A Test On The First Amendment In Public Schools. Another School Principal Screws Up The First Amendment.

Notice to all School Administrators Principals, Assistant Principal and Deans:

You shall make no rule...abridging the freedom of speech.

Question for all School Administrators, Principals, Assistant Principals and Deans:
What Part of NO do you not understand???

Okay okay, I am a First Amendment Free Speech absolutist. However, shy of a real disruption of classroom activities, or worse violence, being an almost foregone conclusion, you really cannot pass rules that limit the freedom of speech and expression of your students.

In today's latest edition of "How to cost the Taxpayers of my School District unnecessary money because I do not really understand the First Amendment of the constitution of the United States of America", the intrepid school administrators of Latta H. S. somewhere near Florence South Carolina, have suspended, disciplined and otherwise harassed high school sophomore Candice Hardwick, who in remembrance of her forefathers who fought for the South in the American Civil war, wants to wear the Confederate flag on her breast. Her Mom appears to be part of the Order of the Confederate Rose(South Carolina chapter) which seeks to preserve the "history" of the old South. (I may have been generous here in my description, they may still be fighting the war for all I know, but it really doesn't matter for our discussion today.)

Now go back and read this and this in preparation for today's remedial exam. [Update:link repaired] Alright sharpen your number 2 pencils and begin below:

Please answer: Yes or No

Question 1. Can the student wear a black arm band in school?

Question 2. Can she refuse to stand and or salute the American Flag during the pledge?

Question 3. Can she wear a shirt that says I hate President Bush on the day he comes to her school to speak?

Question 4. Can She carry a copy of Michael Moore's Fahrenheit 9-11 DVD and watch it on her laptop during lunch?

Question 5. Can she support the Iraqi invasion by covering her book bag with pro-government stickers?

Question 6. Can she yell "Fire" in a crowded cafeteria (this one is a trick question)

Question 7. Can she bring a banner into the High school Gym and unfurl it during the state championship basketball game that says "bongs 4 Jesus"?

Question 8. Can she wear colors of a local violent girl gang?

Question 9. Can she stand in front of the school assembly wearing a shirt that says "Fuck the SATs"?

Question 10. Can she wear the Confederate flag absent any proof that the same will end in violent or otherwise disruptive behavior?

Answers:

1.Yes See the brief of Tinker v. Des Moines School District here. Again if the armband is otherwise disruptive there then the right to free
expression can be curtailed, but you better be really really sure.

2.Yes. In a 1943 decision, West Virginia Board of Education v. Barnette, the Supreme Court determined that a group of Jehovah’s Witnesses who objected to the flag salute and mandatory pledge recitation for religious reasons could not be forced to participate. (To read the whole answer click here

3.Yes. While schools can enforce a rule limiting the time place and manner of certain speech and expression, the rule must be content neutral.

4.Yes See 3. Above.

5.Yes. A variation on a theme. Just to see if you did your studying. If you got this wrong...Reread this.

6.No (unless the cafeteria is actually on fire)Scheck v. US was overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969)however yelling fire in a crowded cafeteria would probable cause a panic or even imminent lawless action.

7.Yes This also was a test to see if you reread the prior posts on topic. This case was discussed at this post.

8.NO. See the Brandenburg case above.

9.NO. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)(First
Amendment Center's case brief here.)

10.Yes. Yes! Yes!.

Actually there is an even better test than the one above. One that really tests your knowledge of the present state of affairs in school free speech cases. Take it by going here.

Stop persecuting free thinkers in America's High Schools. Learn the First Amendment.

Two Cases Courtesy of Decision Of The Day Blog

So much to cover tonight I have no time for indepth analysis. It would be unnecessary thanks to the incisive and crisp briefing written by Rob Loblaw (yes I know that is his pseudonym)over at Decision of the Day. "Rob" has hit on two important US Court of Appeals decisions and analyzed them here and here.

Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.

Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.

Two Cases Courtesy of Decision Of The Day Blog

So much to cover tonight I have no time for indepth analysis. It would be unnecessary thanks to the incisive and crisp briefing written by Rob Loblaw (yes I know that is his pseudonym)over at Decision of the Day. "Rob" has hit on two important US Court of Appeals decisions and analyzed them here and here.

Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.

Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.

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

Talk about a specialty Blog! This is a blog devoted to the Sentencing issues decided by the Second Circuit US Court of Appeals. It is an excellent addition to the growing number of blogs watching law on Long Island (and in NY in general.) To that end there is an outstanding discussion of the recent Second Circuit decision in United States v. Roberts, Docket No. 04-6610-cr, 2006 WL 751879 (2d Cir. March 23, 2006). This is an abomination of a decision in that it yields the wrong result for the right reasons. The guy broke a law that was no longer a law by the time the case ended. SCSB does a nice analysis of the Roberts case and links you to the decision. There are a numbere of good posts there. Check them out.

Back From Beantown, Hello Long Island

I have been trying to play (with some success) with shorter posts. I have just returned from Boston. It was a tough trip but one that I hope will yield real results in the Fight against Scleroderma. I will be leaving a few posts about other blogs which I think you should know about, and I hope to do an post about a new case here in the Second Dept. of the NYS Appellate Division.

It is always nice to see Boston. I can't wait to go back to my Twenty-fifth reunion from Tufts University in May. (Can it really be that long ago already.)Coming back to Long Island however is always great, especially if you take the ferry back from New London to Suffolk's Orient Point. I love being out on the Sound. Especially as Spring approaches. The Sound is just rough enough, and it is just crisp enough to let you know that winter has been here. Yet there is a gentleness to the sea breeze, and a bright sky with a lesser chill, to let you know that the Child that is spring, is peeking around the corner. There is nothing better than Long Island in the Spring. It's nice to be back.

A Quick Note.

