On May 22, 2006 Nassau County got its dedicated DWI Part. An important piece of newly elected DA Kathleen Rice's personal war on DWI, the part is meant to speed up the time between arrest and adjudication of DWI cases. The fact is, if you are arrested for DWI in Nassau County NY, guilty or not, it is going to cost you a lot of money.
In her press release and in interviews about the new court, Rice has spoken about rehabilitation for DWI convicts, she has also spoken about harsh punishments, giving criminal records to otherwise law abiding people, and taking a zero tolerance attitude toward people accused of the crime.
In court I have seen an increase in the number of times bail is sought in these cases as well as an increase in the amount of bail requested by the district attorney. This of course unfairly burdens the poor, who are no less likely to come to court than their rich counterparts, but who can rarely afford the bail of the more wealthy. Rice's minions have failed to address the issue. Then again the poor rarely vote.
As far as plea bargaining goes, the conviction will have a far greater effect on the unskilled laborer or mid level working poor than on their rich counterparts. Loss of their vehicle will be more of a disadvantage. Rice doesn't seem to care, based on her plea policy. She is taking a zero tolerance view. After all a poor drunk can kill just as well as a rich one can. However fatalities are the exception not the rule when it comes to DWI. Of course the media would have you believe otherwise but then again, that information doesn't sell newspapers.
That Rice doesn't look at the collateral consequences and their cost to the individual defendant disturbs me to no small amount. However she is only 1/3 of the equation. Another 1/3 part is now the one judge who is assigned in Nassau County to hear all the DWI cases in the District Court. Now note, felonies are much more serious, however no County Court judge would allow himself to get stuck handling DWI's as his whole docket. So we will put the court in misdemeanor land and make an example out of the guy who has had one too many and never even spit on the sidewalk otherwise. Afterall without the new part we can't have a press conference or make it look like we are really addressing an issue.
It is interesting that in the article cited above, the new Nassau DWI supervisor, Maureen McCormick, talks about some guy who killed someone or another guy who has 11 previous convictions. These guys will never see the inside of the new DWI part. Here again we have to wonder why the fanfare and the inconvienence of this new "initiative." As I noted above, the truth doesn't sell papers or buy votes. It does corrupt justice however.
The problem with a dedicated part with only one judge is that a judge seeing only DWI's and seeing the same ADA's all the time is more susceptible to being subverted by the government's position. It is human nature to want to get along with the people you are working with. If the only people he sees day in and day out are the six assistants in the part subversion is likely. Moreover, the oppportunity for inadverdent ex parte communications rises precipitously. That further prejudices a defendant who we should remember is only charged with the crime. A further problem isolating this jurist is that it is also unlikely that there will be any dissenting opinions being decided in the court on the issues of these cases that he can rely on (or that can be argued) to persuade him to decide issues differently. This judge becomes the only law of the land as to the issues on these cases. An almost supersupreme court for DWIs.
What makes DWI so damn different? Why does it need its own court and not assaults in bars (also often caused by alcohol) Reckless endangerment, resisting arrest, or any other alcohol or drug related crime? Hell there would be almost no crime if it were'nt for intoxicants. Under the District Attorney's theory all the cases should be in one court and one judge.
Because DWI crosses the lines of Race and Class. It sells papers, it makes one look like they are doing something about a dangerous situation, even when the opposite is true. It buys votes.
Kathleen Rice is a smart Politician. I already knew that when she beat Dennis Dillon in the last election. She has yet to show me she is a good District Attorney. This latest power grab hasn't helped. It is like taking candy from a baby. I want to see her conviction rate in felony DWI cases. I want to see her recidivism rate there too. After all you can only lock them up for so long. Her success on this issue shouldn't be measured by how many she can lock up or coerce into a plea. It should be measured by her success in getting them into a rehab and attacking the reason why people drive drunk. Crippling their chances at making a decent living is probably not a step in the right direction... Then again solving the problem through a real rehabilitation program that carries a carrot along with a stick wouldn't sell papers...or buy votes.
If you are handling your first DWI case and would like to discuss your dwi case with me, feel free to call me at 516-741-3400 or send me an email at catlaw1@yahoo.com. If you or a loved one is charged with a DWI click here to see if we can help. We are available 24 hours a day 7 days a week 365 days a year. Whatever you do, don't wait to find a lawyer. Call in the middle of the night. The faster you have a good and knowledgable Criminal Lawyer, the better chance you have of beating the charge of DWI.
Tuesday, May 30, 2006
Sunday, May 21, 2006
2d Circuit Rules Reverses Summary Judgment On High School Co-ed's Strip Search: Phaneuf v. Fraikin et. al.
A US Court of Appeals for the Second Circuit panel reinstated the complaint in PHANEUF v. FRAIKIN et.al. (Docket No. 04-4783-cv) on Friday, overturning a District Court decision from the Conneticut District Court (see 330 F. Supp. 2d 74 (D.Conn.)for the decision below.) The lower court ruled that the strip search of then eighteen year old Kelly Phaneuf was not unreasonable under the standards set by the US Supreme Court in New Jersey v.T.L.O 469 U.S. 325 (1985).
In June of 2002 Ms. Phaneuf was preparing to board a bus for a school sponsored picnic. During a previously announced search of handbags, (presumably for alcohol) Phaneuf was found to be carrying a pack of cigarettes and a lighter. Though legal for the 18 year old Kelly to possess, both are contraband in school. Another girl told a gym teacher that Phaneuf told her she was going to hide marijuana down her pants to get past the search. The gym teacher found the snitch to be credible and brought the information to the school principal. The principal may or may not have known who the tipster was, but she also found the information credible. When confronted with the snitches statement, the plaintiff's denial appeared, to the veteran principal, to be evasive. Evidentially knowing that Ms. Phanuef had been a disciplinary problem in the past (though never for drug use), the principal decided that a strip search was in order. Thereafter she re-searched the pocketbook again finding the contraband.
Ms. Faiken, the school nurse was ordered to do a full strip search of the student. She at first Faiken refused, as she felt a full nude search was overly intrusive (Always go with your first impression Ms. Faiken), but the principal insisted, so they called the plaintiffs mother down to conduct and observe the search. The mother also objected, but was told that if the search was not conducted, the Plaintiff would be expelled. The search predictably yielded nothing, except for the lawsuit.
The District court while noting that a strip search of a student by public school administrators is subject to higher scrutiny than a search of a student's possessions, held that the search was reasonable at it's inception and reasonable in scope. The District Court found that the reliable tip and the suspicious manner of the denial alomg with the history of the prior trouble plaintiff had been in, permitted the recheck of the handbag. The presence of contraband (the already found and not confiscated cigarettes and lighter)raised the level of suspicion sufficiently to allow the stripsearch.
The Second Circuit disagreed. In a decision by Judge B.D. Parker writing for a unanimous panel, the court held that the search was unjustified in its inception.
The court acknowledged and settled the question of whether T.L.O's reasonableness standard was appropriate for the strip search issue. The court, noting that the T.L.O search was of a pocketbook, decided that the Second Circuit would join the other circuits that have taken up the issue, and apply the T.L.O flexible reasonableness standard to stripsearches as implied by the dicta in T.L.O..
The court analyzed the Supreme Court's test as trying to strike a balance between
"the schoolchild's legitimate expectations of privacy and the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. 469 U.S. at 340, 339. SCOTUS decided that the necessary balance was not to require probable cause to incur a search but to require that the search be reasonable under the circumstances.
The SCOTUS set up a two part test. In part one, the court held that a search of a student will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O., 469 U.S. 341 at 342(emphasis added)(footnote omitted);
The second part requires that "the student strip search must be reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341 (quoting Terry, 392 U.S. at 20). A search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. See T.L.O. at 342.
The Second Circuit panel mindful of its pre T.L.O standard requiring probable cause for student searches and noting the discomfort with stripsearches it shares with the Seventh Circuit, stated that in applying the reasonableness standard it would do so with an eye toward the fact that what may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search. Cornfield by Lewis v. Consol. High Sch. Dist., 991 F.2d 1316, 1320-21 (7th Cir. 1993); Hence as the level of intrusiveness goes up so does the level of what is necessary to know before one decides the stripsearch is reasonable.
Applying the sliding scale of reasonableness for nudity, to the facts of the Phaneuf case, the court held that looking at the four reasons the School district gave for the search there was less than the necessary requisite knowledge to find the search reasonable.
Now I am at a loss to really advise a school district as to how it would act, given this decision. The Court reviewed the tip and found that the pleadings were conclusory as to whether the tipster was reliable. It questioned how much reliability ought to be given the tipster even if her reliability were to be established. Noting that she had not seen the drugs or any indicia of the drugs and the understanding the vagaries of the (generic)student tipster, the panel found her not reliable enough for stripsearch use.
The panel then rejected the knowledge of prior bad acts, because they were not for drug use either. Finding that the only reason for the search was to find drugs, past bad non-drug acts do not help (and might mitigate against) the cause needed to justify a search of this coed for drugs.
In reviewing the suspicious manner of denial, the panel notes that the record is devoid of what that means. It found the principal and teacher's suspicions to be conclusory plead and hence useless. Here I think they are right. That was bad pleading and bad lawyering. We really have to layout what we are talking about. That said, everybody does it. The only way to avoid it is to have others go over your pleadings like they are second year law review cite checkers. In fact it is the only reason I can think of for hiring a notes and comment editor. (Just joking guys.)
Finally in reviewing the contraband in the purse, the court found that the finding of cigarettes was only tenuously attached to the possibility of finding marijuana in plaintiff's panties. Additionally the first time they saw the contraband, they let it go during the announced pocketbook check which was to find contraband in the first place. It was only found the second time after the decision to do the stripsearch had been set in motion by calling plaintiff's mother. However area of discussion did produce my favorite line in the decision:
"Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin."
Imagine what Mel Brooks could have done with that line!
