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.
Sunday, February 19, 2006
Sunday, February 12, 2006
Mary Conn's BLawg: Criminal Law and Bluegrass, What a Combination!
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
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.
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.
Sunday, February 05, 2006
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.
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.
Wednesday, January 25, 2006
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.
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.
Sunday, January 22, 2006
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.
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.
Sunday, January 15, 2006
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.
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.
Thursday, January 12, 2006
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.
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.
Monday, January 02, 2006
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
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
Saturday, December 31, 2005
Nassau DA-Elect to Nassau Criminal Defense Bar: When It Comes To DWI, IT'S ON!!
In her first policy statement since shocking Nassau County's legal circle with her election win over long time Nassau County DA Dennis Dillon , Nassau District Attorney Elect Kathleen Rice has announced that she intends to be tough on DWI. In her remarks before the New Year's day holiday, she has told the public that she intends not to plea bargain Felony DWI charges. Hence if you are arrested in Nassau County for Felony DWI you can expect to go to trial or go to jail.
Ms. Rice is not the first to notice that many Long Island lawyers who handle DWI's are reticent to go to trial. It will now be important not only to try Felony DWI's, but counsel should seriously consider trying all DWI charges, especially those at the misdemeanor level. Those first misdemeanor convictions are the predicate to a later felony charge.
Defendants in Nassau County often think that DWI's are unwinnable. Actually, if the money is invested into the defense, the cases are very beatable. I have won cases where the defendant was painting all day and went out to buy a cup of coffee. He was stopped and blew a .15 on the machine. I have won buy attacking the documents that support the arrest or the lack thereof. I have even won by showing documents and evidence was missing.
A major problem, is that many first time offenders do not hire expierenced DWI lawyers. They go with attorneys who have plea bargained a couple of criminal cases or who actually lie about their credentials. Learning to hire a real criminal lawyer, is one way to put a stop to prosecution edicts such as this one. Nothing stops expensive rules like this one than losing at trial.
Now the prosecution does not give winning information up willingly. We had to dig for it at hearings. We had to make motions, and seek discovery. We had to hire experts and we had to purchase manuals. We had to attend seminars. We had to go the extra mile (or two). Our clients were told ahead of time that the defense was going to cost over Six Thousand dollars and in fact some cases have cost over Twenty Thousand Dollars. Nevertheless, it was a better result than going to jail or losing an important job. DWI cases can be won. The machine is not perfect, in fact it is far from it. Many clients hired dump truck attorneys who bled them and pled them for a few hundred dollars. These people would return to us with even greater problems thanks to the half-ass efforts of prior non-criminal defense attorney counsel.
The facts are, that many, many, DWI arrests do not, and should not, end in conviction when the cases go to trial. The only issue is: Does the Nassau bar have the intestinal fortitude to be honest with defendants to tell them what the cost of a conviction really is, and how much a "real" defense is going to cost. Do clients, their families, and employers have the means and the trust to go forward with an attorney who knows how to handle this kind of a case.
Feel free to contact us at www.Colleluorilaw.com or leave us a comment below.
Ms. Rice is not the first to notice that many Long Island lawyers who handle DWI's are reticent to go to trial. It will now be important not only to try Felony DWI's, but counsel should seriously consider trying all DWI charges, especially those at the misdemeanor level. Those first misdemeanor convictions are the predicate to a later felony charge.
Defendants in Nassau County often think that DWI's are unwinnable. Actually, if the money is invested into the defense, the cases are very beatable. I have won cases where the defendant was painting all day and went out to buy a cup of coffee. He was stopped and blew a .15 on the machine. I have won buy attacking the documents that support the arrest or the lack thereof. I have even won by showing documents and evidence was missing.
A major problem, is that many first time offenders do not hire expierenced DWI lawyers. They go with attorneys who have plea bargained a couple of criminal cases or who actually lie about their credentials. Learning to hire a real criminal lawyer, is one way to put a stop to prosecution edicts such as this one. Nothing stops expensive rules like this one than losing at trial.
Now the prosecution does not give winning information up willingly. We had to dig for it at hearings. We had to make motions, and seek discovery. We had to hire experts and we had to purchase manuals. We had to attend seminars. We had to go the extra mile (or two). Our clients were told ahead of time that the defense was going to cost over Six Thousand dollars and in fact some cases have cost over Twenty Thousand Dollars. Nevertheless, it was a better result than going to jail or losing an important job. DWI cases can be won. The machine is not perfect, in fact it is far from it. Many clients hired dump truck attorneys who bled them and pled them for a few hundred dollars. These people would return to us with even greater problems thanks to the half-ass efforts of prior non-criminal defense attorney counsel.
The facts are, that many, many, DWI arrests do not, and should not, end in conviction when the cases go to trial. The only issue is: Does the Nassau bar have the intestinal fortitude to be honest with defendants to tell them what the cost of a conviction really is, and how much a "real" defense is going to cost. Do clients, their families, and employers have the means and the trust to go forward with an attorney who knows how to handle this kind of a case.
Feel free to contact us at www.Colleluorilaw.com or leave us a comment below.
Happy New Year's Day to All :
This is just a fast note to all our friends: defense attorneys, prosecutors, police and law enforcement officers, Judges, and especially our family and clients. From all of us here at the Law Offices of Anthony J. Colleluori and Associates LLC and Long Island (Criminal)Trial Law, we wish you all a happy and healthy New Year. We look forward to continuing to bring you the best in legal analysis on the net regualarly in the coming year.
Thursday, December 29, 2005
DWI Refusal Precluded:Court Rules that Two Hours Rule Applies to Refusals
Our office has had a victory precluding the prosecution from using a client's refusal to submit to a breath test offered him over two hours after he was arrested for Driving While Intoxicated.
The decision in People v. Cavaliere, Docket No. 3906C/04 Bronx County Marcus J. (December 14,2005), deals with whether or not the prosecution can use a DWI defendant's refusal to take a breath test when such test is offered to the suspect over two hours after the arrest.
In the Cavaliere case, the defendant was arrested after being involved in a multi-car accident on the Bruckner Expressway in the Bronx. The police claim to have smelled a strong odor of alcohol on the defendant's breath and witnesses claim that the defendant appeared intoxicated after the accident. The breath test was offered to the defendant well over two hours after the defendant was arrested.
The defendant moved to preclude the test refusal based on the NYPD's violation of VTL Sec. 1194(2)(a)(1,)in that the test was not offered to the defendant until after two hours from the time of the defendants arrest. See People v. Brol, 81 AD2d 739 (4th Dept. 1981). The prosecution argued that Brol was overruled by the Court of Appeals in People v. Atkins, 85 NY2sd 826(1995). It was the defendant's contention that Atkins is mistakenly described as holding that the "two hour rule" was no longer applicable in its entirety.
