Sunday, December 31, 2006

I've Been Tagged Part I: Five Things You Don't Know About Me.

Wow I leave the computer for 2 days and I get tagged not once but twice. Once by Nicole Black at Sui Generis and once by Ernie Svenson over at Ernie the Attorney. Wow. Well I am not sure who was first but I am going to answer Ernie's in my New Year post tomorrow. For New Year's Eve, I am going to answer the Nicole's Tag. I have to tell about 4 things people do not know about me and make another one up. Ok here goes:

1. I have escaped Death on 5 occasions. Once at age five when I was home and a fire broke out. We were saved by the NYFD which will be part of tomorrow's post. Once at 15 when I had a ruptured appendix that went undiagnosed because a pediatrician didn't think my mom could afford a five dollar blood test. I went 10 days with the rupture before they finally operated. Once at 17 when I was shot accidentally by another teenager who didn't know how to clean a weapon properly, once in 2001 right before 9-11 when I wound up in the hospital for three weeks with a Deep Vein Thrombosis and enough Pulmonary Emboli to choke a horse, and finally after surgery in 2005 when I developed an internal bleed and needed four pints of blood and a second surgery to stabilize.

2. I am pretty religious and very Roman Catholic. I thought about becoming a priest until my late teens. I am a "lecturer" at Church. A lot of prosecutors find this out and wonder if The Christ leaves The Cross when I walk into the church. It also freaks out my adult entertainer clients. Then again my work in the adult entertainment field freaks out my fellow parishioners. Forget about how they feel when I work on behalf of an accused Murder or sex abuse client.

3. I play the trombone, Piano and I sing. Better than you would think. I sang professionally in my late teens and early twenties. I still sing, mostly at church and in my car. I wish I had more time so I could join a choir.

4. I was the student "voted" "Most Likely To Be A Career Prosecutor" in law school. LOL how times change.

5. The only thing I hate more than Scleroderma and crime, is public corruption and official laziness... Ok I hate Scleroderma more.

Now I tag Dan Hull, Blondie, and Scarlet.

Friday, December 29, 2006

That Lawyer Dude Salutes...: MY FAVORITE BLOGS OF 2006

Dennis Kennedy gave me a Blawggie last week and tagged the winners (kinda/sorta) to come up with their own blog awards to honor and introduce those bloggers to other readers. So I have come up with my "Salutes". Like Dennis' they are subjective and are made up of my opinion only (more or less, I ran them by Mrs. Lawyer Dude and the Jr. Dudes too, but I am the only one who voted and so I am responsible for the choices.) Hence without further adieu, That Lawyer Dude Salutes:

1. Best Law Student Blog: Will Work For Favorable Dicta... Figures my first choice just stopped blogging. But I loved Energy Spatula's work (and her Blog persona name too.)Her stories were sometimes sad and sometimes crazy and often raunchy as Hell, but she was honest and true and had me pulling for her all the way. ES has graduated and moved onto a job. ES, Good Luck with the Job and "The Boy." I hope you come back soon.

2. Best NY Blawg: Sui Generis. Hands down my favorite NY Blog and one of my top five. It is a mixture of case briefs and law updates, commentary and even comedy. Every week Nicole Black has comedic breaks-funny and strange (and occasionally bizarre)transcript quotes to make us smile, as well as a weekly review of the top NY Legal stories in the tabloids and a round up of NY focused Blawg reports. I really enjoy reading her blawg. If you practice law in NY, reading Nicole's blawg is essential.

3. Best New Legal Blog: Environment Crimes Blog Blogger Walter James has quite a neat blog. It hits on criminal law topics as well as issues of Policy and Trial Techniques. His writing style is crisp and he has very good insight. I think you should check out this post and see what I mean. I hope Walter keeps at this for a long time. His teaching is spot on.

4. Best Technology Blog: Jim Calloway's Law Practice Tip Blog. I read a lot of blogs. Many of the tech blogs are the best written and most helpful of the bunch, and frankly this was one of the hardest categories to decide, but for me Jim makes Tech stuff chewable. I like to read Dennis Kennedy and Between Lawyers and I Heart Tech, but for breaking it down and using it in the office and at home, Jim Calloway does it. Jim is folksy and I can almost hear him speaking the words when he writes. He makes the hard stuff understandable. Even if you are a hardcore Techie, Jim may be keeping it too simple, but for the rest of us, Jim's tips are the right speed.

5. Best Family Law Blog: Divorce Hotline . Always well written, Janine teaches not just lawyers but clients about the issues in Divorce and Family law. She infuses her experiences with her knowledge. She is a true and honest voice in the blogosphere. Check out this post and you will understand what I am talking about.

6. Best Law Practice Management/Marketing Blog: Larry Bodine's Professional Services Marketing Blog. This category was filled with good blogs, My Shingle, What About Clients, From the 21st Floor, and Law Firm Internet Marketing Blog to name just a few, but Bodine has consistently had the information and ideas that have fueled my marketing and law practice management actions. I strongly recommend reading his blog. Reading the others is not a bad idea if you want to position your law firm for the next 20 years. Remember, the dinosaur becomes extinct.

7. Best Place To Find Blogs- Inter Alia Tom Mighell's Daily Blog of the Day and a compilation Blog of the Week, Inter alia doesn't necessarily teach you anything so much as points you to places you can be taught in. Tom finds the new, the funny, the informative, and gives you a synopsis. Half of my blog syndicator list probably came from Tom's suggestions. Runner up in this category Robert Ambrogi's Lawsites.

8. Best Constitutional Law Site: Fourth Amendment Law Blog. This category took in everything from civil rights law through constitutional and death penalty blogs. John Wesley Hall's Fourth Amendment law blog gets the latest and most important cases in front of us quickly with good analysis. I read it daily and if you are practicing in the criminal law arena you should be reading it daily too.

And finally 2 Criminal law categories

10. Best Public Defense Blog: Arbitrary and Capricious A&C is everything I am not. He is pity and short and to the point. He is a PD and proud of it. What we have in common is a respect for the rule of law and an appreciation for it as well. A&C is informed and usually a quick read. It is among my favorite, a Must Read for me. It should b for you too if your want to stay on top of what is happening, especially in the west coast legal world.

11. Best Criminal Law Site: A three way tie. Prof Berman's Sentencing Law And Policy Blog, White Collar Crime Prof Blog and DUI Blog. Since this is the first time I am doing this, I wanted to tell you about a bunch of blogs that I find helpful in practice and also for teaching me to blog. Sentencing Law and Policy is simple the resource for all things Booker. If you are not reading this blog you should not be handling cases in Federal court.
White Collar Law Prof Blog is also a wealth of important information and should be reviewed at least weekly if you are practicing criminal law. It doesn't only teach you what is happening in White Collar Crime but teaches practice oriented information that every lawyer could use. It is well written and biting. It is part of a network of Law Professor blogs all of which could be part of a regular reading list.
Finally DUIBlog is written by a lawyer (Lawrence Taylor) who uses his blog to market his practice. Nevertheless Lawrence's blog is informative and teaches not only DWI Law but the effect that the DWI witch hunt is having in diminishing constitutional protections. He analyzes the effect of "lobbying" groups like MADD and how they unfairly affect trials. It is a wealth of information and a study in how to do this blogging thing correctly if you are using it to market.

Well that's my best of 2006 list. Now go out and announce yours too. Dennis Kennedy is right, it is our job to let everyone know about who we are reading and why. It will make for better blogging and it is a good way to be sure that hard working lawyers we read get the recognition they deserve. Happy New Year all. See you in 'O7
And be sure to check out our sister blog Long Island (Criminal)Trial Law for her return in a revamped style in the second week of the new year.

Wednesday, December 27, 2006

A New Way To Attack An Old Problem: Gorilla Marketing And Driving While Intoxicate

The New York Times on Tuesday highlighted a new initiative to stop Drunk Driving in this article.It seems that the Bennington VT. Police Department has hit on an idea that may just work. Stopping drivers from becoming intoxicated and you won't have to arrest them. Now that's a novel idea.

What the department does is it hands out beer glasses to participating bars. The glasses have the police logo on them. It makes the driver think about how much he is drinking. Now there is a concept that might work.

According to Lieutenant Doucette who is in charge of the program this is how the "Pint Patrol" works:

"It was my idea that we try to do something to promote highway safety," said Lt. Paul Doucette of the BPD. "One of the ways we let people know we're out there is through increased visibility. We don't want people driving impaired at all."

The pint glasses are being distributed to a variety of bars and restaurants around town and will be put into circulation on Friday. The 160 glasses were made by local company Catamount Glass and donated to the police force. The glasses come with four different pictures on them — the BPD patch, the BPD special response team patch, the BPD K-9 logo and the BPD 150th anniversary badge logo.

Doucette said the logos are there to help remind people that police are on the streets in full force during the holiday season.

