Sunday, December 26, 2004

Martha Stewart calls on America to think about the plight of Women in Prison

White Collar Crime Prof Blog: Martha's Reply Brief and More

I found this piece about Martha Stewart's appeal. What I think is really important here is Ms. Stewart's plea that the "powers that be" look at the conditions of women in prison and sentencing unfairness especially in the federal system under the Federal Sentencing Guidelines. During this Holiday season, it is easy to forget the toll that jail places on women even more so than men. It is very important to remember the role of women in the family and the effect of their incarceration on their younger children. There is no way that during the holiday season we can replace the loss to these children. It is heartbreaking to watch these families gather during the days before the holiday in the jail. "mommy are you coming home for Christmas?" "The best present I could get is if Daddy was under our tree on Christmas morning." For an excellent cinematic treatment of the issue I reccomend seeing "White Oleander" starring one of my favorite actresses Michelle Phiefer.

I remember representing a woman on a charge of possesion with intent to distribute. She was 19 years old (by 3 days) when she drove her 18 year old boyfriend( 3 weeks short of his 19th birthday) to Washington Heights in order for him to purchase a quantity of drugs. Niether he nor she used drugs but he wanted to by her an engagement ring and against her advice, he had made a deal with a guy he knew in town to sell him about a half an ounce of cocaine. He later went to the train station alone and his friend (turns out a confidential police informant) shows up with a friend (an undercover police detective) and the sale goes down. The police asked the boy for his source of the drug and then they went with him to his girlfriends home where she admitted to being angry with him but drove him anyway. The result... because he was still under 19 he was sentenced to probation and she was sentenced to three years to life ( she faced nine years to life) because she had turned 19 three days before. If that is not injustice and arbitrary then I cannot think of anything that is. To make matters worse while in Jail she lost her baby ( at the time 9 months old) and her mother died of cancer just 5 months later. She was released after 4 years in jail and still hasn't put her life back together some 6 years later. And of course her boyfriend is long gone.

The decision to prosecute Martha Stewart may have been the best thing to ever happen to accused people not because it was an important prosecution, but because it has awakened a sleeping giant in the women (and men) who are Ms. Stewart's fans and believe that she was a scapegoat. Martha Stewart has a great opportunity to better conditions for men and women in this system. She has the name, face, and access to decision makers. Her constitutency votes and they are often people of influence. She may with the proper coaching and sponsorship be able to convince the congress that we are wasting time, money, and opportunity, when we warehouse people on non violent crimes. I can only hope that she does not waste this opportunity.

If you have questions about sentencing in the state or federal courts do not hesitate to contact us at or .

Sunday, November 14, 2004

Something fun to read

When That Lawyer Dude was just a boy I couldn't wait to find things to read about the law and lawyers. Unfortunately I found that most things written for lawyers were unintelligible to anyone of Jr. High or High School age. I was reduced to reading only about crime in the few paperbacks I could get written by lawyers. ( My favorite was "The Defense Never Rests" by F. Lee Bailey. I also read and reread "Inherit the Wind", and " To Kill a Mocking Bird" quite a few times. ( I seem to remember reading "1L" by Scott Turow but I think I was in colleges by then. Times it seems have changed.

I have been having fun thumbing through this months edition of "Legal Affairs magazine ." A publication of Yale Law School that is written for non lawyers and lawyers alike. Now I would not suggest that everything written there will be of interest to everyone... However if you are seriously thinking about law and such it is very much worth the read.

The articles contained there ( some of which we will be "blogging" about here) are not as difficult to understand as reading a law review. It is more like reading a copy of Newsweek or Time only the whole magazine is written about legal subjects and the legal system and it is written on a far higher level (such as High School, a good one however.)

The articles I thought interesting included a Canadian court recognizing the need to provide support to the spouse who was given custody of the family dog ( a very big and hungry dog.) Their was a ( kinda/sorta) tribute to the Magna Carta, a piece on Reverend Jerry valueless new Christian Law School as well as other topics that could be used to spark an intelligent discussion or debate at home if people choose.

