423-0890"
Congratulations Don
I will update this story with links as soon as I can. I have Court in an hour and have to go. Till then take a minute and call your NY State Assemblyperson or State Senator and tell them you will not stand for the state wasting anymore taxpayers dollars on wrongfully convicted people. Tell them you support Mandatory Videotaping of Confessions and Mandatory DNA retesting.
Sunday, May 07, 2006
Some Odds and Ends: Stories About Judges Politicians and Death Row Vindication
A few things we (Criminal) Trial Lawyers ought to know about:
I. Stroock partner Brian Cogan Named to EDNY Bench.
White Collar Lawyer Brian Cogan who specializes in Bankruptcy and accounting fraud, has been confirmed by the US Senate to fill the shoes of Judge Frederick Block on the US District Court EDNY. Mr. Cogan has had significant participation in the Enron, Parmalat and WorldCom cases. As a Partner in the Stroock Stroock and Lavan LLC law firm located in NYC, Cogan has served the as Vice Chair of the NYC Mayor's commission on the Appointment of City marshals and just completed a term on the grievance Committee of the First Department of the NY appellate Division. A graduate of Cornell University School of Law and an editor of its prestigious Law Review, Mr. Cogan has been the author of numerous articles that have appeared in the NY Law Journal and in ABA publications. He is also a co author of a bankruptcy protection chapter in Haig's business and Commercial Litigation in Federal Courts (West 1998.) That Lawyer Dude congratulates and welcomes Mr. Cogan to the Eastern District bench and looks forward to practicing before him.
II. Attorney General Spitzer Takes Aim at Liberty Mutual
The Wall Street Journal's Law Blog has reported (here) that NY Attorney General Elliot Spitzer has filed a law suit against Insurance giant Liberty Mutual for Bid Rigging in the insurance industry. The just of the complaint seems to be that Liberty made illegal payments and gave gifts to independent Insurance agents to push Liberty Products. Illinois and Conneticut AG's have joined the suit.
III. Federal Jury Speaks: Lying Cop Has to Pay 2.25 Million to Wrongfully Convicted Ex-Death Row Inmate.
Our friends over at CrimProf blog report on (this) CNN story concerning former Virginia Death Row inmate Earl Washington Jr. Who came within ten days of being killed before new scientific evidence unavailable at the time of his original trial showed that the real killer had different DNA. Then State investigator Curtis Reese Wilmore fed information to the slightly mentally retarded Washington, coerced lied and fabricated testimony which resulted in the retarded man's conviction and Death sentence. Though the law suit was brought against Wilmore's estate, it is predicted that the state will have to pay the award. Washington's attorney NYC Civil rights lawyer and DNA expert Peter Nuefeld notes that the Virginia AG hired a high price Washington DC law firm to defend the suit on behalf of the estate. Looks like it didn't help. Washington spent 18 years on Death row before his pardon by then Gov. Jim Gilmore.
IV. Queens Supreme Court Justice Dwyane Hart's Censure is Upheld by a Divided NY Court of Appeals (click here for decision)
A divided NYS Court of Appeals sustained the Public Censure (original decision here) of Queens Supreme Court Justice Dwayne Hart for misuse of his summary contempt powers. The Court's Majority focused on the Judge's lack of remorse for his misuse of his summary contempt power in supporting the Censure as opposed to a less severe admonition or private admonition. The Minority opinion authored by Judge George Bundy Smith and joined by Judge Susan P. Read questioned the severity of the punishment in light of other decisions rendered by the court in similar circumstances.
In this case Hart J. Was presiding (for the third time) over a trial which was, at best, contentious. After three mistrials he started testimony again and then adjourned the case for personal reasons for the afternoon. The Plaintiff asked for the next day as well because his son had a soccer game. The justice testified that he would have normally granted the adjournment but was miffed that counsel for the plaintiff had reported him to the Administrative judge for delaying their case. This is wrong. A judge needs to let counsel do what counsel feels he needs to do to protect his client's rights. It is a bad idea to take anything a zealous lawyer does personally. (It should in fairness be noted that Justice Hart dismissed the claim and, despite all the animosity here that could have gone into a decision to overturn the ruling based on court bias, the Appellate Division's Second Dept. Upheld the dismissal.) After ruling against him on the adjournment, and after the case was adjourned for the day, the plaintiff came up to the Judge in an enclosed parking lot to "discuss" the failure to give him the extra adjournment. Hart called a court officer and the plaintiff was led away, but not arrested. The next day when counsel for the plaintiff pushed the issue and tried to place the circumstances on the record Hart summarily held the plaintiff in contempt for 30 days and suspended the sentence until the end of the hearing. This is the second time Hart refused to let a zealous lawyer do his job. He even forewarned counsel that their attempt to muddy up the record would result in this reaction from the court. In other words this was an old fashioned pissing match.