In June of 2002 Ms. Phaneuf was preparing to board a bus for a school sponsored picnic. During a previously announced search of handbags, (presumably for alcohol) Phaneuf was found to be carrying a pack of cigarettes and a lighter. Though legal for the 18 year old Kelly to possess, both are contraband in school. Another girl told a gym teacher that Phaneuf told her she was going to hide marijuana down her pants to get past the search. The gym teacher found the snitch to be credible and brought the information to the school principal. The principal may or may not have known who the tipster was, but she also found the information credible. When confronted with the snitches statement, the plaintiff's denial appeared, to the veteran principal, to be evasive. Evidentially knowing that Ms. Phanuef had been a disciplinary problem in the past (though never for drug use), the principal decided that a strip search was in order. Thereafter she re-searched the pocketbook again finding the contraband.
Ms. Faiken, the school nurse was ordered to do a full strip search of the student. She at first Faiken refused, as she felt a full nude search was overly intrusive (Always go with your first impression Ms. Faiken), but the principal insisted, so they called the plaintiffs mother down to conduct and observe the search. The mother also objected, but was told that if the search was not conducted, the Plaintiff would be expelled. The search predictably yielded nothing, except for the lawsuit.
The District court while noting that a strip search of a student by public school administrators is subject to higher scrutiny than a search of a student's possessions, held that the search was reasonable at it's inception and reasonable in scope. The District Court found that the reliable tip and the suspicious manner of the denial alomg with the history of the prior trouble plaintiff had been in, permitted the recheck of the handbag. The presence of contraband (the already found and not confiscated cigarettes and lighter)raised the level of suspicion sufficiently to allow the stripsearch.
The Second Circuit disagreed. In a decision by Judge B.D. Parker writing for a unanimous panel, the court held that the search was unjustified in its inception.
The court acknowledged and settled the question of whether T.L.O's reasonableness standard was appropriate for the strip search issue. The court, noting that the T.L.O search was of a pocketbook, decided that the Second Circuit would join the other circuits that have taken up the issue, and apply the T.L.O flexible reasonableness standard to stripsearches as implied by the dicta in T.L.O..
The court analyzed the Supreme Court's test as trying to strike a balance between
"the schoolchild's legitimate expectations of privacy and the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. 469 U.S. at 340, 339. SCOTUS decided that the necessary balance was not to require probable cause to incur a search but to require that the search be reasonable under the circumstances.
The SCOTUS set up a two part test. In part one, the court held that a search of a student will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. T.L.O., 469 U.S. 341 at 342(emphasis added)(footnote omitted);
The second part requires that "the student strip search must be reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 341 (quoting Terry, 392 U.S. at 20). A search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. See T.L.O. at 342.
The Second Circuit panel mindful of its pre T.L.O standard requiring probable cause for student searches and noting the discomfort with stripsearches it shares with the Seventh Circuit, stated that in applying the reasonableness standard it would do so with an eye toward the fact that what may constitute reasonable suspicion for a search of a locker or even a pocket or pocketbook may fall well short of reasonableness for a nude search. Cornfield by Lewis v. Consol. High Sch. Dist., 991 F.2d 1316, 1320-21 (7th Cir. 1993); Hence as the level of intrusiveness goes up so does the level of what is necessary to know before one decides the stripsearch is reasonable.
Applying the sliding scale of reasonableness for nudity, to the facts of the Phaneuf case, the court held that looking at the four reasons the School district gave for the search there was less than the necessary requisite knowledge to find the search reasonable.
Now I am at a loss to really advise a school district as to how it would act, given this decision. The Court reviewed the tip and found that the pleadings were conclusory as to whether the tipster was reliable. It questioned how much reliability ought to be given the tipster even if her reliability were to be established. Noting that she had not seen the drugs or any indicia of the drugs and the understanding the vagaries of the (generic)student tipster, the panel found her not reliable enough for stripsearch use.
The panel then rejected the knowledge of prior bad acts, because they were not for drug use either. Finding that the only reason for the search was to find drugs, past bad non-drug acts do not help (and might mitigate against) the cause needed to justify a search of this coed for drugs.
In reviewing the suspicious manner of denial, the panel notes that the record is devoid of what that means. It found the principal and teacher's suspicions to be conclusory plead and hence useless. Here I think they are right. That was bad pleading and bad lawyering. We really have to layout what we are talking about. That said, everybody does it. The only way to avoid it is to have others go over your pleadings like they are second year law review cite checkers. In fact it is the only reason I can think of for hiring a notes and comment editor. (Just joking guys.)
Finally in reviewing the contraband in the purse, the court found that the finding of cigarettes was only tenuously attached to the possibility of finding marijuana in plaintiff's panties. Additionally the first time they saw the contraband, they let it go during the announced pocketbook check which was to find contraband in the first place. It was only found the second time after the decision to do the stripsearch had been set in motion by calling plaintiff's mother. However area of discussion did produce my favorite line in the decision:
"Surely, a discovery of cigarettes cannot alone support a suspicion that a student is carrying a firearm or is bootlegging gin."
Imagine what Mel Brooks could have done with that line!
Wednesday, May 17, 2006
New York Lawyer Uses DNA To Overturn Murder Conviction Based on False Confession. Renewed Calls For Mandatory Videotaping of Confessions in Homicides
Rochester, New York Criminal Defense Attorney Don Thompson and a team of lawyers working with the Innocence Project (funded by the Benjamin Cardozo Law School of Yeshiva University in NYC, has overturned the conviction and won the immediate release of Douglas Warney.
Warney, who confessed to the crime after being fed non public information about the crime scene by now deceased (in March 2006) Rochester Police Detective Sgt John Grop, suffered from dementia and aids. He was interviewed by Grop alone in an interrogation room and was suffering from pain and dementia when he was arrested. Warney has but an 8th grade education. He has spent more than a decade in NY prisons for the murder of Community activist William Beason. Warney originally faced the DEATH PENALTY for the crime which was committed by another man who is incarcerated on other charges.
Warney's other lawyer Peter Neufeld of the Innocence project called the behavior of Rochester Police and prosecutors "criminal". Warney's confession was filled with inacurracies yet with little more than that and the word of Grop the District Attorney's office had Warney sentenced to 25 years to life. A sentence the AIDS ridden man was never expected to live out.
Thompson and Neufeld went to prosecutor Monroe County Prosecutor Michael Green with proof of the wrongful conviction over 2 years ago but Green refused to test the DNA with new stronger DNA Probes. His arbitrary and capricious decision cost the taxpayers of the State of NY over One Hundred Fifty Thousand (150,000.00) Dollars for unnecessary incarceration and health costs. Not to mention the wasted money trying to force Green to act.
Now wheelchair bound, Warney was rolled into the Monroe County Court to hear the words he has waited over 10 years to hear. The judge released him immediately. Upon the release, NY Criminal Defense Lawyers throughout the state have renewed their call on the Legislature to require mandatory videotaping of all confessions in homicides and other major crimes.
In a letter to his colleagues on the NYS Association of Criminal Defense Lawyers listserve(which I reprint here [in full] with the permission of Mr. Thompson) Don Thompson reveals eloquently the struggles of the everyday non-celebrity lawyer. I hope this victiory is one Don can savor for a long time. His words express his emotions and feelings far better than I can. Here they are:
"I have eaten your bread and salt,
I have drunk your water and wine,
The deaths you died I have watched beside,
and the lives you led were mine. Rudyard Kipling
It's been quite a day. To you, who have lived my life, and whose lives I have lived, thank you for your kind words and support. How often I've said "This sucks, fuck it" then someone - Marty or Cappy or Bill or Gary or Greg or Jim or Ray or Dan or Janice or Howard or Dennis or Beth or some other of our merry band - my heroes - will say something intelligent, or inspirational, or just damn funny, on the phone, or in the hall, or on the listserv that leads to reconsideration and then "Oh what the hell, I'll give it one more day. Let's see what happens tomorrow." Your support made this victory possible. We share in it together.
I don't know what the other counsel involved in this case got from it, but I can tell you what I got - as we sat in court this morning and heard the DA admit that Douglas Warney was wrongfully convicted and imprisoned for a crime he didn't commit and as we heard the judge vacate his conviction and order him immediately released, in those few moments every shithole apartment, every can of tuna fish (dry), every night shift at the steel warehouse followed by an 8:00 a.m. class, every fight with a creditor, every broken relationship that it took to get here; they were all worth it.
"Whosoever destroys a single life is as guilty as though he had destroyed the whole world; and whosoever rescues a single life earns as much merit as though he had rescued the entire world." This may be as much as we can hope for.
Still not guilty,
Donald M. Thompson
16 West Main Street, Suite 243
Rochester, New York 14614
Phone: (585) 423-0060
Fax: (585) 423-0890"
Congratulations Don
I will update this story with links as soon as I can. I have Court in an hour and have to go. Till then take a minute and call your NY State Assemblyperson or State Senator and tell them you will not stand for the state wasting anymore taxpayers dollars on wrongfully convicted people. Tell them you support Mandatory Videotaping of Confessions and Mandatory DNA retesting.
Warney, who confessed to the crime after being fed non public information about the crime scene by now deceased (in March 2006) Rochester Police Detective Sgt John Grop, suffered from dementia and aids. He was interviewed by Grop alone in an interrogation room and was suffering from pain and dementia when he was arrested. Warney has but an 8th grade education. He has spent more than a decade in NY prisons for the murder of Community activist William Beason. Warney originally faced the DEATH PENALTY for the crime which was committed by another man who is incarcerated on other charges.
Warney's other lawyer Peter Neufeld of the Innocence project called the behavior of Rochester Police and prosecutors "criminal". Warney's confession was filled with inacurracies yet with little more than that and the word of Grop the District Attorney's office had Warney sentenced to 25 years to life. A sentence the AIDS ridden man was never expected to live out.
