Monday, September 29, 2014

#RE2pect: The Captain Steps Away

Today was the end of the Derek Jeter era of my NY Yankees. If it couldn't have ended in NY then I am glad it happened in Boston. That was the city where I became a Yankkee fan. It is the home to half the greatest baseball rivalry RedSox v. Yankees. It's where I saw Derek play. 

The send off was magnificent, and you can look it up. You can look up his wonderful final game at Yankee Stadium last Thursday night, you can look up his stats. What you cannot count is the enormous amount of smiles his play created. You cannot count the kids who have decided to turn away from steroids and drugs b/c of Derek Jeter and you cannot estimate what would have become of the game of Baseball had a kid from Michigan not come back to his birthplace and handled the hardest city to succeed in sports after the strike debacle, and the during the "Steroid era".

Competitive, and talented, but at the end, what he had mostly, was Class. He had it in kilograms. He had it in tons. He shared it with the rest of us. He didn't jam it down our throats, he didn't say "look at me! I'm the one to emulate." He just did his thing as best as he could in quiet dignity, everyday, and in doing so, taught another generation about "the code". What code? The code of being a man: work harder, be responsible and take responsibility, take ownership. Treat others,ALL OTHERS, as you would wish to be treated, laugh, know whom to trust and remember that a secret stays a secret when only one person knows it. Conduct yourself in all matters, as if everyone is watching, do not burn bridges, be loyal to a fault, be honest, be humble, be appreciative.  Know your value but do not wear it on your sleeve, listen to others, set the example and set your personal bar high, remember, your mom is watching, but moreover, so are the children, the men and women of the next generation.

Respect, the game, your team, your teammates and your fans, your woman, your kids, and mostly respect yourself, and you too will earn #Re2pect. Thank you Captain.

Saturday, September 27, 2014

Friday News Dump: Obama Justice Dept. Will Ask SCOTUS to Support Marriage Equality

Good news for civil rights advocates, the Justice Dept. Civil Division through the Solicitor General's office will urge the Supreme Court to grant full marriage rights to all adults. From where I sit this is good news for a bunch of reasons. 
1. While I prefer the government to stay out of the whole marriage business, if they are going to grant privileges to people who contractually agree to live with each other and potentially raise families, then those rights and privileges should be available across the board. 
2. Additionally, there are personal rights that are denied a non married partner that that can and has caused great emotional pain and which are just unfair .i.e. When families reject a homosexual or transgendered person, and that person begins a life with someone else but then gets sick and dies, the family will often step in and bar the partner from seeing their loved one in the hospital or in deciding anything about the funeral etc.
3. Every time we expand privileges to others, we protect our own and we encourage further assimilation. I already do not see people based on thieir skin tone or sexuality I don't look at somebody and say "see that black gay guy over there?" I simply say "see that fellow over there in the red sweater".  When we begin to stop seeing the things that make us physically different, we can believe that prejudice is dying. 

I don't say this often (and for good reason) but "Bully for you Mr. Obama!"


Hattip: Brian Williams NBC Nightly News.

Friday, September 26, 2014

More on Holder Decision to Step Down and Some Thoughts on Who's Next

Now that AGOUS Eric Holder has decided to step down, there are many things to say about one of the longest and tumultuous tenured US Attorney Generals in History.
The negatives abound: Fast & Furious; Contempt of (and for) Congress; Authority for Killing American Citizens abroad; the foot dragging on the IRS scandal to name a few off the top of my head.

It is tougher to really point up his positives, but his decision not to defend the DOMA; his office's record on Civil Rights and Voting Rights although checkered (a rush to judgement in Ferguson and his failure to pursue the New Black Panthers voting suppression case) is a bright spot in a controversial career. I respect holder for what he didn't do: He turned away from the Stupid Pornography prosecutions of the Bush Administration, and he tried but failed to bring the terror trials to NYC. I firmly believe Guantanamo is and always has been wrong and frankly it lends a blot on our International reputation. Had Holder been successful, there would be no Guantanamo and most if not all the detainees there would be convicted and serving time. Of course his cover for Obama's dreamers is also something I support. In this Administration, finally his willingness to stop some of the more draconian Bush policies of using sentence enhancement arguments to force pleas and agreeing to substantial reductions in drug sentencing laws are real accomplishments.   in this time in our History, I doubt sincerely one could have done a better job. That is not a glowing endorsement of Mr. Holder, more than an acknowledgment that it could have been much worse.

As for a replacement that could get through Congress, Soliciter General Vermincelli would be my choice. He is bright, hard working, and while occasionally awkward, could bring a different less political bent to the office potentially healing some wounds with Congress. An Italian American AG would be nice too. Deval Patrick would make for a good choice in that he too could work with some of the key players in D.C. And possibly mend a fence or two also. Both would likely follow Obama's agenda which while for me that isn't a positive, he did win the election he is entitled to his cabinet. Better to have somebody who could work with the Capital building than be hated in it.

Thursday, September 25, 2014

BREAKING NEWS: AGOUS ERIC HOLDER TO RESIGN!

The New York Times is reporting that Eric Holder the Attorney General of the United States of America is going to announce his retirement from office (an office he has held for 6 years making him the longest serving Attorney General in decades and the fourth longest serving in American History) tomorrow.
I hope to discuss some of his accomplishments and failures later today. For now, one if not the most controversial US Attorney General's in US history is resigning tomorrow according the the Grey Lady.

Monday, September 22, 2014

A New Beginning

Hi folks. It's been nearly 100 months since I was last here. A lot of stuff has happened, some of it quite sad (you know deaths loss etc.) but I'd rather dwell on positive stuff so here goes:

I AM A PARTNER IN A GROWING LAW FIRM!!!!
That's right, I am now a Partner and Trial Lawyer at the Firm of Raiser & Kenniff. We have locations in NYC and in Nassau and Suffolk County's on Long Island! I will still be handling cases in all federal courts and in NY state courts and will still focus on federal and state criminal law and Civil Rights Litigation, but I have 3 new partners and about 8 associates and another half dozen staff to back me up!

If you want to reach me I am at
Raiser & Kenniff PC
300 Old Country Rd.
Suite 351
Mineola, NY 11501
Phone 516-741-3400 (direct line)
Cell 516-316-1519 I prefer text messages.

I will be around here more too!! I want to build this blog back into the " juggernaut" it once was. :)

Thursday, January 02, 2014

It's Amateur Night!: 34 Arrested For DWI In Nassau And Suffolk Counties

I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.

Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.

In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!

Amateurs. Really.

Hattip: Newsday (subscription may be required)

Tuesday, December 31, 2013

Bad Cases Make Bad Laws: NYS Ct of Appeals Sustains the Martin Heigden Verdict

It was brought to my attention that one of my previous posts, where I predicted the Martin Heigden verdict convicting him of Murder (depraved indifference) would be overturned, in fact was NOT overturned. I was wrong about justice being done in the case. I am late acknowledging it but I did want to up date the information.

 The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.

The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.

As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.

Friday, December 27, 2013

"You Know Who Else Spoke Arabic? Osama Bin Laden"*: Sh*t the TSA Gets Away With When They Violate Your Freedom!

I was just about to give up on finding anything to blog about when I came across this little decision out of the US Court of Appeals for the 3rd Circuit. In George v. Rehiel et.al.  Dkt.:11-4292 (3rd Cir. 2013)( a Civil Rights case brought under 42USC1983)  an American college student of Middle Eastern Culture at a University in California was boarding a plane in Philadelphia (heading back to school) and under went an "administrative search" (which is a recognized "exception" to the 4th Amendment) at the boarding area. It is an everyday bother for airline passengers but it does keep us safer and it is usually minimally intrusive, that is until the Third Circuit decided to throw America's new obsession with paranoia into it.