I am headed up to Boston for the Spring Meeting of the Scleroderma Foundation Board of Directors. (If you want to learn about the disease or make a donation to a very worthy cause click here) Hence since I was up all night at a raid of a Gentlemen's club in Jamaica Queens and have night arraignments in Kew Gardens, Queens tonight, and then the 5 hour drive to Foundation HQ and a full day of meetings tomorrow, I thought it best to get a couple hours of shut eye.

As I have been on something of a role, I want to keep it up so here are a few things I found interesting"

SCOTUS is debating Prisoner lawsuits and the whole issue of exhaustion of State remedies an here is Yahoo's take on it. As a civil rights lawyer, I think the 15 day requirement is pathetically too short. 90 days is often less than sufficient, however a really good rule might be based on the strength of the pleading so that good cases don't get knocked out a bad ones that cost the county money to defend can be disposed of quickly and inexpensively. If I had to come down on one side or the other, I would come down on the side that preserves the rights of the imprisoned to bring the suit, and rely on the wisdom of the court to bounce it SJ grounds as soon as it could.

Here is a really good and important article on the "prep Walk" and how to help avoid it especially for your white collar crime clients. Hat tip to White Collar Crim Prof Blog . Personally I do not see how these police orchastrated dramas are not poisoning the identification process (which is already tenuous at best.)

Ok ,there is more but I am falling asleep at the wheel here. Good luck eveeryone.

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

Just taking a jog through the Blogosphere:

Crim Prof Blog has the top 5 Law Review type papers. You can get them on your computer free. Just go to the Profs' blog and click on the article you want to read, then when you get to the article, right click and hit save. Read it while waiting to get on the plane, or even on the plane (after the pilot turns off the fasten your set belt sign above your head).

A day late and a dollar short. That's ME! I was thinking of writing a series of Blogposts on "How to Blog." Then, just as I am about to get started, I find these wonderful posts (try here, here, here, andhere) on my topic and feel like I have been pre-empted. Just like on the Law Review!! Thanks a lot South Carolina Trial Law Blog.

Capital Defense Weekly's Blog has the year's best Death Penalty articles from the Death Penalty Information Center. Check out the site while you're there. It has a lot of very good information for Criminal Trial Lawyers

Thanks For Nuthin' Mom!:
From Newsday:
"Zachary Gibian's mother did nothing to stop him when he told her he was about to kill her husband; instead, she left the room as the Hauppauge teenager got the sword he used to murder Scott Nager, a Suffolk detective testified Monday."
Need I say more...

Also in Newsday today, this story about 1200 new police hires. You know it's not a bad job for a lawyer. You can practice on the side. Meanwhile I cannot wait to get one of the newbies on the stand. Like shooting fish in a barrel.

The New York Times takes on the Patriot Act:
Sorry, there is just to much government interference in the new Patriot act passed last month by Congress. This NY Times article raises some of my(and others)concerns.

This is why I cannot support the President and his war time cabinet. I still cannot believe these people have so little regard or understanding of what it means to live in, and protect, a democracy. As of right now, if Senator John McCain is not the Republican Candidate for President of the USA, I may not vote. Me not voting for President says a lot.

Obviously not in it for the money:
I know law is not the easiest way to earn a living, but this is ridiculous. Hat tip: to NY Attorney Malpractice Blog.

Now this guy got it right. (Lawyer gives $200 Million to Columbia University.)

Then again maybe it's all in how you look at it.

Well that's it for me. See you in the Blogosphere.

SCOTUS Hears Two Crawford Definition Cases

The Supreme Court took up two important cases that should explain and probably narrow the decision in Crawford v. Washington. Crawford was one of two important decisions in Criminal Law handed down in the 2003-04. In overruling Ohio v. Roberts, the Supreme Court reaffirmed the importance of a criminal defendant's right to confront his accuser. The decision received immediate criticism from Domestic Violence prosecutors because so many of their cases require the use of unavailable witnesses, many who are unavailable of their own volition (They refuse to cooperate or leave town etc.)The issues presented by the two cases ( Davis v. Washington and Hammond v. Indiana) concern statements that were given outside of the courtroom. Davis is a 911 statement, and Hammond concerns a statement written out by a victim while being visited by police.

At his new blog Orin Kerr.com, Professor Kerr of The George Washington University Law School has a short post on the arguments and a prediction that the court will distinguish between the two cases finding that 911 tapes will come in dispite the Crawford ruling, and the Hammond written statement will be found to be testimonial in nature and thus run afoul of Crawford.

I have to agree with Professor Kerr in that the 911 tape, under most (but not all)circumstances, would not be so much testimonial as it might be a "quasi" res gestae statement. In other words, if the call is made reasonably shortly after the event (like 10-15 minutes after the first opportunity to make the call) then it would seem this is more of a safety or reporting issue, than a testimonial issue. The witness is not giving information primarily seeking to convict the individual but more trying to get the information to police to obtain an arrest, redress or even safety of themselves or others. The Davis cases should be very fact specific and very Strictly interpreted as the Right to Confrontation is a basic right of the ,US Constitution. In Davis the witness called 911 and hung up. The 911 operator calls back and gets information and sends the police. The witness doesn't come forward to testify and the prosecution uses the tapes and the pictures of the beating. The Davis argument is interesting as it was aimed directly at Scalia and Thomas. Davis argued that even at the time of the Constitution's ratification, the confrontation clause was so important that the old hue and cry reports were not usable at trials. The originalist theory may carry the day with The Chief, Scalia Thomas and Alito but will it turn off a fifth vote?

The statement in Hammond clearly was taken as part of an investigation meant to nail down testimony and very likely to obtain an arrest warrant or a charging document. In Hammond investigators came pursuant to a DV report. They meet the witness who denies any problem. They say she appears frightened. They go inside and see the remnants of the fight. The defendant says the argued but it did not become physical. The police go back to the woman and again ask what happened and this time she tells them. They ask her to write it up.
It seems clear that the written statement was taken to be a testimony in the witnesses own words as to what happened. The statement was not necessary to help them identify a potential attacker or to get the witness to safety. Hence the only reason for the written statement was for evidentiary preservation. Uncrossable use of this type of statement appears to be exactly what Crawford was trying to stamp out.