The court ruled that the breath test was not offered with in two hours and thus the refusal should be precluded. The People made a motion to reargue. Again arguing that the Brol case was overruled by Atkins the People filed an exhaustive brief discussing the history of the ill fated "two hour rule." It urged the court should join other lower courts in finding that the "two hour rule" no longer a precluded a test refusal from coming into evidence after an offer of a test post two hours from arrest. The Defense argued that such a rule would subject a defendant to a refusal if he was offered the test anytime after arrest and allow the prosecution to argue the test was refused because of a consienceness of guilt.
The Court in its decision again ruled the refusal precluded as outside the
strictures of VTL Sec. 1194(2)(a)(1). The court held that Atkins only permitted the use of a breath test taken more than two hours after the arrest when the defendant consented to taking the test more than two hours after the arrest. The court held here however that Atkins does not hold that evidence of a REFUSAL obtained more than two hours after arrest is admissible at trial. By holding that the test results obtained by consent are admissible the Court of Appeals did not announce new law or imply that the "Two Hour Rule" was no longer viable. Atkins only holds that tests consented to after two hours from arrest are admissible and that does not mean that refusals are admissible.
This win should be credited to John J. Marshall Jr. who won the original motion and Amy Hsu who wrote the major part of the response to People's motion to reargue both on behalf of The Law Offices of Anthony J. Colleluori & Associates LLC.
The decision in People v. Cavaliere, Docket No. 3906C/04 Bronx County Marcus J. (December 14,2005), deals with whether or not the prosecution can use a DWI defendant's refusal to take a breath test when such test is offered to the suspect over two hours after the arrest.
In the Cavaliere case, the defendant was arrested after being involved in a multi-car accident on the Bruckner Expressway in the Bronx. The police claim to have smelled a strong odor of alcohol on the defendant's breath and witnesses claim that the defendant appeared intoxicated after the accident. The breath test was offered to the defendant well over two hours after the defendant was arrested.
The defendant moved to preclude the test refusal based on the NYPD's violation of VTL Sec. 1194(2)(a)(1,)in that the test was not offered to the defendant until after two hours from the time of the defendants arrest. See People v. Brol, 81 AD2d 739 (4th Dept. 1981). The prosecution argued that Brol was overruled by the Court of Appeals in People v. Atkins, 85 NY2sd 826(1995). It was the defendant's contention that Atkins is mistakenly described as holding that the "two hour rule" was no longer applicable in its entirety.
The court ruled that the breath test was not offered with in two hours and thus the refusal should be precluded. The People made a motion to reargue. Again arguing that the Brol case was overruled by Atkins the People filed an exhaustive brief discussing the history of the ill fated "two hour rule." It urged the court should join other lower courts in finding that the "two hour rule" no longer a precluded a test refusal from coming into evidence after an offer of a test post two hours from arrest. The Defense argued that such a rule would subject a defendant to a refusal if he was offered the test anytime after arrest and allow the prosecution to argue the test was refused because of a consienceness of guilt.
The Court in its decision again ruled the refusal precluded as outside the
strictures of VTL Sec. 1194(2)(a)(1). The court held that Atkins only permitted the use of a breath test taken more than two hours after the arrest when the defendant consented to taking the test more than two hours after the arrest. The court held here however that Atkins does not hold that evidence of a REFUSAL obtained more than two hours after arrest is admissible at trial. By holding that the test results obtained by consent are admissible the Court of Appeals did not announce new law or imply that the "Two Hour Rule" was no longer viable. Atkins only holds that tests consented to after two hours from arrest are admissible and that does not mean that refusals are admissible.
This win should be credited to John J. Marshall Jr. who won the original motion and Amy Hsu who wrote the major part of the response to People's motion to reargue both on behalf of The Law Offices of Anthony J. Colleluori & Associates LLC.
Wednesday, December 28, 2005
A few quick Blawg notes that I found interesting
A quick look through my blog roll at some of the articles I think might be of interest to you Trial Lawyer types:
The Rochester Democrat & Chronicle had a really interesting piece on NYS Court of Appeals Judge Robert Smith, the courts conservative libertarian. (I knew there were more like me somewhere here in NY.) Follow this link. The article has a voting record on criminal appeals and notes that while Judge Smith is a big fan of Justices Scalia and Thomas up at SCOTUS, he mostly likes their libertarian streak. Me too.
UPDATE: Forgot to attribute the above to the really superb blog How Appealing by Howard Bashman http://legalaffairs.org/howappealing.
Our friends at DWIBLOG over in California have posted about how police organizations, with DOJ funding, are now going after non drunk drivers for being "Buzzed." Pretty soon MADD will try to get people who THINK about drinking and driving arrested. This post is very scary.
Professor Berman over at Sentencing Law and Policy writes here about a recent 7th circuit case that upholds a ridiculously long 40 year sentence for possession and sale of a moderate amount of cocaine. The decision reminds the district courts that Booker suggests a certain proportionality and that they need to give themselves room at the top of the USSG for the really bad guys.
Yuachung Lee does a very nice cover of the Second Circuit's decision in US v. Irving. The US Court of Appeals Second Circuit overturned a few counts that were based on uncooberated writings found in defendant's personal journal. It is a long post but Yuachung does the case justice here. See also his discussion of US v. Alaa Al-Sadawi which deals with when a person's leaving the jurisdiction constitutes flight as a consciousness of guilt.
You know those ridiculous "perp walks" that the police hold to show off defendants to the press like they were some kind of hunting trophy, and which really are meant to contaminate the jury pool and destroy the clients life before trial? Well White Collar Crime Profs Blawg has some good news... If you live in Colorado. Read all about it
at this post. Maybe we should bring this to the attention of both DA Tom Spota and DA-elect Kathleen Rice. Maybe we should bring it up with the legislature.
Then there is this cautionary tale about obtaining a legal fee in a money laundering case.
That is it for now. Feel free to contact us if you have any ideas for topics or columns for this blog at www.colleluorilaw.com, or leave a message below.
The Rochester Democrat & Chronicle had a really interesting piece on NYS Court of Appeals Judge Robert Smith, the courts conservative libertarian. (I knew there were more like me somewhere here in NY.) Follow this link. The article has a voting record on criminal appeals and notes that while Judge Smith is a big fan of Justices Scalia and Thomas up at SCOTUS, he mostly likes their libertarian streak. Me too.
UPDATE: Forgot to attribute the above to the really superb blog How Appealing by Howard Bashman http://legalaffairs.org/howappealing.
Our friends at DWIBLOG over in California have posted about how police organizations, with DOJ funding, are now going after non drunk drivers for being "Buzzed." Pretty soon MADD will try to get people who THINK about drinking and driving arrested. This post is very scary.
Professor Berman over at Sentencing Law and Policy writes here about a recent 7th circuit case that upholds a ridiculously long 40 year sentence for possession and sale of a moderate amount of cocaine. The decision reminds the district courts that Booker suggests a certain proportionality and that they need to give themselves room at the top of the USSG for the really bad guys.
