tag:blogger.com,1999:blog-85030712024-03-08T07:50:56.472-05:00Long Island (Criminal) Trial LawIdeas and updates on Law, Procedure, and Tactics to aid trial lawyers (and others) involved with allegations of wrongdoing.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.comBlogger106125tag:blogger.com,1999:blog-8503071.post-46187612001597249352010-07-11T11:22:00.000-04:002010-07-11T11:22:19.979-04:00Two (Ethics Related) Articles Worth Looking AtI was touring the Internet and saw a couple of interesting Ethics articles that I thought ought to be brought to the attention of all criminal defense lawyers. I know you all find them boring. Well these aren't and either way it is good for you...<br />
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The first was written by my good friend Tom Mighell. Tom for those of you who do not read "tech" blogs is one of the grandfathers of the "Tech for Lawyers" revolution. Tom, Dennis Kennedy, Marty Swimmer, and Denise Howell among others are really the inspiration for my blogging. <br />
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Anyway, now that I have dropped a few names, <a href="http://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=10472">Tom's article</a> is a primer for how to keep your e-mail and computer files private and protected. It is simple to read and simply following a few of the suggestions will keep you out of a grievance or malpractice action. For those of you who want to find interesting sites and a few fun ways to waste a little time while on line (as if we needed more ways) Tom is the Author of the very popular <a href="http://www.inter-alia.net/">"Inter-alia"</a> blog and you can sign up for a weekly digest of the best stuff he has found on the Internet by going to the link I gave you above and finding the sign up for the<b> Mighell Marker</b>.<br />
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Now the <a href="http://www.abajournal.com/news/article/lawyer_accused_of_smuggling_witness_hit_list_from_jailed_client/">second article</a> is a news piece about a lawyer who evidentially was unaware she was moving a "hit list" from the jail to a hit man on behalf of her long time client. Often we are asked to make third party calls and get mail to other people without going through prison system security. I will usually refuse the former and always refuse the latter. I will allow my office phone to be used to contact a mother of a kid under 21 or a call to a therapist. I will let a guy call his young kids (often they cannot afford the collect bill) but I always monitor the call. Further I usually contact the facility there after to make arraignments for non-collect calls to be available. If the facility is being stupid about it, I go to the judge and ask him to order the calls be allowed. Usually the jails and prison make arraignments (after all most of them are parents too.) <br />
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Vigilance is the key. Clients do not generally care about your license to practice. They have an agenda and see you as part of it. You are not part of their agenda, you are a "legal" representative. You do not represent the crime or the plan or scheme, you represent the client in his pursuit of his rights. There is a large difference but often we get caught up in the action and forget what and who we are. You must protect yourself and your practice. Never pass mail through your privilege as an attorney. Ever.<br />
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Do not carry messages. Even the most benign could be encrypted. It is simple, although many of the rules seem heavy-handed and inconvenient, they are there for usually good reason's other than sloth or avarice. Find out the reason for the rule and then seek a solution to help your client. Self-help holds way to many pitfalls.<br />
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Hattips: <a href="http://www.inter-alia.net/">Inter-alia </a>and <a href="http://http://www.abajournal.com/news/">ABA Journal Law News Now </a>That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com3tag:blogger.com,1999:blog-8503071.post-18178124358332522192009-11-28T03:22:00.003-05:002009-11-28T03:31:12.451-05:00A Primer on Mortgage Fraud Prosecutions and Why Every Homeowner and Mortagage Salesman Ought to See a Criminal Attorney Right Away.I wrote this about a year and a half ago. I was right on the money. I published it on <a href="http://thatlawyerdude.blogspot.com">That Lawyer Dude blog,</a> but I am putting it up again with a few "Fixes" that do not change the prediction but do help make the post a little clearer. <br /><br />Again IF You or someone you know, think you may have "made a mistake on a mortgage loan app", or if you signed a few documents without writing on them, allowing the mortgage broker to "fill in the blanks at another point in time" or if you are a mortgage broker or loan officer or someone else in the business who is afraid that there were shenanigans going on at their office, NOW is the time to hire an Attorney. DO not wait for the FBI to come knocking on your door.<br /><br />Okay I am now going to explain the Mortgage Fraud Prosecution time- line for you by repeating our old article. Leave a comment if you have any questions:<br /><br /><span style="font-weight:bold;">"Sub-Prime Mess Leads to Mortgage Fraud Prosecutions: The Millionaires Play While the Homeowners Will Pay With Their Freedom <br /></span><br /><br /><br />On Friday (4/18/08)the FBI announced that the sub prime mortgage mess is going to lead to an up-tick in mortgage fraud prosecutions.<br /><br />Now what that translates into is that everyone who did something to help homeowners buy houses that they could not afford will be prosecuted, while the banks that profited all those years will pretend that they were unaware of the rampant fraud in the marketing of mortgages so that they can get as much of their money back while little players go to Federal prison.<br /><br />I know that many of you are confused by the sub-prime mortgage mess. In a nutshell, the banks lent money to homeowners and buyers without requiring that they have any equity in the house. Now the mortgagor (the owner) can no longer afford the mortgage and has no equity (a reason to keep the house as an investment) in the home so he walks away from the debt leaving the bank holding the mortgage and the house.<br /><br />Now why can't the bank just sell the house? Because it is worth less than the amount owed on it and so the bank will take a loss. Do that over and over again, and voile you got a mess of banks going belly up. The most recent failure was at Bear Sterns (hereinafter BS, for so many reasons).<br /><br />Well, you may say, "sounds like they made bad investments. They should have to pay for using bad judgment." Yeah Right. They completely screwed up and yet you should see how they were rewarded before they went under. Lets look at some of the principal players at BS:<br /><br />Alan Schwartz: is the CEO, President and basically the chief honcho.<br /><br />Sam Molinaro Jr.: is the COO and the CFO and is basically the number 2 guy<br /><br />Mike Minikes: is the treasurer of B/S<br /><br />Mr. Michael S. Solender: is the attorney.<br /><br />A fast review of their recent (last 6 months) trading of their options (which they received gratis as part of their "salaries") goes like this:<br /><br />Schwartz made Six Million Dollars on the sale of his options of stock on Dec. 21 2007.<br /><br />Molinaro made 2.5 Million Dollars on his sale the same day (he sold less).<br /><br />Minikes made 2.3 Million Dollars on his sale.<br /><br />Solender made 185 Thousand Dollars on his sale of options.<br /><br />This is all in addition to multi Million Dollars salary and benefit packages they get!!<br /><br />So the government is going to get these guys to give back the money right?? WRONG. They are going to get to keep the spoils of being horrible business people who cost their little shareholders millions.<br /><br /><br />So who is the government looking for? The favorite scapegoat... the little guys.<br /><br />You see, BS is pretending that they never heard of inflating an income or an appraisal in their lives. ("I'm shocked, shocked to find that gambling is going on in (Casablanca)!)<br /><br />For years BS (and others, I am not just picking on Bear Sterns they are just one example) made a fortune on the lies of brokers and homeowners. They knew of them, and allowed them to continue to lie about income and equity, until the bottom of the market hit like the end of a Ponzi scheme. Only difference is that the company was left holding the bag along with a lot of people who are or are going to be homeless.<br /><br />You may be asking how this means homeowners are going to jail. Here is the answer:<br /><br />Many (if not most) homeowners over the last 10-15 years have been playing a game that allows them to get the equity out of their homes and use the homes like an asset. By refinancing they received 100% equity and sometimes more. They used phony appraisals (which would "convince" the banks that the home was worth more than it was) and over estimated their incomes (to "convince" the bank they could pay the monthly payment.)In some cases they allowed mortgage brokers to write in the information for them on documents they signed in blank.<br /><br />In other words, they lied on application documents. These banks have federal funding and insurance... Hence you have a federal case. Thanks to the advent of the US Sentencing Guidelines, prison is always an option. Now the government doesn't really want to put all that many people in prison. Just enough to scare the bejesus out of everyone so that they begin to tell on their partners in this venture, the appraisers and the mortgage brokers.<br /><br />Now let's face it. When a homeowner went to the broker, he wanted more money than he had equity. The broker who could get the loan for him was going to get the business and make a commission. Now the broker didn't want the buyer to go bankrupt. He usually thought the homeowner could afford the mortgage. Why did he think that? Because the homeowner was lying about his income. Usually not a big lie, often under Fifty (50) Thousand Dollars, just to make sure that they could qualify for the loan. After all a person can over-estimate a little, no?<br /><br />So the Broker needs to find an appraiser who will fudge the numbers a little. It isn't hard. The appraiser wasn't making much for his work. So the Mortgage broker found a few who needed extra money and offered them a piece of any deal they helped get for the broker. Often the homeowner "tipped" the guy as well. After all a person can over estimate a little, no?<br /><br /><br />Then the salesman goes to the hungry loan officers or underwriters whom he the broker pays...