There is an excellent treatment of both cases with links to the briefs and amicus at Scotusblog.

Speedy Trial Dismissal Ordered Where Defendant Hasn't Been Arraigned

In People v. Hauben Nassau District Court Judge Kenneth Gartner dismissed a violation of Harrassment 2d where the defendant was summoned to appear in court more than 30 days after the case was filed.

The case is based on a mildly unique set of facts. A claim of harassment was filed on or about September 16 2005. The facts allegedly took place in June some 3 months earlier. A summons issued on September 30th from the court directing the defendant to appear for arraignment on October 20th 2005. Discounting the day the case was filed, the summons to appear for arraignment was returnable more than 30 days after the date the the case was filed.

The district attorney argued that the speedy trial rule was inapplicable in the case at bar as there is an exception to the speedy trial rule where a defendant is ordered by the district attorney to appear. However the court held that although the DA may have overseen the service of process, summoning a person to the courthoue for arraignment is not the same as receiving a letter from the District Attorney ordering you to come to the courthouse for arraignment.

There is a suggestion to the Legislature that the law might want to be changed however, I think that in a county where there is a ridiculous must arrest order on domestic violence allegations, cases where the facts take place long before the case is filed would be better served by sending a District Attorney request to appear thereby negating the speedy trial problem. The issue here is the District Attorney wanted to have her cake and eat it too. They wanted the protection against speedy trial violations that CPL Sec. 30.30 (4)(i) provides as well as the the right to enforce the summons provided in CPL Section 120.20.

There is good public policy behind section 30.30(4)(i). It is meant to encourage the use of the surrender policy without employing (and thereby incurring the cost of)the court, sheriff and others. It is a sound cost savings measure. Most of these cases play out in the shadows of a civil divorce case. Both sides are already represented by attorneys. There should be no problem obtaining a surrender. The filing of the case with the issuance of a summons a waste of efforts and funds and should be avoided. The CPL 30.30 rule thus takes into account that in cases where the defendant refuses to follow the direction of the prosecuting authority, the prosecutrix will not be punished unfairly for using the less formal and less costly method provided for in CPL 120.20.

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

We now go to the frozen tundra (no not this frozen tundra, this frozen tundra,) In a scene out of Wayne's World 18 year old Joseph Frederick, clearly a bit of a slacker, was on his way to school one day, but never arrives. (Something about snow in Alaska.) He gets as far as the sidewalk across the street from the school when he joins a group of people including classmates who were dismissed early to watch the Winter Olympic Torch Relay. It is evidentially a big thing because the pep band and the cheerleaders are also out there.

Frederick and his cohorts are waiting for their big chance to get on TV. Their idea? To unfurl a banner that says "Bong Hits 4 Jesus." Why you may be asking? They have no articuable reason other than they thought it might garner sufficient attention to get them on TV. (Things must get really dull in the frozen tundra.)

The High school principal Morse is not amused. She orders them to take down the banner (because it violated the schools rules on offensive material and promotes drug use.) When they fail to obey she grabs it away and crumples it. She further suspends Frederick for five days. He reminds her about Thomas Jefferson and the First Amendment and she suspends him for ten! (And rightly so. The First Amendment was written (principally)by George Mason, Alexander Hamilton, and James Madison. Jefferson was in France acting as our Ambassador there (though he clearly supported the concept.) Maybe she should have been impressed that Frederick wasn't so burnt out that he remembered Jefferson was alive during the period.) Plaintiff also recounts that an assistant principal told him that students do not have first amendment rights. (Another bright light administrator. Geez how are they going to teach kids to respect the law if they aren't even mildly acquainted with the major concepts of it?)

Now there was 2 ways for the Ninth Circuit Court of Appeals to go on this one, both which could have reached the same place. The first was the easy one. This was speech not at school, or at a school activity. It was engaged in by an "adult" (this is an issue of age not maturity)and the school has no business in trying to interfere with the banner.

The Court rejects this. (Why? Because clearly the court wants to discuss students rights and draw a distinction from the Bethel School District No. 403 v. Fraser, 478 US 675 (1986) case.)

Instead it looks beyond the facts and decides that Marijuana use and law in Alaska is a political issue (see footnotes 4 & 5 of the decision). Not that Frederick was making a political or social statement per se but that it could be considered one. As such the Ninth sought to limit Fraser to just sexual innuendo and not to such "inoffensive" material as drug use. It also noted that the activity was not sponsored by the school so it was distinct from the other School speech case (Haxelwood v. Kulhmeier 484 US 260 [1988]) which has modified the seminal Tinker v. Des Moines Independant Community School District case found at 393 US 503 (1969). I do not understand why they just did not see this as a non-school speech case.

Instead the Ninth has split the school speech cases into three types: A) that which seeks to control vulgar, lewd, obscene and offensive speech which is interpreted by Fraser; B)School sponsored speech which is interpreted by Kulhmeier; and C) other speech which is looked at through the Tinker decision.

Under Tinker analysis the action of defendants clearly defy plaintiff's First amendment rights. Moreover, as Morse was aware of the rights and that such awareness could not have allowed her to mistakenly applied the rule, she was not entitled to qualified immunity.

I again do not think this should have been decided as a part of a school speech case. Once it was, I would have decided it against the plaintiff because the speech was neither clearly protected nor was there any chance someone seeing the conduct would have readily understood its meaning. That would have given the principal qualified immunity. Like I said, I would have found for plaintiff under the First amendment protections of off school speech by an adult. I guess I am not going to the Ninth Circuit as a judge any time soon.