Judges are human, but they should avoid these things because they will almost always lose them. The best thing a judge can do is take a deep breath and know his rights under the law, and use them. The Court should also not fear attorneys making records. Even when they think the attorney is making an unfair or misleading record, the court should without hostility let the record maker have his say, then the court can correct the record itself with it's own colloquy and let the appellate guys do their jobs. I wonder where the judges lawman was on this.
As Readers of this blog and our sister blog That Lawyer Dude know I am not a big fan of the Stern Commission which is how we lawyers refer to Commission on Judicial Conduct. I have a major problem with unelected people being able to undo what the public elects to do. In fact if I were a State Assemblyman or Senator looking to cut fat from the State Budget, I would begin my search right there. Nevertheless, this is a case that could have gone either way. That said, I would not have voted for the censure for the reasons given in the dissent. I am in agreement that the Judge overstepped his bounds by a lot and seems to have much to learn in the diplomacy area. Moreover, had he not pulled back his contempt, and actually jailed the plaintiff that would have been grounds to debench.
Nevertheless, I am just as disturbed by the act of a litigant approaching a judge outside of a courtroom and trying to have a off the record ex-parte conversation with that judge. The placing of this on the record the next day was rightly seen by the court as an attempt to further the plaintiff's record as to why the court should have recused itself and how plaintiff couldn't get a fair trial. Justice Hart was I am sure trying to stop the plaintiff from gathering an advantage from his own misbehavior.(In fact from the transcript of the judicial hearing into this matter the following Q & A took place: Counsel for the Commission: Q. Were they trying to set up an appeal based upon what their activities were, in your opinion?
Justice Hart: A.I have no idea, but based on Mr. Goldweber’s reputation, I could only believe he had something in his mind. [Tr. 220-21]) Again the best thing the court can do here is let him make his record and set up his appeal. In fact the Second dept. Saw through the rouse anyway. Counsel for the defendant though he was winning on this issue should maybe also protected the court by asking that the court not use summary contempt powers but go through the motions for a regular finding of contempt on notice. He also should have made the record clear that he felt that the other side was fabricating a record, and supported same (assuming that was true).
The better way for the Judge to handle this would have been to allow the placement of the statement on the record, give notice of contempt and allow a hearing, and then in the calm of a new day decide what should have been done. This did not happen and as a result he has been punished. Too severely in my opinion, but then again, my opinions never seemed to matter to the people at the Stern Commission, or the Court of Appeals. I wonder if my opinions matter to my wife...?
Anyway that's the end of our Odds and Ends round up for this week. Tomorrow (I hope) we are going to look at the Polygraph's return as an instrument of torture for defendant's and how defense attorney's should use those cases to turn what is good for the Geese flock known as prosecutors into something that is good for the Gander that is Defense lawyers.
I. Stroock partner Brian Cogan Named to EDNY Bench.
White Collar Lawyer Brian Cogan who specializes in Bankruptcy and accounting fraud, has been confirmed by the US Senate to fill the shoes of Judge Frederick Block on the US District Court EDNY. Mr. Cogan has had significant participation in the Enron, Parmalat and WorldCom cases. As a Partner in the Stroock Stroock and Lavan LLC law firm located in NYC, Cogan has served the as Vice Chair of the NYC Mayor's commission on the Appointment of City marshals and just completed a term on the grievance Committee of the First Department of the NY appellate Division. A graduate of Cornell University School of Law and an editor of its prestigious Law Review, Mr. Cogan has been the author of numerous articles that have appeared in the NY Law Journal and in ABA publications. He is also a co author of a bankruptcy protection chapter in Haig's business and Commercial Litigation in Federal Courts (West 1998.) That Lawyer Dude congratulates and welcomes Mr. Cogan to the Eastern District bench and looks forward to practicing before him.
II. Attorney General Spitzer Takes Aim at Liberty Mutual
The Wall Street Journal's Law Blog has reported (here) that NY Attorney General Elliot Spitzer has filed a law suit against Insurance giant Liberty Mutual for Bid Rigging in the insurance industry. The just of the complaint seems to be that Liberty made illegal payments and gave gifts to independent Insurance agents to push Liberty Products. Illinois and Conneticut AG's have joined the suit.