Yuachung Lee does a very nice cover of the Second Circuit's decision in US v. Irving. The US Court of Appeals Second Circuit overturned a few counts that were based on uncooberated writings found in defendant's personal journal. It is a long post but Yuachung does the case justice here. See also his discussion of US v. Alaa Al-Sadawi which deals with when a person's leaving the jurisdiction constitutes flight as a consciousness of guilt.
You know those ridiculous "perp walks" that the police hold to show off defendants to the press like they were some kind of hunting trophy, and which really are meant to contaminate the jury pool and destroy the clients life before trial? Well White Collar Crime Profs Blawg has some good news... If you live in Colorado. Read all about it
at this post. Maybe we should bring this to the attention of both DA Tom Spota and DA-elect Kathleen Rice. Maybe we should bring it up with the legislature.
Then there is this cautionary tale about obtaining a legal fee in a money laundering case.
That is it for now. Feel free to contact us if you have any ideas for topics or columns for this blog at www.colleluorilaw.com, or leave a message below.
The Law of Partial Verdicts: People v. Echevarria
The big news today is going to be the Court of Appeals decision on Depraved Indifference Murder. I however, think that Echevarria, 2005 NY Slip Op 09812, is more important to the criminal practioner hence...
In Echevarria the defendant goes to score drugs at the home of acquaintances and kills them while trying to steal their drugs. He is charged with Murder in the First Degree (multiple deaths) and Murder in the Second Degree. The defense argues intoxication.
Without objection, the court charges the jury with both counts. It gives no instruction as to the order with which to consider the counts; a plain error. (See People v Boettcher, 69 NY2d 174 [1987]). Thereafter, the jury announces it has a partial verdict. Wary of the fact that the jury could have considered the lesser charge first, the prosecutor argued that the court should not take the verdict and should order the jury to complete deliberations. (See People v. Fuller,96 NY2d 881 [2001]). The defense attorney told the jury that Fuller was not an issue and asked for the partial verdict. The court agreed.
The jury came back guilty on the Second Degree Murders. Then they were told to deliberate on the remaining charges. No objection by defense counsel. Next day the Murder in the First comes back guilty. Result of course is that the Court of Appeals upholds the verdict.
The law on partial verdicts holds that if the partial verdict comes in on the lesser included count, the higher charge is deemed acquitted. (See Fuller) The defense should have objected to the continued deliberations. However, after arguing that Fuller was not at issue here, counsel would be hard pressed to object. The defense objection may have been a low ball but should have been made anyway. (Yeah that would mean that counsel could never appear before that judge again but...)
The real error came in failing to require the court charge the jury to consider the counts in order; the most serious count first. This is probably the prosecutors burden. If the second degree murder charge was the lesser included of the first degree murder charge, it should have only been reached after the verdict on the first degree charge had been decided. If the jury impasses on the First Degree charge, and goes to the Second Degree charge and thereafter announces it's verdict as partial, the First Degree charge falls whether or not they convict or acquit.
If the Prosecutor fails to ask for the Boettcher instruction and then argues Fuller, defense counsel should argue the prosecutor waived Fuller by failing to ask for the Boettcher instruction. In the case at bar the defendant waived Fuller by arguing it was not at issue here. Of course it is hard to be perfect under the heat of battle. Hence spending a few hours on jury charges prior to trial begining is an important part of trial preparation.
If you have any Ideas for subjects or cases you would like us to discuss or if you just want to reach me directly you can contact me thru our website at www.colleluorilaw.com.
In Echevarria the defendant goes to score drugs at the home of acquaintances and kills them while trying to steal their drugs. He is charged with Murder in the First Degree (multiple deaths) and Murder in the Second Degree. The defense argues intoxication.
Without objection, the court charges the jury with both counts. It gives no instruction as to the order with which to consider the counts; a plain error. (See People v Boettcher, 69 NY2d 174 [1987]). Thereafter, the jury announces it has a partial verdict. Wary of the fact that the jury could have considered the lesser charge first, the prosecutor argued that the court should not take the verdict and should order the jury to complete deliberations. (See People v. Fuller,96 NY2d 881 [2001]). The defense attorney told the jury that Fuller was not an issue and asked for the partial verdict. The court agreed.
The jury came back guilty on the Second Degree Murders. Then they were told to deliberate on the remaining charges. No objection by defense counsel. Next day the Murder in the First comes back guilty. Result of course is that the Court of Appeals upholds the verdict.
The law on partial verdicts holds that if the partial verdict comes in on the lesser included count, the higher charge is deemed acquitted. (See Fuller) The defense should have objected to the continued deliberations. However, after arguing that Fuller was not at issue here, counsel would be hard pressed to object. The defense objection may have been a low ball but should have been made anyway. (Yeah that would mean that counsel could never appear before that judge again but...)
The real error came in failing to require the court charge the jury to consider the counts in order; the most serious count first. This is probably the prosecutors burden. If the second degree murder charge was the lesser included of the first degree murder charge, it should have only been reached after the verdict on the first degree charge had been decided. If the jury impasses on the First Degree charge, and goes to the Second Degree charge and thereafter announces it's verdict as partial, the First Degree charge falls whether or not they convict or acquit.
If the Prosecutor fails to ask for the Boettcher instruction and then argues Fuller, defense counsel should argue the prosecutor waived Fuller by failing to ask for the Boettcher instruction. In the case at bar the defendant waived Fuller by arguing it was not at issue here. Of course it is hard to be perfect under the heat of battle. Hence spending a few hours on jury charges prior to trial begining is an important part of trial preparation.
If you have any Ideas for subjects or cases you would like us to discuss or if you just want to reach me directly you can contact me thru our website at www.colleluorilaw.com.
Monday, December 26, 2005
NY State Court of Appeals Applies Crawford v. Washington
In People v. Goldstein,2005 NY Slip Op 09654 (2005), the New York Court of Appeals was confronted by a murder case where the defendant attacked a unsuspecting woman and threw her off a subway platform in front of an oncoming train. There was substantial testimony offered by both the defense and the government's psychiatrists. The Doctors all agreed that the defendant was mentally ill. However, the prosecution’s expert predictable decided that the illness did not render the defendant legally insane. Part of that doctor's testimony included the basis of the Doctor's conclusions. Rather than rely on just the statements of the defendant, this expert felt she should speak to non-testifying third parties who witnessed other things the defendant had done in his life. Those things supported her finding that the defendant was a predator, and not just an ordinary insane individual. Her testimony, which encapsulated the hearsay stories of six other witnesses, came in over defense objection.
On appeal, the Court of Appeals dealt with the junk science part of the case quickly but disconcertingly. It held that, although only a small minority of experts accepts the notion that third party accounts aid in diagnosis, enough find the approach to yield the kind of material that is reliable and widely accepted in the field.
I find that this is the biggest problem with the decision. It is clear in the decision, that the cross-examination of the witness on the issue of widespread acceptance in the field was not deep enough, to explore the level of professional acceptance. Now we will have prosecutors arguing for a rule that "Forensic study into the psyche of a defendant must include a review of the defendants past acts and interviews with witnesses to those acts" whose testimony would never be permissible in the governments' case in chief.