Thompson and Neufeld went to prosecutor Monroe County Prosecutor Michael Green with proof of the wrongful conviction over 2 years ago but Green refused to test the DNA with new stronger DNA Probes. His arbitrary and capricious decision cost the taxpayers of the State of NY over One Hundred Fifty Thousand (150,000.00) Dollars for unnecessary incarceration and health costs. Not to mention the wasted money trying to force Green to act.
Now wheelchair bound, Warney was rolled into the Monroe County Court to hear the words he has waited over 10 years to hear. The judge released him immediately. Upon the release, NY Criminal Defense Lawyers throughout the state have renewed their call on the Legislature to require mandatory videotaping of all confessions in homicides and other major crimes.
In a letter to his colleagues on the NYS Association of Criminal Defense Lawyers listserve(which I reprint here [in full] with the permission of Mr. Thompson) Don Thompson reveals eloquently the struggles of the everyday non-celebrity lawyer. I hope this victiory is one Don can savor for a long time. His words express his emotions and feelings far better than I can. Here they are:
"I have eaten your bread and salt,
I have drunk your water and wine,
The deaths you died I have watched beside,
and the lives you led were mine. Rudyard Kipling
It's been quite a day. To you, who have lived my life, and whose lives I have lived, thank you for your kind words and support. How often I've said "This sucks, fuck it" then someone - Marty or Cappy or Bill or Gary or Greg or Jim or Ray or Dan or Janice or Howard or Dennis or Beth or some other of our merry band - my heroes - will say something intelligent, or inspirational, or just damn funny, on the phone, or in the hall, or on the listserv that leads to reconsideration and then "Oh what the hell, I'll give it one more day. Let's see what happens tomorrow." Your support made this victory possible. We share in it together.
I don't know what the other counsel involved in this case got from it, but I can tell you what I got - as we sat in court this morning and heard the DA admit that Douglas Warney was wrongfully convicted and imprisoned for a crime he didn't commit and as we heard the judge vacate his conviction and order him immediately released, in those few moments every shithole apartment, every can of tuna fish (dry), every night shift at the steel warehouse followed by an 8:00 a.m. class, every fight with a creditor, every broken relationship that it took to get here; they were all worth it.
"Whosoever destroys a single life is as guilty as though he had destroyed the whole world; and whosoever rescues a single life earns as much merit as though he had rescued the entire world." This may be as much as we can hope for.
Still not guilty,
Donald M. Thompson
16 West Main Street, Suite 243
Rochester, New York 14614
Phone: (585) 423-0060
Fax: (585) 423-0890"
Congratulations Don
I will update this story with links as soon as I can. I have Court in an hour and have to go. Till then take a minute and call your NY State Assemblyperson or State Senator and tell them you will not stand for the state wasting anymore taxpayers dollars on wrongfully convicted people. Tell them you support Mandatory Videotaping of Confessions and Mandatory DNA retesting.
Sunday, May 07, 2006
Some Odds and Ends: Stories About Judges Politicians and Death Row Vindication
A few things we (Criminal) Trial Lawyers ought to know about:
I. Stroock partner Brian Cogan Named to EDNY Bench.
White Collar Lawyer Brian Cogan who specializes in Bankruptcy and accounting fraud, has been confirmed by the US Senate to fill the shoes of Judge Frederick Block on the US District Court EDNY. Mr. Cogan has had significant participation in the Enron, Parmalat and WorldCom cases. As a Partner in the Stroock Stroock and Lavan LLC law firm located in NYC, Cogan has served the as Vice Chair of the NYC Mayor's commission on the Appointment of City marshals and just completed a term on the grievance Committee of the First Department of the NY appellate Division. A graduate of Cornell University School of Law and an editor of its prestigious Law Review, Mr. Cogan has been the author of numerous articles that have appeared in the NY Law Journal and in ABA publications. He is also a co author of a bankruptcy protection chapter in Haig's business and Commercial Litigation in Federal Courts (West 1998.) That Lawyer Dude congratulates and welcomes Mr. Cogan to the Eastern District bench and looks forward to practicing before him.
II. Attorney General Spitzer Takes Aim at Liberty Mutual
The Wall Street Journal's Law Blog has reported (here) that NY Attorney General Elliot Spitzer has filed a law suit against Insurance giant Liberty Mutual for Bid Rigging in the insurance industry. The just of the complaint seems to be that Liberty made illegal payments and gave gifts to independent Insurance agents to push Liberty Products. Illinois and Conneticut AG's have joined the suit.
III. Federal Jury Speaks: Lying Cop Has to Pay 2.25 Million to Wrongfully Convicted Ex-Death Row Inmate.
Our friends over at CrimProf blog report on (this) CNN story concerning former Virginia Death Row inmate Earl Washington Jr. Who came within ten days of being killed before new scientific evidence unavailable at the time of his original trial showed that the real killer had different DNA. Then State investigator Curtis Reese Wilmore fed information to the slightly mentally retarded Washington, coerced lied and fabricated testimony which resulted in the retarded man's conviction and Death sentence. Though the law suit was brought against Wilmore's estate, it is predicted that the state will have to pay the award. Washington's attorney NYC Civil rights lawyer and DNA expert Peter Nuefeld notes that the Virginia AG hired a high price Washington DC law firm to defend the suit on behalf of the estate. Looks like it didn't help. Washington spent 18 years on Death row before his pardon by then Gov. Jim Gilmore.
IV. Queens Supreme Court Justice Dwyane Hart's Censure is Upheld by a Divided NY Court of Appeals (click here for decision)
A divided NYS Court of Appeals sustained the Public Censure (original decision here) of Queens Supreme Court Justice Dwayne Hart for misuse of his summary contempt powers. The Court's Majority focused on the Judge's lack of remorse for his misuse of his summary contempt power in supporting the Censure as opposed to a less severe admonition or private admonition. The Minority opinion authored by Judge George Bundy Smith and joined by Judge Susan P. Read questioned the severity of the punishment in light of other decisions rendered by the court in similar circumstances.
In this case Hart J. Was presiding (for the third time) over a trial which was, at best, contentious. After three mistrials he started testimony again and then adjourned the case for personal reasons for the afternoon. The Plaintiff asked for the next day as well because his son had a soccer game. The justice testified that he would have normally granted the adjournment but was miffed that counsel for the plaintiff had reported him to the Administrative judge for delaying their case. This is wrong. A judge needs to let counsel do what counsel feels he needs to do to protect his client's rights. It is a bad idea to take anything a zealous lawyer does personally. (It should in fairness be noted that Justice Hart dismissed the claim and, despite all the animosity here that could have gone into a decision to overturn the ruling based on court bias, the Appellate Division's Second Dept. Upheld the dismissal.) After ruling against him on the adjournment, and after the case was adjourned for the day, the plaintiff came up to the Judge in an enclosed parking lot to "discuss" the failure to give him the extra adjournment. Hart called a court officer and the plaintiff was led away, but not arrested. The next day when counsel for the plaintiff pushed the issue and tried to place the circumstances on the record Hart summarily held the plaintiff in contempt for 30 days and suspended the sentence until the end of the hearing. This is the second time Hart refused to let a zealous lawyer do his job. He even forewarned counsel that their attempt to muddy up the record would result in this reaction from the court. In other words this was an old fashioned pissing match.
Judges are human, but they should avoid these things because they will almost always lose them. The best thing a judge can do is take a deep breath and know his rights under the law, and use them. The Court should also not fear attorneys making records. Even when they think the attorney is making an unfair or misleading record, the court should without hostility let the record maker have his say, then the court can correct the record itself with it's own colloquy and let the appellate guys do their jobs. I wonder where the judges lawman was on this.
As Readers of this blog and our sister blog That Lawyer Dude know I am not a big fan of the Stern Commission which is how we lawyers refer to Commission on Judicial Conduct. I have a major problem with unelected people being able to undo what the public elects to do. In fact if I were a State Assemblyman or Senator looking to cut fat from the State Budget, I would begin my search right there. Nevertheless, this is a case that could have gone either way. That said, I would not have voted for the censure for the reasons given in the dissent. I am in agreement that the Judge overstepped his bounds by a lot and seems to have much to learn in the diplomacy area. Moreover, had he not pulled back his contempt, and actually jailed the plaintiff that would have been grounds to debench.
Nevertheless, I am just as disturbed by the act of a litigant approaching a judge outside of a courtroom and trying to have a off the record ex-parte conversation with that judge. The placing of this on the record the next day was rightly seen by the court as an attempt to further the plaintiff's record as to why the court should have recused itself and how plaintiff couldn't get a fair trial. Justice Hart was I am sure trying to stop the plaintiff from gathering an advantage from his own misbehavior.(In fact from the transcript of the judicial hearing into this matter the following Q & A took place: Counsel for the Commission: Q. Were they trying to set up an appeal based upon what their activities were, in your opinion?
Justice Hart: A.I have no idea, but based on Mr. Goldweber’s reputation, I could only believe he had something in his mind. [Tr. 220-21]) Again the best thing the court can do here is let him make his record and set up his appeal. In fact the Second dept. Saw through the rouse anyway. Counsel for the defendant though he was winning on this issue should maybe also protected the court by asking that the court not use summary contempt powers but go through the motions for a regular finding of contempt on notice. He also should have made the record clear that he felt that the other side was fabricating a record, and supported same (assuming that was true).
The better way for the Judge to handle this would have been to allow the placement of the statement on the record, give notice of contempt and allow a hearing, and then in the calm of a new day decide what should have been done. This did not happen and as a result he has been punished. Too severely in my opinion, but then again, my opinions never seemed to matter to the people at the Stern Commission, or the Court of Appeals. I wonder if my opinions matter to my wife...?
Anyway that's the end of our Odds and Ends round up for this week. Tomorrow (I hope) we are going to look at the Polygraph's return as an instrument of torture for defendant's and how defense attorney's should use those cases to turn what is good for the Geese flock known as prosecutors into something that is good for the Gander that is Defense lawyers.