If you are interested in more information about School student freedoms, check out The Fire, or contact me at www.colleluorilaw.com

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

This week was big for the First Amendment/Student Rights cases. We have decisions from the east and west coasts. Interestingly the court's decisions protect interests of students with political speech from both the political right and left. Since this is a NY Blawg, we will start in the US District Court of NY (N.D.N.Y.) In the interest of family life and in order to watch and fully enjoy the Duke v BC ACC championship game (and what a game it was), we will do this in two posts.

In Grzywna v. Schenectady City Schools 05-cv-0167 the plaintiff is a 12 year old middle school coed. To show her support of the troops in Iraq and to also commemorate the service there of four family members, she designed and produced a beaded necklace in Red White and Blue. Her school district told her to remove the necklace as it ran afoul of their anti-gang colors dress code. She refused they move to suspend her and Mom takes the case to federal court. (Way to go MOM!!)

Now the defendant school district files an FRCP 12(c) motion attacking the pleadings. They raise three points: 1)The district is entitled to 11th amendment immunity because it is an arm of the state; 2)The individual defendants (the school administrators) are entitled to qualified immunity because a)Plaintiff student has no first amendment rights or b)the wearing of a necklace conveys no particular message c)even if it does convey a message it is unlikely anyone will understand it; and 3) the school dress code policy is not overbroad.

The court handled the first objection very quickly, noting that the complaint must be very liberally construed and that it is not important on a rule 12(c) motion whether or not plaintiff will ultimately succeed but rather whether she can offer proof of her claim for a recognizable action. Put another way, does she have an action (she can prove)notwithstanding whether she would ultimately win or not.
Moving through the 11th amendment objection, the court followed the decision in Cohn v. New Paultz Central School District 363 F. Supp.2d 421 (N.D.N.Y. 2005)and held that it the school district is not immune.

Moving to the real gist of the case, the court addressed the issue of student free speech rights. Noting that a student does not get the full planoply of rights an adult gets (See Bethel School Dist. 403 v. Fraser 478 US 675 (1986)it also pointed out that kids as young as 13 have had a recognizable right to express themselves on matters of political interest.(See Tinker v. Des Moines independent Central School District 395 US 593 (1969). The court noted that the speech here was neither disruptive nor did it cause a disciplinary problem. Hence the question is not if the child has a free speech right, but whether the speech in question conveys a message and whether the message is readily discernible.

Moving onto that question, the court further bifurcated the former issue and asked, is the speech expressive conduct and does the district policy impermissible deny plaintiff of her First amendment protections. (Citing the Zalweska case (316 F3d 319) which sets out a two prong test that sets the lower limit for what constitutes expressive speech; a particularized message with a likelihood it will be understood by those viewing it. The court then went onto say that such speech in the context of a classroom also the Free Speech right had to be balanced by the equally important interest of the schools mission to further education.)

The court looked at the fact that the 12 year old told the district what her message in wearing the necklace was and the fact that it had a further meaning in terms of our nation's war position, when it decided that the conduct made out enough of a particularized statement to go on with the litigation.

Looking at the test's second prong the court noted that there was an objective consideration as to whether, under the circumstances in this case, the conduct would be understood by others to be about a particular message. Taking into consideration that our nation is engaged in a controversial war in Iraq and that these topics may be under discussion in current events classes and other places in the school the court help it could not rule out that others in the school would have understood the particular message.

As to the other two issues (whether the school infringed on plaintiff's first amendment protections and whether the district policy and the individual officials deserved qualified immunity)the court decided that the issues were too fact specific for the court to decide. Hence the court felt that a jury was better to determine whether district officials were aware of the message plaintiff was trying to communicate and thus whether their behaviors were actionable. As for the district policy, defendants didn't make it part of their submission, so the court didn't have it to analyze for the purposes of deciding if it was vague or overly broad.

In the interest of short posts I think it is best to post about part II of this thread in our next post hopefully tomorrow. Let's call this part The Rockets Red Glare. The next part is all about The Blaze.

By the way Hat tip to this post at our sister blawg That Lawyer Dude.

A Sunday Trip Around The Weekend Blogospere

Most of the week I am so busy I can barely read all my friends posts much less get to mine. This past week I ran a mock Grand Jury presentment in a case that goes to the Grand Jury later this week, and of course handled the myriad of other cases in our office coffers. Finally we have a new attorney in the office trying her first case. I am trying to help her too. I hope by the end of this week I will get another trial practice post out to you all here.
Anyway, this is what kept my attention this weekend:

Blogging for fun and profit has taken on a real interest for lawyers. I have found it has really helped me get hits to my website and that in turn sends clients to our offices.
Blog related articles of interest can be found here,and here.

I liked this cause of action though I am not sure that there will be recovery after the default verdict. Hope I get the chance to bring one of these on behalf of an injured or fallen soldier. It would be an honor.

Evan Schaffer has some instructions for jury selection over at his trial practice blog

Evan also notes the trouble prosecutors are having in the Milbank Weiss case in getting convictions. It seems that it is hard to convict when you don't have a case. Anyway the government is blaming the usual suspects: Lawyers. Check it out here at Evan's other blog. (Two blogs... He is my hero)

Here is a really good primer on what a Public defender is. I especially liked the last paragraph on how we can defend "those" people. Check it out. Hattip to Skelly over at Arbitrary and Capricious. Dave Feige is steamed (and that's an understatement) over at Indefensible where a NY Times reporter clearly shows she doesn't understand what we do or why we do it. Maybe she should read Skelly's blog more often.

New Jersey is trying to limit peremptory challenges but fortunately the plaintiff's bar is stopping it. I wish the criminal defense bar could show the commitment the plaintiff's bar shows. Point of Law Blog hates the plaintiff's bar, but they did put me onto the story here.

This article bodes well for NY (and Long Island) Solo and small firm practitioners. My Shingle discusses the study here.