For those interest in Criminal issues there were stories about the new Gun Courts springing up in NYC, Re-entry of sex offenders into the community); on the use of the allegory "Fire" in Supreme Court; and on the scourge that is destroying the Midwest Crystal Meth (metamphetamine) and how some southern sheriff wants to ban the sale of allergy and cold medications because they can utilize in making the drug product (for more on that visit our sister blog: LI (criminal) Trial Law here at

I will not lie and tell you the copy is cheap, one issue runs almost nine dollars, but it is erudite and understandable at the same time.

Till next time, get a copy of Legal Affairs and see what YOU THINK.

Sunday, November 07, 2004

Questioning authority: Your constitutional right to go and sit in a tree.

I was talking to a couple of parents today and was amazed at what I heard. Their child had been punished at school for signing a petition protesting a homework assignment they felt was belittling. The issue is not whether the assignment was belittling (I thought it was based on the description I received) nor is it whether or not the Parents agreed to the detention (they thought it was alright) but instead it was how these folks had forgotten everything we learned about freedom of expression when we were in school. That Lawyer Dude is a child of the late 60’s early 70’s and I do not particularly miss the period. I was as conservative as I am now… which is to say very, but I do not remember ever thinking that peaceful protest should be punished.

I was actually impressed that the students in the case above had sought out a positive expression of their frustration and in some cases anger. The petition as I understand it was not abusive or vindictive. Rather it seemed to be a forthright expression of disgust with the assignment and with the teacher that gave it. Yes it was strongly worded, but not impolite or impertinent. By acquiescing to the principal’s decision to punish the children, I think that the parents herein abdicated their duty to teach their children that they have a right to proper expression.

Now surely there is something else being taught in this school. That the authority is always right and that all forms of protest will not be tolerated. I always thought that part of learning to be a good citizen included questioning authority in a proper manner. I cannot think of a more appropriate manner than a petition to request that the authority change its behavior. Nevertheless there is another lesson for the protester (even the morally right and peaceful one) and that is that the ruling power will usually seek to make its life easier by putting down lawful protest and will succeed until other voices rise up to stop it. Hence protest can bring on consequences so it is imperative to weigh the issues and pick a battle that is critical or crucial and not protest for protests sake.

It is significant that throughout the course of American history it has not been either the executive branch or the legislative branch of our government that has been tolerant of protest. In fact those two very political branches seem to not even understand the right to protest although they each often pay lip service to the First Amendment. It has traditionally been the legal or judicial branch that has stepped in to keep the other 2 seemingly more powerful and popular branches in check. Maybe it is because those two branches, elected by a majority, do not gain anything by upholding the rights of the minority. Perhaps it is because we insulate the judiciary from politics that it can see and give credence to a less popular but morally right position.

I came across a case the other day that caused a judge to again figure out what equals lawful protest and what equals disturbing the peace. It takes place on a quiet campus of Cornell University in Ithaca New York.

In People V. Millhollen, 2004 WL 2246158 (N.Y.City Ct.), 2004 N.Y. Slip Op. 24371 (City court of Ithaca 2004) The court was asked if the act of a University student to climb onto a tree on the campus and remain there after being ordered to descend by police and university administration was “protected speech” under the first amendment. Evidently Elizabeth Millhollen was unhappy with a university decision to destroy a grove of trees to build a parking lot. Noting that “it always seemed to go that they take paradise and put up a parking lot” (apologizes to Joanie Mitchell who actually wrote the song 20 years before The Counting Crowes recorded it) Our intrepid tree hugging Ivy leaguer sought to let university officials know of her concern for the environment. The university which had probably hired a contractor and couldn't wait to get some asphalt down, was none too pleased. It charged Ms. Millhollen with Disorderly Conduct and Trespass.