During the search, the TSA employees (who seemingly have absolutely no training in law)  found handwritten flash cards that included the Arabic/English words for everyday language as well as for some words that if SAID ALOUD, would trigger an arrest in an airport (words like Bomb, Terrorist, Explosion, Attack, Kill, Battle, To Wound, to Kidnap). Now the fact that he was a student and one might want to know these words if involved in Mid Eastern current events did not matter. That he wasn't speaking the words but that the cards were in his carry-on so he could study didn't matter either.  That after finding the flashcards and swabbing everything around for explosives and finding zilch well that still did not matter. As far as the TSA was concerned these flashcards (and a treatise a college kid might read on the failures of American Interventionist Foreign Policy) required he be detained for a supervisor to question him AND for TSA to call the police.
The supervisor came and for 15 minutes more she stalled Mr. George in a  TSA security room (which by the way he was not free to leave) asking inane questions such as:
Q: Do you know who is responsible for 9-11?
A: Osama Bin Laden

Q: Do you know what language he spoke?
A: Arabic

Q: Do you see why these (flash)Cards are suspicious????????????

WTF????? Really???? Needless to say Mr. George was arrested, cuffed, detained for 5 hours, and missed his flight. Yes, if you were wondering, Philadelphia is part of the United States of America...

Mr. George and his attorneys sued the TSA agents, the cops, and FBI agents (who after five hours arrived, questioned the kid another 30 minutes and determined that he was not a terror threat) for violating his civil rights: His rights under the Fourth Amendment, Free speech and further sued for false arrest false imprisonment etc.


The question before the court was: did the TSA agents act outside of their employment authority by detaining young Mr. George, and if so did they have a reason to know that acting that way was against an established rule supporting the rights to privacy and speech.

The court never reached the knowledge element because it ruled that given the "totality of circumstances here could cause a reasonable person to believe that the items George was carrying raised the possibility that he might pose a threat to airline security". 

Re-read the quote from the decision that I highlighted above. Have you ever seen a more tepid comment?
"...could cause...to believe...possibility...might pose." Gee he could have been carrying a New York Times and all those words would be in it. It is indisputable he had the right to have those cards and that he had a right to have and read the book on the failure of American intervention in the Middle East.  Does it really raise a right to detain someone for 30 minutes or even 5 minutes once they found he had no explosives or contraband on him? Do you know what it feels like to be detained at an airport in an tiny room that you cannot leave. They have your phone? You can't call out check email tell others what's up? WTF??? Then they called the cops who arrested him and held him handcuffed in a cell for up to five more hours!! The court held the cops arrested him on their own.  In other words a cop came up and not on the say of the TSA he just decided to bust the kid for five hours without being asked because presumably he found probable cause to make an arrest!! Based on flashcards and a book? (In fairness to the court they did rule that you cannot arrest someone because of the books they read. Evidentially flashcards are far more dangerous...) The court held it was speculative that the TSA ordered the arrest. I am sorry but I don't see that at all, of course that is one of the myriad of reasons I will never be a judge. I cannot suspend my disbelief for a long enough period to excuse people when they act like idiots in the name of the USA.

I am accustomed to government paranoia. Look we are all gonna die someday but really can't we go as men and women and not as frightened sheep? Are these judges for real? Are they going to hide behind 9-11 to support clearly illegal conduct by federal agents for the rest of our lives?? Liberty does hang in the stakes. If the Courts will not rein in the government when it clearly goes beyond our ever more liberal rules for destroying our Constitution, then we are lost.

That the lead judge was a Clinton appointee not some Neo-con Bush appointee. So if you are learning Arabic, and studying Middle Eastern culture, you better watch out...you just gave your government the right to detain you based on what they unreasonably fear might be a possible preparation for an attack or maybe just a learning thing but they are really unsure but they don't need to be any more sure because that could cause them to not detain Osama bin Laden or the ENGLISHMAN who was the shoe bomber or THE LATINO that was an underwear bomber. If you understand any of that, you MAY qualify to be a Federal Judge...

Sad.

H/t: Justia (US Third Circuit Court of Appeals Opinion Summaries.) and Rueters.

*The title of this post paraphrased the questions but the quotes here are from the decision and are culled from plaintiff's complaint.)

Tuesday, December 24, 2013

Opps She Did It Again!: Nassau County NY District Attorney Kathleen Rice Blows ANOTHER "Flush the Johns" Case

In a now fifth case decided by a different Judge, Nassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidenceNassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidence.
Last October, right before the election (of course) Rice used county money to run one of the dumbest sting operations in her history of dumb cases. It was called 'Flush the Johns". All it has done so far is flush good tax money down the toilet. Wasting literally hundreds of thousands of taxpayer dollars on what was basically a publicity stunt, Rice ran a sting by having police women pose as prostitutes on Craigslist and Backpage.com so that they could lure men into hotel rooms and arrest them. She then put their names and pictures into Newsday (which also should be ashamed of itself) and ruined marriages, professional careers and reputations.
Last week Judge Sharon Gianelli ( a fellow Democrat) dismissed two more cases and then there was one in November that went down the tubes. Now Judge Susan Kluewer (another fellow Democrat) dismissed this case for lack of evidence after a man was charged after entering a hotel room with his buddy (who claimed he had to stop and drop something off to the person in the room). The man neither called the alleged prostitute, nor did he negotiate a fee or pay said fee. In other words the case was the only thing in the room that sucked!! (Sorry I couldn't resist). The man's wife instituted divorce proceedings and the case has destroyed him. There was no probably cause to arrest this man, despite what Rice's overpaid PR guy says. Salvatore Marinello said his client is going to sue Rice and the Nassau County Police for False Arrest and Malicious Prosecution. Even if he loses it is going to tack more tax money onto this losing proposition to defend the county...
Rice just won re-election. Nevertheless she should step down. She and her crew of carpetbagging attorneys and nepotistic appointees have done nothing to protect Nassau and worse yet, she has wasted our dollars, inflated her budget all so she can run for higher office. Kathleen Rice is a disgrace. Shame on her, and Shame on Nassau Voters who supported her re-election.

Related Post: Flush Nassau DA Kathleen Rice: Her Flush The Johns Sting Goes Down the Drain

Sunday, December 22, 2013

Is There a War on Christmas? Yes! The Combatants Aren't Only Who You Think!

Every year for the last 20 it seems there has been a conversation about a "war on Christmas". My liberal friends think my Christian friends are crazy, and my Christian friends think the Libs are going to hell...I think they are both combatants against the holiday and to a large effect toward religion as a whole.

You see, the war on Christmas isn't about saying Happy Holiday v. Merry Christmas. I usually great groups with a Merry Christmas and Happy Holiday! Why because it is my holiday and likely theirs as well. It might not be Christmas they celebrate, but we are often celebrating the same thing, the coming of Christ. The coming of a savior.

The war on Christmas, is not when stores say HOLIDAY SALE. In fact I prefer Holiday sales because Christmas sales commercialize the day. While we are on the topic, XMass isn't part of the war on Christmas either. X is for the Greek "Chi" the first letter of the Greek word for CHRIST. Mas is the latin word for Mass. Go figure, we have been using the X to signify Christ (abbreviate the word) since the 10th Century. Go Figure. So if you are looking to make a big deal out of something, could you actually have something that has no historical significance??? How about you actually look at a historical document once in a while?

So where is the war? Well the last paragraph is a good find for it. The War on Christmas, is in the idiots who make the garbage up just to have the fight.
For example: The School on Long Island that changed the words to Silent Night so that it ignores the religious foundation of the song. Really? The did it so as to not offend others. If you do not want to offend others, don't do the song. Why however would anyone be offended. (I mean anyone with a mind?)

Of course I grew up in a community where Christians were in a minority. Jewish neighbors were outraged when we performed a Winter concert where non secular music was featured. We sang age appropriate songs and we learned the music. Catholics new the religious significance of the Christian music, but not of the Jewish music (what's a dreidel?) The opposite was true as well. in order to sing the music with feeling, the stories of the music were related by the kids to each other like a book report. WOW did we learn a bunch of stuff. I learned about the oils that never ran out. The Jewish kids learned why the eve of Christmas was so important. We learned our religions were alike in many ways. We also learned that many parents were idiots and bigots. They would not let their children sing the Christian songs or say the words Jesus or Christ. Some wanted their children to quit the choir. Talk about closed minded. The few Catholic kids in the choir felt terrible for our friends. We felt embarrassed about our songs being bad for our friends, we were angry too because these were songs we loved.  Some Catholic parents thought about a tic for tac response. It was very uncomfortable. Our parish Priest called the Rabbi. These two men of God, were completely flummoxed. What were these parents talking about?