I. Stroock partner Brian Cogan Named to EDNY Bench.
White Collar Lawyer Brian Cogan who specializes in Bankruptcy and accounting fraud, has been confirmed by the US Senate to fill the shoes of Judge Frederick Block on the US District Court EDNY. Mr. Cogan has had significant participation in the Enron, Parmalat and WorldCom cases. As a Partner in the Stroock Stroock and Lavan LLC law firm located in NYC, Cogan has served the as Vice Chair of the NYC Mayor's commission on the Appointment of City marshals and just completed a term on the grievance Committee of the First Department of the NY appellate Division. A graduate of Cornell University School of Law and an editor of its prestigious Law Review, Mr. Cogan has been the author of numerous articles that have appeared in the NY Law Journal and in ABA publications. He is also a co author of a bankruptcy protection chapter in Haig's business and Commercial Litigation in Federal Courts (West 1998.) That Lawyer Dude congratulates and welcomes Mr. Cogan to the Eastern District bench and looks forward to practicing before him.
II. Attorney General Spitzer Takes Aim at Liberty Mutual
The Wall Street Journal's Law Blog has reported (here) that NY Attorney General Elliot Spitzer has filed a law suit against Insurance giant Liberty Mutual for Bid Rigging in the insurance industry. The just of the complaint seems to be that Liberty made illegal payments and gave gifts to independent Insurance agents to push Liberty Products. Illinois and Conneticut AG's have joined the suit.
III. Federal Jury Speaks: Lying Cop Has to Pay 2.25 Million to Wrongfully Convicted Ex-Death Row Inmate.
Our friends over at CrimProf blog report on (this) CNN story concerning former Virginia Death Row inmate Earl Washington Jr. Who came within ten days of being killed before new scientific evidence unavailable at the time of his original trial showed that the real killer had different DNA. Then State investigator Curtis Reese Wilmore fed information to the slightly mentally retarded Washington, coerced lied and fabricated testimony which resulted in the retarded man's conviction and Death sentence. Though the law suit was brought against Wilmore's estate, it is predicted that the state will have to pay the award. Washington's attorney NYC Civil rights lawyer and DNA expert Peter Nuefeld notes that the Virginia AG hired a high price Washington DC law firm to defend the suit on behalf of the estate. Looks like it didn't help. Washington spent 18 years on Death row before his pardon by then Gov. Jim Gilmore.
IV. Queens Supreme Court Justice Dwyane Hart's Censure is Upheld by a Divided NY Court of Appeals (click here for decision)
A divided NYS Court of Appeals sustained the Public Censure (original decision here) of Queens Supreme Court Justice Dwayne Hart for misuse of his summary contempt powers. The Court's Majority focused on the Judge's lack of remorse for his misuse of his summary contempt power in supporting the Censure as opposed to a less severe admonition or private admonition. The Minority opinion authored by Judge George Bundy Smith and joined by Judge Susan P. Read questioned the severity of the punishment in light of other decisions rendered by the court in similar circumstances.
In this case Hart J. Was presiding (for the third time) over a trial which was, at best, contentious. After three mistrials he started testimony again and then adjourned the case for personal reasons for the afternoon. The Plaintiff asked for the next day as well because his son had a soccer game. The justice testified that he would have normally granted the adjournment but was miffed that counsel for the plaintiff had reported him to the Administrative judge for delaying their case. This is wrong. A judge needs to let counsel do what counsel feels he needs to do to protect his client's rights. It is a bad idea to take anything a zealous lawyer does personally. (It should in fairness be noted that Justice Hart dismissed the claim and, despite all the animosity here that could have gone into a decision to overturn the ruling based on court bias, the Appellate Division's Second Dept. Upheld the dismissal.) After ruling against him on the adjournment, and after the case was adjourned for the day, the plaintiff came up to the Judge in an enclosed parking lot to "discuss" the failure to give him the extra adjournment. Hart called a court officer and the plaintiff was led away, but not arrested. The next day when counsel for the plaintiff pushed the issue and tried to place the circumstances on the record Hart summarily held the plaintiff in contempt for 30 days and suspended the sentence until the end of the hearing. This is the second time Hart refused to let a zealous lawyer do his job. He even forewarned counsel that their attempt to muddy up the record would result in this reaction from the court. In other words this was an old fashioned pissing match.
Judges are human, but they should avoid these things because they will almost always lose them. The best thing a judge can do is take a deep breath and know his rights under the law, and use them. The Court should also not fear attorneys making records. Even when they think the attorney is making an unfair or misleading record, the court should without hostility let the record maker have his say, then the court can correct the record itself with it's own colloquy and let the appellate guys do their jobs. I wonder where the judges lawman was on this.
As Readers of this blog and our sister blog That Lawyer Dude know I am not a big fan of the Stern Commission which is how we lawyers refer to Commission on Judicial Conduct. I have a major problem with unelected people being able to undo what the public elects to do. In fact if I were a State Assemblyman or Senator looking to cut fat from the State Budget, I would begin my search right there. Nevertheless, this is a case that could have gone either way. That said, I would not have voted for the censure for the reasons given in the dissent. I am in agreement that the Judge overstepped his bounds by a lot and seems to have much to learn in the diplomacy area. Moreover, had he not pulled back his contempt, and actually jailed the plaintiff that would have been grounds to debench.
Nevertheless, I am just as disturbed by the act of a litigant approaching a judge outside of a courtroom and trying to have a off the record ex-parte conversation with that judge. The placing of this on the record the next day was rightly seen by the court as an attempt to further the plaintiff's record as to why the court should have recused itself and how plaintiff couldn't get a fair trial. Justice Hart was I am sure trying to stop the plaintiff from gathering an advantage from his own misbehavior.(In fact from the transcript of the judicial hearing into this matter the following Q & A took place: Counsel for the Commission: Q. Were they trying to set up an appeal based upon what their activities were, in your opinion?
Justice Hart: A.I have no idea, but based on Mr. Goldweber’s reputation, I could only believe he had something in his mind. [Tr. 220-21]) Again the best thing the court can do here is let him make his record and set up his appeal. In fact the Second dept. Saw through the rouse anyway. Counsel for the defendant though he was winning on this issue should maybe also protected the court by asking that the court not use summary contempt powers but go through the motions for a regular finding of contempt on notice. He also should have made the record clear that he felt that the other side was fabricating a record, and supported same (assuming that was true).
The better way for the Judge to handle this would have been to allow the placement of the statement on the record, give notice of contempt and allow a hearing, and then in the calm of a new day decide what should have been done. This did not happen and as a result he has been punished. Too severely in my opinion, but then again, my opinions never seemed to matter to the people at the Stern Commission, or the Court of Appeals. I wonder if my opinions matter to my wife...?
Anyway that's the end of our Odds and Ends round up for this week. Tomorrow (I hope) we are going to look at the Polygraph's return as an instrument of torture for defendant's and how defense attorney's should use those cases to turn what is good for the Geese flock known as prosecutors into something that is good for the Gander that is Defense lawyers.
UPDATE UPDATE UPDATE: Kenneth Starr Takes on The Bong Hits 4 Jesus Case
You guys remember this Post from a couple of months back? Well it seems former Whitewater Special Prosecutor Kenneth Starr now Dean of Pepperdine Law School in San Diego has decided to take on the "Bong hits 4 Jesus" kid in the Supreme Court. He is volunteering to appeal the case. I just want to remind the School District here that the last time Starr "volunteered" for service it cost the American Taxpayer $52 Million Dollars to find out Bill Clinton cheated on his wife... Good thing they have oil in Alaska.
Saturday, May 06, 2006
A Lot Of New Stuff To Cover
If you read our sister Blog That Lawyer Dude you will know that I spent all of yesterday in bed reading e-mail and surfing the net. Well it was time well spent for readers of The Long Island (Criminal) Trial Law blog.
First there is Holmes v. South Carolina 547 US____(2006) Justice Alito's first written opinion. It is on a Criminal law case and the ex prosecutor found for the defendant!
Money quote: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’
Mark Mahoney past president of the NYS Association of Criminal Defense Lawyers has written extensively on this. I think the decision is very important in that it is a restatement by a unanimous SCOTUS that the defense has a Constitutional guarantee to present a defense. The use of this confrontation clause issue especially when looked at through the recent SCOTUS decision in Crawford v. Washington 541 U.S. 36 (2004), is a real hook for defense attorneys to get in the kind of evidence that can raise a reasonable doubt. Practioners would be wise to carry both decisions in their trial notebooks and to look for state cases that hold similarly. Argue them to your benefit.
Another big win for Long Island and New York defense attorney's is People v. Burton. There are a strain of judges that just didn't get it when it came to granting hearings. They were over requiring pleadings by defendants to get a hearing on a search. They were requiring the defendant to admit to possessing contraband in order to get a hearing on a search. Their theory was, if you didn't possess it then you had no right to challenge the search for it because your defense is not that the search was bad but that you didn't possess it. The problem with that tautological philosophy was that the defendant had to admit to the possession to knock down the bad search and if he failed to suppress he now could not deny possession. It was a win/win for the prosecution unless the police completely blew their hearing testimony.
Noting that allegations of facts may be provided by the accused or others under the statute (CPL 170.60)Burton holds that "the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were
sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression."
Pleading note: it is not enough to just plead that the defendant was standing and that he was searched and the police found drugs on him. "A defendant must
additionally assert that the search was not legally justified and
there must be sufficient factual allegations to support that
contention (see CPL 710.60 [1]). (i.e. that he was not committing any violation of the law.) This simpler pleading scenario does not resurrect the "automatic standing doctrine." rejected in the Ponder decision 54 NY2d 160 (1981). It certainly however makes pleading an illegal search under state law far easier.
I am going to cut this post off here because I want to discuss two new cases dealing with polygraph evidence in a separate post. However I want to tell you that beginning next week I will be starting a podcast to supplement my posts here and on That Lawyer Dude. I will post a link to the podcast a couple of days before we go fully on line. The Podcast will look at legal issues such as those discussed above as well as feature guests talking about these cases.