III. Federal Jury Speaks: Lying Cop Has to Pay 2.25 Million to Wrongfully Convicted Ex-Death Row Inmate.
Our friends over at CrimProf blog report on (this) CNN story concerning former Virginia Death Row inmate Earl Washington Jr. Who came within ten days of being killed before new scientific evidence unavailable at the time of his original trial showed that the real killer had different DNA. Then State investigator Curtis Reese Wilmore fed information to the slightly mentally retarded Washington, coerced lied and fabricated testimony which resulted in the retarded man's conviction and Death sentence. Though the law suit was brought against Wilmore's estate, it is predicted that the state will have to pay the award. Washington's attorney NYC Civil rights lawyer and DNA expert Peter Nuefeld notes that the Virginia AG hired a high price Washington DC law firm to defend the suit on behalf of the estate. Looks like it didn't help. Washington spent 18 years on Death row before his pardon by then Gov. Jim Gilmore.
IV. Queens Supreme Court Justice Dwyane Hart's Censure is Upheld by a Divided NY Court of Appeals (click here for decision)
A divided NYS Court of Appeals sustained the Public Censure (original decision here) of Queens Supreme Court Justice Dwayne Hart for misuse of his summary contempt powers. The Court's Majority focused on the Judge's lack of remorse for his misuse of his summary contempt power in supporting the Censure as opposed to a less severe admonition or private admonition. The Minority opinion authored by Judge George Bundy Smith and joined by Judge Susan P. Read questioned the severity of the punishment in light of other decisions rendered by the court in similar circumstances.
In this case Hart J. Was presiding (for the third time) over a trial which was, at best, contentious. After three mistrials he started testimony again and then adjourned the case for personal reasons for the afternoon. The Plaintiff asked for the next day as well because his son had a soccer game. The justice testified that he would have normally granted the adjournment but was miffed that counsel for the plaintiff had reported him to the Administrative judge for delaying their case. This is wrong. A judge needs to let counsel do what counsel feels he needs to do to protect his client's rights. It is a bad idea to take anything a zealous lawyer does personally. (It should in fairness be noted that Justice Hart dismissed the claim and, despite all the animosity here that could have gone into a decision to overturn the ruling based on court bias, the Appellate Division's Second Dept. Upheld the dismissal.) After ruling against him on the adjournment, and after the case was adjourned for the day, the plaintiff came up to the Judge in an enclosed parking lot to "discuss" the failure to give him the extra adjournment. Hart called a court officer and the plaintiff was led away, but not arrested. The next day when counsel for the plaintiff pushed the issue and tried to place the circumstances on the record Hart summarily held the plaintiff in contempt for 30 days and suspended the sentence until the end of the hearing. This is the second time Hart refused to let a zealous lawyer do his job. He even forewarned counsel that their attempt to muddy up the record would result in this reaction from the court. In other words this was an old fashioned pissing match.
Judges are human, but they should avoid these things because they will almost always lose them. The best thing a judge can do is take a deep breath and know his rights under the law, and use them. The Court should also not fear attorneys making records. Even when they think the attorney is making an unfair or misleading record, the court should without hostility let the record maker have his say, then the court can correct the record itself with it's own colloquy and let the appellate guys do their jobs. I wonder where the judges lawman was on this.
As Readers of this blog and our sister blog That Lawyer Dude know I am not a big fan of the Stern Commission which is how we lawyers refer to Commission on Judicial Conduct. I have a major problem with unelected people being able to undo what the public elects to do. In fact if I were a State Assemblyman or Senator looking to cut fat from the State Budget, I would begin my search right there. Nevertheless, this is a case that could have gone either way. That said, I would not have voted for the censure for the reasons given in the dissent. I am in agreement that the Judge overstepped his bounds by a lot and seems to have much to learn in the diplomacy area. Moreover, had he not pulled back his contempt, and actually jailed the plaintiff that would have been grounds to debench.
Nevertheless, I am just as disturbed by the act of a litigant approaching a judge outside of a courtroom and trying to have a off the record ex-parte conversation with that judge. The placing of this on the record the next day was rightly seen by the court as an attempt to further the plaintiff's record as to why the court should have recused itself and how plaintiff couldn't get a fair trial. Justice Hart was I am sure trying to stop the plaintiff from gathering an advantage from his own misbehavior.(In fact from the transcript of the judicial hearing into this matter the following Q & A took place: Counsel for the Commission: Q. Were they trying to set up an appeal based upon what their activities were, in your opinion?
Justice Hart: A.I have no idea, but based on Mr. Goldweber’s reputation, I could only believe he had something in his mind. [Tr. 220-21]) Again the best thing the court can do here is let him make his record and set up his appeal. In fact the Second dept. Saw through the rouse anyway. Counsel for the defendant though he was winning on this issue should maybe also protected the court by asking that the court not use summary contempt powers but go through the motions for a regular finding of contempt on notice. He also should have made the record clear that he felt that the other side was fabricating a record, and supported same (assuming that was true).