Speaking of Solos, check out this post and the cited article on the guy Vice President Cheney accidentally shot. He's had a great career. I have been thinking about the latest Washington tempest in a teapot and I have decided that I would rather go hunting with Cheney than driving with Ted Kennedy. Hattip to Michelle Malkin for the concept.

Thinking of taking on a civil rights case? Better read this post before wading into the water. A story with a moral: Never depend on Congress to be fair. I think they need to see the posts cited in the paragraphs above.

DWI Blog has an excellent post on how a breath testing machine can give a false positive on a substance other than alcohol. I had a case one time where the defendant blew a .20 and swore he drank nothing. Turned out he had been using paint and paint thinner all day. Read this post and learn what the prosecutor doesn't want you to know about breath testing. Now maybe you will understand why I think DWI cases can be won!

Professor Berman wants to know what to make of the SCOTUS silence on the previously argued death penalty cases in this post.

Finally I have been busy looking at our New Nassau County District Attorney Kathleen Rice. So far I am not really impressed. Read about it here.

Later this week (with any luck) I will write about prepping for trial.

Mary Conn is an long time friend and a helluva great lawyer. Formerly a lawyer in Texas she has relocated to Northern California. She is practicing trial law and is a well known lecturer who was Board Certified in Criminal Defense while living in Texas. She is concentrating her practice in Federal/State Criminal law, Family law, and general Trial work. Mary can try a case!

I am looking forward to Mary's wit and dry sense of humor as well as her insight into cases and life. Not only that, but she is also blogging about her love of bluegrass music!! This promises to be a fun and informational blog and I can't wait for her posts. You can visit with Mary here, or visit her soon to be revamped

Thursday, February 09, 2006

The NACDL MidWinter Meeting in Charleston S.C.: Renovating the Way We Practice Law

NACDL Midwinter Meeting: Renovating The Way We Practice Law
I am in beautiful Charleston, S.C. for the NACDL Midwinter meeting and I am excited. First of all I am going to be seeing a lot of old friends from around the country. All of them are tough and aggresive criminal defense lawyers. Somehow being all in one place and sharing our stories brings a certain relief and relaxation for me.

I am also excited because there is going to be some really great CLE and I will be bringing you the best of what I see. I will not see all of it because NADCL offers two tracks at each seminar on the first day and one plenary session on Friday. I will be going back and forth and give you what I see from track one: Creatice Trial Techniques and track two: The Business of Law.

Now of course I am most excited because I will be speaking at 2pm on a panel called "Advertising That Works And Doesn't Work." I will be focusing on site building and blogging.

I will try to bring regular updates throughout the day, and tomorrow so stay tuned. IF you happen to be in South Carolina try to get here. It's gonna be fun.

The Girl In The Cafe: On The Need To Be A Bull In The China Shop

I studied International Relations as an undergraduate at Tufts University. I was intrigued by its academic rigor and the hope for the world that it provides (in theory). I was mystified by the way diplomacy was conducted. I was living in a liberal world and I was a conservative vold warrior. I was energized by Pat Moynihan who was willing to call out the Russians while the US Ambassador to the UN and I was not "Diplomatic" as many of my classmates were. I was seen as a "hawk" and a "bull in the China shop". Not diplomatic material in a staid world of international diplomacy. I was called "jingoistic" because of my unbridled position "My country right or wrong." Of course that was before President Reagan showed us all what it meant to be an American. I am perfectly good with criticism of my country from within it. In fact I think such criticism is part of being a good citizen. I will not however take it easily from some outsider who has no idea what it means to even be an American. So naturally I became a trial lawyer.

I have been enjoying the HBO Film "The Girl In The Cafe" which is technically about the "needs" of the worlds rich nations to forgive the debt and energize the poor nations of the world. It is set at a G8 Summit. The comedic part of the movie is how a British "commoner" gets into the summit and calls out the stuffy diplomats, using the plain talk and basic understanding of "the people." I am not writing to endorse or criticize the politics of the film. Rather I want to teach the power of the example it sets in the behavior of the commoner: the "Girl" in the cafe. Our usual Juror.

One of the lessons in the movie is the importance of making even the most difficult issues bite size and understandable while keeping them compelling. A second and even greater challenge is the need to acknowledge the "elephant in the room" in other words drop the veneer of Political Correctness and say exactly what needs to be said. It is both funny and painful to watch the Bigwigs in the film squirm when put on the spot by the "Girl's" simple questions. They don't want to give the simple answer which (in the film) is "we don't have the will to rid the world of poverty."

Now forget the political message of the film, and imagine a courtroom. The "Girl" is asking simple leading questions to which the only answer is "because we don't want to." However that answer is devastating to the position of the proponent of the answer. They try to evade it, by complicating it. She keeps asking the simple question. They say it is not that simple. They suggest she is dangerous because she has too little knowledge. She suggests too much knowledge keeps them from seeing the real problem. She keeps asking and soon enough everybody has to acknowledge the "Elephant in the room."

This happens in court all the time. Often we are just too polite to call out someone that needs calling out. I had a judge who was well known for turning his back on the jury when he gave the reasonable doubt jury instruction. No one knew what to do about it. He was a really cantankerous guy to begin with, and few young lawyers (or old ones for that matter) wanted to take him on, fearing losing the jury. One day while dishing about it at our local watering hole, we decided that the jury, the spectators, and God could see just what he was doing. The only people who wouldn't know about it were the judges of the appellate court. We decided that we would put it on the record the next time he did it. Not at side bar, but right there in front of everyone. He denied he was doing it for the record and he yelled and screamed at the lawyer but, he didn't turn his back on the jury when he gave the charge on any case where the lawyer had called him out on it. Just as it was uncomfortable to watch the "Girl" in the movie make social faux pas after faux pas, it was uncomfortable to have to call out this judge. It was also the only way to force the issue.