We learned that the parents that began this stuff were not "regularly" attending religious services. We learned that both religious leaders understood the importance of religious music in teaching music to others and that most if not all of the greatest classical music was religious based. I also learned that our Priest and the Rabbi got together regularly were friends and that the Rabbi liked classical music especially Vivaldi!!

What was so important was that while we got protective about our "turf"s the parents of our community lost the actual meaning of the holidays. We were all waiting for the same thing. We were waiting for the coming of the Christ. For our Jewish friends, it was a Coming, for the Catholics it was a Second coming, but our religions wanted the same thing. They wanted Salvation.

I wondered how my Jewish friends dealt with the fact that "Santa" wasn't going to visit them. My father explained that pretty well. My dad embodied the spirit of Christmas. He told me that Santa was not a person, he was a spirit. Like the Holy Ghost (I don't think he agreed with the whole Holy Spirit thing but that is a story for another day) Santa came to us because we believed in him. The Holy Spirit came to the Jews when their fuel held out for eight days and in honor of that miracle our Jewish friends gave gifts to their loved ones like the gift God had given their ancestors. Dad would have hated all this war on Christmas talk. He would have been disappointed that someone would think to say Santa was white, or that Christians would be so hostile to others enjoying the Gifts of the season. Dad would do all kinds of things from great decorations to very private giving. I learned that the left hand should never tell the right hand what it was doing. I learned that being a Secret Santa was far more fun than getting credit for what you do. I learned that God loved me, and that He would forgive me, and that the Love of a Father ran very very deep. I learned that when one fought about things like Christmas that they denigrated the meaning of the word.

So Hannity, Fox, MSNBC, O'Reilly, the ACLU and the atheists are all in a war that doesn't matter. Christmas does not live in their debate or in the word Christmas or even in the Cress on the Village Green. It lives in our hearts. It lives in the stories we tell each other, the memories of family, the spirit of hope. When you are fighting about it, you show you don't understand it.

Today is my Dad's birthday. He was named for our Savior. Salvatore means savior in Italian, He would have been 81 today, but I lost him 13+ years ago. But he lives. Especially during this season. I miss him everyday, but I think of him everyday too, and that helps me to miss him less. I share his wisdom with you, so that you may share it with others. Merry Christmas and Happy Holidays to you all, and to you Dad, Happy Birthday in Heaven. I love you.

Friday, December 20, 2013

A Little Good News For a Friday Before Christmas: Innocence Project Wins Again!!

I don't want this to be a blog that only criticizes. I think there are some good things happening in criminal law. One of those good things is The Innocence Project. Started by Barry Scheck and Peter Neufeld, the defense attorney DNA Gurus these guys work with lawyers and students to undue injustice in the criminal justice system.
This week, Barry did it again. He won the freedom of  Gerard Richardson, a NJ man who was wrongfully convicted of Murder 20 years ago and has been rotting in jail doing time for a crime he did not commit.
Please consider a donation to the Innocence Project. Merry Christmas Mr. Richardson, and congratulations Barry. Thank you for keeping the dream alive.

Thursday, December 19, 2013

Breaking News: Newsday Special Investigation Into Police Misconduct on Long Island!

Newsday has broken a major investigation into police misconduct and its failures to be properly investigated or punished.  Police misconduct puts good citizens at risk and worse makes it very hard for good cops to do their jobs well. It corrupts a system.
Nassau and Suffolk have had this problem for a number of years. Whether it be the band of thugs that run the land of NO on Fire Island, or the insanity of the Nassau cop who beat and shot a taxi driver for no reason in Suffolk, or the many instances of testalying and other misconduct, it has to end.
I have regularly called for the institution of a Civilian Review Board with teeth. Now is the time. We need it here.
What do you think? How do you feel about a Civilian Review Board?

Tuesday, December 17, 2013

One of the Things I Hate: Using Hate Crime Statutes to Punish Non-Hate Crimes

"During the debate on the NY Hate Crime bill, I was against the cause. It isn't that I do not think that there is something inherently wrong with a person who hurts another out of hate or prejudice, it is that : 1. I do not like to punish people for their thoughts, and 2. I know lawyers well enough to know that they cannot stand to see a statute NOT get abused.

As I predicted now comes my friend Tom Spota (DA of Suffolk County and I am not being sarcastic I've known Tom since his days as an assistant district attorney in the 70's and I really do like him even if I don't always agree with him)who seems hell bent on abusing the statute to get a greater sentence for a person who has no hate (as we define the term generally) for the person they have allegedly hurt.

Lisa Ferkovich aka the "Sweetheart Scammer" basically charms old men out of their pensions. If true, she is despicable. She evidently according to Spota picks old men b/c they are easier to scam. Hence because she targets a particular segment of society, she must be involved in hating that segment and is open to an enhanced sentence.

A close look at Article 485 of the NYS Penal Law shows that while Spota may be right about how he CAN use the law, it is far from how the law was meant to be used.  The Hate Crime Statute begins with a legislative finding (I wish more laws did this) That finding is part of the law (as opposed to just a legislative history. In part it reads:

"The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs."

Reading the first sentence one gets the idea that the legislature was trying to limit the use of the statute to our understanding of hate. Prejudice and Bias. So far so good. The sentence that begins "Crimes motivated by invidious hatred toward particular groups..." also fits the definition of a hate crime however in between, there is the line "... victims are intentionally selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation."

That segment if read as part of the entire document seems to be consistent with the idea that one must have an invidious hatred in targeting a group however that is not how Spota wants to use the law. He wants to say that the targeting in and of itself is enough to trigger the enhancement. In other words he perverts the statute by suggesting that the targeting vitiates the need to prove "actual hate". The sad thing is that some courts (mostly in Queens County) see it the same way. I humbly think that if this is how the law is going to be used, then the whole thing needs to be thrown out.

Hate crimes are hard enough to define now. Sure there are easy ones, the KKK attacks a black man and his family for instance. Pretty easy to follow. Less so in a bar fight where someone calls some one a cracker or a "N" word in the middle of the fight. Heat of the moment or invidious hatred toward another group?

Assuming that the "reason" someone commits and act is a valid use of a sentencing enhancement, shouldn't that reason be clear? Does someone hate another group because he or she uses inappropriate epitaphs  in the heat of the moment?

In the case of Ms. Ferkovich, does she hate old people or old men just because her scam is in part to target them? I do not think so. I think she does target old men because she is not going to succeed in targeting younger men (Her picture is not flattering) and they may not find her compliments as flattering or they may see through her or who knows maybe they do not want to have her as a companion. I do not see this as a dislike of older men. I see this as part of the crime itself, but it is a targeting. How it differs from her targeting men in general is unclear.

Put a different way, does a prostitute commit a hate crime because she targets johns??

IF the article is correct and complete, there appears to be no hate. If Spota is right then there needn't be any. If the law's general use is to be based not on hate but on targeting then it is a stupid unnecessary law. Every crime has a target. If he wants tougher sentencing he ought to lobby the legislature to get it. Abusing the hate crime law is wrong. The problem is, if she is guilty it is hard to find any compassion for this woman. That doesn't mean we should pervert our laws in order to get her for more time.
Funny.., I think Spota is over 60 now...

Let me know how you feel about the Hate Crimes Statute and this use of it in the comments below.

Monday, December 16, 2013

Sunday, December 15, 2013

Going Rogue: Who in the Hell is Watching the ATF??

Okay I am back, for a while I guess. Somehow my long term writers block seems to have lifted. Lets hope it stays this way for a while.

We have spent most of the year looking at how the NSA is really an internal spying organization run by former military men whose level of paranoia while likely defensible is waaaayyy to high to actually run a spying agency in a democracy. Thanks to Edward Snowden, we now know that the US government has since 2001 been doing an really good job acting like the KGB of 1955. Now this comes as no surprise because for a nation that prides itself on talking about civil rights, we suck at providing them to anyone who isn't in our view when we look in the bathroom mirror.