"Around the holidays, people tend to drink a little more," Doucette said. "And that's OK, just as long as they have somebody to drive them home."

I think this is an idea that will work. Last winter and again this Thanksgiving I handed out leaflets on cars that warned drivers/bargoers that police in the area had stepped up their DWI patrols. The leaflet had information about safety and a description of our law firm. It also had a rights card with our office information on the other side which had it been handed to a police officer would have invoked our prospective client's right to an attorney before being questioned.

The result of the leaflet was interesting. It seems that because we were putting them on windshields almost as quickly as drivers pulled into the parking lot, arrests were around the area where the bars were located. People realized that a night of drinking to excess could land them in jail. I was surprised at how many people had not already selected a designated driver and how approaching them on their way into the bar made them think about it before they wound up in the back of a police car, or worse. I also learned it was a good community gift but not a really good way to get clients, at least not that night.

In reality, I feel like I helped save a few lives on those nights we handed out the card. I hand them out now at High schools where I speak and we plan on handing them out at a few bars this winter and spring as the mood strikes. If it saves one person from doing something stupid for one night of their lives and maybe saves a life or limb of another, well then it is worth it. Here is another important quote from Lieutenant Doucette:
"I'm not just about going out and arresting people," Doucette said. "I'm hoping we have a very safe holiday season without any major accidents related to alcohol."

Imagine what the effect would be if MADD volunteers would do this every Thursday Friday and Saturday night, rather than trying to put the alcohol and bar business out of business? Oh yeah, if they really wipe out Driving While Intoxicated, how will their directors and managers make a living?

President Gerald Ford, Dead At 93 Years Of Age

AP announces that President Gerald R. Ford, America's only unelected President died earlier tonight. He was 93. Ford a Michigan Republican was always a solid leader who tried to heal a wounded nation after its long battle with Watergate and the Vietnam War. Ford had been Speaker of the House of representatives before then President Richard Nixon tapped him to be Vice President after Spiro T. Agnew resigned in disgrace from office. Nixon soon followed and Ford again stepped up and assumed the presidency. It was the first time an unelected man was to assume the nation's highest office.

Ford immediately set out to heal the nation's wounds. The world had become polarized and Watergate as much as anything led to the nation's distrust of its leaders. Ford, in an attempt to put Watergate behind us, Pardoned Former President Nixon 30 days after assuming office which led many to believe the pardon was a Nixon Quid Pro Quo for stepping down. Ford in a rare presidential appearance before a House of representatives committee, denied that a deal had been struck and the investigation was closed.

Ford, who had a penchant for pratt falling became the subject of Chevy Chase a comedian then of Saturday Night fame, mimicking. It hurt him badly in the election of 1976 against President Jimmy Carter. Between his becoming a joke and the pardon of Nixon Ford lost an election that was closer than it should have been to Jimmy Carter.

Ford never second guessed his decision to pardon Nixon, he saw it as the only way the country could move on. The move was widely questioned at the time, but History has proven Ford did the right thing. In 2000, the Kennedy Library gave a Profile in Courage to Gerald Ford based in large part on his decision to Pardon Nixon so that the country could heal, knowing that when he granted the pardon he was badly hurting his chances to be re-elected to his own term in office.
Rest in Peace Mr. President.

Tuesday, December 26, 2006

Dennis Kennedy Bestows A Blawggie on That Lawyer Dude!!!

This is a real honor for me. To begin, an article in The ABA's Law Practice Management magazine by Dennis Kennedy and Tom Mighell, was the inspiration of this blog. Tom and Dennis had pointed out the trend and I wanted to be ahead of it. I was and it helped my practice nearly immediately. Later, I had the pleasure of serving on a panel with Dennis in Las Vegas and a close friendship was begun. Even so I take Dennis at his word in awarding me his honor, especially since he is also close to the other two bloggers he was considering for the award.

Secondly the award is named for the writer of one of my favorite blogs. Sherry Fowler is an honest voice and she can move you to tears. She ended her blog "Stay of Execution" last week. She has begun a new blog titled "Stay" which is dedicated to short posts. I will miss her longer posts however.

Finally I am awed by the company Dennis thrusts me into. Ernest Svenson has been cited on my blogs a couple of times (Here and here) Ernie also has one of the great Blogger handles "Ernie The Attorney" which is also the name of his wonderful solo blog. Ernie is not just a lawyer who is teaching or giving an opinion he is a reporter. He has been sending posts on the slow recovery on New Orleans. In fact if I were giving the award I would have given it to him again this year. (I am not however willing to give it back Ernie.) As for Denise Howell (who along with Mr. Kennedy and Mr. Svenson is another member of the Between Lawyers team) Hell, she Coined the phrase BLAWG!! Her Blawg by the way is a combination of information about intellectual property and law firm life. It is also an honest read and a really well written blog.

Here are the rest of Dennis Kennedy's winners:
Here is what Dennis said about the award he bestowed upon this blog:

8. The Sherry Fowler Best Writing on a Legal Blog Award - Anthony Colleluori's That Lawyer Dude

I'm a big fan of the pure writing ability of some of the best legal bloggers. I named this award after the legal blogger who had the biggest influence on my blog writing Sherry "Scheherezade" Fowler, who just ended her blog, Stay of Execution, one of the important blogs in the history of legal blogging, to start a new blog called "Stay." Ernest "Ernie the Attorney" Svenson won this award in 2005 and could have easily done so again with his great posts on post-Katrina New Orleans. However, the blogger whose writing really grabbed me this year was Tony Collelulori at That Lawyer Dude. After meeting Tony, I always describe him as having a heart of gold. That comes through in his writing and his writing often has an emotionally compelling quality that you don't often see. Some of his posts make me think about them for days - they grab you. Here’s the recent post that clinched this award. His analytical posts are great, but his personal essays are the highlights of his blog. If you are not reading Tony's blog, you should be. Runners-up in this category - Ernest Svenson and Denise Howell.

Here's a list of Dennis's Blawggie winners:

I. List of 2006 Blawggie Award Categories and Winners.

1. Best Overall Law-Related Blog - Marty Schwimmer's The Trademark Blog
2. Best Overall Law Practice Management Blog - Tom Collins' More Partner Income
3. The Marty Schwimmer Best Practice-Specific Legal Blog - Evan Schaeffer's The Illinois Trial Lawyer Weblog
4. Best Legal Blog Category - Law Librarian Blogs and Canadian Law-related Blogs (Tie)
5. Best Legal Blog Digest - Stark County Law Library Blog and Bob Ambrogi's and Carolyn Elefant's Inside Opinions (Tie)
6. Best Blawg About Legal Blawgging - Kevin O'Keefe's Real Lawyers Have Blogs
7. Best Legal Podcast - Bob Ambrogi's and Craig Williams' Coast to Coast Podcast
8. The Sherry Fowler Best Writing on a Legal Blog Award - Tony Colleluori's That Lawyer Dude
9. Best Law Professor Blog - Tung Yin's The Yin Blog
10. Best New Law-related Blog - Peter Lattman's Law Blog and Adriana Linares' I Heart Tech (Tie)
11. Best Legal Technology Blog - DennisKennedy.Blog

Go to his post for their links and for his reasoning.

To end, Dennis has challenged us to name our own favorite blogs and give them awards and recognition. He is right. Being listed on a blog roll is nice but being told what works for me and why is a more important thing. Hence, I will be naming those that That Lawyer Dude Selects, later in the week.

Sunday, December 24, 2006

NYS Department of Criminal Justice Services Christmas Message To The Families Of Accused Felons: BAH HUMBUG

I so wanted to leave a positive message tonight. Maybe tomorrow. Last night a new client was arrested for Assault in the 2nd Degreem by the Yonkers Police Department. The case is so week even the district attorney agrees it will never come out of the Grand Jury. All parties agreed that bail would be set very low.

Nevertheless, It didn't stop my poor and in this case, INNOCENT client from spending Christmas in jail. Doesn't matter that he has a job, roots in the community, and that 7 members of the community and his family came to the arraignment. The court could not release my client because one of the slowest most incompetently run Departments of the state government could not process the clients finger prints in 18 hours!!
The reason the Division of Criminal Justice Services uses out of dated machines and internet hookups. It's because their employees are slow and inefficient, it maybe because they are one of the most underfunded divisions in state government.

Without a "rap sheet" a judge does not have jurisdiction over the bail of the case.
Of course the District attorney could haved waived the need but they wouldn't. It didn't stop them from asking for a Temporary Order of Protection (which whould have acted as a waiver to the provision) nor did it stop the Judge from granting it. But to screw my client and his family...No Jurisdiction.
It was bull hockey move (I have stronger language but it is Christmas). There is no excuse for this. It wasted hours of time and money. It ruined the holiday not only for my client and his f&mily but for me too. Worse yet... it happened to hundreds of others too. In the highest taxed state in the union, it is unacceptable. I am thinking of suing under the civil rights act. Let me know if you know anyone else in a similar situation.
I wish I could say Merry Christmas, but It won't be.