(this is the proverbial fox watching the hen house) with a bunch of these loans and these "safety valuves" sees a big commission check coming and they take on a bunch of seemingly good loans and a few bad ones cause after all a person can be off a little, no? Besides the company is just going to bundle them up (the loans some good and some bad) and sell them to a hedge fund owner so he will bear the loss and he is insured by some outfit known as AIG... (Now you ought to be able to see where this is leading...)<br /><br />Now to "get" the people who made money here, the government needs to make the case against them from the bottom up. First they will go to anybody who over-estimated their income and look to turn him against the broker and the appraiser.<br /><br />It will work like this:<br /><br />They will send an investigator to the door of some home in say Queens, Nassau or Suffolk County. He/she will ask if you are the homeowner and they will then question you without giving you Miranda rights. This is legal. You only get Miranda card readings when you are under arrest and questioned.<br /><br />They won't tell you you need a lawyer, they will only tell you how much trouble you're in. They may even threaten to arrest you if you do not speak to them. DON'T DO IT. They are going to arrest you anyway.<br /><br />Then they will offer to let you off easy if you will implicate the broker. After all you're not smart enough to over-estimate your income. The Broker told you what to write down RIGHT??<br /><br />The Broker got the Appraiser right? The appraiser told you he could make the appraisal look good for you for a little "tip" right?<br /><br />Now "tell them what they get for trying to own a home on Long Island Johnny." "Well Bob they get to hire a Criminal Defense Lawyer who is going to cost them 25 thousand dollars or more, AND they get to implicate the people who helped them afford a home in Queens, Nassau or Suffolk County, maybe even a relative or friend who was a mortgage broker or appraiser, and face a criminal fraud conviction and the possibility of Three year vacation in a Federal Prison!!!"<br /><br />"Hold it! Hold it! Hold it" you say. "I am paying my mortgage. I have nothing to worry about."<br /><br />WRONG. When the FBI gets the names of the brokers from the lenders, they will look to see what loans were generated by those guys. Did they use the same appraiser each time (usually they do)? Then they will look at those applications. Check the information in the apps against what they have on file for you (you know, your IRS Form where you tried to limit your income) IF (When) they find discrepancies, they will come for you too, to get the people who sold loans.<br /><br />In fact, if you are still in your beautiful Long Island residence and haven't defaulted, you are easier to get. You don't already have a lawyer (so now there is none of that ugly "statement suppression" issue) and they know where to look for you (your not homeless yet.)<br /><br />So you testify against your friend or loved one and then one of them turns on the others and in the end of the game you all have to pay "restitution" to the "defrauded" banks and the guys who knew all of this, and who profited from it the most, keep their millions. You on the other hand have a criminal record, have to hire a lawyer and lost your house and maybe met some new friend in prison named Bubba.<br /><br /><br />Don't let this happen to you. If you are a Mortgage Broker, Appraiser, or Homeowner/mortgagor, get to a Criminal Defense Lawyer now. Even if you are sure you will not be a target of an investigation, it is smart to get a lawyer and let him speak to whomever he thinks will help you to win the day. Let whoever comes knocking on your door from the federal government know that you have a lawyer on retainer. CALL YOUR LAWYER as soon as the investigators come to the door. Do not say anything to them without your lawyer being with you.<br /><br />If you follow these simple steps you will be able to sleep through much of this crisis, and you will continue to enjoy the simple life of a homeowner on Long Island.<br /><br />Although I focused on Long Island and specifically the counties of Queens NY, Nassau NY, and Suffolk NY, the scenario and advice is good throughout the country.<br /><br />You have been warned, heed the warning."<br /><br />A little addendum. This is the way many Mortgage Fraud cases on Long Island will come down. IF you knowingly were involved in "Flipping a home", acting as a "straw man", providing proof of employment for a friend, misleading the lender about who owns or occupies a loan, inflating rents, or any other fraudulent activity on any home sale, then it goes without saying you NEED A LAWYER NOW!!!! That goes for Real Estate Attorneys too!!!! Uncle Sam is coming and he is coming hard. Will you be ready if he comes looking for you??<br /><br />You may contact Fraud attorneys at our office by calling us at 516-741-3400 or writing to me directly at catlaw1@yahoo.comThat Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-74482186117299318082009-01-19T15:00:00.000-05:002009-01-19T15:50:17.745-05:00White Collar Crime and the Solo/Small Firm Practioner: Why Going "Small Law" Makes SenseIf history is to be believed, Dreier and Madoff is the tip of the iceberg in the prosecution of White Collar crimes. If the Junk bond debacle is any indicator of what is to come, a lot of people are about to be investigated and indicted. Many of these folks will be in New York, but there will be cases in many smaller legal venues as well. Many of those who are arrested will make the move to hire big law firms and big legal names. This time however, that may be the biggest mistake they will have made.<br />Wall Streeters and other white collar clients, who seek out big firms are usually thinking that :<br /><br />1. Only big law firms will have the resources to handle the kind of paper and evidence that accompany the big white collar crime cases.<br />2. They want lawyers who are familiar with the "way things work" on the street. <br />3. They also want lawyers who have worked on the "other side" of the law. In other words, they want lawyers who have been Former Assistant US Attorneys. <br />4. Finally some believe You get what you pay for. The more you pay, the better the lawyer. <br /><br />While each of these myths have some validity, the truth is that in today's white collar cases, all those instincts may wind up guaranteeing a conviction.<br /><br />First of all, there is the myth of that the solo small practice cannot handle the paper. While that may have been an issue 20 years ago, modern technology has more than helped the solo and small firm criminal defense attorney keep up with the paper in these cases. Moreover, thanks to the invention of intranets, many small firm practices make use of the same off shore attorneys used by the big firms for cataloging and sorting the myriad of reports, e-mails, documents, and other evidentiary items that make up the thousands of pages and tens of boxes of evidence in most modern White Collar cases.<br /><br />Second, I think that knowing how things "work" on the street is a hindrance to helping to win in court. Main street and the people who live around Main street are going to be your jury. These people have a fundamental issue with the way things work on "the street." In fact most think that "the street" is geared to hurt them and it is the Wall Street mentality that "greed is good" that put the defendants in the soup to begin with. This is further complicated by their own anger that Wall street and Wall street lawyers took down the little guy with everyone else. <br /><br />A lawyer who regularly works on regular criminal cases, can bring an air of truth and appreciation for what a local feels and may be in better position to explain that a Wall Street executive's behavior was at the worst not meant to harm a little guy (like the juror) but to protect all the little guys that were in the market. It may be nothing more than an idea that just failed. Further it may be hard for a Big firm lawyer whose starting salary is three times the national average salary (not the national starting salary) to convey to people who will never earn that much money in a decade, how the white collar criminal is no different than they are, and how they and he are just, after all, neighbors.<br /><br />Thirdly, there are lawyers who worked for the Government who did not go the Wall Street route. Now I am not enamoured of former prosecutors. I think they often fail to see the defects in the prosecution's case because they never saw them as prosecutors. Many are so sure of the governments superiority, that they are afraid to take them on in court. Some fear it will hurt their relationship with their former mates in the office whom they rely on to get good plea bargains.<br /><br /> On the other hand, there are some that are very good once they make the switch. Either way, whether you need a former prosecutor or not, they work on "Main Street" too.<br /><br /><br />Finally there is this idea that you get what you pay for. I guess some of that is true. The question I have with most Biglaw firms is, Do I need what I am paying for? Do I need a lawyer at Four Hundred Dollars an hour reviewing files and notes? Do I need him to summarize documents? Do I even want to pay someone on the hour to do this? Is an hourly rate the best way of paying a legal fee for me and my family?<br /><br />These are questions that most Main Streeters ask before they start thinking about fees. It doesn't help you much if you win the case but lose your home in the process.<br /><br />Finally a big advantage to a Main street lawyer, is the opportunity to be his biggest client. You are the priority case, there is always someone working on your file and only the most senior lawyers are assigned to the file. There is a benefit to being able to speak to your lawyer quickly and to know, he knows, everything there is to know about your case. <br /><br />In all, the White Collar Criminal Defense Client has a lot to gain, and nothing to lose by coming with his case to a local Main Street lawyer. Now if they only read this before they lose all their money to Biglaw.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com3tag:blogger.com,1999:blog-8503071.post-35847757977622635412009-01-13T07:00:00.002-05:002009-01-13T07:35:27.736-05:00Lawyers Help. How to Answer the Question: What Do You Do For a Living?Laser speech; elevator talk; hooks. These are all concepts that Public Relation experts have introduced into the lexicon of the lawyer. We are told at countless "Marketing Seminars" that we have to develop a way to tell people what we do in a short, attention grabbing way. I found this a little challenging at first. I <span style="font-weight:bold;">am not</span> a man of few words.<br /><br />I am a story teller. I like to tell them and I like to hear good stories told. If you think about it. Story telling is what I do. I mean I do it in part. I tell the client's story as well as I can to a judge, a jury, an adversary. I tell it to a claims adjuster and to investigators and police. Sometimes I tell it to the clients family too.