First there is Holmes v. South Carolina 547 US____(2006) Justice Alito's first written opinion. It is on a Criminal law case and the ex prosecutor found for the defendant!
Money quote: “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’
Mark Mahoney past president of the NYS Association of Criminal Defense Lawyers has written extensively on this. I think the decision is very important in that it is a restatement by a unanimous SCOTUS that the defense has a Constitutional guarantee to present a defense. The use of this confrontation clause issue especially when looked at through the recent SCOTUS decision in Crawford v. Washington 541 U.S. 36 (2004), is a real hook for defense attorneys to get in the kind of evidence that can raise a reasonable doubt. Practioners would be wise to carry both decisions in their trial notebooks and to look for state cases that hold similarly. Argue them to your benefit.
Another big win for Long Island and New York defense attorney's is People v. Burton. There are a strain of judges that just didn't get it when it came to granting hearings. They were over requiring pleadings by defendants to get a hearing on a search. They were requiring the defendant to admit to possessing contraband in order to get a hearing on a search. Their theory was, if you didn't possess it then you had no right to challenge the search for it because your defense is not that the search was bad but that you didn't possess it. The problem with that tautological philosophy was that the defendant had to admit to the possession to knock down the bad search and if he failed to suppress he now could not deny possession. It was a win/win for the prosecution unless the police completely blew their hearing testimony.
Noting that allegations of facts may be provided by the accused or others under the statute (CPL 170.60)Burton holds that "the statements in defendant's motion papers that he was stopped and searched by the police without legal justification, and that the police claimed to have discovered drugs on defendant during the search, were
sufficient to satisfy the factual allegation requirement of CPL 710.60 (1) and thereby establish standing to seek suppression."
Pleading note: it is not enough to just plead that the defendant was standing and that he was searched and the police found drugs on him. "A defendant must
additionally assert that the search was not legally justified and
there must be sufficient factual allegations to support that
contention (see CPL 710.60 [1]). (i.e. that he was not committing any violation of the law.) This simpler pleading scenario does not resurrect the "automatic standing doctrine." rejected in the Ponder decision 54 NY2d 160 (1981). It certainly however makes pleading an illegal search under state law far easier.
I am going to cut this post off here because I want to discuss two new cases dealing with polygraph evidence in a separate post. However I want to tell you that beginning next week I will be starting a podcast to supplement my posts here and on That Lawyer Dude. I will post a link to the podcast a couple of days before we go fully on line. The Podcast will look at legal issues such as those discussed above as well as feature guests talking about these cases.
Thursday, May 04, 2006
IRS Losses a Case in US District Court in Brooklyn
This is a shocker. Seems the defendant a taxpreparer with tax fraud for advising clients that they could deduct their salaries penny for penny. The acquittal called into question the IRS's strategy toward taxpayer protests. I hope to have more on this tomorrow. Just wanted to get the case out there for you all to see.
ABA Litigation Section's Immigration Committee is Looking For Help: It's a Great Way To Get Involved and Market Your Practice.
Long before there was lawyer advertising, the best way for a lawyer to get his name out among the public was to have other lawyers recommend you. In fact it is still my most predictable resourse of legal work. If I am reccommended for a job 9.5 times out of 10 that client will hire me for the work. One great way to be recognized by our peers is to be active in ABA committees. The Litigation Sections' Immigration committee has four active Sub committees in search of volunteers. Is this the year you make a difference?
A Preview of the NACDL Meeting in Philadelphia
The National Association of Criminal Defense Lawyers NACDL is meeting later today in Philadelphia Pennsylvania. The first two days of the organization's Spring Meeting is dedicated to Continuing Legal Education. Thursday offers two tracks a White Collar track and a Criminal Trial Practice Track. Friday offers a plenary session entitled "The Perfect Jury: Selecting Connection and Winning Them Over." If you are in or around Philadelphia today or tommorow and practice Criminal Law, this seminar meeting is for you. If you are toying with the idea of practicing in this area of practice, this one's for you too.
For those of you who can't make it to the seminar, I will be reporting on the highlights of the meetings and programs I attend. I will be moving back and forth between the two tracks on Thursday and will try to bring you the highlights of the sessions I view.
UPDATE: A few of the seminar offerings for latter today include: Introduction and updates to Wire Fraud, Federal Tax prosecution, Healthcare Fraud, and Securities law. There will also be a post-Booker federal sentencing update all in the White Collar Track. The Criminal Trial Track offerings include the 15 Minute Voir Dire;
Jury Instuctions That Support The Themes of Your Case and Selling a Not Guilty Verdict with Non-Verbal Communications.
Next week I will have a suprise for you... Keep watching this spot to see if you can guess the suprise before it is announced on Monday.
For those of you who can't make it to the seminar, I will be reporting on the highlights of the meetings and programs I attend. I will be moving back and forth between the two tracks on Thursday and will try to bring you the highlights of the sessions I view.
UPDATE: A few of the seminar offerings for latter today include: Introduction and updates to Wire Fraud, Federal Tax prosecution, Healthcare Fraud, and Securities law. There will also be a post-Booker federal sentencing update all in the White Collar Track. The Criminal Trial Track offerings include the 15 Minute Voir Dire;
Jury Instuctions That Support The Themes of Your Case and Selling a Not Guilty Verdict with Non-Verbal Communications.
Next week I will have a suprise for you... Keep watching this spot to see if you can guess the suprise before it is announced on Monday.
Monday, April 17, 2006
A Few Things To Help Run Your Office More Efficiently
Friends and family often ask me why I am enjoying the practice of law so much more recently. I have always loved being a lawyer, but I have to admit the business of law was not always so much fun. In 2002 when I decided to go back into solo/small firm mode, I was determined to do it differently than the last time I tried it. I wanted automation, and I wanted cutting edge, and I wanted to enjoy both the business and the legal part of running a law firm. I was lucky...kinda. I had been pretty sick in July of '01, so I took a good few months off to recuperate. It was during this sabbatical that I learned a whole bunch of things.
1. I needed the sabattical to learn how to do things better. Stepping away was the best thing I ever did. In the beginning, out of necessity, I spent the time taking care of me. That was very important. I learned things about my body that I didn't know. I renewed my energy too. Most importantly, I learned that I really missed being a lawyer. What I didn't miss was the B.S. that made up running a law firm. That would have to change.
2. I quickly learned that my most valuable association memberships were my local bar association's and my membership in the American Bar Association. Especially the submemberships in theGeneral Practice/Solo Division and the Law Practice Management Section. I remember fighting with my former partners about membership in these Sections and how they refused to pay for the Section's registration because the Sections "weren't about 'real' law." They were wrong then and anyone who thinks the ABA has nothing over their state and local bars are just plain wrong still. No magazine was more important to me over the last 5 years as Law Practice Magazine. Through it's pages I became acquainted with the likes of Dennis Kennedy and Tom Mighell. One of their year end review columns turned me on to the importance of a good website and to blogging as a business/marketing tool. The GP/SOLO division got me in front of Jim Calloway and Reid Trautz and others. I met a lot of other lawyers who were facing many of the challenges I faced. Again the Division's magazine GP/Solo is a must read each month for me. The articles and lectures I attended beat anything else out there for law practice management. I became more innovative and daring. I found a way to get my practice focused and to automate my "backroom". The taught me to market and run an office for profit and fun.
Suprisingly candid statement: It is more fun to pactice law if you make a decent living at it.
3. The next important alliance I needed was with a company that could properly promote what I do. I wanted a personal relationship with that company one where they would come to know me like my wife, maybe better, at least in the office. In my case I used the Company owned by West Publishing, Findlaw. From the first meeting with their local representitive, I found a partner in my success, rather than another salesman who saw my bank book as "lunch." My rep (Cindy LeClaire) not only took an interest in my web presence, but took the time to teach me how to maximize my results while holding the line on my budget. By feeding me with "White papers" on different web topics, I have built a new practice that is focused and exciting. I have found clients (or really they have found me) who want a lawyer who cares about their case and who are willing to compensate me at a fair rate for those services. Findlaw clients are more sophisticated and savvy than the run of the mill client. They have taken the time to educate themselves not only about their case and the law surrounding it, but about me too. They read my articles and e-newsletter. They read my weblogs and keep up with the news about me and my firm. They know what quality is and they know what it costs, and once they find it, they are willing to pay to get it. Nothing motivates like a good case, with a smart client, who pays her bills.
Over the last few months, I've become a "consultant" to Findlaw, and I am now helping their development team find new products to help small firm practioners. I have gone from being a neophyte to being someone "in the know." Yet there is so much more to learn.
Outsourcing for the Solo and Small Legal Firm.
The articles in this month's Law Practice Today deal with outsourcing. I used to think this was a big firm only type of thing. In reality though I have been outsourcing things for years. I use an investigator and an outside CPA. I increased my outsourcing to include an answering service that keeps me in touch with the practice and gives my clients a real live person to talk to 24 hours a day, without me always having to be "on call."
My newest foray into the outsourcing world was for heavy dictation. I am using a company that takes my digital dictation, and turns it into a finished product. I am working with LawDocs Express. I am sure there are others out there too. I found Law Docs at the ALM Legal Tech show in NYC. I was very impressed with their presentation, nevertheless it still took me almost a year to get over my digital "distrust" and call them.
While I employ a full time assistant, heavy typing under time pressure is not her strong suit. Besides, she handles the phone, some of the bookkeeping and billing, light correspondence, client relations, scheduling and work flow. She doesn't have the time to sit for hours listening to my dictation. For heavy pleadings and briefs, we use our Law Docs Express outsourced assistant. A team of 3 people are familiar with our work and handle it 24/7/365. We pay an upfront setup fee and then an hourly rate that is pretty high for us. Given the amount of typing we have for them however, it is much less expensive than hiring a secretary full time and paying salary, benefits and more for office space and equiptment. We just dictate onto portable digital recorders, plug them into our computer, send the audio file as a file attachment to our Virtual assistants at Law Doc, and we get a draft back. We correct it (either on the computer or by adding to the digital recording)send it back, and then we get back a final copy ready to serve. They will even send it digitally to our process server and he can download it and serve it for us. Given our usage, (which is not high) we probably save over 80% of what a regular secretary would cost us. In fact the more we use it the more we should save. Better yet, I can get them in the middle of the night. No overtime or complaining. In a criminal law firm where we do not bill for secretarial time, that savings is huge. It frees up our paralegal interns to research, write, interview clients, and help in the billing "department."