However, the court did not reach that issue here. In fact, it specifically refused to acknowledge that NY Law is the same as the Federal Rule of Evidence 703 with regard to that issue.
The Court of Appeals instead looked at the new federal issue raised by Crawford v. Washington, 541 US 36 (2004). It decided, that under the US Constitution the defendant's conviction here must be overturned. The court cites both the 6th amendment’s language in the confrontation clause and language in the NY State Constitution’ Article I Section 6, however it relied on federal precedent for its decision. (In fact the dissent noted that Crawford, was only recently settled law and that giving it too much weight at this juncture could expose this decision to criticism should the Supreme Court of the United States not go as far as the majority did here. I have no reason to think that this six to one decision would be different if it were decided on state grounds alone. In fact, given the strength of the language in the decision the state constitutional argument might yield an even stronger result.)
The court held that while out of court statements not offered for the proof of the matter asserted are still admissible with proper precaution, the jury could not give the prosecution’s expert any weight unless they also believed the truth of the statements of the out of court declarants. Hence, the evidence had to be hearsay. They then acknowledged that Crawford had done away with the absolute right to offer the statements of witnesses who could otherwise not be cross-examined.
The dissent strongly criticized the majority, noting that even if the jury rejected all the hearsay, the proof was overwhelmingly in favor of conviction. Hence, it called on the majority to apply harmless error analysis to the decision. The majority refused however. It did note how hard this decision might be for the victim’s family to accept. However it noted that the right to cross examine one’s accusers sits at the very base of American liberty and must be upheld in spite of the pain that this decision may cause the victims family. I am happy to see the court at least acknowledged that the victims were going to suffer in a third retrial. However, the same trend can also be scary. Appellate courts are supposed to decide these cases without prejudice and on the law alone. If a court thinks too much about the fallout or the effect of the decision, it could leave its duty on the table and do the popular thing and not the right thing.
If you have any thoughts on this or any other trial law case, feel free to leave a comment for me at www.colleluorilaw.com.
On appeal, the Court of Appeals dealt with the junk science part of the case quickly but disconcertingly. It held that, although only a small minority of experts accepts the notion that third party accounts aid in diagnosis, enough find the approach to yield the kind of material that is reliable and widely accepted in the field.
I find that this is the biggest problem with the decision. It is clear in the decision, that the cross-examination of the witness on the issue of widespread acceptance in the field was not deep enough, to explore the level of professional acceptance. Now we will have prosecutors arguing for a rule that "Forensic study into the psyche of a defendant must include a review of the defendants past acts and interviews with witnesses to those acts" whose testimony would never be permissible in the governments' case in chief.
However, the court did not reach that issue here. In fact, it specifically refused to acknowledge that NY Law is the same as the Federal Rule of Evidence 703 with regard to that issue.
The Court of Appeals instead looked at the new federal issue raised by Crawford v. Washington, 541 US 36 (2004). It decided, that under the US Constitution the defendant's conviction here must be overturned. The court cites both the 6th amendment’s language in the confrontation clause and language in the NY State Constitution’ Article I Section 6, however it relied on federal precedent for its decision. (In fact the dissent noted that Crawford, was only recently settled law and that giving it too much weight at this juncture could expose this decision to criticism should the Supreme Court of the United States not go as far as the majority did here. I have no reason to think that this six to one decision would be different if it were decided on state grounds alone. In fact, given the strength of the language in the decision the state constitutional argument might yield an even stronger result.)
The court held that while out of court statements not offered for the proof of the matter asserted are still admissible with proper precaution, the jury could not give the prosecution’s expert any weight unless they also believed the truth of the statements of the out of court declarants. Hence, the evidence had to be hearsay. They then acknowledged that Crawford had done away with the absolute right to offer the statements of witnesses who could otherwise not be cross-examined.
The dissent strongly criticized the majority, noting that even if the jury rejected all the hearsay, the proof was overwhelmingly in favor of conviction. Hence, it called on the majority to apply harmless error analysis to the decision. The majority refused however. It did note how hard this decision might be for the victim’s family to accept. However it noted that the right to cross examine one’s accusers sits at the very base of American liberty and must be upheld in spite of the pain that this decision may cause the victims family. I am happy to see the court at least acknowledged that the victims were going to suffer in a third retrial. However, the same trend can also be scary. Appellate courts are supposed to decide these cases without prejudice and on the law alone. If a court thinks too much about the fallout or the effect of the decision, it could leave its duty on the table and do the popular thing and not the right thing.
If you have any thoughts on this or any other trial law case, feel free to leave a comment for me at www.colleluorilaw.com.
Sunday, December 18, 2005
When Attacking an Inventory Search, Follow the "Guide"
The NYS Supreme Court 2nd Department has given us a few end of the year decisions to write about.Over the next few posts I am going to try to bring a few to you. The decision in People v Elpenord 2005 NY Slip Op 09327 reminds defense counsel that when confronted with an inventory search, one of the things that you must do is to make sure you hold police to their procedures. Fortunately the procedure they must follow is in the Patrol Guide.
In Elpenord the Nassau County Police Department received a radio run for shots fired. The 911 call was devoid of description of person or vehicle (it was alleged a car sped away from the scene.) The police see a speeding car in the vicinity of the shooting scene and try to pull the car over. It leads them on a chase and finally when pulled over the driver is without a valid license or registration. He tells police the vehicle belongs to his mother (it did) and that she gave him permission to use the car(she had.) Police pull him out of the vehicle for speeding. They then allegedly search the car to inventory the contents. The trial court held that the search was legal even though the officers failed to take any of the steps necessary to conduct an inventory search of the vehicle including filling out an inventory search form or even noting the search in their memo books. (In fairness they did start to fill out the form but stopped when they found a gun in a black bag in the trunk)
The Court noted that inventory searches at the scene of a valid vehicle and traffic law arrest are only permitted when they are "conducted in accordance with standard police procedures which limit the discretion of the searching officer (see People v Galak, 80 NY2d 715, 718). Such searches advance three specific objectives: protecting the owner's property while the police retain custody of the vehicle, insuring the police against claims of lost or stolen property, and guarding the police against dangers that might otherwise go undetected (see Colorado v Bertine, 479 US 367, 372; People v Galak, supra; see also People v Cammock, 144 AD2d 375). "In its modern Fourth Amendment jurisprudence, the [United States] Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual's right to be free from arbitrary interference by law enforcement officers" (People v Galak, supra at 118, citing Colorado v Bertine, supra). "While the discovery of incriminating evidence may be a consequence of an inventory search, it should not be its purpose" (People v Russell, 13 AD3d 655, 657). It is the People's burden to demonstrate the legality of police conduct in the first instance (see People v Thomas, 291 AD2d 462, 463)."
The court found that the search neither protected the property of the citizen nor did it protect the police department against an unwarranted claim for stolen property and thus was a pretext search. The court thus overturned the conviction for the weapon possession and ordered the defendant sentenced on the violations.