Nevertheless, while the NSA, CIA, DEA, FBI and main Justice (Just us?) Dept. have all been seriously scrutinized these last few months by the libertarian (and only reluctantly by the main stream) press, our old friend of merry makers, the original set 'em up and blow them up gang over at the AFT (Bureau of Alcohol Firearms and Tobacco) (remember WACO? RUBY RIDGE?? FAST AND FURIOUS??????)  have been on the down low... until now.

Seems that the agency hasn't had a real director since 2006. That is 7 years... for the last two years the "acting director" was also the full time US Attorney in Minnesota!! All this lack of supervision has given the merry men of the ATF way too much time on their hands. Hence they have come up with all kinds of ways to screw up on our dime. (Actually on our $1.23BILLION DOLLAR dime)

Lets lookie see what they have been spending money on...:
Well they have been picking on mentally challenged men and encouraging them to have tattoos of Giant Squids Smoking a Joint put onto their necks
They have encouraged robberies so that they can then buy the stolen merchandise back and lock up the guy who stole it, except most of the robbers never stole before the ATF decided to give away money by OVERPAYING for the stolen stuff
Oh yeah they like over paying for stuff, so they offered to buy guns for more money that they could be purchased for at a place like Dick's sporting goods... so even the mentally challenged figured out that it was worth it to BUY THE GUNS Legally and sell them for a profit to the MORONIC Special Agents...
Then they discovered that teenage boys like sex...SO  They have been trying to get teenager boys to buy guns and drugs in the vain hope a particularly sexy "special agent" will have sex with them. (Too bad she didn't twerk, maybe the mainstream media woulda picked up the story.)
Finally they are slobs too.

I hope there is a Republican Congressman who sees this. WANNA FIND A BUDGET TO CUT?? Start with the ATF!!!!

Hat Tip: The Atlantic.com

Friday, December 13, 2013

Flush Nassau DA Kathleen Rice: Her Flush the John's Sting Goes Down the Drain!



Thursday, December 12, 2013

Local Doctor Busted by the FEDS!!



Sunday, July 14, 2013

When Will America Figure Out What a Criminal Justice System Does: Zimmerman, The Right Verdict

When will America figure out what a criminal justice system is supposed to do?

Our Criminal Justice System is meant to determine if : A. Someone has committed a crime and if so B. Determine what is the least restrictive means to accomplish the goals of sentence.

In Florida, George Zimmerman has been acquitted of the crimes of Murder 2* and Manslaughter so the system has accomplished the first part of its mission and has negated a need for the second part. Yet much of America is up in arms because the decision isn't one they like and even if they rationally agree the verdict is correct, they are angry at the system because they didn't get what they wanted from it: a guilty verdict. In the minds and hearts of these people the "know" George Zimmerman killed, wanted to kill, and purposely incited a confrontation so he could kill a 17 year old boy named Trayvon Martin.

That what they know in their hearts to be true, didn't get satisfied is killing them. It makes them say stupid things like: "It isn't safe for a black boy in America." or The black man cannot get a fair shake in an American court" or "The system is rigged against the poor person in a court." No, No and NO! This system for all of its flaws worked in the Zimmerman case and the problem is not with the Criminal Justice System but with the Media which chose up sides early on in a truly local case that should have had no national interest. The Liberal Media wanted a poster boy for gun control and all Media wanted more viewers.

Not a whit of what was being reported played any part in what the investigation or trial was about. (In fact the media forced the arrest. Clearly the way the case played out proved that the original decisions not to arrest Zimmerman was correct. That would not have served the purpose of those who wanted gun control.) It was further not a referendum on race relations in America. A poor black kid can walk as safely in a community as a rich white kid with a pack of Skittles and a Sprite without having anymore fear than normal. This case did not give white people a license to kill black kids, or allow anybody to get away with ANYTHING.

Do you know why? Because I do not care if the jury were made up of 6 males females whites blacks or Martians, if they followed the law, and applied the facts they heard to the law that they were given, THERE WAS NO OTHER VERDICT TO RENDER BUT NOT GUILTY. Look this case was not about who followed who (it might have been had the defense imposed a "Stand Your Ground"defense) it wasn't about black or white or if one guy was a hater and the other a thug or punk or even an alter boy. It was about one thing only: At the time he pulled out his weapon, was George Zimmerman in imminent fear of being injured or killed? If the people fail to exclude that issue, they lose. Remember, it isn't a question of was it likely he was in fear but probably wasn't. The Prosecutor had to prove Zimmerman did not act out of that fear at the time he shot Martin. He had to prove it Beyond a Reasonable Doubt.

The proof in the case was not good for the prosecution once the self defense issue was raised. Unlike in the "Stand Your Ground" defense (hereinafter SYG) if the defendant is the "aggressor" he cannot win if the only reason he shot his victim was so he could stand his ground. It didn't matter that Zimmerman followed and stalked the boy, that he didn't go back in his car when the Police 911 dispatcher told him not to leave his car (he already had left his car) it didn't matter that he had profiled Trayvon. None of that mattered any more than Trayvon didn't have a weapon, was not doing anything wrong at the time nor that he would never see his parents again (or that they would never see him.) Even if it was the most unjust thing ever, if the People of the State of Florida fail to prove Zimmerman was NOT acting in self defense, none of it mattered.

Now you could argue that the facts I laid out above may show a pre-dispositon for Zimmerman to be a killer than a victim, but those facts had to overcome other issues such as: No one knows whose voice was calling for help on the call, that it appears Zimmerman had head wounds, One of the prosecution witnesses saw Martin atop of Zimmerman during the fight. These issues preclude any other verdict than not guilty beyond a reasonable doubt.

Now all of that may make you feel angry. Here is the solution: deal with the idea that the only thing that can come from a prosecution like this is a not guilty verdict. That is good because we have another system of justice that is perfect for giving people their day in court and doesn't deprive one of their liberty while their case is being heard. That is  the civil court system. But for the Media, that is where this case would have gone and it is exactly what should have happened.


Wednesday, June 27, 2012

Mischaracterizing The Checks and Balances In Our Constitutions Framework: Justice Scalia's Dissent in Arizona v. USA

As promised I have had a chance to read, reread and digest the Supreme Court ruling on Arizona v. United States where a majority of the Supreme Court ruled Arizona's controversial Immigration law a\k\a SB1070 as unconstitutional.

You can read the original decision or get the cliff notes here

What most caught my attention however was not the majority decision which I think is about as correct an interpretation as one could give here, but the very political dissent by Justice Scalia.

Now many of you know how much I am a fan of Antonin Scalia. We might not be from the same political theory family (Original/intentionalist v. Original/textualist see a further discussion here but we are certainly kissin cousins.

With that said, I also have to say that while I understand his frustration, (it has to be hard being so close to having a majority on every issue and preempting the other two branches of government with a ruling) He has allowed his frustration to overcome his understanding of the checks and balances within the Constitution.

Look, in the original Constitution, The Founders contemplated a bunch of things that could be done for one branch to veto the other two branches. The Congress passes a law, the President vetoes it. Congress can override the veto, if they do, the Supreme Court might decide that the law is Constitutional or it is not Constitutional. Ok so we have a law than the Congress wants the President doesn't and the SCOTUS says the law passes Constitution muster. Now what options does the Constitution leave the President? Well enforcement of law is left to.... THE EXECUTIVE BRANCH (ie the President). He can choose to enforce that law or not or do it the way he sees fit. Now Congress has another option. It can impeach the President for NOT Enforcing the law, The Supreme Court Chief Justice presides over a trial in the Senate and if he loses the Senate vote, he is gone.

Now Scalia's problem here seems to be, he really doesn't like the way the President has chosen to act on the failure of Congress to pass the Dream Act (lets remember what Scalia is angry about is the President's decision (through the Dept. Of Homeland Security) not to deport students who came to the United States as children because their parents didn't abandon them when they came to the US to find a better life) by not forcing these children to leave the only country they really know so that they can go back to a culture where they very well know no one and may not even know the language.

(In fact opponents of immigration reform like Federation of Americans for Immigration Reform (a well known hate group with ties to the KKK and other Xenophobic entities)want to send children BORN IN AMERICA to undocumented aliens out of their (our)country)

In his frustration, he lashes out politically at the President in his dissent stating:
...U. S. immigration officials have been directed to “defe[r] action” against such individual “for a period of two years, subject to renewal.”6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the non enforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administration’s proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind.
The Court opinion’s looming specter of inutterable horror—“[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations,” ante, at 10—seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation’s immigration laws?