Another kind of outsourcing is by way of our extranet. We use a secured offsite website to store client data and make it available to them. They log onto the site using a special code for their case only, and they can review documents, time lines, bills, and even leave messages the way they would on a blog.
Offsite disaster protection
Speaking of web solutions, after a fire devastated our offices two years ago, the concept of offsite data storage became important. By the end of this spring we will be backing up the computers to a CD and to an offsite storages facility. In the event of a catastrophe, we can be up an running as soon as we can get a data connection.
This required a commitment but was not hard
Using technology has not been an easy process for me. I am not data savvy. I had to train myself to be more comfortable with it. Just a little effort, and the help of the magazines and writers I cited above, and I have really joined the 21st century. Now things that used to keep me up at night are locked in a closet. I sleep better and I work smarter. As importantly, I earn more money which allows me to enjoy more free time. In a future article I want to write about how to keep technology from overcoming your freedom. For now, take a look at some of the vendors and magazines I have written about here. You will be suprised how much more fun life can be if you are just willing to invest a little time, and money, into technology.
1. I needed the sabattical to learn how to do things better. Stepping away was the best thing I ever did. In the beginning, out of necessity, I spent the time taking care of me. That was very important. I learned things about my body that I didn't know. I renewed my energy too. Most importantly, I learned that I really missed being a lawyer. What I didn't miss was the B.S. that made up running a law firm. That would have to change.
2. I quickly learned that my most valuable association memberships were my local bar association's and my membership in the American Bar Association. Especially the submemberships in theGeneral Practice/Solo Division and the Law Practice Management Section. I remember fighting with my former partners about membership in these Sections and how they refused to pay for the Section's registration because the Sections "weren't about 'real' law." They were wrong then and anyone who thinks the ABA has nothing over their state and local bars are just plain wrong still. No magazine was more important to me over the last 5 years as Law Practice Magazine. Through it's pages I became acquainted with the likes of Dennis Kennedy and Tom Mighell. One of their year end review columns turned me on to the importance of a good website and to blogging as a business/marketing tool. The GP/SOLO division got me in front of Jim Calloway and Reid Trautz and others. I met a lot of other lawyers who were facing many of the challenges I faced. Again the Division's magazine GP/Solo is a must read each month for me. The articles and lectures I attended beat anything else out there for law practice management. I became more innovative and daring. I found a way to get my practice focused and to automate my "backroom". The taught me to market and run an office for profit and fun.
Suprisingly candid statement: It is more fun to pactice law if you make a decent living at it.
3. The next important alliance I needed was with a company that could properly promote what I do. I wanted a personal relationship with that company one where they would come to know me like my wife, maybe better, at least in the office. In my case I used the Company owned by West Publishing, Findlaw. From the first meeting with their local representitive, I found a partner in my success, rather than another salesman who saw my bank book as "lunch." My rep (Cindy LeClaire) not only took an interest in my web presence, but took the time to teach me how to maximize my results while holding the line on my budget. By feeding me with "White papers" on different web topics, I have built a new practice that is focused and exciting. I have found clients (or really they have found me) who want a lawyer who cares about their case and who are willing to compensate me at a fair rate for those services. Findlaw clients are more sophisticated and savvy than the run of the mill client. They have taken the time to educate themselves not only about their case and the law surrounding it, but about me too. They read my articles and e-newsletter. They read my weblogs and keep up with the news about me and my firm. They know what quality is and they know what it costs, and once they find it, they are willing to pay to get it. Nothing motivates like a good case, with a smart client, who pays her bills.
Over the last few months, I've become a "consultant" to Findlaw, and I am now helping their development team find new products to help small firm practioners. I have gone from being a neophyte to being someone "in the know." Yet there is so much more to learn.
Outsourcing for the Solo and Small Legal Firm.
The articles in this month's Law Practice Today deal with outsourcing. I used to think this was a big firm only type of thing. In reality though I have been outsourcing things for years. I use an investigator and an outside CPA. I increased my outsourcing to include an answering service that keeps me in touch with the practice and gives my clients a real live person to talk to 24 hours a day, without me always having to be "on call."
My newest foray into the outsourcing world was for heavy dictation. I am using a company that takes my digital dictation, and turns it into a finished product. I am working with LawDocs Express. I am sure there are others out there too. I found Law Docs at the ALM Legal Tech show in NYC. I was very impressed with their presentation, nevertheless it still took me almost a year to get over my digital "distrust" and call them.
While I employ a full time assistant, heavy typing under time pressure is not her strong suit. Besides, she handles the phone, some of the bookkeeping and billing, light correspondence, client relations, scheduling and work flow. She doesn't have the time to sit for hours listening to my dictation. For heavy pleadings and briefs, we use our Law Docs Express outsourced assistant. A team of 3 people are familiar with our work and handle it 24/7/365. We pay an upfront setup fee and then an hourly rate that is pretty high for us. Given the amount of typing we have for them however, it is much less expensive than hiring a secretary full time and paying salary, benefits and more for office space and equiptment. We just dictate onto portable digital recorders, plug them into our computer, send the audio file as a file attachment to our Virtual assistants at Law Doc, and we get a draft back. We correct it (either on the computer or by adding to the digital recording)send it back, and then we get back a final copy ready to serve. They will even send it digitally to our process server and he can download it and serve it for us. Given our usage, (which is not high) we probably save over 80% of what a regular secretary would cost us. In fact the more we use it the more we should save. Better yet, I can get them in the middle of the night. No overtime or complaining. In a criminal law firm where we do not bill for secretarial time, that savings is huge. It frees up our paralegal interns to research, write, interview clients, and help in the billing "department."
Another kind of outsourcing is by way of our extranet. We use a secured offsite website to store client data and make it available to them. They log onto the site using a special code for their case only, and they can review documents, time lines, bills, and even leave messages the way they would on a blog.
Offsite disaster protection
Speaking of web solutions, after a fire devastated our offices two years ago, the concept of offsite data storage became important. By the end of this spring we will be backing up the computers to a CD and to an offsite storages facility. In the event of a catastrophe, we can be up an running as soon as we can get a data connection.
This required a commitment but was not hard
Using technology has not been an easy process for me. I am not data savvy. I had to train myself to be more comfortable with it. Just a little effort, and the help of the magazines and writers I cited above, and I have really joined the 21st century. Now things that used to keep me up at night are locked in a closet. I sleep better and I work smarter. As importantly, I earn more money which allows me to enjoy more free time. In a future article I want to write about how to keep technology from overcoming your freedom. For now, take a look at some of the vendors and magazines I have written about here. You will be suprised how much more fun life can be if you are just willing to invest a little time, and money, into technology.
Great New Podcast By Dennis Kennedy and Tom Mighell
The aptly named Kennedy-Mighell Report is now on line and it is very well done. It has very slick production techniques and it is entertaining and informative. You need to go on there click the play button and hear it. It is about Techshow 2006 which is comming up in Chicago later this week. Whether you are going to Chicago or not get on to the Report and sign up for its RSS feed. It should be a regular listen. BTW Look for That Lawyer Dude/LI Criminal Trial Law Podcast to start I hope in about 3 weeks.
Wednesday, April 05, 2006
That's Why You Got Divorced In The First Place
In Morad v. Morad, the Husband tried to nullify the couple's separation agreement because of duress and unconscionabilty. The source of the duress claim? She nagged him so much he just signed the thing to get her off his back.
The Court ruled that 1. The agreement was negotiated by counsel for both sides and was not unconscionable; 2. Waiting three years to try to undo the agreement rendered the duress claim ratified. If your pleading duress you have to do it quickly; and 3. Wife's "relentless pressure" on husband to execute separation agreement did not constitute duress that could support setting aside agreement.
After all, isn't that the reason he wanted the divorce to begin with?
The Court ruled that 1. The agreement was negotiated by counsel for both sides and was not unconscionable; 2. Waiting three years to try to undo the agreement rendered the duress claim ratified. If your pleading duress you have to do it quickly; and 3. Wife's "relentless pressure" on husband to execute separation agreement did not constitute duress that could support setting aside agreement.
After all, isn't that the reason he wanted the divorce to begin with?
Saturday, April 01, 2006
A Test On The First Amendment In Public Schools. Another School Principal Screws Up The First Amendment.
Notice to all School Administrators Principals, Assistant Principal and Deans:
You shall make no rule...abridging the freedom of speech.
Question for all School Administrators, Principals, Assistant Principals and Deans:
What Part of NO do you not understand???
Okay okay, I am a First Amendment Free Speech absolutist. However, shy of a real disruption of classroom activities, or worse violence, being an almost foregone conclusion, you really cannot pass rules that limit the freedom of speech and expression of your students.
In today's latest edition of "How to cost the Taxpayers of my School District unnecessary money because I do not really understand the First Amendment of the constitution of the United States of America", the intrepid school administrators of Latta H. S. somewhere near Florence South Carolina, have suspended, disciplined and otherwise harassed high school sophomore Candice Hardwick, who in remembrance of her forefathers who fought for the South in the American Civil war, wants to wear the Confederate flag on her breast. Her Mom appears to be part of the Order of the Confederate Rose(South Carolina chapter) which seeks to preserve the "history" of the old South. (I may have been generous here in my description, they may still be fighting the war for all I know, but it really doesn't matter for our discussion today.)
Now go back and read this and this in preparation for today's remedial exam. [Update:link repaired] Alright sharpen your number 2 pencils and begin below:
Please answer: Yes or No
Question 1. Can the student wear a black arm band in school?