<br /><br />But I do more than that do I not? After all, I am a Doctor of Laws. I am a <a href="http://en.wikipedia.org/wiki/Intellectual">"Man of Letters."</a> I have been <a href="http://en.wikipedia.org/wiki/Academic_dress">"hooded."</a> I guess if asked what I do, I could say I write letters. <br /><br />In fact of course I am a trial attorney. I handle criminal cases and civil cases. I am a Matrimonial lawyer. I handle crisis. I do so many things in the course of a day, I am unable to really find a way to tell people what I do in a short pithy manner. <br /><br />The best way for me to explain my dilemma is to tell you a story:<br /><br />Last week, a I received a phone call from a distraught mom. Her child was arrested for shoplifting. The child, a college senior has always been a great kid and gifted student. She has dreams of grad school and some kind of a professional license. Although time was tight, I decided to see her the same day. She and her parents came in. As they walked in, I could see what had happened and why. When they entered, Dad was on one side of her mom on the other. Mom was a wreak and the young girl, though apologetic was the calmest one in the group. She was huddled in a heavy coat and while it was cold outside, it was temperate in my office. The coat was a giveaway as to what was to come.<br /><br />After a few pleasantries I asked the mom and dad to leave the office. I noticed that when they left, the client sat back a bit in her chair. She was still bundled in a heavy coat but it was not that cold in my office. It was almost as if she were hiding from me behind her coat. I asked if she was cold but she said no. I then asked her about what had happened the day before. I tried to ask her questions in a non-cognitive way. That is to say, I took things out of order and mixed in questions that had nothing to do with the previous question or even the facts, so as to keep the client from feeling too comfortable and developing a "rhythm". <br /><br />The kid readily admitted she stole the item from the store. She had almost no emotion in telling me this. She seemed to have no insight as to why she even took the item as she was more than capable of paying for it. I used this as an opening. I asked her if she was ever overweight. She acknowledged she had been and felt she was presently a little "fat(ter)" than she wanted to be. Personally I thought she was beautiful. As a result I felt the next question would be a gateway to determining what had happened here. I asked her if she used binging and purging as a way to control her weight. She thought for a second about admitting this but then she acknowledged she had for a while, had stopped and then had begun again about a month ago. This would soon become significant. <br /><br />After her admission on the binge/purge phenomenon I asked her point blank when she had been assaulted. She immediately denied ever being assaulted or abused. I waited a moment and looked her in the eyes. She hesitated, and the tears filled her eyes. She then admitted she had been attacked by two strangers outside of her dorm a few weeks into her freshman year. She had been drinking. She said she was not raped because a boy she knew happened onto the scene and broke it up. She had told no one about it. She told her new boyfriend about it just before winter break, a month ago...<br /><br />Now in full sobs, she didn't want her parents to know. They are old and would be upset and she didn't want to upset them. She was afraid they wouldn't let her return to school. That they would be angry at her because she "let" herself be put into a situation she lost control over.<br /><br />Of course I knew that they would be upset because she had been hurt and that if they found out they would readily understand what had happened and why the petty theft had occured. I knew they weren't going to pull her from school and that she needed to tell them. I also new they weren't going to fall apart. They weren't that "old". In fact they were MY AGE!!!! It never fails to amaze me how our children think their parents feeble when they turn eighteen...<br /><br />Anyway, upon the parents return, she and I spoke to them. They were confused until she gave me permission to tell them what had happened. Then the waterworks started, and she got the love and support she needed. Her mom hugged her and cried. Dad was obviously concerned and upset but he handled it just right. I knew they were going to handle it well, they had produced a brave, smart, wonderful child and that didn't happen because they were judgemental, unsupportive or feeble. While it was tough to do, and not easy to handle, healing was beginning before my eyes. <br /><br />I referred the parents to a Psycotherapist that handled sex crimes and victims so that they could process their feelings and then I referred the client to her Mental health facility at school. I am now going to seek dismissal of the case with the District Attorney and this kid will go on to achieve her dreams and fufill the promise she displayed. She is again her parents "golden child." <br /><br />I am not a shrink, nor do I play one on TV, but I am a gatekeeper. I am a person who has some streetsmarts and life experience. I am a student and a teacher. I am a parent and a spouse which was the main reasons I handled that situation as well as I did. (It helps that my sons are the same age as my client above.) <br /><br />I came home and was telling the story of what happened to my family. Both of my sons work with me in the office, and my wife still helps out with "managment issues" when I need her to (she was the best secretary I ever had). My youngest son, Frank, looked at me and said " Hey dad, I have a new laser speech for you." "I'm a lawyer and I help." I had to smile. In six words he encapculated exactly what I do, and what I aim to do. He says he wants to be a lawyer too, but he may have a career in public relations.<br /><br />I have a new answer for the question "What do I do for a living?" <br /><br />"I'm a lawyer, and I help."That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com2tag:blogger.com,1999:blog-8503071.post-68652304748257700592008-07-20T17:00:00.001-04:002008-07-20T17:00:00.815-04:00Vior Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert. Part OneExpert witnesses in criminal trials are often members of police forces and Medical Examiner's offices. The County or State spends a lot of money to train these folks and they go to classes and they attend seminars. They have been on the job (especially in the police detective's case) for many years and often personally know the judges they appear before. They also have been found to be experts in dozens of other cases before the one you're trying so that their being named an expert now is a forgone conclusion. I have watched as they routinely are offered up as experts with nary a sound toward their preclusion as an expert. Why are we defense lawyers giving these people a free ride?<br /><br />I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:<br /><br />1. They almost always get named as experts so we don't bother to try to keep their testimony out.<br />2. We often expect their testimony, and so we build it into our case.<br />3. We do not have the tools available to us to get the background and to do a proper Voir Dire. <br /><br />As noted scientist, author, and attorney Gil Safir <a href="http://www.forensicmag.com/articles.asp?pid=132">writes</a>, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion. This short series of posts aims to begin changing that. Today I am presenting part one of this two post presentation. Please feel free to add whatever you can in the comments. <br /><br /><span style="font-weight:bold;">I. Preparing the attack.</span><br /><br />A. <u>Frye or Daubert?</u><br /><br />The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony. <br />Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the <u>Frye test</u>(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the <u>Daubert test</u>(<u>Daubert v. Merrell Dow Pharmaceuticals, Inc.</u>, 509 U.S. 579 (1993)).<br /><br />Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.<br /><br />Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are <u>General Electric v. Joiner,</u> 522 U.S. 136, 118 S.Ct. 512 (1997)and<br /><u>Kumho Tire Co., Ltd. v. Carmichael,</u> 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).<br /><br />Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.<br /><br />B. <u>What kind of expert do we need? Consultants v. Testimonial experts.</u><br /><br />This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct. <br /><br />First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts. <br /><br />Why not let him testify? <br /><br />Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either <u>Rosario</u> or in Federal court <u>Jenks</u>. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)<br /><br />I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well.<br />Why? Because he or she will have inside dirt I can toss at the other side's expert. <br /><br />In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.<br /><br />In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.<br />Remember, to get this witness qualified you are going to need:<br />1. Educational/academic degrees<br />2. a present position in the field, or recognition within the field.<br />3. Board Certification<br />4. Publication<br />5. Peer review of research<br />6. A lengthy career<br />7. Teaching/Lecturing within the field to other experts or at least to beginners.<br />8. Professional Associations and time within them. <br />9. Positions held in these associations. <br />10. Awards and honors achieved within the field and with in any sub-specialty.<br />11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)<br /><br />Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness.<br />Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.<br /><br />If a witness is a smart guy who also is a regular "Joe", all the better. One of my favorite witnesses was a short older German or Austrian Jewish woman who spoke with a heavy accent. She was named Dr. Ruth Finch. Now she was a wonderful character. As easily the Medical Doctor as she was your aunt Sadie. It took no time for the court officers and then the jurors to start speaking of her as Dr. Ruth (after another popular Shrink/sexologist Dr. Ruth Westhiemer who was the rage back then.) She educated the jurors, charmed them and completely frustrated the prosecutor. (Need I say it was a defendant's verdict.)<br /><br />Now that we have figured out what standard we are going to use to determine if the testimony is going to come in, and we have determined what we need as far as an expert goes, and who (more or less by credentials) the witness will be, we are ready to try to keep the other side's witness off the witness chair, or if they do get up there, make them seem incompetent enough, that no self respecting person would send even an enemy to see them.