In fact the Constitution does not allow the states to enforce Federal laws that the President decides he will not enforce. If it did, it would give every state Governor and legislature a separate check on the President and on Congress as well.
Would Scalia say the same thing if the states were disagreeing with the court? In fact after Brown v. Board of Education, many states continued to say they didn't have to follow Supreme Court "law" and had the Presidents at that time decided not to send Marshals and troops to enforce the decision there would have been nothing the court could have done.

Scalia's comments are thus a political attack against POTUS's decision to get some of the rights the Dream act would have granted. It isn't the court's place to rule politically. I have no problem with much of his dissent (though I would not have joined in it as I think it twists to a great degree the law on federal preemption in Immigration enforcement) but I feel he has allowed his dissents to fall into the fanaticism that encompasses most of today's political debate. By suggesting the President was not within his right to set Executive priorities and that states can act on their own, is just not the law, it is not forwarding understanding the checks and balances of our Constitution and frankly it is beneath Justice Scalia's ability as a SCOTUS Justice.

Monday, June 25, 2012

THIS JUST IN:US SUPREME COURT OVERTURNS MOST OF ARIZONA'S ANTI IMMIGRATION LAW!!

I hope to have more details on this later after digesting the 76 page decision but it seems SCOTUS has knocked out everything in the law that Civil Rights advocates attacked except for the stop and check of status.

Immigrants do not have to "carry registation papers"; the State Police cannot arrest allegedly illegal aliens without a warrant and they cannot get such a warrant from the state courts;and overturning the law which allowed the state to charge a misdemeanor against an undocumented alien from holding a job.

Even the "stop and check" portion of the law is in danger as the court invited civil rights advocates to bring other attacks against the law.

The majority has upheld federal exclusivity in setting and prosecuting Immigration policy. Interestingly both Kennedy and Chief Judge Roberts were in the majority.

More later I hope.
Hattip: The New York Times on Line

Legislating Civility and Freedom of Speech: The Free F***ing Speech Demonstration in Middleborough MA.

I begin this by saying that I strongly believe in the First Amendment and believe you cannot legislate civility. The City Counsel or Board of Selectmen or whatever they have in Middleborough MA. disagrees with me. (No kidding, there is something new. People disagreeing with That Lawyer Dude, unheard of.)They passed a law outlawing certain words (we usually refer to them as "Dirty Words") and if you violate it, they fine you Twenty ($20.00)Dollars. This so obviously violates the Constitution of both Massachusetts and the USA that I cannot wait to see the first challenge to the law.

The Free F***ing Demonstration at the Middleborough Town Hall is supposed to gather tens of people to stand there and well in the words of organizer Adam Koresh:"... a large civil disobedience protest on Monday, June 25th from 12:30-1:00pm. Bring your bullhorn and foulest vocabulary to the Town Hall at 10 Nickerson Avenue, Middleborough MA 02346 and engage in the most profane conversation possible with your fellow liberty lovers. Let's show these uptight a**holes what freedom of f***ing speech is all about! Here is a NSFW Video announcing the action.

Now I am sure that the bullhorn is probably just as bad an idea as the actual legislation is but putting that aside, I think there is more to this.
Middleborough's officials are in the firestorm of what happens when civility clashes with the law. Sure I don't like hearing "F*** You!" screamed at the top of someone's lungs while I am walking outside of church. I don't like to hear it when I go into the visiting area of the jail. Why? Well because even though I don't believe in the concept of dirty words, I was raised to keep a civil tongue and although I can be profane, I still flinch when I hear the words spoken.

The Issue is one of who is going to decide what constitutes "dirty words" and who gets to make the rules. It can't be done. No matter what derogatory words are used, someone is going to be angry about them. Curse words depending on their use can mean a lot of things. They can mean the speaker doesn't like something strongly, they can mean the speaker is trying to show disdain for the concept of Dirty Words, it can mean the speaker doesn't even know the words are "forbidden." I could keep going but I think you all get my point.

On the other hand, I think the better protest would be a silent one. One where hundreds stood in the square with a copy of the State or US Constitution being held in each of their hands and say nothing NOTHING for a half hour, then at 1 PM BURN THOSE CONSTITUTIONS and maybe an American flag too. Now that is a more appropriate demonstration. It is respectful, memorable and should send a much stronger message than a bunch of children acting out against authority.

Either way, this ought to get coverage, but It is far better I think to send a strong reserved message than to shout from the rooftops at people who are not listening.

Tuesday, June 19, 2012

Mr. Romney, Your Silence is Deafening: Where is the Real Republican Immigration Plan

Yesterday I was pretty critical of President Obama about what I consider to be a basically valueless change in Administrations policy on Immigration. Today I want to make it clear I am just as unhappy with the Republican Presidential Candidate Mitt Romney. You see, Obama hasn't really kept his campaign promises to pass comprehensive Immigration reform, however Mr. Romney has yet to even make a promise with any proposal. I am actually more inclined to be angry at Republicans for not trying to come to the table with a plan than at Obama who has at least put forth a plan that Republicans promise to filibuster. Look it is easy to say NO! It is hard to say, "this is what we need and we know what you are looking for and here is our proposal."

Five times yesterday, Bob Schieffer of CBS News asked Romney on "Face the Nation" if he would undo the Napalitano Order to not seek deportation of "Dream actors" for now. Five times he failed to say what he'd do. Thing is, I think Mitt doesn't really dislike the Presidents plan, he just can't say it without alienating every xenophobic wingnut who is supporting him on the right. Here is the thing, George W. Bush had a great plan, but the wingnuts took over and ruined any chance the Republicans had of passing the plan, fixing the problem and winning the day. That is the problem with "Pure" politics. You cannot get anything done with someone who is "my way or the highway."

The Majority of Americans favor a road to citizenship for people who are already here. The majority also seeks a plan that would make it counter productive for someone to come over here and be illegal. The people who vote in the cock-eyed primaries, aren't those people. Here is the thing, Bush was willing to fight his party, but he really couldn't fathom a way to do it. As a result he lost the Hispanic vote for McCain. McCain (who also shot himself in the foot by abandoning everything he ever stood for and with his Sarah Palin Fiasco)paid for it dearly. Romney has caved on EVERY THING for which he ever stood. Now no one, not the conservatives, not the libertarians, and not the American public will ever trust him. If I were an anti-immigration Republican, I wouldn't vote for this guy, I don't know what he will ultimately do. As a Pro-immigration Libertarian, I wouldn't vote for Romney because he is a living disaster for America and especially on this issue, even if I believe a President Romeny will flip (when the pollsters tell him to.)

I will probably cast a vote for Gary Johnson, who is better than either Romney or Obama. Then again, I may be so fed up by November I may not vote at all... (don't get excited, I will probably vote, I like doing it too much to give it up.)

Monday, June 18, 2012

Obama's Disingenous Immigration Policy: Mr. President, Do You Really Think You Are Fooling US?

Mr. President,
Children do not migrate to our nation on their own. They follow their parents. Once here, they try the best they can to assimilate. Some communities, such as the one I live in, take a patient approach, accept them into their circles and encourage their success. Others don't. Either way, often these kids leave countries before they even know the language there. They have no friends or families in their country of origin and for all intents and purposes the USA is their home country.

Your administration, through the ICE and its legal counterparts, has destroyed more families, and children by over deportation than any that came before it. You promised to deliver on immigration reform, but you haven't. I understood you couldn't deliver the dream act, but there were other actions you could have taken to protect people who are here and have become the fabric of their communities. Instead, you deport, deport and deport more than anyone ever has.

Not only is this costing us thousands of dollars, but it is hurting our economy. I am not going to go through the arguments again tonight. I just wonder, why have you not used your offices to bring this humanitarian problem to a head.

Your Secretary of Homeland (in)Security has announced a deferred action plan that is wholly unsatisfactory and which most if not all students will be afraid to use pro actively. The pros and cons are laid out here. Do you really think this is supposed to convince us you delivered on your promise to pass a Dream Act and bring immigration reform? Do you really think you are fooling us?