Question 2. Can she refuse to stand and or salute the American Flag during the pledge?
Question 3. Can she wear a shirt that says I hate President Bush on the day he comes to her school to speak?
Question 4. Can She carry a copy of Michael Moore's Fahrenheit 9-11 DVD and watch it on her laptop during lunch?
Question 5. Can she support the Iraqi invasion by covering her book bag with pro-government stickers?
Question 6. Can she yell "Fire" in a crowded cafeteria (this one is a trick question)
Question 7. Can she bring a banner into the High school Gym and unfurl it during the state championship basketball game that says "bongs 4 Jesus"?
Question 8. Can she wear colors of a local violent girl gang?
Question 9. Can she stand in front of the school assembly wearing a shirt that says "Fuck the SATs"?
Question 10. Can she wear the Confederate flag absent any proof that the same will end in violent or otherwise disruptive behavior?
Answers:
1.Yes See the brief of Tinker v. Des Moines School District here. Again if the armband is otherwise disruptive there then the right to free
expression can be curtailed, but you better be really really sure.
2.Yes. In a 1943 decision, West Virginia Board of Education v. Barnette, the Supreme Court determined that a group of Jehovah’s Witnesses who objected to the flag salute and mandatory pledge recitation for religious reasons could not be forced to participate. (To read the whole answer click here
3.Yes. While schools can enforce a rule limiting the time place and manner of certain speech and expression, the rule must be content neutral.
4.Yes See 3. Above.
5.Yes. A variation on a theme. Just to see if you did your studying. If you got this wrong...Reread this.
6.No (unless the cafeteria is actually on fire)Scheck v. US was overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969)however yelling fire in a crowded cafeteria would probable cause a panic or even imminent lawless action.
7.Yes This also was a test to see if you reread the prior posts on topic. This case was discussed at this post.
8.NO. See the Brandenburg case above.
9.NO. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)(First
Amendment Center's case brief here.)
10.Yes. Yes! Yes!.
Actually there is an even better test than the one above. One that really tests your knowledge of the present state of affairs in school free speech cases. Take it by going here.
Stop persecuting free thinkers in America's High Schools. Learn the First Amendment.
You shall make no rule...abridging the freedom of speech.
Question for all School Administrators, Principals, Assistant Principals and Deans:
What Part of NO do you not understand???
Okay okay, I am a First Amendment Free Speech absolutist. However, shy of a real disruption of classroom activities, or worse violence, being an almost foregone conclusion, you really cannot pass rules that limit the freedom of speech and expression of your students.
In today's latest edition of "How to cost the Taxpayers of my School District unnecessary money because I do not really understand the First Amendment of the constitution of the United States of America", the intrepid school administrators of Latta H. S. somewhere near Florence South Carolina, have suspended, disciplined and otherwise harassed high school sophomore Candice Hardwick, who in remembrance of her forefathers who fought for the South in the American Civil war, wants to wear the Confederate flag on her breast. Her Mom appears to be part of the Order of the Confederate Rose(South Carolina chapter) which seeks to preserve the "history" of the old South. (I may have been generous here in my description, they may still be fighting the war for all I know, but it really doesn't matter for our discussion today.)
Now go back and read this and this in preparation for today's remedial exam. [Update:link repaired] Alright sharpen your number 2 pencils and begin below:
Please answer: Yes or No
Question 1. Can the student wear a black arm band in school?
Question 2. Can she refuse to stand and or salute the American Flag during the pledge?
Question 3. Can she wear a shirt that says I hate President Bush on the day he comes to her school to speak?
Question 4. Can She carry a copy of Michael Moore's Fahrenheit 9-11 DVD and watch it on her laptop during lunch?
Question 5. Can she support the Iraqi invasion by covering her book bag with pro-government stickers?
Question 6. Can she yell "Fire" in a crowded cafeteria (this one is a trick question)
Question 7. Can she bring a banner into the High school Gym and unfurl it during the state championship basketball game that says "bongs 4 Jesus"?
Question 8. Can she wear colors of a local violent girl gang?
Question 9. Can she stand in front of the school assembly wearing a shirt that says "Fuck the SATs"?
Question 10. Can she wear the Confederate flag absent any proof that the same will end in violent or otherwise disruptive behavior?
Answers:
1.Yes See the brief of Tinker v. Des Moines School District here. Again if the armband is otherwise disruptive there then the right to free
expression can be curtailed, but you better be really really sure.
2.Yes. In a 1943 decision, West Virginia Board of Education v. Barnette, the Supreme Court determined that a group of Jehovah’s Witnesses who objected to the flag salute and mandatory pledge recitation for religious reasons could not be forced to participate. (To read the whole answer click here
3.Yes. While schools can enforce a rule limiting the time place and manner of certain speech and expression, the rule must be content neutral.
4.Yes See 3. Above.
5.Yes. A variation on a theme. Just to see if you did your studying. If you got this wrong...Reread this.
6.No (unless the cafeteria is actually on fire)Scheck v. US was overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969)however yelling fire in a crowded cafeteria would probable cause a panic or even imminent lawless action.
7.Yes This also was a test to see if you reread the prior posts on topic. This case was discussed at this post.
8.NO. See the Brandenburg case above.
9.NO. See Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986)(First
Amendment Center's case brief here.)
10.Yes. Yes! Yes!.
Actually there is an even better test than the one above. One that really tests your knowledge of the present state of affairs in school free speech cases. Take it by going here.
Stop persecuting free thinkers in America's High Schools. Learn the First Amendment.
Thursday, March 30, 2006
Two Cases Courtesy of Decision Of The Day Blog
So much to cover tonight I have no time for indepth analysis. It would be unnecessary thanks to the incisive and crisp briefing written by Rob Loblaw (yes I know that is his pseudonym)over at Decision of the Day. "Rob" has hit on two important US Court of Appeals decisions and analyzed them here and here.
Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.
Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.
Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.
Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.
Wednesday, March 29, 2006
Two Cases Courtesy of Decision Of The Day Blog
So much to cover tonight I have no time for indepth analysis. It would be unnecessary thanks to the incisive and crisp briefing written by Rob Loblaw (yes I know that is his pseudonym)over at Decision of the Day. "Rob" has hit on two important US Court of Appeals decisions and analyzed them here and here.
Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.
Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.
Case 1. Deals with an assurance by a state prosecutor that the feds wouldn't use the conviction he was taking in state court against him at a later time when the Feds attacked. WRONG! The lesson for defense counsel, if it concerns you sufficiently to raise the subject, go to the US Attorney and try to get him to sign off on the plea bargain in state court. At least try to get him to commit to the same thing the state prosecutor is saying.
Case 2. Is a warning to prosecutors. If you are going to strike potential jurors for non race based reasons with peremptory challenges, keep a journal or notes as to why you struck each one, lest you be trying the case a second time.
Tuesday, March 28, 2006
Lookie What I Found... Part I: Second Circuit Sentencing Blog
Talk about a specialty Blog! This is a blog devoted to the Sentencing issues decided by the Second Circuit US Court of Appeals. It is an excellent addition to the growing number of blogs watching law on Long Island (and in NY in general.) To that end there is an outstanding discussion of the recent Second Circuit decision in United States v. Roberts, Docket No. 04-6610-cr, 2006 WL 751879 (2d Cir. March 23, 2006). This is an abomination of a decision in that it yields the wrong result for the right reasons. The guy broke a law that was no longer a law by the time the case ended. SCSB does a nice analysis of the Roberts case and links you to the decision. There are a numbere of good posts there. Check them out.
Back From Beantown, Hello Long Island
I have been trying to play (with some success) with shorter posts. I have just returned from Boston. It was a tough trip but one that I hope will yield real results in the Fight against Scleroderma. I will be leaving a few posts about other blogs which I think you should know about, and I hope to do an post about a new case here in the Second Dept. of the NYS Appellate Division.
It is always nice to see Boston. I can't wait to go back to my Twenty-fifth reunion from Tufts University in May. (Can it really be that long ago already.)Coming back to Long Island however is always great, especially if you take the ferry back from New London to Suffolk's Orient Point. I love being out on the Sound. Especially as Spring approaches. The Sound is just rough enough, and it is just crisp enough to let you know that winter has been here. Yet there is a gentleness to the sea breeze, and a bright sky with a lesser chill, to let you know that the Child that is spring, is peeking around the corner. There is nothing better than Long Island in the Spring. It's nice to be back.
It is always nice to see Boston. I can't wait to go back to my Twenty-fifth reunion from Tufts University in May. (Can it really be that long ago already.)Coming back to Long Island however is always great, especially if you take the ferry back from New London to Suffolk's Orient Point. I love being out on the Sound. Especially as Spring approaches. The Sound is just rough enough, and it is just crisp enough to let you know that winter has been here. Yet there is a gentleness to the sea breeze, and a bright sky with a lesser chill, to let you know that the Child that is spring, is peeking around the corner. There is nothing better than Long Island in the Spring. It's nice to be back.
Friday, March 24, 2006
A Quick Note.
I am headed up to Boston for the Spring Meeting of the Scleroderma Foundation Board of Directors. (If you want to learn about the disease or make a donation to a very worthy cause click here) Hence since I was up all night at a raid of a Gentlemen's club in Jamaica Queens and have night arraignments in Kew Gardens, Queens tonight, and then the 5 hour drive to Foundation HQ and a full day of meetings tomorrow, I thought it best to get a couple hours of shut eye.
As I have been on something of a role, I want to keep it up so here are a few things I found interesting"
SCOTUS is debating Prisoner lawsuits and the whole issue of exhaustion of State remedies an here is Yahoo's take on it. As a civil rights lawyer, I think the 15 day requirement is pathetically too short. 90 days is often less than sufficient, however a really good rule might be based on the strength of the pleading so that good cases don't get knocked out a bad ones that cost the county money to defend can be disposed of quickly and inexpensively. If I had to come down on one side or the other, I would come down on the side that preserves the rights of the imprisoned to bring the suit, and rely on the wisdom of the court to bounce it SJ grounds as soon as it could.