The Court held that a) Ms. Millhollen was permitted to be on the grounds as she was a lawfully registered student of Cornell, b) She was not drawing a crowd and was not interfering with the ingress and egress to and or from a public or even a quasi-public place, c) she posed no danger to others and little danger to herself, d) her purpose and being in the tree was not incompatible with the university;s normal activities, and e) she had a legitimate gripe and was there for a purpose. Hence she was neither trespassing nor disorderly and the case was dismissed.

The court was careful to point out that “a peaceful demonstration that interferes with ingress and egress to and from a quasi-public place such as a supermarket may be unprotected and constitute trespass.”

It is also important to see that in the Cornell handbook they wrote:
“Title One: Statement of Principles and Policies I. Fundamental Principles C. The principle of freedom with responsibility is central to Cornell University. Freedom to teach and to learn, to express oneself and to be heard, and to assemble and lawfully protest peacefully are essential to academic freedom and the continuing function of the university as an educational institution. “ I guess that they believe in all that “freedom” as long as you agree with them. (That is what I meant by “lip service”.)

Anyway that is what the judge said and the above is what I thought. I’d like to know what you think. So leave a note and tell me if You agree with the university or the Judge. The best answer filed before November 30th 2004 will receive a gift certificate Border’s books. That Lawyer Dude shall be the sole judge of the competition and his decision is final. ( But you may peacefully protest the decision if you like and if you don’t disrupt anybody)

Wednesday, October 06, 2004

It's 12 am. Do you know where your parents are?

A new law has been proposed in NYC to institute a curfew and enforce it on kids and their parents. The law, if passed, would require that all kids under the age of eighteen (18) be home or with a parent or guardian, between the hours of Midnight and 6 am. One of the bill’s sponsors NYC Councilman Dennis Gallagher of Queens County said “There is no valid reason why children should be hanging out on the streets of New York in the middle of the night” he continued, “When a child is out in the middle of the night only bad things can occur.”

The bill would cause a juvenile found out after dark to be escorted home by the police, or held at the local police precinct until collected by a parent. A first offense would cost the kid Twenty Five (25) hours of community service and Fifty (50) hours if caught again. Parents who let their kids out are fined Seventy Five ($75.00) dollars for the first offense and Two Hundred Fifty($250.00) for every time after that. Kids coming home from work, school, or religious business are exempt. A business that lets a kid “hang out” on its’ property is also liable under the law.

Now, That Lawyer Dude is of two minds on this issue. First, parents should be concerned when their youngsters are out after 11pm much less 12 am. A growing person requires Eight (8) or more hours of sleep and it is a health benefit for him to be home and hopefully sleeping between the hours of Midnight and 6 am. However…

That does not mean That Lawyer Dude approves of a blanket law that legislates how parents bring up their kids. For example, if a parent chooses to home school their child and that is done at night, then that may suggest the child involved may need to be out late. Is there a substantive difference (note I did not say a legal one) between a Seventeen year old the night before her Eighteenth birthday and the night after?? If a sixteen year old is out at 2 am with a nineteen year old, is the nineteen year old the guardian for the purpose of the statute?

The truth is, that while That Lawyer Dude would suggest to parents that their young children and pre-high schoolers be home before 9pm and that on any school night all students under 16 be in no later than 10pm, I am not so pompous as to believe there are not other schools of thought on this curfew matter. I am also not willing to endorse a law that puts a person at risk of arrest (or detainment) or at loss of their finances for exercising their First Amendment right to freedom of movement.

There is a qualitative difference between this type of law and the type that the criminal law usually addresses. Unlike the “everyone included you may not take something not yours”kind of law, this type of law punishes everyone in a certain class. It is unfair to those that do not act out and have earned their right to move about whenever they want. This smacks of unfairness. It is also what bothers me about most things that should really be handled at home by loving parents. There are children who can be trusted and those who have shown that they cannot. Deciding this distinction should not be the job of the NY City Council. It is the job of the parent. True, I have no problem with a curfew for someone previously adjudicated a youthful offender or juvenile delinquent. These children have already caused public concern and cost taxpayers money. But let a court and a District Attorney address those issues at a bail hearing where evidence can be provided.