So far, your administration has delivered a Health Care Plan that will not likely pass Constitutional muster, you delivered on Don't Ask Don't Tell, and you are fighting DOMA, OTOH our economy is still in the toilet, The war and Drugs and in Afghanistan both continue, and frankly you and Boehner can have as many golf matches as you'd like, you aren't going to get the House to do a thing.

Mr. President, Show us some gonads PLEASE! Grant a general amnesty to anyone who came to this country with a parent before turning 18, hasn't committed a felony, and who has either worked steadily at earning a degree, or has earned a degree or has become trained in a trade. Tell the so called conservative right (really a bigoted group of racist from a "Fair" (anything but) and their other hate groups to take a long walk, and warn Congress that you either get a real reform bill by a date certain or you will stop this inhumanity and grant DED (Deferred Enforced Departures)or TPS (Temporary Protection Status)like it was nobody's business and you will hold the US Congress accountable because they cannot come up with an acceptable plan.

Oh BTW as for an acceptable plan: Greater border enforcement, stronger penal penalties for employers who knowingly employ undocumented aliens, deportation of known FELONS, a pathway to citizenship for all undocumented aliens that does not require them to leave the country or get on the back of a line.

I'm waiting Mr. President, for you to really show some balls. I am waiting for a real leader, and mostly, I am waiting for you to keep your promises. I know Mitt won't but that does not mean we won't give him the same chance we gave you.


Hattip: NYSYLC

Saturday, June 16, 2012

Not In The Best Interest Of The Child: Why Should a Custodial Parent Not Be Charged With Kidnapping

Up front I want to thank Lenny Sienko (http://lennyesq.wordpress.com/) for putting me onto the case of People v. Leonard (http://newyorkcourtofappealsopinions.justia.com/2012/06/01/people-v-leonard) wherein the NY Court of Appeals twists and contorts the law so that it can permit the Government to intrude unnecessarily in the most important relationship in the world, that between a parent and a child. It is not enough that for whatever reason, the state refuses to acknowledge a privilege between child and parent so that one can be forced to testify against the other, but now a custodial parent can be charged with kidnapping. Thats right the custodial parent can be charged with taking his own child illegally. The facts of the Leonard case are simple and sad. Father and Mother conceive child out of wedlock. Mom stays with dad until child is born and then takes child from Brooklyn to Ulster County. She never seeks an order of custody or sole custody. Dad goes to Ulster and visits with mom and child and possibly engages in an act of domestic violence against mom. Dad now has child and wants to keep him (as is his legal right at that point). Cops arrive, dad has child and a knife, cops chase dad into a bedroom dad allegedly holds knife to child's throat and tells cops he wants to leave with his son. They refuse and are rightly in fear for the child's safety. Ultimately the child is taken back and the cops arrest the Father for??? Endangering the welfare of a child??? NO Of Course not, the DA and Cops want to shred the law and want to bring as high a charge as they can so, they charge KIDNAPPING!!!! Judge Smith in the Ct of Appeals and the majority (it was a 4-3 divided opinion) goes into a convoluted twisting of the meaning of words when the real issue is, did the legislature ever in its wildest dreams think a court would allow the Kidnapping statute to be used against a parent who had custodial rights?? NO! In fact the legislature would say we have a law... THE ENDANGERING THE WELFARE OF A CHILD law. Smith and the others in the majority know it is a bad decision. They know it because in their opinion they use dicta to explain that this outcome should only be precedent in cases with similar fact patterns. SURE! RIGHT JUDGE! Like that is going to happen. Look it is a bad case but we know that when courts do not have the backbone to stand up to the bad case, it makes bad law. Why is this bad law, because: 1. It was not predictable to the Father that this would be the outcome of trying to take his own custodial child. 2. It further damages the relationship between the parent and child. We have no privilege with our children, CPS can interfere in that relationship in the name of protecting the child and the family courts do not consider the needs of parents at all but only what the court decides is in the best interest of the child. 3. Criminal court is not the place to decide cases like this and they are better handled in Family court. 4. It over criminalizes activities and gives parents another sword in which they can hold over each other's heads. Here is an example. Mother and father at odds, child with father, mother comes to father's house takes child in a raid with 3 other of mom's family members mom is in such a hurry to outrun father that she leaves child's asthma meds in house. Well, did she kidnap kid?? I think so. Especially under this ruling. What is kid dies of an asthma attack? Is it Murder? Since Kidnapping is an intentional crime, is this intentional murder? Forgetting bad consequences, any law that keeps parents and child apart without actual physical damage being done to the child, is not a good law. Parents need room to discipline children, teach them their religion, and give them education. A parent nurtures a child in ways that a community can't (Apologies to Madame Secretary of State Clinton), and mostly the law needs to stay as far away from our homes as it possible can. We do not need a cop or a lawyer or an appellate judge (especially not an appellate judge :) ) determining what should pass for reasonable behavior and what doesn't pass in the lives of our children. What say you??

Sunday, December 04, 2011

Guest Blogger Alena Shautsova: Bringing Your Family to Safety After You Have Received Asyum

I am pleased to welcome Alena Shautsova as a guest blogger on the That Lawyer Dude Blog. Alena is quite a good young lawyer. She is a leader among young lawyers in the NYS Bar Association and is the liaison from our state bar (Young Lawyers Section)YLS to the ABA's YLD(Young Lawyers Division) and she is also very active in our State bar's Special Committee on Immigration Representation Reform. She is Of Counsel to our Law Firm concentrating on International Law, Immigration and Civil Rights/Employment litigation. She is a rising star in our bar. I commend her work to you.

Can I Bring my Family to the US After I Received an Asylum Status?

A person granted asylum in the United States may bring his spouse and children (unmarried and under 21 at the time the USCIS receives the application for asylum) to the USA.

Such an application (FORM I-730) has to be filed within the two years after the grant of asylum. Failure to file within 2 years however, can be excused for humanitarian purposes.

SPOUSES WHO LIVE ABROAD:

If an asylee would like to bring his or her spouse to the US, the following conditions must be met:
An asylee must be the principle applicant: that means that he or she was the person who applied for asylum and was granted asylum. Received the asylum status though a relative does not make one eligible to bring over other family members as a Principle Applicant ;
An asylee must remain in asylee status or become a permanent resident;
An asylee was married to the spouse he or she is petitioning for before the asylee was granted asylum.

The same rules apply to spouses who live in the US, and who were not included in the application but became married to the asylum applicant before he or she received the asylum status.

CHILDREN WHO LIVE ABROAD:

If an asylee would like to bring his or her child to the US, the following conditions must be met:
An asylee must be the principle applicant: it means that he or she was the person who applied for asylum and was granted asylum, and that he or she did not received the status though a relative;
An asylee remains in asylee status or has become a permanent resident;
The child was conceived prior to the grant of asylum: (Note from That Lawyer Dude: in a rather cruel twist, the mother of the child, if not married to the asylee prior to the grant of asylum is not eligible for these benefits,she must allow the child to leave and continue to face the torture of her original nation-state. Further any children not of the aslylee must also be left behind. Maybe noone in Homeland Security has ever watched the movie "Sophie's Choice") ;
on the basis of an employment-based petition; or
A child was under 21 on the date the USCIS received application for asylum. (True for I-589 filed on or after August 6, 2002);
A child is unmarried.

And now for the Good News:

SPOUSES and CHILDREN Who Live in the United States and Were Included in the Application for Asylum:

Spouses and children who are with the applicant in the United States and were included in the applicant’s Asylum application will receive status automatically as derivatives of the main applicant.


Once again I want to thank Ms. Shautsova for her contribution and look forward to her next one. Also I encourage you to check out her blog at: http://www.shautsova.com/law-publications/law-cases-articles.html

Monday, November 28, 2011

Kid Tweets That She Muscled Governor Brownback. Should She Be Made To Apologize? I Say YES!

Here is the story from the Associate Press:

"A Kansas teenager who wrote a disparaging tweet about Gov. Sam Brownback is rejecting her high school principal's demand that she apologize.