Wednesday, December 20, 2006

Suffolk NY District Att'y Spota Investigates Fire Island Police Dept For Brutality: Newsday Cites Case Brought By That Lawyer Dude

Long Island's Newsday daily paper quotes me in today's article on the brutality of the Ocean Beach Police Department. I am also featured on today's Radio News broadcast on WCWP 88.1FM Long Island's Public Radio station. This Just in I will be quoted in a national Associated Press article being written by fellow lawyer Pat Noltan.

Anyway enough bragging. The fact of the matter is that it has been an open secret among the defense bar that police brutality on Fire Island and especially in Ocean Beach has been horrendous. Unfortunately because the hamlet has its own court and private prosecutors the police department charges misdemeanors and violations and sweeps the brutality under the rug. In situations where the brutality does come to fore, the Police and the hamlet's private insurance company settle the cases with gag orders and without having to take responsibility for the actions.

In January, NY is getting a new Governor and the State house will be back to business. If the state wants to pass bills to reduce brutality and acknowledge the importance of the rule of law and of a civil police department it needs to act this year to:

1 Require no less than 4 full weeks of training for every village and hamlet police officer or part-time cop.
2. Make it illegal for a municipality to settle a civil rights claim under seal and without an admission or finding of fault (Even if the claim is settled under a different theory such as harassment or false arrest)
3. Set up a full time commission of civilians to oversee police complaints. It would function the same as the State Grievance Committees that investigate complaints against lawyers. It would employ investigators and prosecutors who would then proffer complaints for the state attorney general or local District Attorneys to prosecute.

In the meantime if you have been a victim of Police Brutality on Ocean Beach, Fire Island, NY, please contact District Attorney Thomas Spota. You can also speak to myself or Diane Petillo who heads up the Civil Rights and Constitutional Law division of our Law Office.

Tuesday, December 19, 2006

Is This The Right Way To Teach Kids To Do The Right Thing?: 17 Year Old Gets 10 Years For Having Consensual Oral Sex With A 15 Year Old.

Three of the Internet's most respected and well known Blawgers have called for the Georgia Board of Parole and Pardons to pardon a Seventeen year old boy who had consensual sex on camera with his Fifteen year old girlfriend. Howard Bashman (How Appealing), Prof. Eugene Volokh (The Volokh Conspiracy) and Prof. Douglas Berman (Sentencing Law and Policy Blog) are all calling on the Georgia government to change the sentence of this kid. Especially since the Georgia legislature changed the law under which he was convicted so that he would have committed a misdemeanor instead of a felony and could only been sentenced to a year, had he committed the crime in 2006.

I am sure that I have a number of opinions on this issue but I encourage you to look at the stories in the press about this case and to read the comments on Volokh and Sentencing Law Blog before answering the above question. Then click on the comments section below and let me know what you think. It is that simple. I will have more on this case and this decision by the Georgia Supreme Court in the near future, after I have learned more about it and after I see how you all weigh in on the matter.

Sunday, December 17, 2006

Teaching Kids To Do The Right Thing: 19 Year Old Theater Usher Finds And Returns 24k To Rightful Owner

This Newsday story hit home tonight as I was thinking about what to blog about. Seems this small business woman/mom was scurrying around with cash receipts and hadn't gotten to the bank before she had to take her child to the movies. After the movie she realized she lost a satchel that contained Twenty Four Thousand ($24,000.00)Dollars in cash in it. It had dropped out between the seats in the theater. The usher, one Christopher Montgomery of Lynbrook, found the satchel and the money and took it to his manager. The owner of the money was reunited with the cash and it saved her Christmas and probably a bunch of months receipts to come. She offered Christopher a reward but he refused. I like this kid.

People who know Christopher say this comes as no surprise to them. What surprises me is that it would surprise anyone. I agree that what Christopher did was admirable and reflects well not only on him but on his entire family, especially his parents, however, it ought to be the norm not the surprising exception. Actually I think it is the norm.

I often am called upon to represent thieves. They are usually not thieves by profession. Usually they are thieves by opportunity, which is what Christopher would have been had he not been honest. I will represent these people, but I always have the same question; Why would you take something that isn't yours and keep it from the person who owned it?

The answer I get is often "I thought no one would miss it" or another way, I thought no one would notice. My other favorite is "everybody does it." No actually almost no one does it. "I was bored", "My friend said it would be okay" and "I don't know", round out the list.

I can understand a lot of it. I can't excuse it and I will not condone it. I am reminded of two personal stories.

When I was young, someone left a Davy Crockett BB Gun in my grandfather's store. I wanted a gun like that. Every kid at Our Lady of Miraculous Medal elementary school wanted one. After a day or two, when no one claimed it, my grandfather let me have it. Of course a day later the owner and his father came in. It didn't dawn on me not to return it. Of course I was disappointed because there was no way in h-ll my parents could have afforded one for me. Just, it wasn't mine.

My doting aunts (only a little older than me,) were upset. One said to my Grandfather "Daddy finders keepers." My Grandfather, who would have rather swallowed arsenic than disappoint me or my aunts looked upset. My mom (his eldest daughter) stepped in and said, "Thank you for letting us borrow your gun" and looked at me. I knew what she wanted and said, "Yeah it was fun." The boy said, "You know, if you ever want to borrow it again, just come on over to my house. Maybe we can shoot together." The boy's dad looked at my mom, me and my Grandfather and said "Thank you for your honesty, it is a gift to him from my father,who he has never met. He lives in Germany. He was heartbroken when he mislaid it." He offered me a reward which, truth be told at 7 years old I would have taken, but my mom said "You don't accept money for doing what's right." So I didn't, though I always wanted to ask if that meant you should accept money for doing what's wrong, but why risk that look mother's give when you say stuff like that. As for the boy who lost the gun? He and I remain friends to this day. Funny how stuff like that works out.

The other story concerned my dad. It took place a few years later. I had gone with him to buy a cake for a combined birthday/Christmas party we always had for my dad and his brother who were born on the same day 7 years apart. Their birthdays were a couple of days before Christmas. When we came home, my father realized that the girl at the counter had given me more change than she should have. A lot more. I gave her a five and she gave me change of a Fifty! I hadn't noticed because as usual I wasn't paying attention to the change, I was checking out the Strawberry shortcakes (I am a strawberry fanatic.)

When I gave Dad his change, we noticed the difference. I got the usual speech about paying attention and then we had to figure out what to do. It was too late to go back. So I called and the owner and the girl in the store were still there. I told them what happened and asked if they would wait for us to drive back. He said he would and when we got there I gave her the money. She was about 18. I was maybe 11 or 12. She had been crying. The owner told my father that he was going to take the money she was short out of her pay. 50 bucks was a lot of money in 1970.

She thanked me and the owner offered me a five dollar bill. I think he might have been skeptical of my story of how I got the change until I told him I didn't want the money, but I'd love one of those strawberry shortcake pieces. He obliged. That was the best Strawberry shortcake I have ever had.

Every time I went into that store from then on, I was treated like royalty. It was the best feeling. The morale of the stories though are best summed up as follows:

The value of a man, is not what he does when everyone is looking, but rather, what he does when no one will ever find out what it is he has done.

I thank God for my Mom and Dad. Christopher Montgomery should too, and judging by his actions he probably is the kind of kid who does. My Dad would have been 74 on Friday December 22. Happy Birthday in Heaven Dad, I miss you.

Saturday, December 16, 2006

Dear Judge Sorkin: Don't Throw The Baby Out With The Bath

I just returned from a sad trip to the X-Judge Blog. I was sad because Judge Sarokin had both turned off his comments and had responded to the negatives hurled at him since starting his blog this month.

Sarokin has had a brilliant career as a jurist and has also had his share of controversy. I (and a number of other Bloggers) think it is really "cool" to have his voice on the blogosphere. We knew he was in for the kind of jostling he would never have seen had he stayed protected on the bench. I hoped he could take it because what he has to say to us as citizens and lawyers is important. The possibility of having the kind of exchange you can only have on the blogosphere was tantalizing.

Like every good wife, Mrs. Sorkin warned him about what might happen if he lent his voice and opinion to the rest of us. The Judge is without a doubt correct about the lack of etiquette by bloggers on the political fringes. He is, in fact, right about the way public discourse has plummeted into name calling. I have been guilty of it myself. Nevertheless, Judge, DO NOT STOP BLOGGING and do not stifle the idiots by cutting off comments. Yes, learn how to monitor the comments so that vulgarity and defamation are not on your blog, but let the idiots roar. No need to roar back unless you enjoy it, but most of all, do not let it stifle your voice, or the idiots have won.