I have a problem with a child, innocently walking home at 2 am after being at a cast party of the school play (held at a friends home) being stopped, frisked (after all the police officer is entitled to know his young charge is not going to harm him), and detained, maybe for hours, at a police station all because he stayed out too late on a date. What of the child who wants to catch the waves at dawn? Is she to be arrested because the best time to surf or fish or walk and run on a boardwalk is before 6am? What is it about these honor students and hard working children strikes dread in the heart of the Councilmatic adult??

There are dangers exposed in all things. You go on a school trip, you chance an accident or now even terrorist action. A visit to a synagogue or a church now a days is just as problematic. Homes can be robbed by 18 and 19 year olds as easily as by a 15 or 16 year old. Does the age make the difference? And if we really want to make the streets safe for New Yorkers shouldn’t we keep all kids off the streets? After all we make people wait till their 21st birthdays before we let them drink alcoholic beverages, why not make them wait until then to go out. We make people wait until they are thirty five (35) before they can be President of the United States of America. As it has been shown that criminal behavior wanes after one becomes 35 maybe all people under 35 should be kept indoors after midnight! ( a that Lawyer Dude can rant!!)

Remember what Benjamin Franklin said, “A nation that is willing to sacrifice Freedom for Security… Deserves not the former nor receive the latter.” Smart guy that old Ben.

Keeping Our Land Of The Free: Participate!

Hello gang! That Lawyer Dude is in Washington DC today to watch the United States Supreme Court in its’ opening day ceremonies. It is not as ornate as the first pitch at Yankee (or Shea) Stadiums and the crowds are not quite as big, but it is just as exciting.

The Supreme Court will decide about Two Hundred (200) of the most important cases this year. It will hear arguments every Monday through Wednesday from now until April and deliver all these decisions before the end of June. The atmosphere here is a lot like the first day of school. Everybody wants to know the subjects (the cases) and how things will turn out.

That Lawyer Dude is here because he is listening to the arguments in US v. Booker and Fanfan. These two cases are being argued together to determine how federal judges should punish people who are convicted of crimes. In my other life I am a criminal lawyer and these cases mean a lot to my clients. (You can visit our law firm web site at

It should be noted the court will not hear testimony and there are no witnesses called. The Supreme Court will not decide if the accused people are guilty or innocent. The Court is an Appellate Court and as the highest court in the land what they say goes unless the Congress and the President get together to change the law. In the cases that I am interested in today, there might have to be a change in the constitution if the Supremes (as we Lawyers sometimes call them {in jest of course}) rule the present sentencing rules to be unconstitutional.

“Okay so what does this mean to me,” you may be asking. Well, the thing about being here today, is it is more to me than just the one case I am here to hear. It is about the fact that the weightiest issues in American Law are being heard, out in the open and right in front of me. Anybody, me, you, anyone for the price of a ticket to Washington DC can hear these cases and see these people.

I can still hear some of you asking “ Ok Dude so still what is it to me.” I can only help explain by relaying a story. I have a friend who is not from the ole’ US of A. She is from a former Communist country that is a brand new democracy. In fact even before the communists, the country was a Monarchy. She and her family (and her countrymen) have no sense of what it means to participate in their government.

One day we were talking about a new rule that would deeply affect her life here in her new homeland. She was upset because she felt that the issue was one that was completely in the hands of people she did not know and who did not care about her. I was trying to explain why that was not the case, but she didn’t get it. She actually scoffed at That Lawyer Dude when he told her he would rally support for her cause among the decision makers in Washington DC. ! Silly girl was it possible she did not know the power of That Lawyer Dude! No, that was not it. She did not know the power of being an American. So we picked her up and put her on a train to Washington DC. Then unannounced we visited every congressman who was on the committee dealing with her legislation. Of the fifteen (15) Congressmen, everyone of them either visited with us or had an aide do so. We spent about Ten (10) to Twenty (20) minutes with each of them. They all had questions for her and they all wanted to know more about her situation and how the law could help or hurt people like her. We then left the offices and visited the House Chamber (where the Congressmen vote on the laws) to watch a debate. I explained how what she told these folks just might wind up as part of the debate. She had no idea how she, a lonely immigrant, not yet 23 years old could so deeply affect the system.. Going to Washington was the greatest gift I could have given her because now the system didn’t seem so impersonal. Now she could see how she could participate and have a say in the government.