<br /><br />And that will be in Part II.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com3tag:blogger.com,1999:blog-8503071.post-83358750943635199642008-07-19T23:33:00.002-04:002008-07-19T23:38:10.247-04:00Tomorrow I Begin Posting Here Again.After closing this blog for over a year, I have decided to start posting on a weekly basis with updates as are necessary or as I feel like it. <br />Every weekend I will endeavor to get up a post on some area of criminal trial law that informs or even educates. I am also open to guest bloggers who have something to say but do not want to open their own blog. <br />So later tomorrow night. I will be bringing you Part I of what I think will be a two part posting on "Attacking the Credentials of an Expert. <br /><br />Let me know what you all think.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-30340271337038321272007-03-21T02:01:00.000-04:002007-03-21T02:14:14.756-04:00Over-confident Witness Can Turn Off A JuryJury prep is a difficult "science." There is a tendency on both the part of the witness and the lawyer to want to come away as competent and all knowing. I have always worried about presenting witnesses who were too well trained. To that end, I have also worried about the witness who over equivocates. "I think"; "it seems as though"; " I believe"; "maybe" are all answers that to the attorney appear to be weak and not "selling" the theory of the case, well enough.<br /><br />Now there is a new study out that verifies my suspicions. According to a new study at Cal Berkely an over confident witness who makes mistake on the stand is far more likely to anger a jury than one who seems unsure of himself. <br />The article is <a href="http://www.berkeley.edu/news/media/releases/2007/03/12_testimony.shtml">here</a>.<br /><br />Hattip: <a href="http://lawprofessors.typepad.com/crimprof_blog/2007/03/new_study_state.html">CrimProf Blog</a> part of the Law Professor Blog Network.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com2tag:blogger.com,1999:blog-8503071.post-60126716316131805892007-03-12T11:28:00.000-04:002007-03-12T12:10:29.336-04:00Unemployment Insurance Fraud Seminar at Nassau County Bar Association TonightI will be speaking at a seminar for the<a href="http://www.nassaubar.org/"> Nassau COunty Bar Association</a> on Worker's Comp Fraud and Disability Insurance Fraud at Domus. It begins at 5:30 and snacks are served. The bar will grant 3 hours of CLE credit for the program. I will be speaking on defending these cases. There will be a speaker from the Nassau District Attorney's office and Victor Fusco from Fusco Brandenstien and Rada a top Disability and Worker's compensation attorney. The program should be fun and informative. If you are representing a defendant in one of these cases you should give this seminar a shot. Cost is $100.00.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com1tag:blogger.com,1999:blog-8503071.post-5347151036036368892007-03-06T22:33:00.000-05:002007-03-07T12:48:32.271-05:00Ripped From The HeadlinesA few issues <b>“Ripped From The Headlines.”</b><br /><br />I. <u>Credit Card Fraud.</u><br />From <a href="http://www.mayitpleasethecourt.com/journal.asp?blogid=1451">May It Please The Court.<br /></a> we learn that cash register receipts may no longer display your entire credit card number. These receipts may only show <b>THE LAST FOUR(4)DIGITS</b> of the credit card number. They also may not include your card's expiration date. If they show more than that it is a violation of the <a href="http://www.privacyrights.org/fs/fs6a-facta.htm">Fair Faith and Credit Transaction Act</a> and they can be in <b>BIG TROUBLE!!</b><br /><br />Why you may be asking? Because "penalties range up to $1,000 <em>per incident</em>, and the suits can be filed as class actions, multiplying the penalties dramatically."In other words vendors who are not in compliance as of January 2007 are at risk of lawsuits. Are you in compliance? Have you been a "victim" of a violation? Time to check out those receipts.<br /><br />II.<u> Dallas Tx. District Attorney Seems To Care About Innocents Being Convicted.</u>.<br /><br />Now here is what appears to be a prosecutor with both an interest in justice and a brain. Rather than waste money from his budget trying to keep evidence secret and protect possibly faulty convictions, he is willing to open his files to the Texas Tech Law School Innocence Project. Now people who claim that the have been convicted of crimes wrongfully will have the chance to have their claims investigated by a private organization which can bring their findings to the DA’s office or to court. In the long run it will save his county money and do a service to the community (and to the wrongfully accused if any exist there.) Story <a href=”http://lawprofessors.typepad.com/crimprof_blog/2007/02/dallas_will_ope.html>here</a> <br />HatTip: Crim Prof Blog.<br /><br />III. <a href="http://www.law.pace.edu/"><u>Pace University Law School</a> institutes a Return to Practice Program With The <a href="http://www.wwbany.org/">Westchester Women's Bar Association</a>.</u>.<br /><br />Interesting new program over at Pace Law School. It is designed to help Lawyer-Parents who are returning to the workforce to brush up on what they may have missed while performing familial duties. It will also be open to attorneys who have found other alternate career opportunities. I can foresee a day where a smart law school will open a program like this for disbarred and suspended attorney’s and it will be required as part of their application to be restored to practice. The course could have a heavy ethics concentration as well as small business skills building. The program is described as follows:<br />“<a href="http://www.law.pace.edu/newdirections.html">’New Directions,</a>’ set for a May 21 launch, is a two-semester certificate program of study and externship for attorneys who have temporarily left practice and now want to return. “ Click <a href="http://nathan.law.pace.edu/cfdocs/careerdev/program.cfm">here</a> to find a form to get more information.<br /><br />IV. <U>Politics and Prosecutors.</u>.<br />Over the last 2 months Eight (8) Federal prosecutors have been fired by the Bush Administration. Some suspected politics at work. In <a href="http://us.lrd.yahoo.com/_ylt=AqZYwX8hdJM7q58hx1gKyCcE1vAI/SIG=14fp57ihc/**http%3A//www.nytimes.com/2007/03/05/washington/05attorneys.html%3Fex=1330750800%26en=c4eb7b1fa5d22c7f%26ei=5089%26partner=rssyahoo%26emc=rss">this article</a>it appears Senator Pete Dominici had it in for a guy he formerly supported because he wasn't indicting democrats fast enough. What ever the reason, Federal prosecutors, (US Attorneys) serve at the President's discretion. President Bush has a right to fire whomever he wants. What he does not have, however, is the right to fill the positions that open up with out the advice and consent of the Senate. Right now, he fills the spots with interim people who never get to a vote up or down in the Senate. That is both a dereliction of the Constitution and a petty way to run government. Worse than that, it appears that the senator and the President were trying to rig prosecutions for political reasons. This type of behavior calls into question the fairness of the prosecutor's function. It further indicts the entire criminal justice system. Congress should be looking into that as well as the clear violation of the spirit and possible the words of the Constitution.<br /><br />V. <u>How do Courts Work. .</u><br /><a href="http://www.progressiveu.org/133844-how-the-heck-do-courts-work">Here</a> is a quick piece on how courts are set up within the states and federal government. It explains jurisdiction and how to tell which court hears what type of case. It is a good teaching tool.<br /><br />VI. <u>A Little TOO Friendly Skies: Airline Employee Fondles Sleeping Passenger on Flight.</u><br /><br />Seems a maintenance man working for Northwest airlines boarded a plane from Tacoma to Minneapolis. He then allegedly waited for a female passenger to fall asleep and while the passenger slept, he lifted her shirt in an attempt to fondle her. When she awoke from feeling the material of the shirt move, he got up from the seat next to her and went elsewhere in the plane. The passenger alerted an attendant and the FBI met the flight in Minneapolis. He is being held. Article <a href=”http://seattlepi.nwsource.com/local/306244_grope06.html?source=rss>here</a>.<br /><br />Ok that's it for now.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com2tag:blogger.com,1999:blog-8503071.post-49499585306665256192007-02-26T20:24:00.000-05:002007-02-26T20:29:12.406-05:00Physician Heal Thy Self: Saving The Wounded Is Giving Material Support To The EnemyPost 101 is contributed by Ms. Amy Hsu. <br /><br />Hello readers.<br />I am Amy Hsu, and I am an associate at the Law Offices of Anthony J. Colleluori and Asssociates PLLC. My practice concentrates in criminal law and appeals. As the wife of a emergency room doctor in NY, I found the case of Rafiq Sabir to be both interesting and perplexing. Allow me to elaborate:<br /><br />In May of 2005, an Ivy-League educated physician (Rafiq Sabir aka "the Doctor,") was charged with agreeing to provide medical care to wounded "holy warriors" in Saudi Arabia, in an FBI sting <a href="http://www.milnet.com/terr-cases/Bronx/Docket%20Report%20-%20Bronx%20Conspiracy.html"><u>United States v. Shah,et. al.</u></a>, 1-05-cr-00673 (SDNY 2005). The doctor is charged with violating <a href="http://www.law.cornell.edu/uscode/18/usc_sec_18_00002339---B000-.html">18 U.S.C. 2339B.</a> <br />It states in sum and substance that: <blockquote>it is a crime to provide material support or resources, namely personnel training, and expert advice and assistance as defined in 18 U.S.C. 2339A to a terrorist organization.</blockquote> <br /><blockquote>"Material support or resources” means “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” 18 U.S.C 2339A(b)(1).