In Vior dire I see this failure to acknowledge the "elephant in the courtroom" a lot. For example: not wanting to offend, the defense attorney tells the jury they are going to hear some rough language on tapes and coming from the mouths of witnesses. Can they still give the defendant a fair trial even though they may believe he said some of those things? The jurors all say yes expecting to hear the venacular, the usual cuss words. Then a black juror hears the defendant refer to a black girl as a N---er ho, and he cannot forgive the defendant and the guy goes down because the juror was not faced with the fact he was going to hear the infamous "N word." Everyone in the trial knew the word was coming. It was the elephant in the courtroom. It has to be acknowledged.

Acknowledging the elephant in the courtroom is a way to make the jury believe in you. They do not understand much of what we are doing or why we do it. When we dance around the issues and do not go right for the point they realize we are either afraid of it, don't know it, or worse. It gets them off point and it allows the another player in the trial to misdirect their attention. Learning to deal with the unpleasant stuff upfront will make you the more trusted and believable advocate.

Live From NY: It's The New York State Bar Association Annual Conference

Hello everyone. I am coming to you live from the Harlem Room of the NY Marriot Marquis in Manhattan NYm giving you the "scoop" for the Annual NYSBA Conference. For those of you not in the "know", every year during the last week of January, the State Bar (usually located in Albany) comes to NYC for a soriee that is very educational and often fun. Even if you are too cheap, ( or poor) to afford the actual attendance fee, there is a lot to do, and learn just hanging out drinking the free coffee.

Almost every section and special committee holds a meeting where legislation and other initiatives are discussed and debated. There are always a bunch of politico's and legal giants are present and their atmoshpere is a lot like MY Supreme Tap part times 10.

Anyway, I am writing today's column in advance of tomorrows big show. The Criminal Justice Section Meeting CLE and Luncheon is a not to be missed event. Of course I have a couple of judges who do not agree so I will unfortunately be absent from the business meeting to be held at or about 11am. The real work gets done in the exec meeting which starts at 8:30am anyway. I hope to get back for the Lucheon however which is scheduled to begin at 12pm

The luncheon honors those that have made substantial contributions to the field of criminal law over the past year or over their career.

I have a special dog in this hunt. My old friend and Contracts Professor, legal ethicist, Monroe Freedman is getting the award for contribution in the field of Criminal Law Education. The truth is, Monroe (as of yesterday he made it clear I am not to refer to him as Professor Freedman anymore or he will have to call me Mr. Colleluori and it is a hard name to pronounce) is more than just a Criminal Law Educator. In fact to my knowledge he has not taught a full time criminal law class in over 25 years. He does however provide a moral compass for those of us who practice criminal law and must participate in the everyday real life practice of law.

Ethicists tend not to engage in the day to day struggle. They are not bound by realities of human strife so they can propound difficult standards to hold the rest of us by. Monroe from the beginging has been aware of the practicalities of these standards. His seminal work Lawyers Ethics in an Adversarial System is one of the all time best sellers on the work. It possess the great trilemma how one can defend someone without being told the truth and then once told the "truth" how he can defend that person if he wants to get on the stand and tell a different story. Monroe's take on the issue is a minority view, at least from the viewpoint of the ABA. Most criminal defense attorneys however would beg to differ. Having Monroe's leadership and logic as our defense to prosecutor's challenges has come in very handy to many of us who want to fulfill our duty to both the law and the client.

In addition to Prof. Freedman's award there are a number of other people and organizations being honored. A list of the Honorees can be downloaded here. I do however, want to point out that the Crimi Award, given in memory of the Late Charles Crimi of Rochester NY is being given to Donald Thompson. Don is a courageous champion of the rights of the oppressed. He is a witty and able attorney and a tremendous teacher and mentor to younger criminal lawyers. The Crimi honors the best criminal defense attorney in the state. It is fitting that it should go to Don.

Now lest you should think that this annual meeting is all hail and fairwell, there is also a tremendous CLE opportunity here. After Lunch the section is co-sponsering a 3.5 hour CLE program which will also cover 1 hour of Professional Ethics. The Program is entitled "THE DEVELOPING ROLE OF THE MONITOR IN CRIMINAL, CIVIL AND CORPORATE PRACTICE". It really is everything you wanted to know about Monitors but didn't know who to ask.

The sylabus includes topics such as What is a monitor, how a monitor is appointed, the ethical duties of a monitor, and how to become a monitor. Lest you should snicker about the last item, the last case that I had where the court appointed a fiduciary, the impartial monitor earned well into the six (6)figures. He also had to fly to a couple of exotic locales to secure the corporations assets. Not to shabby if you ask me.

The speakers is a veritable whose who of the NYC white shoe bar. I have heard a few of them speak before and I know if you have any interest at all in the subject you will not be disappointed.

So with that, I commend to you the Criminal Justice Section of the NY State Bar Association's Annual meeting, ongoing at the Marriot Marquis in NYC on Broadway and 46th streeet. The exec meeting begins at 8:30 and the general meeting is at 11am. The luncheon will begin at 12 sharp to be followed by the award presentations and a really good CLE opportunity. I hope to see you there.

Some Interesting Posts For Trial Lawyers

It has been a busy week here at The Law Offices of Anthony J. Colleluori and Associates so I haven't had a chance to really look and see what is being decided in the area. Hopefully we will look at a couple of cases later this week.

In the meantime here are a few posts by fellow bloggers that I think Trial lawyers might find important. Check out the links in these posts when they are available. It amazes me how much information is available to us. Anyway here we go to the "Roll":

Over at the Non-billable Hour this post links to a couple of articles that will help you to make the office more efficient and help out those of you who have some speaking gigs coming.

SHAMELESS PLUG ALERT: I am speaking at two upcoming CLE programs. On Sunday Jan. 29, 2006 I will be at the Nassau County (NY) Bar Association "Bridge the Gap Weekend" from 12-2 on Pretrial Criminal Law. Link here to get registration material and solve all your CLE requirements in one weekend. My co-presenters are Joe Gentile and Hon. Leah Russian. The program coordinator is our own AMY HSU from our office.