The better way for the Judge to handle this would have been to allow the placement of the statement on the record, give notice of contempt and allow a hearing, and then in the calm of a new day decide what should have been done. This did not happen and as a result he has been punished. Too severely in my opinion, but then again, my opinions never seemed to matter to the people at the Stern Commission, or the Court of Appeals. I wonder if my opinions matter to my wife...?
Anyway that's the end of our Odds and Ends round up for this week. Tomorrow (I hope) we are going to look at the Polygraph's return as an instrument of torture for defendant's and how defense attorney's should use those cases to turn what is good for the Geese flock known as prosecutors into something that is good for the Gander that is Defense lawyers.
UPDATE UPDATE UPDATE: Kenneth Starr Takes on The Bong Hits 4 Jesus Case
You guys remember this Post from a couple of months back? Well it seems former Whitewater Special Prosecutor Kenneth Starr now Dean of Pepperdine Law School in San Diego has decided to take on the "Bong hits 4 Jesus" kid in the Supreme Court. He is volunteering to appeal the case. I just want to remind the School District here that the last time Starr "volunteered" for service it cost the American Taxpayer $52 Million Dollars to find out Bill Clinton cheated on his wife... Good thing they have oil in Alaska.
Saturday, May 06, 2006
A Lot Of New Stuff To Cover
If you read our sister Blog That Lawyer Dude you will know that I spent all of yesterday in bed reading e-mail and surfing the net. Well it was time well spent for readers of The Long Island (Criminal) Trial Law blog.
First there is Holmes v. South Carolina 547 US____(2006) Justice Alito's first written opinion. It is on a Criminal law case and the ex prosecutor found for the defendant!
Money quote: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’
Mark Mahoney past president of the NYS Association of Criminal Defense Lawyers has written extensively on this. I think the decision is very important in that it is a restatement by a unanimous SCOTUS that the defense has a Constitutional guarantee to present a defense. The use of this confrontation clause issue especially when looked at through the recent SCOTUS decision in Crawford v. Washington 541 U.S. 36 (2004), is a real hook for defense attorneys to get in the kind of evidence that can raise a reasonable doubt. Practioners would be wise to carry both decisions in their trial notebooks and to look for state cases that hold similarly. Argue them to your benefit.
Another big win for Long Island and New York defense attorney's is People v. Burton. There are a strain of judges that just didn't get it when it came to granting hearings. They were over requiring pleadings by defendants to get a hearing on a search. They were requiring the defendant to admit to possessing contraband in order to get a hearing on a search. Their theory was, if you didn't possess it then you had no right to challenge the search for it because your defense is not that the search was bad but that you didn't possess it. The problem with that tautological philosophy was that the defendant had to admit to the possession to knock down the bad search and if he failed to suppress he now could not deny possession. It was a win/win for the prosecution unless the police completely blew their hearing testimony.
Noting that allegations of facts may be provided by the accused or others under the statute (CPL 170.60)Burton holds that "the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were
sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression."
Pleading note: it is not enough to just plead that the defendant was standing and that he was searched and the police found drugs on him. "A defendant must
additionally assert that the search was not legally justified and
there must be sufficient factual allegations to support that
contention (see CPL 710.60 [1]). (i.e. that he was not committing any violation of the law.) This simpler pleading scenario does not resurrect the "automatic standing doctrine." rejected in the Ponder decision 54 NY2d 160 (1981). It certainly however makes pleading an illegal search under state law far easier.
I am going to cut this post off here because I want to discuss two new cases dealing with polygraph evidence in a separate post. However I want to tell you that beginning next week I will be starting a podcast to supplement my posts here and on That Lawyer Dude. I will post a link to the podcast a couple of days before we go fully on line. The Podcast will look at legal issues such as those discussed above as well as feature guests talking about these cases.
First there is Holmes v. South Carolina 547 US____(2006) Justice Alito's first written opinion. It is on a Criminal law case and the ex prosecutor found for the defendant!
Money quote: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’
Mark Mahoney past president of the NYS Association of Criminal Defense Lawyers has written extensively on this. I think the decision is very important in that it is a restatement by a unanimous SCOTUS that the defense has a Constitutional guarantee to present a defense. The use of this confrontation clause issue especially when looked at through the recent SCOTUS decision in Crawford v. Washington 541 U.S. 36 (2004), is a real hook for defense attorneys to get in the kind of evidence that can raise a reasonable doubt. Practioners would be wise to carry both decisions in their trial notebooks and to look for state cases that hold similarly. Argue them to your benefit.