</blockquote> <br />The statute also defines “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge.” 18 U.S.C. 2339A(b)(3). <br /><br />The doctor/defendant contends that the statute (18 U.S.C 2339B) was unconstitutional on its face and as applied to him, because it deprives him of his right to practice medicine. He argues that the statute does not specifically identify what conduct of his as it relates to the practice of medicine is in violation of the statute, since the law explicitly excludes “medicine” from the list of items constituting “material support or resources.” “Medicine” and “doctor” are inextricably intertwined in the doctor’s mind. <br /><br /><a href="http://www.fjc.gov/servlet/tGetInfo?jid=1936">District Judge Loretta A. Preska,</a> Southern District of New York found the statute to be constitutional however. According to Judge Preska, the defendant is not charged with merely being a doctor or for performing medical services. Rather, his action constituted having “volunteered as a medic for the al Qaeda military, offering to make himself available specifically to attend to the wounds of injured fighters. Much as a military force needs weapons, ammunition, trucks, food, and shelter, it needs medical personnel to tend to its wounded.” <br /><br /><br />How could a doctor provide medicine without providing medical service, i.e. the giving of medicine? There is no doubt that a doctor has scientific, technical or other specialized knowledge given his years of professional training. However, it is unclear what "medical attention or advice" would be considered a crime subject to prosecution under 18 U.S.C. 2339B given that the law makes it okay to “provide medicine.” Is providing medicine legal but explaining its use or providing dosing information illegal. Would the same be true if an American doctor provided the same care to a POW?<br /><br />Would criminalizing the doctor’s act be in violation of the Hippocratic oath that is held sacred by the physicians to treat the ill to the best of their abilities? What would happen if the law makes it crime for a doctor to treat serial killers? The oath Doctors take is to save the lives of others no matter how “despicable” they may think the lives are. This decision sets a bad precedent and fails to give doctors, or for that matter companies that manufacture medical goods and services, sufficient guidance to conduct themselves and uphold their obligations.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-65831409978876648452007-02-26T00:00:00.000-05:002007-02-25T23:43:26.766-05:00Actions Speak Louder Than WoofsDiane Petillo has the honor of posting our 100th post:<br /><br />And now for an update on a <a href="http://colleluorilaw.blogspot.com/2007/02/deaf-boy-and-his-dog-together-again.html">previous post</a> in the case of<a href="http://mobile.newsday.com/detail.jsp?key=38188&rc=longisland&p=1"><u>Cave v. East Meadow Union Free School District, et al.</u> </a> John Cave, Jr. testified in the United States District Court for the Eastern District of NY (Central Islip) on February 22nd before <a href="http://www.fjc.gov/servlet/tGetInfo?jid=2248">EDNY Judge Arthur Spatt</a>, at which time he detailed how the school’s refusal to allow him to bring Simba, his service dog, to school has impacted his relationship with Simba, as well as his training. <br /><br />John testified that, as a result of the time he has been forced to spend away from him, Simba’s skills are waning. John went on to testify that: "He's breaking his commands at home when he's not supposed to. He's barking at sounds. He's not allowed to do that," Cave said. "He's not doing as well because he's not going to school."<br /><br />During his testimony, Cave said Simba has been trained to alert him to cars, smoke alarms and bell rings by nudging him. Without the dog, Cave said, he couldn't respond immediately when a fire alarm sounded at school recently. It was only after John saw the other students getting up that he asked someone, who then informed him that the fire alarm had rung. <br /><br />If Simba had been with him, one nudge from him would have alerted John immediately that there was a problem. Imagine that instead of being in a classroom with other students, John was in a bathroom stall by himself. Would someone have gone looking for him, or would he eventually figure out that something had happened when he saw no one else in the building?<br /><br />Imagine, for a moment, the world around you has quieted. If you would indulge me this simple exercise, please turn on your television (or hit play on a YouTube broadcast if you are not near a television screen), mute the sound, and turn off the caption for a few minutes. How much of the conversation were you able to comprehend? It is obvious to me that you will realize how much of our world is auditory, and how much we fail to grasp when deprived of the gift of hearing. This is the world of John Cave, Jr., and so many people like him. <br /><br />I have been criticized in a recent blog response regarding my analogy of Simba to John with eyeglasses to those who are visually impaired. I thank <a href="http://www2.blogger.com/profile/07489944336685763154">Kathy Podger</a> for her support in this analogy. Service animals, trained specifically to help individuals overcome the limitations of their disabilities are no different than eyeglasses, hearing aids, canes, wheelchairs or other equipment. <br /><br />Animals that meet the definition as set forth by the <a href="http://www.dol.gov/esa/regs/statutes/ofccp/ada.htm">Americans with Disabilities Act</a> are considered <a href="http://www.usdoj.gov/crt/ada/svcanimb.htm">‘service animals’</a> regardless of whether they have been licensed or certified by a state or local government or any other public or private entity. If you scroll down the last link, you will see that fear of allergy or dogs does not entitle the public entity to deny the animal access.<br /><br />Under the Americans with Disabilities Act, persons who rely upon service animals have the right to have their animals accompany them wherever they go. This includes public buildings, railroads, and the subway. <br /><br />The American with Disabilities Act is quite clear on this point. It is not about the device; it is about the individual’s needs. It is about what John is entitled to under the law.<br /><br />P.S.: During the entire 90-minute testimony, Simba was quiet and still. Apparently, Simba is his own best argument that he will not be a disruption in class. After all, actions speak louder than woofs.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com8tag:blogger.com,1999:blog-8503071.post-31350574757990797762007-02-25T18:49:00.000-05:002007-02-25T20:25:02.795-05:0042 USC 1983 After Wallace v. Kato: What To Do NowThis is a hopefully going to be a short post. Last week (in fact the day after the court heard argument in Rita/Claiborne) it announced its decision in <a href="http://supremecourtus.gov/opinions/06pdf/05-1240.pdf">Wallace v. Kato</a>. The issue effects both criminal lawyers and civil rights attorneys (or for those of us at <a href="http://supremecourtus.gov/opinions/06pdf/05-1240.pdf">The Law Offices of Anthony J. Colleluori & Associates, PLLC.</a> both sides of our brains.)<br />Up until now it was always the procedure, that after a person was arrested (and imprisoned) he would be able to sue the government, whether or not he filed a notice of claim against the county, by alleging the same behavior(e.g. false arrest and unlawful imprisonment) through the use of a <a href="http://www.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00001983----000-.html">42 USC 1983</a> suit. In the US District Courts in NY, The statute of limitations was always thought to be within three years of the end of his incarceration and his prosecution whichever came later. <br /><br /><b>NO MORE</b><br /><br />The court in its decision in <u>Wallace</u> has changed a number of things dealing not only with filing but also with pleading the case. <br /><br />1. False arrest is a subset of unlawful imprisonment. <br />2. The statute of limitations for a 42 USC 1983 claim arising from an unlawful imprisonment claim is as long as the time one has to file a personal injury suit in the state where the action accrues. In New York State, that means 3 years.<br />3. The date of accrual begins on the date of arrest and the tort ends at the time of arraignment. <br />4. All the damages that occur after arraignment are properly recompensed in a Malicious Prosecution based suit not by a false arrest/unlawful imprisonment cause of action. <br />5. While a Malicious Prosecution based suit's statues of limitations may be tolled by the case of <u>Heck v. Humprey</u>, 512 US 477(1994), actions for false arrest and unlawful imprisonment <b>are not</b> so tolled. <br /><br />Now here's the thing, we all know that it is easier to win a false arrest/unlawful imprisonment case, because it does not require that we win the underlying criminal action. We can accept a dismissal that is favorable on the issue of the arrest not the prosecution (ACOD's [ACD's for NYC Guys]; Dismissal in the interest of Justice, speedy trial dismissals). Malicious Prosecution based causes of action, requires a favorable termination of the prosecution itself. So in order to preserve the clients right to compensation, we have to go to trial, or at least get a "full surrender" from the DA on the prosecution's merits(a "no true bill" from a grand jury counts.)<br /><br /><u>Remedies and Strategy</u>:<br />A. File a notice of claim under all circumstances. <b>IF</b> the attorney for the criminal defendant is not the same one as the attorney on the <u>1983</u> action, the criminal attorney would do well to keep up with his colleagues and help him draft the notice of claim. The criminal attorney should also warn the defendant about his rights to the civil rights action, otherwise he chances a malpractice suit. <br /><br />B. At the very least, send a letter to the county attorney or city corporation counsel. Be sure to set out the date of occurrence, the participants and give enough information to put the county on notice of what they need to defend themselves. (One reason given for the need to file within three years of accrual is so the government will be able to gather the necessary evidence to defend itself. Hence even if you are too late to file a normal notice of claim, either file one late and as soon as possible or send a letter which follows that statute.) This is not to say a that such a letter is now a condition precedent to file a 42 USC 1983 claim, it isn't.<br /><br />C. When stating damages for the false arrest and unlawful imprisonment claim, allege the further detention and prosecution of the plaintiff constituted "consequential damages" attributable to the false arrest.<br /><br />D. Name the complainant in the action even if you will later not try to collect the judgment from her because of non deep pockets.<br /><br />E. Bring the lawsuit timely. The court will stay the action pursuant to <u>Quackenbush v. Allstate,</u> 517 US 706 (1996).<br /><br />F. If the client should lose in the criminal prosecution, the False Arrest/Unlawful Imprisonment case will be dismissed.<b>THIS IS NOT THE END OF THE CASE</b>. Notify the client that <b>IF</b> the case is later overturned he must immediately seek to refile the case in the US District Court. It seems he should have at least 90 days to do so, but get it done as quickly as possible. The <u>Wallace</u> decision in footnote 4 states that the <u>Heck</u> bar is not an immunity granting vehicle. The District Court should grant the defendant time to refile. I imagine that the period would be equivalent to the period under the <u><a href="http://www.law.cornell.edu/rules/frcp/">FRCP</a></u> to file in state court if the federal claims are dismissed, but the court did not say how long he has in the <u>Wallace</u> decision.