Judge, you may never see this post, I have no way to contact you, but I hope you will continue to engage in the discourse in the World's new "Town Square." I hope you will not fade away. The service you give now, as you enter the end of your career, is probably more difficult to sustain than any that you have previously encountered. It is also among the most important.

Tuesday, December 12, 2006

Nassau District Attorney Rice Announces An Early Assessment Bureau: Justice Delivered Or Fiscal Boondoggle?

Nassau's New District Attorney has announced a new initiative which both increases her office size, and seeks to restore her image with Women and Family first voters. The question is: Will it result in better justice at less cost?

DA Kathleen Rice has come under fire here before (see here, here, and here.) As a result of my criticism some have wondered whether I intend to run against her. Let's handle that first. While one never says never, it is highly unlikely for so many reasons. Those reasons can be saved for another day, suffice it to say, I am critical of Rice because I want to see results without an unnecessary increase in costs.

Ok now lets deal with the new proposal. Rice's New Early Case Assessment Unit is not an unwelcome addition. The ECAB bureau is now going to take police arrest paperwork and decide what the charges should be and how those charges should be drafted. Up until now that job was the police department's job alone.

In order for ECAB to be a success, it has to be less expensive than the police doing it and it has to result in fewer felony and serious misdemeanor charges from being filed.

I realize that lower charging seems counter-intuitive but it has been an open secret that Nassau Police over-charge cases. Hence a lot of the plea bargaining that goes on in Nassau courts is to just get the right charge to begin with because the police over-charge. The causes of over-charging can be many. One reason might be that the police do not have the legal experience to make nuanced decisions about charges. A more nefarious reason is that charging a burglary instead of a trespass looks good on a police officers resume. Charging an Assault 2rd degree is better than an Assault 3rd degree.

Now fairer charging will result in what appears to be a drop in the crime rate. That is illusory. That aside, it will result in a clearer picture of the real crime rate in Nassau County. An ECAB unit also takes away from the District Attorney the right to hide behind the police actions as in "I didn't bring the charge I only prosecute what the Police charge" which is how Nassau District Attorneys have defended themselves against the defense charge of "over-charging.

The PBA and other Police labor Unions fear that ECAB will both decrease overtime and take away the Police perogative in charging crime thus making it harder to control the streets. Criminals will have less to fear of a cop overcharging the case.

A reduction in police overtime would be welcome from taxpayers point of view. Part-time assistant district attorney's cost a lot less than overtime paid police (Police tend to out earn their ADA counterparts anyway.) However I have worked in an ECAB type unit in Mount Vernon (NY)in the early 80's and I would doubt that the unit will cut overtime substantially. Instead of drafting from a form charge, police will now sit with an ADA and they will type out the charge instead. I do not see a savings unless the police can teletype or email the paperwork to the ECAB and then they just redraft. Moreover since Police have to bring suspects to Police HQ anyway there is no savings in time driving from the Precinct to Mineola. Hence it seems like all we have done is added a layer of bureaucracy to the process. It may be, however, that the new project reduces over-all prosecution costs.

The new unit is going to cost 1.2 Million Dollars ($1,200,000.00). That's a lot of money. In order to adjudge this expense a success, Rice is going to have to prove a significant drop in over-charging and in Over-time or at least in general prosecution costs.

One final point, DA Rice is using the unit to place part-time employees. It is meant to undue the harm done when she eliminated part-time jobs for prosecutors this past summer. The ECAB unit is a failure if it is to be measured as a solution to the part-time lawyer fiasco. That however is fodder for a different post.

As for now, for ECAB, the jury is out.

Monday, December 11, 2006

Of HOPE and Charity: Some Interesting Stories & A Few Thoughts

,A few stories "ripped from the headlines." if you will:

I. Newsday Reports on Suffolk County New York Drug Dealers as Murderers Initiative
Yesterday's edition of Newsday had this story on a new policing initiative. Seems a lot of kids are dying of drug overdosing. Their stories do not get reported because the Cause of Death is normally reported as accidental. Parents and other family members do not want the publicity. Suffolk County NY however has decided to try to treat these cases as murders or manslaughter and seek to find the drug dealers who help these young people become corpses.
I have often wondered over the years why this wasn't done already. After all giving a kid "Smack" or "Dust" seems no different than handing a suicidal person a gun. In fact it is probably worse. At least the suicide wants to die, usually not the intent in the latter case.
On the other hand I am reminded of the John Belushi case where fellow user was accused of helping Belushi die by providing the drugs to him. The trick here is to use this charge against pushers. People who live their lives primarily in the sale of drugs. I am not talking about a fellow "hype" or user, I mean the prosecutions ought to be pointed at big dealers. The other positive of this is to get the serious nature of these drugs and of being involved in these drugs out in the open so maybe the deaths of these naive kids will not be in vain.

II. The Children of Hope Need YOU!!

Two abandoned infants are buried next to each other in Holy Rood Catholic Cemetery. Both carry the last name "HOPE."

My friend Tim Jaccard had the grim task of burying each infant. Tim is a hero in my book. He fought and obtained state approval for the safe haven program where young mothers can drop kids off at a site that will take the kids no questions asked. They can give up the kids and leave. It is saving lives. Getting the word out is still tough especially among minority and immigrant kids. Tim is in charge of the Children of Hope Foundation. He works with these young mothers and mothers to be and talks them down from the fear and into the world of adoption. He and his foundation have saved numerous kids, both Moms and infants. I hope this Christmas, Tim can focus on those he saved rather than the two he lost in the last month. Click here to send a donation.

III. Speaking of Donations, Only You can save Meals on Wheels

If you were a shut in and had no way to get food, what would you do? Who would you turn to?
About 100 people sick infirm and needy turn to Meals on Wheels Huntington, Inc. They are there day after day meal after meal helping to make a difference in the lives of these people.
They are about to go out of business. They have less than 60 days before they lose their home. Seems their building is dilapidated and the Red Cross (owner of the building)can't keep it up anymore.
"Meals" present rent is Two Hundred Fifty Dollars a month, their new rent in a new place will be a minimum of One Thousand Dollars a month, Unless... They can find an angel. A Horace P. Bogardus. A landlord who has say 300 sq. Feet of space that he can give or rent to them so they can keep up their life giving work. ARE YOU THAT ANGEL???? If so call them at 631-271-5150. Remember what Father O'Malley said about good deeds helping to cure an bad heart...

IV. A New Blog From A New Arena

I do not usually write about a new blog unless I see it putting out a lot of posts. On the other hand, most new blawgs do not start off with a mention in the venerable Volokh Conspiracy on of American BLawg lands most popular blogs.
So what makes this one different. Well it is written by former US District Court Judge H Lee Sorokin of the Jersey Branch of the US District Court. It is written in a no nonsense style and it appears the judge is not happy with the way the American government and especially the Executive branch is treating the US Constitution. So far the Blog X JUDGE is getting a lot of hits and a lot of comments. Some of which a judge would not usually hear. Welcome to the Blogoshpere your honor. Keep your helmet on and keep on writing.


What a surprise, the Congressman named to chair the HOUSE OF REPRESENTATIVES INTELLIGENCE COMMITTEE (now there is an oxymoron if ever there was one) doesn't know the difference between a Shiite and a Sunni Muslim. He also doesn't know which one supplies Al Queda (Sunnis) and which ones support Hamas (Shiites). We're already off to a rollicking start...
Hattip: Volokh Conspiracy

VI Facebook Follies Can Hurt Your Job Prospects

DUH????!!!! Need we say more?

VI. Is the Rabbi "The Grinch That Stole Christmas??" NOPE! It's His Lawyer!!

Constitutional law is probably the hardest subject to grasp, especially when it comes to the Establishment Clause of the First Amendment.

This story tells why lawyers who are not well schooled in the area of First amendment protections should stay away from giving advice on it to laymen, especially those that think they are aggrieved.

Seems the good people who run the Seattle-Tacoma airport wanted to spread a little seasonal cheer. They put up a couple of Christmas Tree displays. A local rabbi, rather than write to them and ask them to come up with some other displays next year, ran to the press and said "They better put up a Menorah or I am going to Sue!!"

The people who run the airport not having time to figure out the establishment clause issues, decided that they would just be Skipping Christmas this year.

His Lawyer a personal injury and sometimes criminal lawyer says ""They've darkened the hall instead of turning the lights up," said Bogomilsky's lawyer, Harvey Grad (this is a bad link but I just couldn't give him anymore free publicity, you'll have to get it yourself). "There is a concern here that the Jewish community will be portrayed as the Grinch."

No Harve the Jewish community isn't the grinch, it is the person who told Rabbi Bogomilsky that he could demand a Menorah.