Another big win for Long Island and New York defense attorney's is People v. Burton. There are a strain of judges that just didn't get it when it came to granting hearings. They were over requiring pleadings by defendants to get a hearing on a search. They were requiring the defendant to admit to possessing contraband in order to get a hearing on a search. Their theory was, if you didn't possess it then you had no right to challenge the search for it because your defense is not that the search was bad but that you didn't possess it. The problem with that tautological philosophy was that the defendant had to admit to the possession to knock down the bad search and if he failed to suppress he now could not deny possession. It was a win/win for the prosecution unless the police completely blew their hearing testimony.
Noting that allegations of facts may be provided by the accused or others under the statute (CPL 170.60)Burton holds that "the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were
sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression."
Pleading note: it is not enough to just plead that the defendant was standing and that he was searched and the police found drugs on him. "A defendant must
additionally assert that the search was not legally justified and
there must be sufficient factual allegations to support that
contention (see CPL 710.60 [1]). (i.e. that he was not committing any violation of the law.) This simpler pleading scenario does not resurrect the "automatic standing doctrine." rejected in the Ponder decision 54 NY2d 160 (1981). It certainly however makes pleading an illegal search under state law far easier.
I am going to cut this post off here because I want to discuss two new cases dealing with polygraph evidence in a separate post. However I want to tell you that beginning next week I will be starting a podcast to supplement my posts here and on That Lawyer Dude. I will post a link to the podcast a couple of days before we go fully on line. The Podcast will look at legal issues such as those discussed above as well as feature guests talking about these cases.
Thursday, May 04, 2006
IRS Losses a Case in US District Court in Brooklyn
This is a shocker. Seems the defendant a taxpreparer with tax fraud for advising clients that they could deduct their salaries penny for penny. The acquittal called into question the IRS's strategy toward taxpayer protests. I hope to have more on this tomorrow. Just wanted to get the case out there for you all to see.
ABA Litigation Section's Immigration Committee is Looking For Help: It's a Great Way To Get Involved and Market Your Practice.
Long before there was lawyer advertising, the best way for a lawyer to get his name out among the public was to have other lawyers recommend you. In fact it is still my most predictable resourse of legal work. If I am reccommended for a job 9.5 times out of 10 that client will hire me for the work. One great way to be recognized by our peers is to be active in ABA committees. The Litigation Sections' Immigration committee has four active Sub committees in search of volunteers. Is this the year you make a difference?
A Preview of the NACDL Meeting in Philadelphia
The National Association of Criminal Defense Lawyers NACDL is meeting later today in Philadelphia Pennsylvania. The first two days of the organization's Spring Meeting is dedicated to Continuing Legal Education. Thursday offers two tracks a White Collar track and a Criminal Trial Practice Track. Friday offers a plenary session entitled "The Perfect Jury: Selecting Connection and Winning Them Over." If you are in or around Philadelphia today or tommorow and practice Criminal Law, this seminar meeting is for you. If you are toying with the idea of practicing in this area of practice, this one's for you too.
For those of you who can't make it to the seminar, I will be reporting on the highlights of the meetings and programs I attend. I will be moving back and forth between the two tracks on Thursday and will try to bring you the highlights of the sessions I view.
UPDATE: A few of the seminar offerings for latter today include: Introduction and updates to Wire Fraud, Federal Tax prosecution, Healthcare Fraud, and Securities law. There will also be a post-Booker federal sentencing update all in the White Collar Track. The Criminal Trial Track offerings include the 15 Minute Voir Dire;
Jury Instuctions That Support The Themes of Your Case and Selling a Not Guilty Verdict with Non-Verbal Communications.
Next week I will have a suprise for you... Keep watching this spot to see if you can guess the suprise before it is announced on Monday.
For those of you who can't make it to the seminar, I will be reporting on the highlights of the meetings and programs I attend. I will be moving back and forth between the two tracks on Thursday and will try to bring you the highlights of the sessions I view.
UPDATE: A few of the seminar offerings for latter today include: Introduction and updates to Wire Fraud, Federal Tax prosecution, Healthcare Fraud, and Securities law. There will also be a post-Booker federal sentencing update all in the White Collar Track. The Criminal Trial Track offerings include the 15 Minute Voir Dire;
Jury Instuctions That Support The Themes of Your Case and Selling a Not Guilty Verdict with Non-Verbal Communications.
Next week I will have a suprise for you... Keep watching this spot to see if you can guess the suprise before it is announced on Monday.
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