<br /><br />Remember that these changes are immediate so get to work to protect the rights of the wrongfully accused.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com2tag:blogger.com,1999:blog-8503071.post-39036041365361215122007-02-20T22:32:00.000-05:002007-02-21T09:58:43.367-05:00That Lawyer Dude At SCOTUS: Rita and Claiborne Seek To Define The Scope Of BookerI had the privilege to attend yesterday's argument in the Rita and Claiborne cases. It was not nearly as exciting for the defense as the argument in Booker/Fanfan. In the Booker case, the courts protective view of the 6th amendment was clear. You could tell from the start there was at least 4 strong votes for the federalization of Blakely. You could also see Justices Breyer and Kennedy lobbying votes for the remedial decision.<br /><br />For those of you not up on federal sentencing law, a fast update: in the mid 80's, Congress clearly upset with the divergence of sentencing and the randomness of the range from circuit to circuit and even judge to judge, set up a mandatory sentencing scheme which would give points for everything a judge should consider when sentencing someone. The judge would make a finding of whether a fact existed or not, add up the points and Voila a sentence would appear. For 18 years that was the law. Finally 3 years ago the court stated that such a sentencing scheme violated a person's right to be judged by a jury of his peers. In order to save a semblance of the "uniformity in sentence" that the guidelines gave, the court in Booker said that while mandatory guideline sentencing was unconstitutional (the merits part of the decision), an advisory guideline system was not. Instead it instructed trial level courts to consult the guideline range but them consider other factors delineated in the sentencing law (18 USC 3553a) so that they would craft a sentence that was the minimum necessary to accomplish the goals of sentencing that were laid out in the law. Courts of Appeal would then review these sentences to determine if they were reasonable given the other sentences within the circuit and the nation (this solution is known as the "remedial" side of the decision.<br /><br />The cases argued yesterday, asked the question: Are the guidelines just one thing among equal issues the court should consider in crafting a sentence, or are they to be considered reasonable per se, with only extraordinary cases being allowed sentences outside of them?<br /><br />Yesterday was a more contemplative court. Both anchors of the debate are clearly not happy with the results of the Booker case. Breyer was fighting for judicially mandated, case law driven guidelines that are in fact mandatory by virtue of the fact that a district court will know just what the appellate court will allow, and Scalia is fighting for the 6th amendment right to a jury driven sentencing scheme where a defendant is sentenced only by the facts he admits or a jury finds. The middle seems to be Chief Justice Roberts and Justice Ginsburg who still seems married to the Booker decision. <br /><br />The attorneys for both sides argued valiantly. But as another commentator has said, they seemed to all be having separate conversations, none of which helped the court to resolve the issues it had before it.<br /><br />The court was concerned that courts of appeals, deciding which issues were mitigating and which were aggravating, were just acting as mini Sentencing commissions. District court judges who did not want to be overturned would look to the decisions of the appellate courts and decide not what was right for the individual before them but instead decide what would make the appellate court happy. In effect the appellate court's decisions would become defacto mandatory guidelines. <br /><br />In effect the merit's side of the court was arguing again that the remedial side of Booker was an impossible solution to the 6th amendment problems with guideline sentencing. <br /><br />The merits side of Booker, clearly overly protective of the guidelines, was arguing that the sentencing statute's purpose in uniformity was a key to the issue and that the guidelines had to be at least per se reasonable unless the case were remarkable. <br />The issue became clear near the end of the Rita argument and held for most of the Claiborne argument. If the guidelines are really advisory, then the 6th amendment forbids appellate review for reasonableness. Both the Solicitor General and Justice Scalia answered that question that way. In a humorous but serious exchange Justice Bryer jumped in with a defense of the remedial solution which lead the Solicitor to suggest he had heard this argument before and (without saying it)preferred to not be in the middle of it (There is an old African saying that when Elephants make love Butterfly's get crushed... I think the Deputy SG is familiar with the concept)<br /><br />Here is the rub from where I sit. IF in fact the court thinks that the 6th amendment right to a trial by jury is important. It has to rule that the guidelines are not constitutional at all. That sends Federal criminal law into a tail spin. If it wants to hold on to some semblance of the guidelines, Breyer and his side is going to have to say that the guidelines are to be consulted and that reasonableness review is not to uphold uniformity but to uphold the other goals of section 3553a. Otherwise the court is going to have to say that you can only sentence according to facts found at trial or admitted to by the defendant. <br /><br />If Congress is seriously interested in uniformity, it will change the sentencing scheme completely, take out issues that allow departure upward or downward and pass a guideline approach that punishes only for the crime committed, with very narrow mandatory minimums and maximums to reduce judicial independence. The review in the appellate level would be then limited to 8th amendment review for cruel or unusual sentencing. Congress could allow appellate courts to review with a lesser standard, but I do not think that such a lesser standard stands a chance in the atmosphere that exists on Capitol Hill today.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-594177623119535452007-02-18T23:21:00.000-05:002007-02-18T23:23:11.022-05:00A Deaf Boy and His Dog – Together Again?Hello! I would like to introduce myself as a new blogger to this site. My name is <a href="http://www.colleluorilaw.com/Bio/DianePetillo.asp">Diane Petillo</a>, and I am attorney in charge of the Civil Trial Division at the <a href="http://www.colleluorilaw.com">Law Offices of Anthony J. Colleluori </a>(a/k/a “<a href="http://www2.blogger.com/profile/00621463114160360197">That Lawyer Dude</a>”). Tony asked me for my thoughts on a <a href="http://www.newsday.com/news/local/longisland/ny-lidog0209,0,7974833.story">recent case</a> that you may have heard of in East Meadow, New York. I’m sure by now that you have all heard about <a href="http://www.newsday.com/news/local/longisland/ny-lidog0209-pic,0,6239947.photo">John Cave, Jr.</a> and his quest to bring his companion dog, Simba, to school with him.<br /><br />John is now 14 years old, and he has been deaf since early childhood, and has struggled his whole life to be able to function in society like everyone else. Unfortunately, for someone who is profoundly deaf and has difficulty speaking, this is no easy task. Even having <a href="http://www.nidcd.nih.gov/health/hearing/coch.htm">cochlear implants</a> inserted in both ears did not fully solve the problem.<br /><br />He recently became eligible for a <a href="http://www.neads.org/services_new/hearing_dog.shtml">service dog.</a> He was required to pass the <a href="http://www.adionline.org/publicaccess.html">ADI Public Access </a>test in order to qualify. After passing the test, he received Simba, a two-year old Labrador retriever, who would be his “ears” for the future. This was made possible only through grants from various individuals and organizations.<br /><br />Now that John’s his life, arguably, should be a little easier, along comes the <a href="http://www.eastmeadow.k12.ny.us/">East Meadow (NY) School District</a> to throw a wrench in the works.<br /><br />Before I give you my thoughts on this case, I feel in the interests of fairness and full disclosure, I must tell you of my personal bias towards the abilities of <a href="http://www.akc.org/breeds/labrador_retriever/index.cfm">Labrador Retrievers</a>. I am known on my block as the proud “mother” of a 2-year old yellow Labrador Retriever named Kirby, who may very well be a human trapped in a cute, furry puppy suit. Kirby has figured out for himself how to open doorknobs (sometimes to our chagrin…like to time he let himself out of the house). He also treats the ice dispenser on the refrigerator door as “self-serve” although no such sign was ever formally posted. (If this grosses you out, bring your own cubes to my house[yes, we do clean it…<b>OFTEN</b>]).<br /><br />As someone who has seen first-hand, with constant wonderment, the abilities of Labradors and how they interact so humanly with people, I truly understand his mother’s concerns that John needs to “connect” with Simba throughout the day in order to fully bond with Simba. Labradors, when left to sulk for the morning and afternoon, are not as in tune with their “people.” They thrive on human interaction, and, conversely, when such interaction is withheld for long intervals, they can lose their skills that are not regularly being reinforced. They can even become resentful of the lack of attention. (How would you feel if someone said, “be right back” and came back 8-10 hours later, and then did this again to you for 5 out of every 7 days?). If John and Simba aren’t permitted to bond, Simba will become a very expensive, and under-used assistance dog.<br /><br />After all, even though Simba is a working dog, he is still just 14 year old (2 dog years = 14 human years) with boundless energy and a need to connect with John Jr. so that they may bond and function as one.<br /><br />John Jr. is the most important human in Simba’s life as a working dog; John Jr. is the person to whom Simba must be unquestionable loyal. Their relationship and trust must build to the point that, if Simba were his secret service agent, he would be willing to take a bullet for John Jr.