Here is a really good and important article on the "prep Walk" and how to help avoid it especially for your white collar crime clients. Hat tip to White Collar Crim Prof Blog . Personally I do not see how these police orchastrated dramas are not poisoning the identification process (which is already tenuous at best.)
Ok ,there is more but I am falling asleep at the wheel here. Good luck eveeryone.
As I have been on something of a role, I want to keep it up so here are a few things I found interesting"
SCOTUS is debating Prisoner lawsuits and the whole issue of exhaustion of State remedies an here is Yahoo's take on it. As a civil rights lawyer, I think the 15 day requirement is pathetically too short. 90 days is often less than sufficient, however a really good rule might be based on the strength of the pleading so that good cases don't get knocked out a bad ones that cost the county money to defend can be disposed of quickly and inexpensively. If I had to come down on one side or the other, I would come down on the side that preserves the rights of the imprisoned to bring the suit, and rely on the wisdom of the court to bounce it SJ grounds as soon as it could.
Here is a really good and important article on the "prep Walk" and how to help avoid it especially for your white collar crime clients. Hat tip to White Collar Crim Prof Blog . Personally I do not see how these police orchastrated dramas are not poisoning the identification process (which is already tenuous at best.)
Ok ,there is more but I am falling asleep at the wheel here. Good luck eveeryone.
Tuesday, March 21, 2006
A Little Bit Of This, A Little Bit Of That...
Just taking a jog through the Blogosphere:
Crim Prof Blog has the top 5 Law Review type papers. You can get them on your computer free. Just go to the Profs' blog and click on the article you want to read, then when you get to the article, right click and hit save. Read it while waiting to get on the plane, or even on the plane (after the pilot turns off the fasten your set belt sign above your head).
A day late and a dollar short. That's ME! I was thinking of writing a series of Blogposts on "How to Blog." Then, just as I am about to get started, I find these wonderful posts (try here, here, here, andhere) on my topic and feel like I have been pre-empted. Just like on the Law Review!! Thanks a lot South Carolina Trial Law Blog.
Capital Defense Weekly's Blog has the year's best Death Penalty articles from the Death Penalty Information Center. Check out the site while you're there. It has a lot of very good information for Criminal Trial Lawyers
Thanks For Nuthin' Mom!:
From Newsday:
"Zachary Gibian's mother did nothing to stop him when he told her he was about to kill her husband; instead, she left the room as the Hauppauge teenager got the sword he used to murder Scott Nager, a Suffolk detective testified Monday."
Need I say more...
Also in Newsday today, this story about 1200 new police hires. You know it's not a bad job for a lawyer. You can practice on the side. Meanwhile I cannot wait to get one of the newbies on the stand. Like shooting fish in a barrel.
The New York Times takes on the Patriot Act:
Sorry, there is just to much government interference in the new Patriot act passed last month by Congress. This NY Times article raises some of my(and others)concerns.
This is why I cannot support the President and his war time cabinet. I still cannot believe these people have so little regard or understanding of what it means to live in, and protect, a democracy. As of right now, if Senator John McCain is not the Republican Candidate for President of the USA, I may not vote. Me not voting for President says a lot.
Obviously not in it for the money:
I know law is not the easiest way to earn a living, but this is ridiculous. Hat tip: to NY Attorney Malpractice Blog.
Now this guy got it right. (Lawyer gives $200 Million to Columbia University.)
Then again maybe it's all in how you look at it.
Well that's it for me. See you in the Blogosphere.
Crim Prof Blog has the top 5 Law Review type papers. You can get them on your computer free. Just go to the Profs' blog and click on the article you want to read, then when you get to the article, right click and hit save. Read it while waiting to get on the plane, or even on the plane (after the pilot turns off the fasten your set belt sign above your head).
A day late and a dollar short. That's ME! I was thinking of writing a series of Blogposts on "How to Blog." Then, just as I am about to get started, I find these wonderful posts (try here, here, here, andhere) on my topic and feel like I have been pre-empted. Just like on the Law Review!! Thanks a lot South Carolina Trial Law Blog.
Capital Defense Weekly's Blog has the year's best Death Penalty articles from the Death Penalty Information Center. Check out the site while you're there. It has a lot of very good information for Criminal Trial Lawyers
Thanks For Nuthin' Mom!:
From Newsday:
"Zachary Gibian's mother did nothing to stop him when he told her he was about to kill her husband; instead, she left the room as the Hauppauge teenager got the sword he used to murder Scott Nager, a Suffolk detective testified Monday."
Need I say more...
Also in Newsday today, this story about 1200 new police hires. You know it's not a bad job for a lawyer. You can practice on the side. Meanwhile I cannot wait to get one of the newbies on the stand. Like shooting fish in a barrel.
The New York Times takes on the Patriot Act:
Sorry, there is just to much government interference in the new Patriot act passed last month by Congress. This NY Times article raises some of my(and others)concerns.
This is why I cannot support the President and his war time cabinet. I still cannot believe these people have so little regard or understanding of what it means to live in, and protect, a democracy. As of right now, if Senator John McCain is not the Republican Candidate for President of the USA, I may not vote. Me not voting for President says a lot.
Obviously not in it for the money:
I know law is not the easiest way to earn a living, but this is ridiculous. Hat tip: to NY Attorney Malpractice Blog.
Now this guy got it right. (Lawyer gives $200 Million to Columbia University.)
Then again maybe it's all in how you look at it.
Well that's it for me. See you in the Blogosphere.
SCOTUS Hears Two Crawford Definition Cases
The Supreme Court took up two important cases that should explain and probably narrow the decision in Crawford v. Washington. Crawford was one of two important decisions in Criminal Law handed down in the 2003-04. In overruling Ohio v. Roberts, the Supreme Court reaffirmed the importance of a criminal defendant's right to confront his accuser. The decision received immediate criticism from Domestic Violence prosecutors because so many of their cases require the use of unavailable witnesses, many who are unavailable of their own volition (They refuse to cooperate or leave town etc.)The issues presented by the two cases ( Davis v. Washington and Hammond v. Indiana) concern statements that were given outside of the courtroom. Davis is a 911 statement, and Hammond concerns a statement written out by a victim while being visited by police.
At his new blog Orin Kerr.com, Professor Kerr of The George Washington University Law School has a short post on the arguments and a prediction that the court will distinguish between the two cases finding that 911 tapes will come in dispite the Crawford ruling, and the Hammond written statement will be found to be testimonial in nature and thus run afoul of Crawford.
I have to agree with Professor Kerr in that the 911 tape, under most (but not all)circumstances, would not be so much testimonial as it might be a "quasi" res gestae statement. In other words, if the call is made reasonably shortly after the event (like 10-15 minutes after the first opportunity to make the call) then it would seem this is more of a safety or reporting issue, than a testimonial issue. The witness is not giving information primarily seeking to convict the individual but more trying to get the information to police to obtain an arrest, redress or even safety of themselves or others. The Davis cases should be very fact specific and very Strictly interpreted as theRight to Confrontation is a basic right of the ,US Constitution. In Davis the witness called 911 and hung up. The 911 operator calls back and gets information and sends the police. The witness doesn't come forward to testify and the prosecution uses the tapes and the pictures of the beating. The Davis argument is interesting as it was aimed directly at Scalia and Thomas. Davis argued that even at the time of the Constitution's ratification, the confrontation clause was so important that the old hue and cry reports were not usable at trials. The originalist theory may carry the day with The Chief, Scalia Thomas and Alito but will it turn off a fifth vote?
The statement in Hammond clearly was taken as part of an investigation meant to nail down testimony and very likely to obtain an arrest warrant or a charging document. In Hammond investigators came pursuant to a DV report. They meet the witness who denies any problem. They say she appears frightened. They go inside and see the remnants of the fight. The defendant says the argued but it did not become physical. The police go back to the woman and again ask what happened and this time she tells them. They ask her to write it up.
It seems clear that the written statement was taken to be a testimony in the witnesses own words as to what happened. The statement was not necessary to help them identify a potential attacker or to get the witness to safety. Hence the only reason for the written statement was for evidentiary preservation. Uncrossable use of this type of statement appears to be exactly what Crawford was trying to stamp out.
There is an excellent treatment of both cases with links to the briefs and amicus at Scotusblog.
At his new blog Orin Kerr.com, Professor Kerr of The George Washington University Law School has a short post on the arguments and a prediction that the court will distinguish between the two cases finding that 911 tapes will come in dispite the Crawford ruling, and the Hammond written statement will be found to be testimonial in nature and thus run afoul of Crawford.
I have to agree with Professor Kerr in that the 911 tape, under most (but not all)circumstances, would not be so much testimonial as it might be a "quasi" res gestae statement. In other words, if the call is made reasonably shortly after the event (like 10-15 minutes after the first opportunity to make the call) then it would seem this is more of a safety or reporting issue, than a testimonial issue. The witness is not giving information primarily seeking to convict the individual but more trying to get the information to police to obtain an arrest, redress or even safety of themselves or others. The Davis cases should be very fact specific and very Strictly interpreted as the
The statement in Hammond clearly was taken as part of an investigation meant to nail down testimony and very likely to obtain an arrest warrant or a charging document. In Hammond investigators came pursuant to a DV report. They meet the witness who denies any problem. They say she appears frightened. They go inside and see the remnants of the fight. The defendant says the argued but it did not become physical. The police go back to the woman and again ask what happened and this time she tells them. They ask her to write it up.
It seems clear that the written statement was taken to be a testimony in the witnesses own words as to what happened. The statement was not necessary to help them identify a potential attacker or to get the witness to safety. Hence the only reason for the written statement was for evidentiary preservation. Uncrossable use of this type of statement appears to be exactly what Crawford was trying to stamp out.
There is an excellent treatment of both cases with links to the briefs and amicus at Scotusblog.
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