You see, A Christmas Tree, Reindeer, Santa Claus, and Frosty the Snowman, are not religious symbols. They are symbols of the season. A Nativity Scene are Religious symbols, just as is a Menorah.

A Dreidel is not however a Religious symbol and is what the Rabbi should have asked for. Moreover, you should have advised the Rabbi not to make a federal case of it this year, but to ask and see how it went next year. If things were unchanged THEN you should have advised him to sue... Then again you and your client wouldn't have gotten any publicity...

I bet it sure seemed like a good idea at the time though. Next time leave the heavy lifting to the First amendment guys and stick with the winter's slip and falls...

The Christmas Trees are back up in Seattle-Tacoma Airport. The Rabbi has agreed to drop his potential lawsuit and suprise: the trees reappeared. Hmmm I didn't know Christmas Trees were afraid of lawsuits... you learn something everyday.
Of course, maybe they all just read this post and they learned something about the establishment clause...Nah.

Sunday, December 10, 2006

A Happy Announcement

Time for a happy announcement. Roger Adler, Chairman of the NYS Bar Association's Criminal Justice Section, has honored me by naming me as co-chair of the Section's Continuing Legal Education Committee. This is a position I held for about 6 years in the 1990's. At that time the concept of Mandatory Continuing Legal Education was new in NY. I was excited to hold the post knowing that only quality programming would keep lawyers informed and happy with the new "imposition."
I think we were very successful and had hundreds of lawyers and judges attend the programs. They were of high quality and they were as entertaining as they were informative.

I am honored to again be serving our state bar. I look forward to planning and working on a lot of really exciting programs. If you have an Idea for a topic you would like to see the State Bar tackle, send me an e-mail to

Saturday, December 09, 2006

The Politics Of Criminal Law: How Greed and Avrice Threaten Freedom

There is a sad story in yesterdays New York Sun (see here.) Earlier in his last term in office NY's Lame Duck Governor, George Pataki proposed a "civil confinement" for sex offenders bill to the Legislature. Civil confinement is a nice way of saying, after you have paid your debt to society, you have to pay more. In other words it's our way of putting you in jail for life while not having to call it that.
Libertarians like myself are truly troubled by the proposal because the opportunity to use "Hospitals" in place of Jails is fraught with the opportunities for abuse and hopelessness.
I do not want to debate the merits and detriments of the concept of "Civil Confinement" other than to say that most criminal lawyers and civil libertarians as well as most Medical Doctors in the psych field do not like the idea. That the experts don't like it has never stopped a politician in search of votes however. '

What I do want to point out is that this is a serious issue that ought to be debated and hearings ought to be held and maybe we should even see if it warrants a change in our state constitution.

Well it doesn't. It seems Pataki has found a way to get what he wants by trading something the legislators want. Pataki will give the legislature a payraise (after 8 years) if they will sign off on a civil commitment bill that will make him look tough on crime in his pursuit of the Presidency.
Money for Freedom... it is unreal the level of sleaze this conjures up.

Look, whether you like the civil confinement idea or you find it to be Orwellian in concept, it shouldn't be decided because one guy needs it to run for president and the other guys need a raise.

Now lest you go around thinking this type of stuff only happens in Albany NY, Think again kiddies. Washington DC has its share of jerks too.

Case in Point:

There was a bill introduced in the House and the Senate to help people not to commit more crime after they are released from prison. The Second Chance bill works by making sure that once their debt to society is paid, Convicts obtain the skills and oppportunities to succeed in the community they are being released into. The feds will encourage that the states participate thru giving entitlements back to the states that work on it.

It was going pretty well in the lame duck congress until one guy in the Senate, Sen. Tom Coburn a Republican from Oklahoma put a senatorial "hold" on the bill effectively killing the legislation for this session.

Coburn was the only Senator to object to the bill. Nevertheless, it went no where and now a lot of people who were hoping they could get the help they need to live productive lives are (often times literarily) left out in the cold. Coburn says that the feds are jumping into a place the states should be. He maybe right, but the majority should rule on this too. They will not get the opportunity however thanks to Coburn.

It is getting late and I am tired, I will retun tomorrow to add some links. Till then good night.

PS for those of you in the Washington DC area there is a new Radio talk show on WMET on you AM Dial: Political Firestorm with Rob Arnold. I don't always agree with him but I can say the show (on Sunday's from 10-11am) is a lot of fun and worth the Listen. As for those tht can't tune in, you can hear the audio streaming, to you by entering

Ok I will fix this up in the morning, till then have a good night

Tuesday, December 05, 2006

Death Of A Tiny Dancer: Goodbye Nakita

I was stunned by the news. I had a beautiful client named Nakita. She was a dancer. She was a kid. She was just 22. She is dead. No one knows how she died. No one knows why she died. The police officer said to me "sometimes people just go. We never find out why." Maybe God just needed a tiny dancer up in Heaven.

She has been dead for nearly 9 months now. I had lost track of her. A little over a year ago, I had helped her and she seemed to be starting to take control of her life. She appeared to be getting out of a life that ran too fast for her, and was settling into a life that was "normal."

I was tipped off to her death earlier today by a oblique e-mail. I did some sleuthing and next thing I know I was looking at her friends blog which paid tribute to Nakita. I saw her picture there, it was a different look for her, but the smile was unmistakable. I pulled my file and confirmed it was her. She was 22.

Police in her hometown had posted a number for those that might have information about her. I called and spoke to a detective who told me they have no known cause of death. I asked him if it was a homicide (which was natural since homicide is covering the case.) He said it had not been ruled a homicide or a suicide. He told me a few things I didn't know. I became sadder knowing she had not been able to put her old life completely behind her. She was a good kid. She had a certain spirit about her. And a naivete, which, given her field, seemed misfitted. I couldn't help but wonder if I had done enough for her.

In my practice, we try to go beyond handling cases and put time into clients. We attack their social problems and try to put them in better positions than when they came in. Not just legally but sociologically as well. We help them to try to find employment and to address their addiction concerns. We get them help with anger or with learning to handle family and job related responsibilities. We try to change their worlds enough so that they do not become clients again.

I wondered if she had been taking care of herself. I wondered if she had done this to herself or if someone had done it to her. I wondered about her dad, who she loved so. I felt bad I had not taken more time to check on her. I wonder if it would have mattered.

Life is busy. I have limited time to help those who are in my present care, and to care for those in my life who need me outside of the office. I know it is not my responsibility to care for a client's life after they are no longer a client. Still did I do enough for this one.

In my mind's eye I see the exotic dancer who spoke of loving the ballet. I see the daughter who feared she had let down her dad and mom. I see the young woman who was proud of herself for pulling her life back together. I see her smile. It will haunt me for nights to come.

Good night tiny dancer. Goodbye Nakita...

Sunday, December 03, 2006

SCOTUS Takes Up The "Bong Hits For Jesus" Case

I have recently had to put Long Island (Criminal)Trial Law on hiatus because I am trying to overhaul it to be a more useful (and a more regularly written)blog. In the new year I am hoping that LI(C)TL becomes a group blog and that my writing there is a little more educational. Anyway, a few months ago I wrote a pretty long post there about a case out of the Ninth Circuit (Juneau School Board v. Fredericks formerly known as Fredericks v. Morse)It is better known as the "Bong Hits For Jesus Case."

Seems the "Supremes" are going to get involved in deciding the case. That should be interesting. I originally thought the case came up with the right decision but for the wrong reason. You can read the post cited above for the case facts and for my analysis. The story about the decision to accept the case at the SCOTUS is here

Another interesting sidelight is that former Whitewater Prosecutor Kenneth Starr has taken up the mantle of the school district's "right" to interfere with the speech. Too bad President Clinton was disbarred, he could have argued the case for Fredericks and this could have been an even wilder story.

Thursday, November 23, 2006

Happy Thanksgiving

Happy Thanksgiving America!!

I want to give thanks to all the men and woman who are away from home protecting mine. This includes not only our Troops whose sacrifice is great as to make it unfathomable, but also to the men and women of our uniformed services like the police and firemen who work on the holidays. It includes the FBI and CIA and all the other Alphabet police of the Federal Government. I may have professional disputes with them, but I truly give thanks that they are trying to protect my family and I.

I give thanks to my colleagues and adversaries. Not only because without them I would starve, but because, for the most part, they are people who believe in the cause of Justice. They live most of their lives in courtrooms, working hard to defend the principals I hold dear. They are ethical and moral, they are patient and thoughtful, they are sincere.

I give thanks for my clients whose causes give my life meaning. Now I especially give thanks for those clients who pay us, because they make it possible to represent other clients for less and sometimes no money. I also thank all of them for entrusting their lives to me and my team. The work helps make my life meaningful.