<br /><br />As a volunteer at <a href="http://www.pal-o-mine.org/">Pal-O-Mine Equestrian</a>, a non-profit horseback riding program dedicated to teaching horseback riding to individuals with special needs, I have seen the magic that results when a child and a trained animal work together therapeutically. <br />They are united in their common goal of making the student’s life better on a physical and, often more importantly, on an emotional level. <br /><br />Yes, no question, John, Jr. could get by on a daily basis without Simba. But should he have to? If you lost your eyeglasses or a contact lens, perhaps you’d find your way home, but that doesn’t mean that your corrective lenses are not effective in making your day easier. You could squint your way through this blog, but it may take 3 times as long. Even if just once Simba catches an auditory signal that John wouldn’t have picked up on, would that make a difference in his life? <br /><br />We live in a world where people justify buying cell phones for their children to bring to school in the name of safety. Are you telling me that a service dog that is well behaved is more of a distraction in school than text messaging? Why then, are we so critical of a parent wanting extra protection for their children who legally are entitled to this assistance? Even <a href="http://www.fjc.gov/servlet/tGetInfo?jid=2248">Judge Arthur Spatt</a> noted in his courtroom that Simba was nothing but quiet during the entire court proceeding. In Judge Spatt’s own words "The dog is in this room and seems not to have bothered anyone so far…what is the harm of this boy bringing the dog? What seems to be the problem?”<br /><br />There is no question that rules must be enforced regarding hygiene, safety and proper etiquette. Simba can even be a teaching tool at a general assembly for the entire school. Children should learn the rules for interacting with the deaf community, in the event they encounter a deaf person in the outside world. All of us could stand to be reminded of how to (or, in most cases, not to) interact with a service dog. Such a dog is not a “pet.”<br /><br />Simba is not to be teased. He is not a plaything, but an integral part of the life of a deaf person. The school should have no more tolerance for the interference with Simba than they would for kicking the crutch out from under a child with special needs. <br /><br />I don’t know how the Court will decide....but I know what I would do if I were in a position to do so. The job of a school is to encourage children in their scholastic endeavors to foster independence, and humanity. How then can the school justify calling the police on John, Jr. and his parents because they had the nerve to come to school with a service dog? Shouldn’t they instead be doing everything in their power to make his life easier? If certain “protocols” must be followed, then why isn’t a school representative or a guidance counselor assigned to help the family get through those protocols?<br /><br />But hey, that’s just my opinion. <a href="http://www.newsday.com/news/local/longisland/ny-lidog0213,0,7712684.story">Stay tuned</a> for the court’s ruling.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com14tag:blogger.com,1999:blog-8503071.post-35836821752730234342007-02-15T19:10:00.000-05:002007-02-15T19:12:23.197-05:00WE'RE BACK!!!!!!!!I am very excited to announce that this formerly solo blog is back and going to be better than ever. If you are reading carefully, you saw the word "formerly" in the last sentence. That is because LICTL is becoming a group blog. Two of my Associates, Amy Hsu and Diane Petillo are joining me. I would like to introduce these talented women to you. <br /><br /><a href="http://www.colleluorilaw.com/Bio/DianePetillo.asp">Diane Petillo</a> is our Sr. Associate and leads our Civil Litigation Department. Practicing in the personal injury field for most of her 13 year career, Diane has been a plaintiff and defendant's lawyer. For the last year, she has concentrated her work on civil matters as diverse as mistreatment of prisoners to the devastating injuries caused by motor vehicle accidents where drivers were not taking sufficient care of themselves or of their vehicles. Diane's case load is extremely diverse. She can be working on behalf of a victim of government misconduct one day, and working on behalf of a wrongfully accused corporation on a civil Rico case the next. The Defamed, victims of Assualt, False Imprisonment, Sexual Abuse; Whistleblowers and those discriminated against because of their religious beliefs, race, age or sex, all wind up in Diane's office. As a co-blogger, I expect to see Diane writing on a lot of the cases and issues that appear in her case load. A hard nosed trial lawyer (as opposed to a litigator, trial lawyers actually try cases)Diane is a good teacher of trial techniques as well. I look forward to her teaching posts. <br /><br /><a href="http://www.colleluorilaw.com/Bio/AmyHsu.asp">Amy Hsu</a> is another associate in our Office. Amy is in charge of Appeals. In our offices we all try cases and we all write motions and appeals. It's just that Amy writes better than most. Formerly a law fellow for the <a href="http://www.nycourts.gov/admin/directory/donnino_william.shtml">Honorable William Donnino</a>, This year's NYS Bar Association's <a href="http://www.eisinc.com/release/storiesh/NYSBAR.917.html">Vincent Doyle award</a> Reciepient As Outstanding Jurist, Amy has studied and learned at the elbow of one of NY's finest trial judges. Since joining our firm in September of 2005, Amy has tried two cases to verdict and sucessfully achieved dismisals in many others, thanks to her well crafted and ingenious motion practice. In addition to her work here at <a href="http://www.colleluorilaw.com/CM/Custom/Home.asp">The Law Offices of Anthony J. Colleluori & Associates PLLC</a> Amy works on legal articles and CLE Programs for the <a href="http://www.nassaubar.org/cle_programs.cfm">Nassau County Bar Association's Academy of Law.</a> She is fluent in Mandarin Chinese and understands Taiwanese as well. I look forward to her insightful commentary on criminal cases. <br /><br />As both young women are new to blogging, I expect we will be starting out slowly but I hope you will find nearly daily blogging by members of our team soon. <br />Please encourage these young writers and comment on their work as often as you can.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1164172362735039702006-11-22T00:09:00.000-05:002006-11-22T00:12:42.746-05:00This Blog is on Temporary HiatusWith 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 <a href="http://thatlawyerdude.blogspot.com">That Lawyer Dude</a>?That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1162702478565611702006-11-04T23:07:00.000-05:002006-11-06T00:53:15.056-05:00SCOTUS TO TAKE UP SENTENCING GUIDELINES AGAIN!!!Doug Berman has a bunch of columns (<a href="http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/booker_question.html">here</a> <a href="http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/how_many_amici_.html">here</a>, <a href="http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/how_do_cunningh.html">here</a>, <a href="http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/the_facts_and_d.html">here</a> and <a href="http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/scotus_to_take_.html">here</a>) devoted to the <a href="http://www.supremecourtus.gov/">US Supreme Court's</a> (SCOTUS)decision to take up the issues of reasonableness within the <a href="http://www.ussc.gov/guidelin.htm">US Sentencing Guidelines (USSG).</a><br /><br />After the court's landmark decision in <a href="http://www.law.cornell.edu/supct/html/02-1632.ZS.html"> Blakely v. Washington</a>, which held mandatory sentencing by guideline to be a constitutional violation based on a case known as <a href="http://en.wikipedia.org/wiki/Apprendi_v._New_Jersey">Apprendi</a>(Wikipedia's brief on the case.) For 20 years the court had upheld the mandatory nature of the US Federal Guidelines. As <u>Blakely</u> only applied to state guidelines, the court took up the matter of the application to Federal Sentencing in <a href="http://a257.g.akamaitech.net/7/257/2422/25jan20051650/www.supremecourtus.gov/opinions/04pdf/04-104.pdf">US v. Booker and US v. FanFan</a>. <br /><br />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.<br /><br />Since then the circuits have been split as to if a sentence given under the guidelines was <i>per se</i> or presumptively reasonable or does the judge have to give a good reason for sentencing someone to a guideline sentence.<br /><br />The cert decision, requires that the attorneys arguing the case address 5 questions that the court has posed. They are:<br /><br />In Claiborne, the Court asks:<br />Was the district court's choice of below-Guidelines sentence reasonable?<br />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? <br /><br />In Rita, the Court asks:<br />Was the district court's choice of within-Guidelines sentence reasonable? <br />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? <br />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?<br /><br />(HATTIP: <a href="http://sentencing.typepad.com/sentencing_law_and_policy/2006/11/booker_question.html">Sentencing Law and Policy Blog</a>That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1162101092136227782006-10-29T01:22:00.000-05:002006-11-04T22:55:06.163-05:00A Few Notes: A New Legal Theory For Collection of Fees & Prostitution Stings Bring a Call For ReformSome interesting reading this week in the NY Law Journal:<br /><br /><b>I. Law Firm Can Sue In Fraud To Collect Treble Damages In A Failure To Pay Fee Case</b><br /><br />In an issue that has become near and dear to my own heart, I am happy to hear about the decision in <a href="http://www.nylawyer.com/adgifs/decisions/102706james.pdf">Chadborne Parke v. Bowen</a>. Evidentially, even big firms like <a href="http://www.chadbourne.com/home/index.html">Chadbourne Parke</a> get clients that will <a href="http://en.wikipedia.org/wiki/J._Wellington_Wimpy">"gladly pay us Tuesday for a Hamburger today,"</a>. Bowen kept promising payment but never intended to pay. His bill topped $300k before Chadbourne partners had enough.<br /><br />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.<br /><br /><b>II. Suffolk County New York is Cracking Down on Prostitution.</b><br /><br />I saw <a href="http://www.newsday.com/news/local/longisland/ny-lipros1027,0,3217213.story?coll=ny-linews-headlines">this article</a> 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.<br /><br />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.<br /><br />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. <br /><br />The Tax ramifications could in fact offset if not eradicate any cost associated with the proposal. Of course the problem is that the political culture of areas that practice this proposal would have to be such that people could in fact decide their fates for themselves. Policing ethics and morals has never worked in the United States, but there are arguments for trying anyway. From a criminal defense standpoint however the sex trade will never be wiped out, and present criminal enforcement only punishes those most in need of help, and marginalizes them as well. Basically it victimizes the victim. Maybe the answer lies in legalization or at least decriminalization. Our present "solution" is only making matters worse at a great cost, to both the community and the accused.