If confronted with an inventory search it would be wise if the defense counsel asked the Prosecutor for a copy of the patrol guide. It would be a good idea to subpeona it if they will not give it to you. This case can be used to back up the need to have the item. Remember when issuing a subpeona for a governmental agency, you must have the subpeona So Ordered by a court.
If you are aware of a case or decision that would be helpful to trial lawyers who practice in either the Eastern or Southern District of the US District Court or the First or Second Departments of the NY State Supreme Court, please send me an E-mail at www.Colleluorilaw.com
In Elpenord the Nassau County Police Department received a radio run for shots fired. The 911 call was devoid of description of person or vehicle (it was alleged a car sped away from the scene.) The police see a speeding car in the vicinity of the shooting scene and try to pull the car over. It leads them on a chase and finally when pulled over the driver is without a valid license or registration. He tells police the vehicle belongs to his mother (it did) and that she gave him permission to use the car(she had.) Police pull him out of the vehicle for speeding. They then allegedly search the car to inventory the contents. The trial court held that the search was legal even though the officers failed to take any of the steps necessary to conduct an inventory search of the vehicle including filling out an inventory search form or even noting the search in their memo books. (In fairness they did start to fill out the form but stopped when they found a gun in a black bag in the trunk)
The Court noted that inventory searches at the scene of a valid vehicle and traffic law arrest are only permitted when they are "conducted in accordance with standard police procedures which limit the discretion of the searching officer (see People v Galak, 80 NY2d 715, 718). Such searches advance three specific objectives: protecting the owner's property while the police retain custody of the vehicle, insuring the police against claims of lost or stolen property, and guarding the police against dangers that might otherwise go undetected (see Colorado v Bertine, 479 US 367, 372; People v Galak, supra; see also People v Cammock, 144 AD2d 375). "In its modern Fourth Amendment jurisprudence, the [United States] Supreme Court has held that the reasonableness of a search is calculated by weighing the governmental and societal interests advanced by the search against the individual's right to be free from arbitrary interference by law enforcement officers" (People v Galak, supra at 118, citing Colorado v Bertine, supra). "While the discovery of incriminating evidence may be a consequence of an inventory search, it should not be its purpose" (People v Russell, 13 AD3d 655, 657). It is the People's burden to demonstrate the legality of police conduct in the first instance (see People v Thomas, 291 AD2d 462, 463)."
The court found that the search neither protected the property of the citizen nor did it protect the police department against an unwarranted claim for stolen property and thus was a pretext search. The court thus overturned the conviction for the weapon possession and ordered the defendant sentenced on the violations.
If confronted with an inventory search it would be wise if the defense counsel asked the Prosecutor for a copy of the patrol guide. It would be a good idea to subpeona it if they will not give it to you. This case can be used to back up the need to have the item. Remember when issuing a subpeona for a governmental agency, you must have the subpeona So Ordered by a court.
If you are aware of a case or decision that would be helpful to trial lawyers who practice in either the Eastern or Southern District of the US District Court or the First or Second Departments of the NY State Supreme Court, please send me an E-mail at www.Colleluorilaw.com
Sunday, November 20, 2005
A prisoner's civil rights case win
A 42 USC §1983 Win in US District Court EDNY
Mastroianni v. Reilly, Neal and Minetti, 02 Civ. 846 (ADS) (ETB).
A couple of years ago I accepted an assignment to represent a prisoner held at the Nassau County Correctional Center. The client’s claim was that he had a heart attack due to the failure of the jail to administer his heart medicine on any type of a consistent basis.
The client filed a number of grievances about not getting adequate medical care. Each time, he would get a meeting with a grievance officer. They would agree to drop the grievance if he received his medicine and his other needs were addressed. Each time he would get his medicine for a while, only to have it denied again after a week or two. This medicine included his nitroglycerinen, often dispensed to a patient to use as they feel they need it.
After filing the complaint the county and the medical defendants moved to dismiss, as the plaintiff failed to exhaust his administrative remedies. At a hearing held before a US Magistrate, there was testimony that the plaintiff filed his grievances, would have them addressed, thereby settling and withdrawing the grievance, and then after a while the treatments would end. Testimony also showed that when the plaintiff tried to reinstate the grievance he would have to begin the process from scratch. In other words he could have his medicine or his grievance not both.
The Magistrate found that the plaintiff did not exhaust administrative remedies. Plaintiff challenged the findings. Last Month US District Court Judge Arthur Spatt ruled that where the plaintiff was in effect precluded from exhausting administrative remedies .
While acknowledging that a prisoner must exhaust administrative remedies in order to get past the affirmative defense of failure to exhaust, the court cited a recent Second Circuit decision as follows:
However, in certain circumstances, a prisoner’s failure to exhaust available
administrative remedies may be excused. Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir.
2004).
Citing Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004), the court reviewed the factors the court must look at to determine if the prisoner’s failure to exhaust may be excused.
Judge Spatt noted that the court had to determine (1) What administrative remedies were “available” to the plaintiff; (2)If the defendant has waived the non-exhaustion defense by failing to raise or preserve it; or (3) the defendant’s own actions estop them from raising non-exhaustion. Id.
In addition, the court held that “a plaintiff may successfully refute a defendant’s contention that he has failed to exhaust his administrative remedies if he can demonstrate that . . . ‘special circumstances’ justify his failure to comply with this requirement.” Hoover v. Hardman, No. 99 CIv. 1855, 20005 WL 1949890, at * 2 (N.D.N.Y. Aug. 15, 2005) (quoting Hemphill, 380 F.3d at 686).
In the Mastroianni case there was both a failure of the defendant’s to prove plaintiff failed to exhaust administrative remedies and special circumstances. Citing Sultan v. Wright, 265 F.Supp.2d 292 (S.D.N.Y. 2003), the court held that the fact that the defendant’s grievance officer addressed the grievance and promised to correct the problem, negated plaintiff’s need to appeal the grievance to a higher board. It held that :
An inmate is not required under the PLRA to continue to
complain, as here, after his grievance has been
addressed, but the problem has not been corrected.
Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001). If
a prisoner had to grieve non-compliance with favorable
decisions under the PLRA, prison officials could keep
prisoners out of court indefinitely by saying “yes” to
their grievances and “no” in practice. Kaplan v. New
York State Dep’t of Corr. Servs., No. 99 Civ. 5856, 2000
WL 959728, at *3 (S.D.N.Y. July 10, 2000); McGrath v,
Johnson, 67 F. Supp. 2d 499, 510 (E.D. Pa. 1999).
As such we are back in court and Nassau County is either going to have to start keeping its promises to inmates or come up with a better way of screwing them out of their day in court.
Mastroianni v. Reilly, Neal and Minetti, 02 Civ. 846 (ADS) (ETB).
A couple of years ago I accepted an assignment to represent a prisoner held at the Nassau County Correctional Center. The client’s claim was that he had a heart attack due to the failure of the jail to administer his heart medicine on any type of a consistent basis.