I give thanks for my team. I work with 3 very talented young lawyers, 2 High School interns, 2 wonderful legal assistants and our bookkeeper. These young men and women come from many different backgrounds. Two were born in Countries where freedom and rights were either not available or were honored in the breech. Three were born on foreign soil, came here as young children and are pursuing their American dream. They remind me daily, not only why America is a beacon to the world, but of the opportunity we as a nation offer. These three women each work hard. They strive to better themselves through education and opportunity. They overcome language barriers and cultural differences to achieve. Each of my team speaks at least 2 and many 3 languages fluently. I am happy to get by in English and pretend to still speak High School German. I love the "United Nations" feel of our office. I love the compassion they show our clients and the camaraderie these people show each other and my family and me. In fact I think of them as part of my family and I love working beside them.

Finally I give thanks for my family. My mom and in laws. My boatload of cousins and aunts and uncles. I come from a family of very talented people. Musicians, builders, craftsmen, chefs, doctors, nurses, teachers, writers, and yes lawyers. I appreciate how they have continued to build on our grandparents dream for our family and our nation. They achieve with the knowledge that they are the children of immigrants. We are proud of our Italian Heritage and prouder of our American Citizenship. We are proud of our culture and of our country.

I give thanks and remember those in my family who are no longer with us here on earth but wait for us in heaven above. I miss my Dad and grandparents. My uncles and aunts. Sadly even a cousin. I love and miss them greatly. I appreciate the sacrifices they made so that I may have the life I share with my family.

I give thanks for my children Sal and Frank, in them I see a continuation of a dream brought over by pilgrims; and by 4 Italian men and women. Smart but without formal education, they overcame prejudice and the great depression by hard work and persistence. They traded everything for a dream. A dream for themselves and for our family. I hope they see its continuum in those two boys.

Finally I give thanks for my wife. MaryRose. She suffers each day with the ravage of Scleroderma. Yet she finds a way to be a full part of our lives. She is our inspiration and she is our cheerleader. She believes in our work. She encourages me to fight on when I don't think I have a chance. She sets an example of fortitude that I can only hope to shadow. I pray for everyday we have together. I pray for more. I am thankful for they love she showers on us, and pray she feels that which we offer to her.

If any of you are feeling thankful for the wealth and health of your life, and want to show that thanks... Help keep Scleroderma patients alive, by leaving a donation by clicking here. And Happy Thanksgiving to you and yours too.

Tuesday, November 21, 2006

Damn, And I Really Liked Those Little Hot Dogs They Served: The Heritage Foundation Proves It Is Nothing But A Bush Front Organization

I couldn't help but post this link to Andrew Sullivan's Daily Dish piece about how the Heritage allegedly Conservative "Think Tank" has decided to not invite Bush bashers to dinner.

If you have the nerve to be a libertarian and take umbrage with Bush and his Neo-con antics you cannot speak on Heritage grounds nor will you be invited to their 25th anniversary of the Reagan Tax cut.

I am really going to miss those Pigs in a Blanket...

Hattip to Volokh Conspiracy

Monday, November 20, 2006

At Least They Are Spending Their Own Campaign Money: Nassau DA Rice You Lost The High Ground On This In Your First Week In Office

More Political Hypocrisy

This story suggests that local politicians are feathering their own nests by using campaign funds for personal gain. One Pol bought $13,000 worth of flowers for town workers funerals. Another Pol, whose district has had a large influx of Spanish speaking residents paid $3000 for Spanish lessons. Finally a third elected official gave a close campaign aide/fundraiser a $300 wedding gift. (In reality only the last one is really questionable in an ethical sense. All three are probably legal) Nassau District Attorney Kathleen Rice is not happy with this and said the campaign finance law is not strong enough.

Rice said: Contributors should be able to know whether their gifts will be spent specifically to win an election, Nassau County District Attorney Kathleen Rice said. Otherwise, she said, ``It chips away at people's faith in the whole system.''

So imagine Kathleen how we taxpayers feel when we see you hire a bunch of old friends from work as your assistants and give them huge raises and then hire your sister-in-law for a job and give her $5000 more than the gal who had held the job for 15 years before sis came along.

How can you justify increasing the size of your office by 4 people over the size of your predecessor and yet costing us $8 million dollars more than he did?*

* Based on the County Executive's numbers in his proposed budget, Rice's request was for nearly 30 Million Dollars. She has a staff that is four members more than Dillon had in 2003 and yet his budget was 23 Million Dollars. Where did the other 8 Kathleen? Mostly into the salaries and benefits portion of her budget. According to sources in the District Attorney's office, Rice hired a bunch of cronies and gave them raises over their previous employment and increased the size of the salary associated with each hire she made above and beyond what the same job paid under her predecessor. I don't know. I don't feel safer knowing her friends are making more money. Too bad she didn't earmark more of those funds to fighting and deterring crime.

Thursday, November 16, 2006

The Curse of The Mostly Innocent Client

I am in the midst of an impossible month. Not because I am so busy (though I have been running.) Not because every Judge in my life wants to start a trial with me (though I would love to know where everybody was when I wanted to try a few cases in the early spring and early fall.) And not because I am so tired I could sleep in the passing lane of Queens Boulevard (also known as the Boulevard of Death.) No, the real reason I am having an impossible month, is because e I have been Cursed With Mostly Innocent Clients.

Now most days, I am relegated to representing one of two types of clients. Innocent, or Guilty. Of the two, guilty is easier. They often set a lower bar and are more realistic about what the system will accomplish. Often they are more "professional" about the issues too. They have usually "been here before", know what to expect and can manage their emotions better.

Completely innocent is not bad either. It just means that there is a greater chance I am going to trial. Not much of one however. Usually, if completely innocent, the truth is going to come to light early enough to keep bad things from happening. It helps if I cross and re cross every T and dot and redot every I, but for the most part, though the stress level is higher among both client and lawyer, a job well done is rewarded.

The Mostly Innocent Client is usually a victim of circumstance, mixed in with a lack of legal training and judges/prosecutors who cannot see the forest for the trees.

For example: Client is in the armed service of state X which neighbors New York. He gets off work and puts his gun in his car picks up his girlfriend and goes to a concert on Long Island. While leaving the show 3 young males in a late model SUV get into a road rage beef with him. By his report they are dressed "ghetto tuff." As they approach his vehicle he remembers the gun. He takes it out and lays it across his chest in view of the guys who scramble away and back to their SUV. He leaves the concert happy he didn't have to defend himself. The three guys in the SUV stop a passing cop. They tell him they saw a gun. They do not Identify themselves. Realizing after they stop the cop they will have to identify themselves and further realizing the cop might find the drugs and or weapons they have in their SUV, they "beat feet" and take off. Cop meanwhile has no (and I mean no identifying information on these hoodlums.)

Now they stop the clients car and arrest him for the gun. Now it is loaded and that's a felony. Our guy is on active service with the national guard of another state. A sister state. If he were to be active in the US army we do not arrest him. But because he is a guardsman not a reservist, NY makes the arrest.

We learn that our client is an absolute hero whose record of personal sacrifice moves people to tears. He has often put his own goals and opportunities asunder to care for his mom and younger sisters. We find that already a guardsman on 9-11, while enrolled in College he immediately gives up his education to serve his unit full time. That until the semester ended he was going to school then pulling shifts at the tunnel and bridge entrances. This is all during the time we think someone is going to pull up with a panel truck and send everyone to smithereens. We also find out he has requested to go to Iraq on two separate occasions. Both times his attempts were thwarted because his specialty is so needed here.

The alleged victims of his crimes are still selling their poison to kids in the hood. Our guy was pulling him and his family and literally hundreds of other kids out of the hood and giving them hope. When not working for the guard our guy is out working in one of America's most dangerous High Schools starting a Jr. National Guard unit. But Good Ole Nassau District Attorney Kathleen Rice, she is going to be sure to drum him out of the Corp with a felony record because hey she has a policy to uphold.

Now some of you may be asking how in the hell did the arrest get past the suppression hearing. That is the issue on appeal. The court's decision flies it the face of the decided law of the nation not just the department. However by the time I get in front of an appellate bench our guy is already out of the Guard. In the meantime I convinced our chief judge (not the one who decided the suppression issue)not to put our client in jail if he should plead guilty which was what he had to do.

Weigh the equities. Our District Attorney Kathleen Rice had the opportunity to help a guy who spent a lifetime helping others get over a mistake he made in 15 seconds in his life. She could have charged a misdemeanors and plea bargained the case out. Instead she supported the drug dealing, anger outraged thugs who didn't have the guts to give their names because the realized they would be charged should they hang around. She acted sanctimoniously, arbitrarily and capriciously. I will not forget. Hopefully our military guys won't either. Maybe others who can understand what it means to serve in harms way and the pressure even those stationed at home face in a time of war, they won't forget either.

The Curse of the Mostly Innocent Client. Today it perplexes me... Tomorrow, it may come back to perplex Ms. Rice. I certainly hope it does. Next Election for Nassau County (NY) District Attorney is just under three years away...and counting...