I am also speaking on the weekend of February 8th-11th at the NACDL Midwinter Meeting. I will be talking about what works in legal marketing. I think the idea is for people to learn from my mistakes. It is a good panel. I will make my materials available as soon as the program is over.

How To Trace An E-Mail
Ever find a need to trace an e-mail back to the sender, I can do it by following the link found at Dennis Kennedy's blawg. Find it by going to this post and following the link there.

The Future of Sentencing In America
This post by Prof. Doug Berman leads you to a very interesting debate on the future of the US Federal Sentencing Guidelines. It is a must read for all lawyers whether you practice in federal court. What happens there often trickles down to the states. Mandatory minimums, Justice Dept. Responses, and other ideas are all covered by these two very knowledgeable sentencing wonks. It is a mandatory read I think.

Fee Splitting Agreements
A discussion about fee splitting agreements in the personal injury area that will affect lawyers handling Civil Rights cases Civil RICO and other contingency fee cases can be found at this post.

Jim Calloway Helps Ring In Corel's New WordPerfect Release
Corel has a new Wordperfect release. Jim's site should be checked out generally and for this information specifically. Find the post here.

Forget About "How I Can Defend 'Those' People?" How About "How Can I Belong To The ACLU?"
Professor Eugene Volokh is a conservative law professor and a darling of the right. He is (mostly) also a libertarian. (Actually all of us who claim to be libertarian are just mostly libertarian, after all complete libertarianism usually leads to anarchy. I like to think of libertarianism as the real vision of the Founding Fathers.) With honest to goodness conservative bona fide's he is someone whose defense of the ACLU is a great defense of an organization that is controversial, misunderstood, and oft maligned. To belong to the ACLU does not mean that you by into all of its positions. It does mean that you have a real understanding that to believe, really believe in liberty, sometimes you have to stake out positions that you abhor. I recommend this post to you.

Ok the AFC Championship is about to begin. But as I sign off, I want to invite you to check out our posts at our sister site That Lawyer Dude. We have been doing some interesting things there too.

A Crawford v. Washington Decision Out Of The Appellate Division Second Dept.

In People v Cioffi, 2005 NY Slip Op 10145 the defendant was charged with nine (9)counts of Falsifying Business Records and one (1) count of Conspiracy in a stolen car parts case (probably a chop shop.) The court let in the FIFTEEN (15) plea allocutions of defendant's alleged co-conspirators(assumably all of them named the defendant as an accomplice).
There was no objection from defense counsel. Nevertheless the Second Dept. took up the issue in the interest of justice. The court held that the plea allocutions were testimonial in nature, and that since there was no opportunity to cross-examine the co-defendants who gave these allocutions, the court held that it was reversable error not preclude their admission.

A word to the wise, preserve the error. Crawford is not going to be a new decision forever.

To Sustain A "Bivens" Action Or Not To Sustain a "Bivens" Action... That Is The Question...

Faced by the SCOTUS yesterday in the case of Hartman v. Moore,. A nice write up of the case can be found at the SCOTUSblog.

The basic facts are, that Moore is the CEO of a business that makes the scanners that read barcodes. When the US Postal Service decided to go to the zip+4 zip code, the "specs" for reading the barcodes required single line readers. Hartman's company made multiline readers. He spent a lot of time and effort lobbying and advocating against the specification.

As it turns out USPS Board of Governors agrees with him and writes dual line readers into the specs. Turns out bribery played a part in the decision. A number of people are arrested and charged by the Postal Inspectors including Moore. He is acquitted. The question as to whether there was probable cause to prosecute him will probably not be decided by the court ( at the request of both sides). The case is really about whether the Postal Inspectors can be sued for a violation of 42 USC 1983 for retailating against Moore advocacy by arresting him, even if there was probable cause for the arrest.

Plaintiff maintains that any prosecution brought even in part to stifle someone's dissent, is a violation of Section 1983 whether or not there is probable cause to arrest. Even if that is not the primary motive.

Defendant maintains in part that denying summary judgment where there is probable cause to arrest will expose law enforcement agents to expensive litigation that will ultimately fail because there is no retaliatory motive where there is probable cause.

Now on its face most of us probably did't know the whole "zip+4" thing was so controversial as to create a need to retaliate (evidentially it was, take a look at a the write up here.) To an outsider, it seems that the prosecution was probably brought because there was sufficient smoke around the plaintiff to suggest to already suggestible prosecutors that plaintiff, by the voraciousness of his advocacy in the area and his supervisory interest in the firm, must have been involved in this scheme. Hence it would seem that the defense is right and the DC Circuits rule will open law enforcement to expensive discovery before a dismissal can be attained. Of course things are never that easy. Even so this case is not a bright line test.

In the winter of 1991 I had a case of a woman who is protesting the closing of a homeless shelter by the administration of the first black mayor ever elected in a town. She embarrasses the mayor and "shames" him. The Police force in the town looks into the woman's record and finds she neglected to pay a Three($3.00)Dollar fine levied a few years before when she was a vagrant and a prostitute. After she cleaned up her life, she volunteers at the shelter and she forgot about the small nearly insignificant fine. Police go the very next day after her speech at town hall and arrest her for not paying the fine. Now tell me that arrest is not about trying to stifle one's free speech. She was so frightened, that after I won her release and a dismissal (followed by an apology) she refused to sue. I wish she had, maybe That Lawyer Dude coulda been arguing in Washington DC today.

Nassau District Court Says If You Can't Get Consent To Take A Blood Test Within Two Hours Of Arrest... Change The Time Of Arrest

I guess the good news is that: the Nassau County District Court in People v. Steffens acknowledged that the Two Hour rule means that the prosecution can only use a blood alcohol test taken more than after arrest if the defendant consents to taking the test. See our recent post on the "Two hour rule."