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1161229945509732282006-10-18T23:51:00.000-04:002006-10-18T23:57:02.046-04:00That Lawyer Dude Says The Heigden Verdict Is Going To Be Overturned<a href="http://www.nassaucountyny.gov/agencies/DA/index.html">Nassau County (New York) District Attorney Kathleen Rice</a> gets a temporary victory and a <a href="http://en.wikipedia.org/wiki/Bully_pulpit">bully pulpit </a>for her crusade against driving while Intoxicated with the conviction of <a href="http://www.newsday.com/news/local/longisland/ny-lilimo1017,0,2763042.story?coll=ny-dining-headlines&track=mostemailedlink">Martin Heidgen</a> for murder by depraved indifference. I wonder (again) how she will explain the waste of taxpayers money when the case is overturned on appeal.<br /><br />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 <a href="http://www.law.cornell.edu/nyctap/I05_0164.htm">as clear as they can</a>. 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 <a href="http://www.law.com/jsp/nylj/PubArticleFriendlyNY.jsp?hubtype=&id=1152090320619">this decision</a> <br /><br />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.)<br /><br />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.<br />Today Rice won, tomorrow taxpayers will lose. Politics as justice, Nassau's new standard. <br /><br />UPDATE UPDATE UPDATE: The jury foreman <a href="http://www.newsday.com/news/local/longisland/ny-lilimo1019,0,2894116.story?coll=ny-li-bigpix">claims </a>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.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1160272089269314622006-10-07T21:01:00.000-04:002006-10-07T21:48:09.296-04:00The Law Of Gilligan's IslandIt 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. <br /><br />So today we took the <a href="http://www.amtrak.com/servlet/ContentServer?pagename=Amtrak/am2Route/Vertical_Route_Page&cid=1080772074490&c=am2Route&ssid=134">Amtrak Acela Express </a>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. <br /><br />He is showing us around town. "<a href="http://www.gwu.edu/~newsctr/newscenter/karzai.cfm">Kharzi</a> spoke here." "I saw <a href="http://uk.news.yahoo.com/22092006/46/photo/pakistan-president-pervez-musharraf-makes-remarks-george-washington-university-washington.html">Mussaraf</a> there." "<a href="http://www.gwu.edu/~sop/">Son's of Pitch</a>" (the GWU male acapella group he sings with) "performed in this park last week, this is where <a href="http://www1.istockphoto.com/file_thumbview_approve/396809/2/istockphoto_396809_us_army_soldier.jpg">the guys with the M16's</a> stand when a dignitary comes onto campus"...(That one really got to my wife...)<br />He eats in restaurants as <a href="http://www.gwu.edu/">George Washington Univ.</a> doesn't have a "cafeteria." He knows where to eat. Today <a href="http://cityguide.aol.com/washington/bars/lindys-red-lion/v-102190613">Lindy's Red Lion</a> (amazing burgers), tonight <a href="http://giovannistrattu.com/">Giovanni's</a> (unreal Osso Buco, veal stuffed tortellini in a panne sauce, Chocolate Mousse), Tomorrow brunch at <a href="http://www.fourseasons.com/washington/dining.html">Season's</a> and Dinner at some French place near Capital Hill. Monday <a href="http://dailygrill.zgraph.net/location.cfm?subsections_id=29">The Daily Grill</a>. Then back to NY.<br /><br />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.<br /><br />Nevertheless, I came across <a href="http://tarlton.law.utexas.edu/lpop/etext/jarvis.htm">this article</a> 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.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1159714045240103012006-10-01T10:43:00.000-04:002006-10-01T10:47:25.250-04:00Our 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. <br/><br/>This month there is a really good checklist on how to avoid behaviors that will attract the IRS' ire. <br/>For example:<br/>Claiming an exemption for a dependent whom you never supported.<br/>Destroying your books to conceal tax evasion.<br/>Creating false checks or receipts to support deductions that don't exist.<br/><br/>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<a href="http://www.colleluorilaw.com/CM/Custom/Newsletter.asp"> clicking here</a>. Sign up for monthly updates by <a href="http://www.enewslettermanager.com/communicator/registration/register.aspx?customerid=338">clicking here</a> and following the directions. <br/><br/>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<a href="http://www.colleluorilaw.com/CM/Custom/TOCContactUs.asp"> clicking here.</a><br/><br/>That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com1tag:blogger.com,1999:blog-8503071.post-1159676268480232292006-10-01T00:17:00.000-04:002006-10-01T15:27:02.836-04:00Congressman Sensenbrenner Goes Topless In The House Of Representatives: Lies Our Congressmen Tell Us.<a href="http://releases.usnewswire.com/GetRelease.asp?id=73513">This "Press Release"</a> from Congressman James Sensenbrenner (or should we call him Senselessbrenner) announces his latest attack on the Supreme Court's <i>Booker/Fanfan </i>decision. It announces his new legislation, which calls for "topless" guidelines. <br/><br/>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 <br/>would find outside of what the person was charged with or <br/>based on things a jury actually acquitted them on.<i> Booker/Fanfan</i> 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. <br/><br/><br/>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 <br/>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 <br/>end based on offense characteristics. <br/><br/>Senselessbrenner must think we are idiots. Let's deconstruct his press release lie by lie: <br/><br/>Lie No.1: The guidelines have produced prodigious reductions in sex crime sentencing.<br/>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," <br/>What unmitigated bull hockey. <br/><br/>Now <a href="http://www.ussc.gov/booker_report/Booker_Report.pdf">here is the truth</a>:<br/><br/>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 <strong>has remained fairly constant</strong> (USSC March 2006 report, page ix)<br/><br/>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<br/><br/>And finally "the average sentence length post Booker" has <strong>increased</strong> in child porn cases. <br/><br/>Either Senselessbrenner can't read or he thinks we can't.<br/><br/>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."<br/><br/>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.<br/><br/>If there is a "topless" guideline, then only the bottom sentences will be the same. It will still be a <br/> 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.<br/><br/>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."<br/><br/>Well let's not take my word for it, why don't we look at what the bipartisan committee of the <a href="http://www.constitutionproject.org/pdf/SentencingRecs-Final.pdf">Constitution Project </a>(Chaired by Reagan Attorney General Edwin Messe and Clinton's Deputy AG Phillip Heymann.) They said that "topless guidelines are unconstitutional." <br/>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 <a href="http://sentencing.typepad.com/sentencing_law_and_policy/2005/09/fsr_issue_asks_.html">this post</a> and <a href="http://www.heritage.org/Research/LegalIssues/tst111704a.cfm">the testimony</a> of the conservative leaning Heritage Foundation's Paul Rosenzweig, calling the Topless guidelines <br/>(or Bowman fix) "probably not a long term solution" to the sentencing issues presented by <br/>the Booker decision.<br/><br/>If Sensenbrenner really wants to protect children from exploitation, <a href="http://news.yahoo.com/s/ap/20060929/ap_on_go_co/congressman_e_mails;_ylt=AvOC63hv7wum5TVppUTXt3GyFz4D;_ylu=X3oDMTA2Z2szazkxBHNlYwN0bQ--">let him start on Capital Hill</a>.<br/><br/>AN UPDATE: Ellen Podgar is blogging this over at<a href="http://lawprofessors.typepad.com/whitecollarcrime_blog/2006/10/sensenbrenner_t.html"> White Collar Crim Prof</a>. 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.<br/>That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1159330542535973222006-09-26T22:39:00.000-04:002006-09-27T01:03:18.676-04:00More Horror Stories From The NY Times On Life In The Small Towns And Village Courts Of New York The Times has <a href="http://www.nytimes.com/2006/09/26/nyregion/26courts.html?ex=1316923200&en=79a2f2d16b3b8f9b&ei=5090&partner=rssuserland&emc=rss">part II</a> of its series on injustice in the Town and Village Courts. <a href="http://www.nytimes.com/2006/09/27/nyregion/27courts.html?ex=1317009600&en=e10d926e97862890&ei=5089&partner=rssyahoo&emc=rss">Part III is here</a> . 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. <br/>That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0tag:blogger.com,1999:blog-8503071.post-1159164302822242982006-09-25T01:49:00.000-04:002006-09-25T02:05:02.833-04:00NYT Declares Trouble In NY State's Village And Justice Courts <a href="http://www.nytimes.com/2006/09/25/nyregion/25courts.html?pagewanted=1&ei=5089&en=54523846fb7394f2&ex=1316836800&partner=rssyahoo&emc=rss">This article</a> 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 <a href="http://www.scjc.state.ny.us/">State Commission on Judicial Conduct</a>. 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. <br/><br/>Just a couple of notes: <br/><br/>Larry Goldman, past chair of the commission calls for all judges to be lawyers. Goldman is right. <br/><br/>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.<br/>That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com2tag:blogger.com,1999:blog-8503071.post-1158730683556553042006-09-20T01:37:00.000-04:002006-09-20T01:40:35.040-04:00No 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 <a href="http://www.nassaucountyny.gov/agencies/DA/index.html">Nassau County(NY)District Attorney Rice</a> 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.<br/><br/>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.<br/><br/>In <i>Krimstock v. Kelly</i>,05-6691, (2d Cir. 2006) the Second Circuit ruled that prosecutors cannot keep vehicles, pre-trial, without the permission of the court. <br/><br/>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. <br/><br/>As for the second article, seems our <a href="http://thatlawyerdude.blogspot.com/2006/08/two-of-our-favorite-kens-change-jobs_02.html">favorite former judge</a> Kenneth Gartner has another post-retirement decsion published. This time Ken, we don't agree with your holding, but we do like your reasoning.<br/><br/>In <i>People v. Schulz</i>, (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 <a href="http://www.imdb.com/title/tt0092086/">The Three Amigos</a>) 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.<br/><br/>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. <br/><br/>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. <br/><br/>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. <br/><br/>I guess District Attorney Rice's office "dodged a bullet" on this one... I crack myself up sometimes.<br/><br/>Maybe tomorrow we will get a jury panel.That Lawyer Dudehttp://www.blogger.com/profile/00621463114160360197noreply@blogger.com0