When my friend becomes a citizen later this month she will get to vote in a presidential election as her first vote. I bet she will be the first on line!! The power to participate in our fate is what makes a democracy. The power to watch it happen, to see the faces of the decision makers, to be able to talk with them and to be able to hold them accountable on election day, to know that so much is being done right in front of us, that is what makes this a great country. I know a lot of you already know this, but being here in Washington D.C. just makes me want to tell you again. IT’S YOUR COUNTRY. KEEP IT FREE. PARTICIPATE. And while your at it, bring along a friend… it’s her country too!

If you have any ideas for how you and your family and/or classmates can get involved leave us a message here. You (or your family member if you are under 14 years of age) can also visit our website at Leave us a message there and I will get back to you.

Monday, October 04, 2004

Protecting the mediocre

A few notes I thought our readers may be interested in:
Down in Washington DC :
The House of Representatives has passed a law that will make it illegal to go to a movie theater and video tape a movie. The act is meant to reduce the pirating of theatrical performances. The videotaping of first run movies costs the the movie industry millions of dollars each year and hurts their ability to fund films with newer filmmakers or lesser known casts. The House bill, still requires Senate passage and Presidential approval before it can become law. It calls for those that are convicted of illegally videotaping movies in theaters to face up to Six (6) years in federal prison (which seems rather severe given that some violent crimes including assault on a federal employee carry a much lesser sentence). The bill also loosens restrictions on the Justice Department that will allow greater prosecution of firms on the internet that illegally distribute this material (and other copyrighted works) to the public. The legislation is entitled "The Piracy Deterrence and Education Act. "

The music and entertainment industry has pointed out that when people go to the Internet to see movies it hurts theaters and it hurts people who make the movies and it hurts the actors and stagehands who work in them. The same for downloaded music. However maybe the industry needs to look at the sky-rocketing prices and the quality of its’ product to understand the reticence someone feels before plunking down hard earned salary for an often less than mediocre product. It is another challenge from an industry that will not change to keep up with the times. Big Entertainment seeks protection from change through government regulation and further criminalization as a deterrent to slow down the progress of the net.

It appears to me that the bill is really just another attempt to regulate the Internet. An unregulated market place seems to very often inordinately worry people in Government. It shouldn't. Pols just do not always understand that not everything needs to be watched over. Progress, like free trade and free markets, help drive down prices and make it easy for all people to be able to enjoy the things that in the past only wealthy people could enjoy. It also helps regulate prices that are artificially kept high by laws other than those of supply and demand. Yes progress causes change, sometimes for the good and sometimes for the worse, but the truth is that it is going to come one way or the other.

The argument that the entertainment business is making to regulate the trading of movies on the internet is really akin to the argument that a buggy manufacturer would have made to Congress to keep the automobile industry from out-dating the Horse and Wagon. Times change and so does technology. If the industry is going to survive the computer -age it is going to have to acknowledge the computer and digital age and make first run movie (or music) affordable, and the theater experience enjoyable.