"Christian Conservative" hypocrites Howl About Saulito Arrelano's Trip to Mexico: 7 Year old Shames Us When He Puts a Face On the Immigration Problem

Second grader fights to stay in America with his illegal immigrant Mother.
Oh how I love to hear the neo-conservatives and the Christian Right howl when they get hoisted on their own petard. There is a lady living in a Chicago Church. She is guilty of illegally coming into the USA, not once, but twice. She has a child born here. He is seven (7) now. He just went to Mexico to ask the government there to lobby President Bush not to send his mom back to Mexico. Now these "conservative" pundits are angry because the kid is getting sympathy for his cause. They accuse his mom and her sympathizers of (get this)"making the kid a political pawn." What a joke. These people have no shame.

First the kid is no political pawn. He has a vested interest in wanting to grow up in the country in which he is a citizen. He also, it seems ought to have a right to live with his mother the way most kids do. It may not be a Constitutional right, but morally it seems like it should be.

Second, Remember Elian Gonzolez the kid whose mom wanted him to leave Cuba and come to the USA so badly she drowned trying to get him here. Then conservatives used the kid to try to embarrass Clinton and crew? If we weren't using him (and we weren't) then pro immigration forces are not "using" this boy.

Third, every time "conservatives" want to pass some half baked piece of anti-crime or anti-civil rights legislation, they attach a dead child's name to the legislation, parade their grieving families infront of the TV Camera's, and make it impossible for legislators to vote against the bill because it would be seen as a vote against the crime victim whose name the bill carries (Megan's law for example.)

What gets me, is that if this mother had threatened to abort this kid if sent back to Mexico, these same morons would have called for her to be detained and tried to force her to have the baby, just to then deport them. "Have your kid, then raise him in poverty and squalor, so he can grow up with the same lack of opportunity you had." Now that's everymother's dream.

I hear there is a move on to try to convince courts that the children of Illegals are themselves Illegal. That's not what I learned in civics class. The Constitution seems really clear on that:
"all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."

Of course these guys forget all about strict construction when it doesn't suit them.

Here is the REAL CONSERVATIVE position on Immigration reform. Too bad for the Republicans, the Democrats will get to take credit for passing it.

Oh, and for all you Republicans who ran on your "anti-immigration pro-fence record", hoping that it would get people out to vote for you based on the immigration issue; it worked for me. I voted for a Democrat for Congress for the first time in 25 years. I'm glad you guys lost. I hope you learn from it and get back to representing the majority of Americans and not the cranky few who make all the freaking noise. You know Nixon was far from perfect, but he was right about a silent majority. I think you guys heard them last week... They weren't happy.

Thursday, November 09, 2006

Are The Democrats Beckoning Libertarian Republicans?: TalkLeft's Big Tent Democrat Dangles Sen-Elect Tester As A Lure

TalkLeft (TL) is a blog that looks at criminal law thru the eyes of partisan politics. It is a group defense lawyers blog and is typically a heavy liberal slant. In this post Big Tent Democrat (hereinafter BTD, a blogger on TL) writes that Senator Murak O'Bama should not be the point man for bringing back a democrat majority. Instead he points to "conservative" Senator Elect John Tester of Montana as the model of the modern 21 century Democrat. In reviewing Tester's stated platform, (There is the first good thing, they guy actually has annunciated his plan) BTD notes Tester has a decidedly libertarian view. For example this is what he quotes a Tester ad with his views on Criminal law and the War Against Terrorism:

Jon Tester believes in freedom first. Under the PATRIOT Act, the FBI could obtain records on every video you ever rented and every book you ever checked out. They can obtain your bank statements and medical records; they can even keep tabs on our guns. What’s worse is they can request this information for any reason at all, without your knowledge.

Tester believes we should be fighting terrorists, not invading the lives of innocent Americans. In Washington, Tester will fight for more human intelligence, a greater investment in our Special Forces, and closing backdoors to terrorism like the one left open by the Burns-Abramoff immigration policy in the Marianas Islands.

He sounds like a member of the Cato Institute on the issue of Abortion:

We all share the same goal: to reduce the number of unintended pregnancies in this country. There are concrete steps we can take to achieve that goal. Jon Tester trusts the women of Montana to make their own medical decisions in consultation with her family, doctor and God. The politicians in Washington shouldn't interfere with this very personal and difficult decision. The decision to have an abortion is a difficult one and it should remain safe, legal, and rare.

While not my view, it is the way that he states it that is important to me. "He trusts the women of Montana to make thier own medical decisions..." The view that the state needs to stay out of most of our personal medical decisions. Further he seems by this statement to favor a view that the states should make the decision and that Washington should not be legislating this stuff for the nation.

Recently I read something about the Democrats as a new home for "classically liberal" (ie libertarian) voters. I have said before that as the Republicans continue their shift toward social and far right Christian value politics, conservatives of the libertarian ilk will begin to stray from the party. Sen. Elect Tester may be proof of that. In fact as BTD suggests he may be the model for which to win back the presidency for the Democrats.

Wednesday, November 08, 2006

Election Night Morning: My Take On The National Election

It is almost 2:00AM the day after election day. I am tired having just driven to and from Dannemora to Clinton Prison to see a new client. I would usually do the trip as an overnight but it was last minute and I just did not want to miss voting.

I spent a lot of the day listening to the pundits on Fox and CNN handicap the races nationally. I haven't said much about politics on this blog because it is not the main point of the blog. Mostly "That Lawyer Dude Blog" is about the politics of law. National politics is mentioned only when it has something to do with law. Even then I try to talk about Policy more than Politics. That may change. I haven't decided. This post however is about what I think happened today.

First, the neo-conservative part of the Republican party gave away the House of representatives and probably the United States' Senate (right now Dems lead in Virginia, Missouri, and Montana)and basically have run off almost any moderate or libertarian in their midst's.

The pundits on CNN announced tonight was a big night for the liberals in the Democrat party. They are wrong. In the key races where Republicans were chased by Democrats, the Dems were almost to a man conservatives (as the Democrat party goes) and many of the losing Republican's were either moderates or conservatives with blemished records.

The net result is a more neo-conservative Republican caucus. Nancy Pelosi is the nations first Italian American Speaker of the House of representatives. She is also the first woman. She is liberal from northern California. She was raised by the First Italian American Mayor of Baltimore Md. She is old line Democrat. She is pragmatic. She is going to have to let her new more conservative brethren off the hook on some of the left's issues if they are going to be returned to office.

The Guy who took accused pedophile Mark Foley's seat barely beat Foley! How is going to be expected to hold that seat in two years? Senator-elect Webb from Virginia is a Reagan Republican. He really hasn't left that reservation. He just got sick of the Neo-cons. He will be to Harry Reid as Sam nun was to Tom Daschle...a pain in the ass. If the Republicans are more solidly neo-conservative, the Democrats are more conservative. Where does that leave the liberals? The moderates in the Democrat party, once they get their act together and realize they swing the balance of power, can work with either side to get their agenda passed.

The next two years do not bowed well for getting anything accomplished. George W. Bush is not Ronald Reagan. He does not have his talent for compromise because he is not as pure on the message. He doesn't understand it. He stays the course in a pure fashion, because he cannot figure out what the key principals are that he needs to protect. Hence he presides over a ridiculous deficit and fights a war that has no end in sight. He will have to compromise to accomplish his work. He seems unable to do that. He just doesn't get it.

He is also scared to death of another on soil attack. I am not sure that is political. My cynical friends think he is afraid to be the first president since Madison to be invaded on the mainland. He lives in abject fear of it happening twice on his watch.

I do not ascribe the same motivation to the President. I think he very much can not bear to see us lose anymore innocent lives in the USA. I think he is worried about our safety. He just doesn't understand that a real American knows that you cannot beat us, until you take away our freedom. Our freedoms make it impossible for the enemy to beat us. If Bush understood the eke points of American History, there would be no "Patriot" act. No Boarder Fence, no Torture program and no NSA Domestic spying. He would understand that trying to protect us by giving away our freedom neither makes us safe or free. That is the problem with the Neo-cons. They do not understand the basic tenants of our History. And that is why they lost the house. It is a major reason why they may lose the Presidency too. If the Neo-cons want some success, they will drop the more draconian demands of the Christian right (which is neither Christian or right) and coax the libertarian conservatives back into the fold.

Stop with the gay marriage amendments, and the stem cell research bans. Let Rumsfeld resign and go to Georgetown to live out his days. Concentrate on reducing the size of the budget and focus some tax cuts on people making Fifty to Two Hundred Thousand Dollars a year. Give Parents a real tax reduction for paying tuition, and cut some of the fat in the budget. (Start at Main Justice. If you guys would stop taking state crimes and federalizing them you could probably cut the size of the AG's office by more than half.)