The client filed a number of grievances about not getting adequate medical care. Each time, he would get a meeting with a grievance officer. They would agree to drop the grievance if he received his medicine and his other needs were addressed. Each time he would get his medicine for a while, only to have it denied again after a week or two. This medicine included his nitroglycerinen, often dispensed to a patient to use as they feel they need it.
After filing the complaint the county and the medical defendants moved to dismiss, as the plaintiff failed to exhaust his administrative remedies. At a hearing held before a US Magistrate, there was testimony that the plaintiff filed his grievances, would have them addressed, thereby settling and withdrawing the grievance, and then after a while the treatments would end. Testimony also showed that when the plaintiff tried to reinstate the grievance he would have to begin the process from scratch. In other words he could have his medicine or his grievance not both.
The Magistrate found that the plaintiff did not exhaust administrative remedies. Plaintiff challenged the findings. Last Month US District Court Judge Arthur Spatt ruled that where the plaintiff was in effect precluded from exhausting administrative remedies .
While acknowledging that a prisoner must exhaust administrative remedies in order to get past the affirmative defense of failure to exhaust, the court cited a recent Second Circuit decision as follows:
However, in certain circumstances, a prisoner’s failure to exhaust available
administrative remedies may be excused. Berry v. Kerik, 366 F.3d 85, 87-88 (2d Cir.
2004).
Citing Hemphill v. N.Y., 380 F.3d 680, 686 (2d Cir. 2004), the court reviewed the factors the court must look at to determine if the prisoner’s failure to exhaust may be excused.
Judge Spatt noted that the court had to determine (1) What administrative remedies were “available” to the plaintiff; (2)If the defendant has waived the non-exhaustion defense by failing to raise or preserve it; or (3) the defendant’s own actions estop them from raising non-exhaustion. Id.
In addition, the court held that “a plaintiff may successfully refute a defendant’s contention that he has failed to exhaust his administrative remedies if he can demonstrate that . . . ‘special circumstances’ justify his failure to comply with this requirement.” Hoover v. Hardman, No. 99 CIv. 1855, 20005 WL 1949890, at * 2 (N.D.N.Y. Aug. 15, 2005) (quoting Hemphill, 380 F.3d at 686).
In the Mastroianni case there was both a failure of the defendant’s to prove plaintiff failed to exhaust administrative remedies and special circumstances. Citing Sultan v. Wright, 265 F.Supp.2d 292 (S.D.N.Y. 2003), the court held that the fact that the defendant’s grievance officer addressed the grievance and promised to correct the problem, negated plaintiff’s need to appeal the grievance to a higher board. It held that :
An inmate is not required under the PLRA to continue to
complain, as here, after his grievance has been
addressed, but the problem has not been corrected.
Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir. 2001). If
a prisoner had to grieve non-compliance with favorable
decisions under the PLRA, prison officials could keep
prisoners out of court indefinitely by saying “yes” to
their grievances and “no” in practice. Kaplan v. New
York State Dep’t of Corr. Servs., No. 99 Civ. 5856, 2000
WL 959728, at *3 (S.D.N.Y. July 10, 2000); McGrath v,
Johnson, 67 F. Supp. 2d 499, 510 (E.D. Pa. 1999).
As such we are back in court and Nassau County is either going to have to start keeping its promises to inmates or come up with a better way of screwing them out of their day in court.
An Announcement
Well its been a while. Cases and home life have come in the way of blogging. A few announcements:
1. I will be making an appearance on Tuesday November on a new legal show hosted by Tom Donavan and Robert "Bobby" Moore. The show is called New York Law Radio and will be on WTHE 1520 on the AM dial. I believe that the topics for this initial show will be general law with a focus on criminal and civil rights law. For more information go to http://www.nylawradio.com.
2. If You have received a decision that you would like to see discussed here please send it to Long Island (Criminal) Trial Law c/o The Law Offices of Anthony J. Colleluori and Associates, 180 Froehlich Farm Blvd, Woodbury, NY 11797. I am especially looking for cases that have been decided in the lower courts that are not featured in the NY Law Journal or in the NY Supplements. The decisions need not be a win for the defense, and as you know does not have to be limited to criminal court cases. If the case has a criminal law aspect to it, it is welcomed here.
If you would like to recommend a topic for this blog or otherwise speak to the author you can leave a message here or at www.colleluorilaw.com
1. I will be making an appearance on Tuesday November on a new legal show hosted by Tom Donavan and Robert "Bobby" Moore. The show is called New York Law Radio and will be on WTHE 1520 on the AM dial. I believe that the topics for this initial show will be general law with a focus on criminal and civil rights law. For more information go to http://www.nylawradio.com.
2. If You have received a decision that you would like to see discussed here please send it to Long Island (Criminal) Trial Law c/o The Law Offices of Anthony J. Colleluori and Associates, 180 Froehlich Farm Blvd, Woodbury, NY 11797. I am especially looking for cases that have been decided in the lower courts that are not featured in the NY Law Journal or in the NY Supplements. The decisions need not be a win for the defense, and as you know does not have to be limited to criminal court cases. If the case has a criminal law aspect to it, it is welcomed here.
If you would like to recommend a topic for this blog or otherwise speak to the author you can leave a message here or at www.colleluorilaw.com
Saturday, October 08, 2005
A Bill of Client's Rights For The Accused: A WIKI PROJECT
Arbitrary and Capricious: Severance and sufferance
My blogging friend Skelly over at one of my favorite blogs for criminal trial lawyers Arbitrary and Capricious had a post about a "virus" motion* that is going around that is meant to set up the client's public defender for removal/disqualification.
I will put aside the fact that Public Defenders are more often than not some of the best lawyers in the courtroom and that no decent lawyer would sign the document provided by the "virus", and focus instead on the use of the document as a starting point for public defense lawyers and maybe all lawyers to discuss the concepts of loyalty and allegiance in the attorney-client relationship.
As I am far from the only lawyer who has an opinion on these matters I thought we might turn this into a Wiki project. Until I find a home for it I figure authors can leave comments here and then I'll incorporate them into the document.
Any way, here goes:
As your court-appointed defense attorney, I will
1. Provide a diligent and vigorous
defense to be presented on your behalf. I will competently pursue a plea bargain or if none is available or acceptable I will prepare the case for trial without haste or unnecessary delay
2. Whether you are guilty or innocent I will vigorously represent you. I will force the prosecution to prove each and every element of your charge beyond a reasonable doubt. MY SOLE ALLEGIANCE IS TO YOU, MY CLIENT, THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND,THE CONSTITUTION, LAWS AND RULES OF THE STATE OF (your state).
3. I will accept your version of the facts until such time as I am convinced by facts that it is not true. You will agree that I am a professional and that I can provide a defense even if I am unconvinced of its truth.
4. I will not subjourn perjury by anyone. Period.
5. I will provide you with the best estimate I can of your case. I will not try to convince you to take a plea, but will respect your ability to decide for yourself what offers are in your best interest. I will not participate in any attempts to practice bullpen therapy.