The bad news is that the court has undone years of jurisprudence that define when someone is under arrest, in order to save the blood test and justify the arrest made by a police officer, that the court acknowledged was not candid (lied?) in his testimony.

In Steffens a Nassau County NY Police officer on routine patrol, comes across a driver who has decided to sleep off a night of drinking on the side of a road. It is 3am and snowing. An inch of snow is already on the ground. The officer, notices the car has a tire up on the curb and that the driver is slumped over the steering wheel. It appears the car skidded in the snow prior to coming to a halt. The car was not running, but of course the keys were in the ignition.

The officer, who claimed he stopped to see if he could render assistance, calls for a backup and waits until it arrives before he wakes the driver. (Maybe it's just cynicism on my part but if it were an emergency, should you wait that long? Or was that "assistance" thing just a ruse for why you stopped and intruded upon an otherwise "innocent" citizen? But I digress.) Of course the car had a strong odor of alcoholic beverage emanating from it. The officer asks the driver out of the vehicle and has him take part in a field sobriety test(including the often criticized Horizontal Gaze Nystagmus)test which by all accounts the driver fails.

Even before the officer administers a road side sobriety test, (which most Long Island defense lawyers call a balloon test or PBT {portable breath test])the court finds the driver to be "under arrest" and suppresses a statement the driver makes about coming from a bar. (The court actually found that the police officer who asked the driver "how he got there" had been deliberately imprecise as to when in the investigation he asked the question). The officer claims to have placed the driver under arrest at about 3:30am. The court finds that the driver was not free to leave even before the PBT was administered sometime around 3:15am. After putting the defendant into his Patrol car for transport to the Central Testing Unit, the defendant complains of chest pains and appears to pass out. Instead of heading to CTU they take the defendant to a local hospital. The officer or his back-up now called for a "blood kit" to be brought to the hospital. It arrived at about 4am. The defendant's doctor refused to sign off on the medical clearance and refused to draw the blood. A nurse did agree to draw the blood. However, by the time they sorted it all out, the blood didn't get drawn until 5:17am arguable more than two hours after the defendant was found to be in custody at least for the purposes of Miranda warnings.

Ok so far it appears that the blood test should be precluded. But of course when it's a DWI it seems the rules change. Without any supporting case law, the court posits that:

"That Defendant was in custody for Miranda purposes does not, however, also mean he had been "placed under arrest" within the meaning of Vehicle and Traffic Law § 1194(2)(a)(1), a subsection of a statute that, like Vehicle and Traffic Law § 1194(2)(a)(2), sets forth a purportedly bright-line "two-hour" standard for determining the admissibility of the results of a chemical test of the breath or blood of someone whom police suspect or have reasonable cause to believe has violated Vehicle and Traffic Law § 1192."

Nevermind that not a single higher court has ever found that the time of arrest and the time of custody are not the same thing for the purposes of calculating VTL 1194(2)(a)(1). Nor do either leading NY Hornbook on DWI (Pete Gerstenzang's: "Handling the DWI Case in NY" Thomson-West Publishing and Ed Findach's: "Handling Drunk Driving Cases 2d" Thomson-West)distinguish a difference in the standards for determining when one is "under arrest".

The Judge in Steffans then decides that the clock begins when a "formal" arrest is made (ie. when the cuffs went on.) Without nary a bit of legitimate evidence as to what time that is, she "guesstimates" that fifteen minutes had to have elapsed from the time of the stop until the time of the de facto custody suppressing the statement. She then throws out two more minutes because..." it is likely that it took two more minutes for the formalities and to get Defendant in handcuffs..." (funny when they cuff them on TV it always takes what, three seconds?)

In one fell swope this judge does away with the issue of whether the statue was complied with, using only conjecture and a judicial fiat. Of course it didn't help that the judge also felt that the reason it took till 5:17am to draw the blood was that the emergency room doctor would not cooperate with the police.

In order for the court to reach the decision it does, it must also ignore the clear language of the statute that says in relevent part that the compulsory test must take place "(2)within two hours after a breath test, as provided in Paragraph (b) of subdivision one of this section (a PBT),indicates that alcohol has been consumed by such person and in accordance with the rules and regulations established by the police force of which the officer is a member."

In the Steffens case the court found the defendant was in custody before the PBT was taken. It also found that the testifing officer was intentionally vauge in his timing of events and that he was at best poor at keeping proper documentation, Nevertheless she credits his arrest by deciding that the PBT was not the correct time to begin the clock but that it only happens not at the time of actual custody but at the time the police officer "formally arrests" the defendant. Hence, despite the lying of the police and their admitted failure to follow procedures and law, the court finds a nonexistentant rule to keep the proscution alive.

It is clear that many judges in this state (most of whom face re-election every few years) do not like the two hour rule. I am sure that they fear invoking the wrath of organized prohibitonists (MADD) or looking weak on the charge of DWI. No one wants to have drunk drivers on the streets, even defense attorneys, but failing to uphold the law and keeping a check on police just exacerbates the problem. It makes it possible for innocent people to be ramrodded through a system without protection. Whether Steffens is innocent is not the issue. The way this judge misinterprets the law to "get" him will someday be the same law that is used to "get" an innocent person. That is why it is so important to get the cases of the guilty right.

Given that a person accused of DWI loses his right to drive upon arraignment, has his car confiscated upon arrest, and therefore will often lose his job unless he can get back on the road right away, not to mention face exorbitantant legal bills for both criminal and civil defense, there is a very high plea rate in these cases. Hence there is little chance police activity is going to be reviewed. In the few cases their behavior is reviewed it is very important to hold them to their responsibilities otherwise there is almost no downside to their inability to follow what seem to be very simple rules. If there is no check on their power... well, it is said that absolute power corrupts absolutely.

If you want recommendend a case for review here leave us a message at www.colleluorilaw.com