Local theater productions of Broadway shows has not hurt The Great White Way. Cable TV, (which was also fought by the entertainment industry and Theater owners) has not destroyed theaters and neither will the computer age. Many of us will continue to go to first run movies if they are of high quality and if they are affordable. That may mean that Hollywood people will earn a little less money. Is that so bad? Will the world come to an end if Tom Cruise or Brad Pitt only make four (4) or five (5) million for their next picture instead of Twenty (20) Million? That Lawyer Dude’s father built houses for a living. Did he have a right to be paid every time someone new lived in the house? Of course not, but isn’t that what a royalty is? Attorneys used to make a lot of money when there were very few of them, but now doesn’t it seem that everyone knows someone who is a lawyer? Well that glut of attorneys drives down the prices of the average lawyer. The best still get paid a lot and the others have lost a little. It hasn’t stopped people from going to law school however.

If the cost of a first run movie were to fall to say Five ($5.00) dollars a ticket. Most people would still chose to go to the movies. If a person can legally buy a downloadable DVD for Ten ($10.00) Dollars most people would rather download the better download than go to pirate sights on the web. If there were DVD’s available with extras hidden in them… many of us might want to buy those at the video store too.

That Lawyer Dude thinks that the answer is not in further prosecutions and regulation but rather in the entertainment industry getting real and finding ways to live and survive in a digital age.

Sunday, September 26, 2004

A safe place to learn or ask a question about the law

Hi Everyone,
The purpose of this weblog (or Blog) is to give kids (from 4-29) and their parents (or other family members) a safe, family friendly place, to learn about our government; our laws; and our Judicial system. You are invited to have polite conversation, post questions or just browse what we write here. If you have a question of a more personal nature, and do not want the whole World Wide Web to know about it, you can leave us a message at (I think I just left you a link... I am good at law, bad at computers.)
We will try to answer your questions every other day or so, but as we are practicing lawyers we may need more time. (Wouldn't it be great if we had so many readers we couldn't keep up??) Please feel free to send this page to a friend and to tell others where they can find us.

How we got our name: Well I have been giving classes ( teach-ins) at numerous Middle and Senior High Schools on Long Island and in NYC for many years. I participate in a Lawyer in the Classroom programs run by the Nassau County (NY) Bar Association, and by the John F. Kennedy Chapter of the Phi Alpha Delta Law Fraternity at Hofstra University Law School. As I began to run into students who had been part of those programs outside of school ( at the Mall, or on the Soccer field, or sadly sometimes in our local court lock-ups) they would greet me with shouts of "Your that Lawyer Dude that came to my class." Often my oldest son would be with me when this would occur and he suggested I take this URL and start this Blog... And I did!!!

About me: I love being a lawyer!! I have been practicing law (and some day I hope to get it right) for over 20 years now. My practice concentrates on criminal trial law and on cases that concern allegations of criminal activities. Hopefully you will learn from this site that this practice includes far more than the defense of those accused of crime. In addition to the usual cases ( fraud, drugs, and violent crime) my friends and I also handle cases that involve allegations of criminal or wrongful activities. Family or Matrimonial (divorce) law; Qui tam (or whistleblower) cases; Civil Rights law; consumer rights; Cyber or internet law; Civil RICO, First amendment law; Victims rights law; and business law all become part of our daily routine, as long as criminal activity is alleged. (Don't worry if you do not know what all of these things are... If you check back here regularly you'll learn all about them. )
I also write legal articles, and lecture regularly. ( I also love to teach people about law). You can occasionally catch me on TV or in the newspapers ( which my mom loves and my kids hate.) Speaking of my family, I am married and the father of two teenage boys (who both want to be lawyers!!!)

Our Favorite Charity: In addition to our busy practice and bar association responsibilities (and now this blog)I am also very active in helping raise funds for the Scleroderma Foundation ( (I am getting better at this link thing no?) If you would like more information about this devastating, painful and potentially fatal disease, that most often affects young women (especially new moms) please visit the site above. Any donation you can give them will be most appreciated.

Finally if you would like more information about our legal practice, or would like to post a private message or subscribe to one (or all) of our e-newsletters (they're FREE) please visit us at or .

That's about it for tonight. I hope you all enjoy reading this site as much as we enjoy writing it for you. We hope that you will find it insightful and that it helps you to understand and use the legal system.
Yours truly,
That Lawyer Dude