Emma Sullivan (twitter@emmakat988) told The Associated Press on Sunday that she's not sorry and an apology letter wouldn't be sincere.

The Shawnee Mission East senior was in Topeka last week when she sent a tweet from the back of a crowd of students listening to Brownback. It read: "Just made mean comments at gov. brownback and told him he sucked, in person."

She actually made no such comment..."

Thereafter Brownback's Media hound found the tweet while searching the Governor's name. When she read the tweet, she contacted the school. The Principal got a call from the Governor's office, and had heart palpitations. He ordered the 18 year old woman to write an apology to help him with "damage control."

Our Question is: Should Ms. Sullivan apologize and for what should she apologize?

The kid claims to be liberal. Okay. She also claims not to like Governor Brownback. Okay again. She has decided not to write the apology...and every liberal and libertarian it seems supports her decision... NOT ME.

I am not being contrarian, I just think that there are some serious issues here that may not be affected by this young woman's right to free speech.

1. She was at a school function, representing her High School.
2. She lied, she said she told Brownback off, in person.
3. She tweeted, against the rules of the school at a time she was in class.

Now I want to make the following clear. If she had tweeted, on her personal twitter account at 3:30PM that she saw Brownback and wished she had told him he sucked, well then no problem.
That isn't what happened here. Here she was invited to meet with the Governor of her state.Not because she was someone who the governor would normally meet with, but because she was chosen by her school to go. While she was in the Governor's home or office, she took out her cellphone, and reported she told the man "He sucked" (Skip the fact that the statement is both juvenile and vulgar) in person. That was both against the rules about texting in class, AND, it was a lie.

Now imagine if she had said something dumber like she had assaulted or God forbid shot the man? Would that be okay?? What First Amendment line had been crossed? Isn't that still political speech? She is still saying she doesn't like the man. She is still lying. She would still be doing it on school time.

No, I don't agree that she is putting forth her opinion. I think she was going for a laugh, which is also okay as far as it goes, but the truth is, it was disrespectful not of Brownback (after all it goes with the territory of being a politician) but of the Office of the Governor. It was also a disrespect of her position as a campus leader of her school and all the people in it, including the few that may like the Governor, AND, she broke her school texting rule.

Now that doesn't mean she should have written a mea cupla, nor promise to help Brownback win his next campaign. It does mean that this college bound woman should show some understanding that: 1. The Governor of your state deserves your respect as the leader of the state and the choice of the people of your state; 2. You broke school rules and you are sorry for that, and; 3. That as a school leader, she has an obligation to represent her student body by asking smart questions, reporting accurately what was said and if she disagreed she had the right to state an opinion that criticized Brownback.

I am not asking her to agree with Brownback, but respect for our institutions is an important thing for schools to teach. The proper way to engage in debate is an important thing for leaders to learn. (Remember when some wingnut congressman yelled out at Obama during his State of the Union "you're a liar"? that kind of comment does not spur on the debate. It doesn't bring the other side into understanding your grievances. Saying Brownback "sucks" is just juvenile and frankly makes me think Ms. Sullivan is stupid. All I know is, she is entitled to an opinion, but you don't have the right to come into my house and crap on my carpet. Verbally, that is what she did. Her principal is right to demand an APPROPRIATE Apology. Not one that necessarily makes the Governor or his people happy, but one that indicates that the student understands where she went wrong.

Sexual abuse on College campuses, Internet Identity Theft Protection and a Few Silly Laws

Thanksgiving was really good. I had a great time hanging with the family. Of course between courses, we had a long discussion about the Penn State situation. Then just as the Penn State Drama begins to simmer down, (I will not rehash the last 250 or so comments, the most ever on this blog, just click the link above.) Syracuse University fires its long time Assistant Coach Bernie Fine. Now originally Syracuse put him on paid leave, but another person has come forward to announce he was molested by Fine and a tape of Fine's wife is offered where she admits she had sex with a the then 18 year old ball boy who claims Fine molested him until he was 28...,(really, 28? Okay that is going to provide some fodder for the defense.) This story is getting more sordid by the day, yet I am so very unimpressed with yet another major University refusing to let the legal system do its job and waiting before casting dispersions upon someone based on what so far appears to be fairly flimsy "facts." My big question is "How are these guys ever going to get a fair trial??"

OK onto another Scary College Professor story. This one involves Professor Grant D. Smith an eEngineering
Prof from Univ. of Utah who, while flying first class to Boston, takes out his laptop and begins to watch alleged Child Porn!! Fellow passengers in First Class take out their phones and take pictures of what he is watching, they then send those pics to a family member who then calls the cops to report Smith to the authorities, where he is arrested at Logan Airport. This ought to be interesting. There are like 10 crimes here. Smith possession of Child Porn, using a cell phone while in mid air (aren't you supposed to turn them off? I don't know any more I haven't flown in a long while but this article in Sunday's NY Times makes me think you still must power off.) Possession by the picture taker/witness, transmission in interstate commerce to the friend, the friends receipt and possession of child porn, his transmission to police of same. Interesting no?? Smith's defense team will not be allowed to have the photos to see if they are real or nor how they could have gotten on his laptop because the government restricts the access to these photos to include not allowing the defense to have them. Of course the Just-Us Dept. lawyers can have them anytime they want and send them where they want to "test them"etc.

So far it appears that the state is prosecuting, however I think this will soon be taken federal as the penalties for possession of child porn carry such harsh jail times that the possessor prosecuted by the feds, will face far more time than the person doing the molesting will as the molester only is prosecuted in state. Further proof that criminals have no lobby in Congress.
In this case, Smith faces an uphill battle given the photos taken, but then again, we should know not to jump the gun on these things. At least Univ of Utah has a sane approach. The Professor is placed on Admin. leave, until the case is completed, then if guilty he is fired. Seems reasonable, let the courts run their course then decide. Wish Penn State and Syracuse would have shown similar trust in the judicial system to let it do its job.
As for Smith, I would eschew the usual suspect criminal attorneys and get one that works significantly in Cyber-sex crimes. The area is becoming an important sub-specialty of Criminal Law and he will need that expertise to help him avoid a very VERY long jail term.

I remember sending my boys to college campuses in the summer to learn from the college coaches how to play soccer. We also sent them to scholastic camps at Northwestern, Princeton and to the World College in Italy to learn debate skills. I spoke to my sons about those experiences and about whether those were positive experiences. Both acknowledged they were. I asked about the relationships between the participants and the teachers and both said they saw nothing inappropriate, but that the opportunity for abuse is always there, especially in Summers on large campuses with few people around but with lots of buildings. I think if there is any fall out from these scandals, it has to be how parents are going to determine if they can trust the adults with whom they entrust their children. I have no answer, but I think we really need to look into the supervisory relationships, staffing, dorms, and other things before we send the kids into even the most prestigious opportunities.

In another Cyber/ Interent Crime related story, Yahoo provides us with the 25 dumbest passwords. If you use one of these passwords, you are either asking to get hacked or you are a moron. I mean really a password called "Password"? 123456? ABC123?? Who are you the Jackson 5??.

A strong password is made up of letters that do not spell out a word, and those letters should be a mix of Upper and lower case letters. Add some numbers and some signs ie: (!@!@#$#%$%^&). Hence Hb3%eI2* would be a fairly strong password. (Now PLEAASSSEEEE don't use that as a password...) Sigh...

Lastly I thought you would all get a kick from this story about how it is illegal to hail a cab for someone you aren't traveling with in NYC. It is a little known law but it provides a cop with probable cause to stop you and even if that PC escalates to search you. The law was aimed at the Squeggy men. There are some decent underpinnings to the law, but I think it lends itself to selective prosecution defenses. It might be a trite over-broad and vague too.

Anyway, flame away all you rush to judgment types out there. For those who have a few ideas on how to judge what camps and opportunities are safe for kids please leave a comment. For any one with ideas on Safety of Identity please share your knowledge.

Happy Thanksgiving.

Tuesday, November 08, 2011

A Strong Defense of Joe Paterno: Why Paterno Was Morally & Ethically Right Not To Go Further in The Sandusky Sex Abuse Case

In the comments section of an article in an SI online blog post by Joe Posnanski, Columbia Univ. Adjunct Professor Scott Semer assails Joe Paterno for not taking greater actions in the Jerry Sandusky case (Link is to the actual Grand Jury Report. It is not for the squeamish.)

