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.

1 comment:

Anonymous said...

I am not a lawyer, but I do really enjoy reading about legal decisions, especially those that can turn out to be in the favor of a defendant when someone within the system has done something wrong in order to assure a conviction. My father was a judge, and now is a private attorney, and sometimes the stories he tells me about things he’s seen prosecutors do in order to win a trial would make your skin literally crawl. Such, I believe is the case with the Disimone v. Phillips case that you mention above. Any first year law student knows that the defense has the right to “all” materials collected by the D.A.’s office. They do not get to pick and choose what types of favorable materials to disclose to the opposing side. I think that sometimes prosecutors get it in their head that someone is guilty, and nothing that shows up in evidence (short of DNA) will convince them otherwise.