6. If whether by your refusal to cooperate or because of a conflict between us I become unable to adequately represent you, I will request to be relieved from the case.
7. I state to you now that I do not harbor any bias(racial, ethnic, class, gender, or religious) against you. Nor will my efforts be increased or decreased based on any common backround between us nor because of how I am compensated in this case. You will receive the same quality representation from me whether you are an assigned or retained client.
8. I will treat you with respect and courtesy and expect the same from you. I do not believe that such means we will not disagree or even argue. I do believe it to mean that we will speak with a civil tongue, we will listen to each other even if we do not like what the other is saying and neither of us will threaten any harm to each other.
9. I will attempt to keep all objectionable evidence out of the trial and will do my best to make a record for appeal while still keeping an eye on winning the trial so that an appeal will be unnecessary
10. I will either return your phone calls within 48 hours of receiving them or if I deem it appropriate I will have a member of my staff do so. If you still need to speak to me you will tell my staff. Finally you will use SMS and E-mail where appropriate to aid our communication.
11. I will make copies of all of your documents available to you and will explain them to you.
12. I will keep you abreast of all new major developments in your case within 36 hours of learning of them.
13. If we are at trial or hearings, I will not agree to speak on the record without you being present unless you say in advance that it is ok to do so.
14. I will do everything within my ability to bring your case to a successful end.
Well that is a start. Now you all can post your thoughts about this and if anybody knows how I can turn this into a True WIKI let me know. You can leave a message here or reach me at www.colleluorilaw.com. Thanks
* A "virus" motion is a document usually written in pseudo-legal speak that circulates throughout a jail or prison and then spreads from lockup to lock up. The prisoners use the virus motion by changing a few parts of the documents and then vex their otherwise competent defense lawyers by screwing up their defense and of course forcing the defense lawyer to either adopt the motion and keep his client's trust or deny the motion and destroy the lawyer client relationship
My blogging friend Skelly over at one of my favorite blogs for criminal trial lawyers Arbitrary and Capricious had a post about a "virus" motion* that is going around that is meant to set up the client's public defender for removal/disqualification.
I will put aside the fact that Public Defenders are more often than not some of the best lawyers in the courtroom and that no decent lawyer would sign the document provided by the "virus", and focus instead on the use of the document as a starting point for public defense lawyers and maybe all lawyers to discuss the concepts of loyalty and allegiance in the attorney-client relationship.
As I am far from the only lawyer who has an opinion on these matters I thought we might turn this into a Wiki project. Until I find a home for it I figure authors can leave comments here and then I'll incorporate them into the document.
Any way, here goes:
As your court-appointed defense attorney, I will
1. Provide a diligent and vigorous
defense to be presented on your behalf. I will competently pursue a plea bargain or if none is available or acceptable I will prepare the case for trial without haste or unnecessary delay
2. Whether you are guilty or innocent I will vigorously represent you. I will force the prosecution to prove each and every element of your charge beyond a reasonable doubt. MY SOLE ALLEGIANCE IS TO YOU, MY CLIENT, THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND,THE CONSTITUTION, LAWS AND RULES OF THE STATE OF (your state).
3. I will accept your version of the facts until such time as I am convinced by facts that it is not true. You will agree that I am a professional and that I can provide a defense even if I am unconvinced of its truth.
4. I will not subjourn perjury by anyone. Period.
5. I will provide you with the best estimate I can of your case. I will not try to convince you to take a plea, but will respect your ability to decide for yourself what offers are in your best interest. I will not participate in any attempts to practice bullpen therapy.
6. If whether by your refusal to cooperate or because of a conflict between us I become unable to adequately represent you, I will request to be relieved from the case.
7. I state to you now that I do not harbor any bias(racial, ethnic, class, gender, or religious) against you. Nor will my efforts be increased or decreased based on any common backround between us nor because of how I am compensated in this case. You will receive the same quality representation from me whether you are an assigned or retained client.
8. I will treat you with respect and courtesy and expect the same from you. I do not believe that such means we will not disagree or even argue. I do believe it to mean that we will speak with a civil tongue, we will listen to each other even if we do not like what the other is saying and neither of us will threaten any harm to each other.
9. I will attempt to keep all objectionable evidence out of the trial and will do my best to make a record for appeal while still keeping an eye on winning the trial so that an appeal will be unnecessary
10. I will either return your phone calls within 48 hours of receiving them or if I deem it appropriate I will have a member of my staff do so. If you still need to speak to me you will tell my staff. Finally you will use SMS and E-mail where appropriate to aid our communication.
11. I will make copies of all of your documents available to you and will explain them to you.
12. I will keep you abreast of all new major developments in your case within 36 hours of learning of them.
13. If we are at trial or hearings, I will not agree to speak on the record without you being present unless you say in advance that it is ok to do so.
14. I will do everything within my ability to bring your case to a successful end.
Well that is a start. Now you all can post your thoughts about this and if anybody knows how I can turn this into a True WIKI let me know. You can leave a message here or reach me at www.colleluorilaw.com. Thanks
* A "virus" motion is a document usually written in pseudo-legal speak that circulates throughout a jail or prison and then spreads from lockup to lock up. The prisoners use the virus motion by changing a few parts of the documents and then vex their otherwise competent defense lawyers by screwing up their defense and of course forcing the defense lawyer to either adopt the motion and keep his client's trust or deny the motion and destroy the lawyer client relationship
Thursday, September 22, 2005
The Scleroderma Foundation Gala: Helping a Good Cause
From our sister blog That Lawyer Dude:
They say that a friend in need is a friend indeed. I am here to say thank you so very much to Uncivil Litigator for this post about my family and of course about the fund raiser for the Scleroderma Foundation's National Gala.
For those of you who do not know, almost 8 years ago my beautiful wife of now 20 years (yesterday!), MaryRose, was diagnosed with Scleroderma. We were told she had 24-30 more months to live. We were told how she would die a painful and agonizing death to a killer that knows no moral boundries.
I do not have to tell you how devastated we were. For many years MaryRose had been my mate, my friend, my lover and even for a time my secretary (it was my favorite time of practice, for those who think it can't work, I have never had a better secretary and our life outside the office was just as happy.)
After having our children, MaryRose returned to working. Within a few months, she came down with a mysterious stiffening of her right wrist and pain in her fingertips. We thought it might be old age (she was mid 30's). We were sadly wrong.
Scleroderma is an auto-immune disease. In layman's terms the body is rejecting something with-in it (we think it is fetal cells we are not sure.) The body's reaction is to over-produce collagen which is scar tissue. This scar tissue builds up subcutaneously ( below the surface of the skin) crushing the bloodflow in the capillaries to the extremities and causing great pain (think frostbite only it never goes away). At the same time it is also scarring the organs (heart, liver, kidney, and most often lungs.) This scaring makes these organs inelastic and when they cannot move to pump blood, urine, air, etc our patients die. Scleroderma effects mostly young mothers or women in their child bearing years (men do get it too, about 15% of our patients are men.) With Puberty begining earlier we are seeing far too many cases of 12-18 year olds being diagnosed with the disease.