Semer rests his opinions as a lawyer and an Adjunct Professor of Transactional Law at Columbia Univ. in NYC. He takes what I believe is the majority opinion as to Coach Paterno's decisions which is that he did the least he could do to cover himself but owed a moral duty to do more.

I too am an attorney, a criminal defense lawyer, a former special prosecutor, and an adjunct professor of Trial Advocacy, and as to his judgment of Paterno I completely disagree with Professor Semer. I think Paterno did what was both morally and legally correct.

After contacting his chain of command superiors, he let them do their jobs. He knew there was a campus police force that investigates ( and prosecutes ) crimes on campus. He took whatever information he had to the head of his department. He took it to the person who is, for all intents and purposes, the police commissioner of a 256 person police force which according to the Campus website says: "(The University Police are) governed by a state statute that gives our officers the same authority as municipal police officers."

Paterno didn't just give his information to a superior, he turned it over to the highest ranking official in that police department. That man, PSU's VP of Business called in the ACTUAL WITNESS and spoke to him. In other words Paterno could see an investigation.

Suggesting Paterno should have then done more is both ridiculous and dangerous. Paterno should not have approached Sandusky,for fear he tip him off to the investigation; he should not have called University police after nothing happened because 1. A police department has a right to set its policing priorities. The Courts have consistently held that: it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
2. Once he reported the incident (and not having any information as to the progress of any investigation or the results thereof) Paterno had no other action he could reasonably take. If he pressed further or went public he risked opening himself and the University up to a law suit from Sandusky for libel , and that is assuming Paterno thought the grad assistant was both reliable and accurate. By that person's own admission he was distraught. He would be accused of trying to eliminate a potential competitor for his job. He would also call into question the safety of the campus and without any proof of his own on the allegations of another. Pattern is not a witness and arguably isn't even an "outcry witness." ( an outcry witness is one who verifies that another witness was so distraught that what they are saying must be true. To be an outcry witness the original witness must make his statement to you first and within a few minutes top hours after witnessing the incident. More than a couple of hours usually spoils the outcry's reliability. It gives the maker too much time to make up the testimony)
3. Assuming Paterno did go to the Chief of Police for the Penn State police department, the person under Gary Schultz, would that not be an act of insubordination? What if he were wrong? He would lose a long time friend and PSU family member. He would hurt alums, recruits and his teams. His fellow coaches could not trust him, all of this without being an actual witness to anything. Taking one man's word against anothers.

Noone wants to see kids hurt, and I believe Coach Paterno heads that list. People suggesting he needed to do more either don't understand the law of criminal investigation, or have a different ax to grind ( like the head of the PA State Police who is grand standing in saying people have a greater responsibility than to report crime to the local Authority. He would be the first guy to defend a civil rights suit against his agency, (brought by a crime victim claiming that the failure to arrest caused her injuries) by invoking the Warren case.)

Paterno handled this exactly as he should have and to suggest otherwise is to use 20/20 hindsight to judge what was a fluid real time situation. I guess the path is always clear for the Monday Morning Quarterback.

Sunday, July 03, 2011

Happy Fourth of July 2011

Well in a few hours our nation celebrates its Independence from the Tyranny of the British Royal Crown. A few years after the decision to cede from British rule and after a war, we finally settled on a Constitution (there was a loose confederacy of states before that but we ultimately chose a federal system of government)to govern us. This Constitution tried to embody as much of the Declaration of Independence as it could, however the original document was thought lacking by the Declaration's author Thomas Jefferson, so he persuaded his friend John Madison to lobby through an embodiment of the Rights of Man our American Bill of Rights.

Jefferson wanted to preserve the fervor and feelings of his Declaration of Independence which begins with a statement about the self evident nature of the rights of man (meaning God Given rights) but he was well aware that tyrannizing politicians could do away with these rights as the King did to the Colonialists. Jefferson, wary of a big federal government wanted to limit the abuses that could become our government if Monarchists ever obtained an upper hand in our government.

In a large sense however, the Monarchists may have won if the goal was a large centralized government and a federal presence in the decisions of our daily lives such that the states have little to say about how they run themselves and we as citizens have little access to our Representatives. Our leaders appear only on news shows and before reporters who will report their views their ways and will not ask hard questions. Both major parties favor large government when it suits them and states rights when it doesn't.

For example Republicans favor states rights on Abortion and Immigration policy because they can't seem to get control of the federal government long enough to shove their view down our throats.On the other hand, they want a federal standard if a state doesn't follow their lead on an issue. In other words "States who agree with us get rights the rest of you be damned."

Democrats want state government to decide issues such as gay rights and gambling because they can't get the votes to work these out to their constituency favor on a national level. They favor state rights to decided what a marriage is, but would not allow states to determine what a "life" is.

I don't care where you stand on the issues of Abortion, gay marriage, Internet poker or the like. I care that things are actually interpreted by our Constitution with a view toward the Jeffersonian approach to our government. I'd also like to see a sense of shame when a party acts hypocritically.

Here is how some of this would shake out under my view of the world. Interstate commerce and Immigration policy are national in scope as are issues of Defense. These areas are reserved for Federal control. The Internet is also a federal issue, why? Because it is EVERYWHERE!

Health, Sex, Gambling, all criminal activity except for terrorism, treason, bank/mail/and wire fraud are state issues. There is an exception to that and that is that the Fraud must not just use the wires or mail to be committed, but must be committed against citizens or corporations on a national scope. Hence just because someone in NY calls someone else in NY to commit a fraud on a NY corporation, that use of the phone would not make for a federal case just because the phone line routed the call through a national grid of phone lines etc.

In my world, elementary education would be left up to the states, civil rights are federal. Secondary education (High school and up would be a mixture of Federal and State control depending on the issue however as somethings (like law or science) are things that need to be shared nationally we do need some national standards.

The feds could set standards that each state need to meet in the area of dealing with the imprisoned or the poor, but it would be up to the states to implement the standards. Economic Policy is a shared item as well. National Parks need to be part of a 3 way discussion Fed, State and local governments need to participate together. OTOH, the feds need to stay out of our homes, our hotel rooms our bank accounts and anything else that concern us as individuals.

Anyway, I could go on, and I will, but I want to know what you think of this whole concept of Independence. What does it mean to you, not personally, but as it relates to how we as citizens obtain a government that will uphold our right to live and conduct ourselves in the freest of fashions.

Edited to add a couple of links and clean up some spelling errors.

Monday, May 02, 2011

NEWSFLASH: Osama Bin Laden Killed by American Operatives in Pakistan: Other News of the Weekend.

Tonight the PRESIDENT of the UNITED STATES OF AMERICA (POTUS) announced that the CIA in co-ordination with the Pakistani Government located and killed OSAMA BIN LADEN Public Enemy number one (here and abroad.) That news is important and it is welcomed. I cannot say I am disappointed in anything other than the time it took to find him. May he never rest a day in eternity. I hope those 76 Virgin(ian)s he thought he would get are kicking the crap out of him right now in Hell. Congratulations to President Obama, Leon Panetta and the countless agents of the FBI CIA and of course of armed forces who have worked in hopes of this announcement, for bringing this terrorist to justice. No, it doesn't bring back our loved ones and it will never erase the misery of 9/11 or the days that followed it, but it does provide a sense of closure.

As for other News I found interesting, all of it pales in face of the news above. Just in case however you want to know what I thought was otherwise interesting, here are a couple of articles I wanted to write about:



I was going to use the blog tonight to talk about the futility of charging a nine year old child with murder for shaking a baby and how we need to separate the emotion of the parents losing an infant from the need to avenge a death with the "death" of another child when that child does something horrible.

I was also going to talk about the need for an "Expungement" Statute in NY given the fact that people arrested and convicted for even minor crimes can not get jobs anymore because of the Internet's ability to derail their job search with convictions. I was going to point to an article in the NY Times (semi subscription) which points out that people who have paid their debt to society long ago still cannot get work because of small or substantial indiscretion decades before.