There is no cure. Thanks to research funded at the start by the Scleroderma Foundation, our patients are out-living the old prognosis. Their quality of life is much better than it was, but I would not say that it is good. As MaryRose likes to remind me, it is better than the alternative.
Everybody with Scleroderma has a different reaction to it. In MaryRose's case, she can barely walk and her hands are so malformed she cannot really hold even a dinner plate. Her pain is so palpable it makes me want to cry.
She has no more cushioning in her feet, she seemingly walks right on bone and cartlidge. Her skin is so tight throughout her body she can not lift her hands above her head. When she tries, you can see the skin pull up from her knees. The steroids they have given her to keep the disease at rest, has caused her to get osteoporosis.
MaryRose refuses the pain killers they can prescribe, because they need to be so strong that they will effect her alertness and she refuses not to be there for our two sons. She would rather that they remember her for her bravery than for being spaced out. Is there any wonder why she is my hero??
A few years ago, I became involved with the Scleroderma Foundation. It is the only organization dedicated to educating supporting and researching this disease. In addition to setting up teaching seminars, patient support groups and sponsoring Doctor seminars, We are the worlds largest private sponsors of research on this dreadful deadly disease.
I am now on the Board of Directors and I am one of the co-chairs of the Development committee. My youngest son Frank is our "team's" walk coordinator. He has raised nearly Twenty Thousand ($20,000)Dollars in the three walk-a-thons we have done. My older boy, Salvatore, has helped me lobby in Washington and has co-chaired a Jazz concert to benefit the foundation that raised over Thirty Five Thousand(35,000) Dollars.
In September of 2001 the Scleroderma Foundation was planning a November Gala in NYC. It was to be held at the World Trade Center's Windows on the World. On September 11th our dreams of a our most successful fundraiser fell with all those beautiful souls who perished with the downing of the Trade Center. Our Foundation took a long time to recover.
Now we were hoping for a triumpant return to NYC on October 24, 2005. However with Katrina's devastation and the wariness over the economy, philanthropic dollars are really scarce. Hence I have turned to some of my blogging buddies for help. IF YOU Would like to help, please click here
and if you can go to the event or have something to donate to our auction or better yet want to sponsor the event, click here . If you would like, you can identify yourself as a friend of That Lawyer Dude.
As a final aside I want to give a big THANK YOU to all of the tireless and generous people who have already worked on or contributed to this worthwhile cause. I especially want to thank Paul Schaffer (Late Nite with David Letterman) who directs the CBS Orchestra and has agreed to host our event.
Thanks for taking the time to read this. Please forward it to a friend and ask that they do the same. Who knows what may happen.
As always you can reach me at at www.colleluorilaw.com and go to the comments page.
They say that a friend in need is a friend indeed. I am here to say thank you so very much to Uncivil Litigator for this post about my family and of course about the fund raiser for the Scleroderma Foundation's National Gala.
For those of you who do not know, almost 8 years ago my beautiful wife of now 20 years (yesterday!), MaryRose, was diagnosed with Scleroderma. We were told she had 24-30 more months to live. We were told how she would die a painful and agonizing death to a killer that knows no moral boundries.
I do not have to tell you how devastated we were. For many years MaryRose had been my mate, my friend, my lover and even for a time my secretary (it was my favorite time of practice, for those who think it can't work, I have never had a better secretary and our life outside the office was just as happy.)
After having our children, MaryRose returned to working. Within a few months, she came down with a mysterious stiffening of her right wrist and pain in her fingertips. We thought it might be old age (she was mid 30's). We were sadly wrong.
Scleroderma is an auto-immune disease. In layman's terms the body is rejecting something with-in it (we think it is fetal cells we are not sure.) The body's reaction is to over-produce collagen which is scar tissue. This scar tissue builds up subcutaneously ( below the surface of the skin) crushing the bloodflow in the capillaries to the extremities and causing great pain (think frostbite only it never goes away). At the same time it is also scarring the organs (heart, liver, kidney, and most often lungs.) This scaring makes these organs inelastic and when they cannot move to pump blood, urine, air, etc our patients die. Scleroderma effects mostly young mothers or women in their child bearing years (men do get it too, about 15% of our patients are men.) With Puberty begining earlier we are seeing far too many cases of 12-18 year olds being diagnosed with the disease.
There is no cure. Thanks to research funded at the start by the Scleroderma Foundation, our patients are out-living the old prognosis. Their quality of life is much better than it was, but I would not say that it is good. As MaryRose likes to remind me, it is better than the alternative.
Everybody with Scleroderma has a different reaction to it. In MaryRose's case, she can barely walk and her hands are so malformed she cannot really hold even a dinner plate. Her pain is so palpable it makes me want to cry.
She has no more cushioning in her feet, she seemingly walks right on bone and cartlidge. Her skin is so tight throughout her body she can not lift her hands above her head. When she tries, you can see the skin pull up from her knees. The steroids they have given her to keep the disease at rest, has caused her to get osteoporosis.
MaryRose refuses the pain killers they can prescribe, because they need to be so strong that they will effect her alertness and she refuses not to be there for our two sons. She would rather that they remember her for her bravery than for being spaced out. Is there any wonder why she is my hero??
A few years ago, I became involved with the Scleroderma Foundation. It is the only organization dedicated to educating supporting and researching this disease. In addition to setting up teaching seminars, patient support groups and sponsoring Doctor seminars, We are the worlds largest private sponsors of research on this dreadful deadly disease.
I am now on the Board of Directors and I am one of the co-chairs of the Development committee. My youngest son Frank is our "team's" walk coordinator. He has raised nearly Twenty Thousand ($20,000)Dollars in the three walk-a-thons we have done. My older boy, Salvatore, has helped me lobby in Washington and has co-chaired a Jazz concert to benefit the foundation that raised over Thirty Five Thousand(35,000) Dollars.
In September of 2001 the Scleroderma Foundation was planning a November Gala in NYC. It was to be held at the World Trade Center's Windows on the World. On September 11th our dreams of a our most successful fundraiser fell with all those beautiful souls who perished with the downing of the Trade Center. Our Foundation took a long time to recover.
Now we were hoping for a triumpant return to NYC on October 24, 2005. However with Katrina's devastation and the wariness over the economy, philanthropic dollars are really scarce. Hence I have turned to some of my blogging buddies for help. IF YOU Would like to help, please click here
and if you can go to the event or have something to donate to our auction or better yet want to sponsor the event, click here . If you would like, you can identify yourself as a friend of That Lawyer Dude.
As a final aside I want to give a big THANK YOU to all of the tireless and generous people who have already worked on or contributed to this worthwhile cause. I especially want to thank Paul Schaffer (Late Nite with David Letterman) who directs the CBS Orchestra and has agreed to host our event.
Thanks for taking the time to read this. Please forward it to a friend and ask that they do the same. Who knows what may happen.
As always you can reach me at at www.colleluorilaw.com and go to the comments page.
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