The chances that debate in this nation is going to get any less polarized in the foreseeable future is slim or none.

One last note. To those that lost in their attempt to keep their House or Senate seats, Thank you for your service to our Country. To those who won seats... May God Spead you to safety. To those that ran and lost, never give up. And to you that voted, Thank you. From the bottom of my heart.

Saturday, October 28, 2006

Talk About Not Getting It? Village Justice Of S. Nyack Proves NYT Is Right

A couple of weeks ago the New York Times ran a series of articles on what was wrong with the Village Courts of NY (See here and here.) One of the Times' complaints were that Village Justices use their power to wreak revenge on their rivals and otherwise misuse the office for their own agenda's.

Now comes the Village Justice of South Nyack the Hon. Dennis Lynch inthis decision. The case entailed the use of marijuana by one Slade Morrison in public. If the guy were prosecuted in the county court or in a district court, the case would be dismissed by an ACOD (an adjournment in Contemplation of Dismissal which means that he has to behave himself for a year and the case is dismissed. It is reserved for people who have little or as in this case no record and for minor crimes such as open use Marijuana use. Its purpose is a good one. It requires the user to face his behavior and gives him a chance to avoid a criminal record if his act gets cleaned up. It also serves as a way to stop people with greater records from walking away from their behavior.

So what does judge Lynch do? He denies the ACOD even though both the prosecution and the defense agree on it and even though the law encourages it. Why? Is it because the guy involved is a bad guy? Is it because Mr. Morrison's attitude was so bad that there was a need to call attention to it so others might know he has an attitude problem? Was it because the court knew of a drug problem Morrison had that wasn't being addressed by the agreed disposition?

NO!! It was so the court could make a point about the "importance" of the village courts and to answer the NY Times. The Decision was not even requested. It was issued sua sponte (on its own.) So some guy has to face a lifetime criminal record that this self important lawyer/judge can make a point about village courts and his personal opinion that Marijuana is a gateway drug.

Now I am of the opinion that if the judge is unhappy with the law or the way that the legislature views the violation for marijuana, then RUN FOR LEGISLATURE. If he is unhappy with the way the prosecutor handles these cases (he regularly offers ACOD's to save the budget and promote the idea behind the legislatures rule for ACOD's)THEN RUN FOR DA. If the court is unhappy with the NY Times, GO WRITE FOR THE NY DAILY NEWS. But whatever you do, how about you not use your office to promote your personal agenda. Read the decision, you will see what I mean. Yeah the guy was arrested once before. He also was NOT CONVICTED. (The prosecution could not proceed in a timely manner.) So he has no record. The defendant is not a kid, and I do not think that marijuana being a gateway drug (which I agree it is) is an issue here. Nope, Judge Lynch you just proved the point of the TImes series. Too many Village Justices are abusive of their powers.

Now if the District attorney wants to send a message back to the judge, I guess he just refuses to answer ready for trial. As for me, I am thinking of sending a letter to the New York State Commission on Judicial Conduct...

Friday, October 27, 2006

Lazy Reporters Stupid Detectives Libel A Good Judge: That Lawyer Dude Defends Judicial independence

I like Kieran Crowley of the NY POST. I know him to be both a compassionate and hard working reporter. Which is what makes this article so disappointing. Keiran how could you let this show off Detective get away with slandering Judge Richard LaPera??

It seems that the the head of the Detectives Union, Tom Willdigg is angry because Judge LaPera, with the agreement of both the then District Attorney Denis Dillon and the defense attorney agreed that the sentence of 12 years for a guy who robbed people. Now it is easy to rip a judge for accepting a plea bargain because the public doesn't like plea bargains. Without them however, the criminal justice system would ground to a halt.

When a criminal agrees to plead guilty to a crime. He saves the state the cost of the trial. He saves the victim the emotional expense of reliving the crime. He takes responsibility for his crime. The value of a plea as opposed to a trial is so encouraged that the Federal government rewards a plea with a reduction in sentence of up to three points on the sentencing grid.

When judges and lawyers get involved in plea bargaining, they look not only to the crime but also to the background of the person being sentenced and the reason the person may have committed the crime. A drug addicted kid may get a bigger break than a sociopath. A younger person more of a break than a more "mature" person.

In the case Crowley writes about, the defendant received a 12 year plea as opposed to a 25 year max. If the court were to offer the max or even close to it, it is doubtful that the defendant would have agreed to it. After all what's he got to lose. The state may have saved over a half million dollars in paying for salaries for court personnel, district attorney, police, jury's, public defender, defense investigators, appeals, etc. etc. etc.

How dangerous will the defendant in the case be in 12 years? He will be over 50, He may even rehabilitate. Either way, the sentence given the goal of plea bargaining was not a soft one.

Moreover, judges cannot defend themselves. Rules of Judicial conduct prohibit them from speaking about their cases outside of the courtroom. They can't hold press conferences. That is why the Nassau County Criminal Court Bar President Vito Palmieri is holding one on the courthouse steps on Monday October 30th.

Now a few words about the Hon. Richard LaPera. I have been a lawyer for about as long as the judge has been a judge. He tries as many cases as any judge in the courthouse. I have had the privilege of trying cases and handling suppression hearings with the judge. He holds lawyers feet to the fire, both sides too. The Office of Court Administration records show that judge LaPera is among the hardest working judges in the courthouse.

I don't always win when I appear before Judge LaPera, I don't always lose either. I don't always agree with his rulings. I am however always treated with respect by the judge and though he can get testy, two minutes later all is forgotten. He listens to all sides. He is as concerned with the needs of the public as he is with the needs of the defendant. He treats everyone, even people he is not happy with (like criminals) with respect. His decision not to run for re-election (if indeed he doesn't run) is a loss to our courthouse.

My problem with the POSTS article is that someone from the defense side of things should have said something in the article. The defense attorney in the case had good reason for supporting the sentence. The Post article and the Detective Union's words should not have been reported as fact. Fact is, there were problems with this prosecution, and my sources say DA Rice and the Detectives are lucky that the court managed to get them a plea bargain and saved them the embarrassment of an acquittal.

The Nassau County Criminal Courts Bar Association will be meeting on the Courthouse steps on Monday October 30th 2006 at 12:30. They will be there to support both judge LaPera and the importance of Judicial Independence.

Wednesday, October 18, 2006

Why the Heidgen Verdict Won't Stick

Nassau County (New York) District Attorney Kathleen Rice gets a temporary victory and a bully pulpit for her crusade against driving while Intoxicated with the conviction of Martin Heidgen for murder by depraved indifference. I wonder (again) how she will explain the waste of taxpayers money when the case is overturned on appeal.

I know this is difficult to understand. Depraved indifference to human life is a tough matter and the NY State Court of Appeals has made it as clear as they can. Here is the answer, yes the person who drives purposely the wrong way down a one way street at full speed not intending to kill anyone but not caring if he does and realizing he might is guilty of Depraved indifference. The person who either does not perceive the danger to others because he is intoxicated or metal ill, or lost, is not guilty of depraved indifference murder.See this decision

As written on a bulletin board service I am privileged to subscribe to, if a person goes up on top of a high rise and drops a bowling ball on a crowd below, that's depraved indifference. If he is so drunk that he goes to the top of the high rise and throws the ball down thinking he is in a bowling alley, he's not guilty. (A That Lawyer Dude thanks to Sufolk County criminal defense attorney John Powers for the example.)

Heidgen would have plead guilty to a offer of Manslaughter 2 which would have put him in for 5-15 years. It would have been the right solution to a really bad case, and saved the county taxpayers hundreds of thousands and maybe a million dollars.
Today Rice won, tomorrow taxpayers will lose. Politics as justice, Nassau's new standard.

UPDATE UPDATE UPDATE: The jury foreman claims she and another juror were coerced into finding the murder verdict. Another juror who voted for conviction says that the descriptions of violence in the jury room were correct but not coercive (yeah right) and he also admits those jurors who were for a Murder 2 conviction refused to debate (deliberate)the issue! You read it here, this verdict is getting overturned on appeal.

Monday, October 09, 2006

Here's A Real Shocker: Navy Refuses To Promote Lawyer Who Beat Administration On Guantanamo Military Tribunals

Ever wonder why people call the term Military Intelligence an oxymoron?
The story here is that Navy Lt. Commander Charles Swift, brought on an appeal for a Guantanamo terror suspect: Salim Ahmed Hamdan, a Yemeni and alleged al-Qaida member who was Osama bin Laden's driver. He attacked the military tribunals and wound up winning.

And what does he get for his trouble and hard work successfully defending someone who everyone would love to hate???


Talk about not understanding publicity. They should give this guy the promo just to avoid posts like this one. Nevermind that colleagues said the promotion was a no brainer and that the guy is one of the best and the brightest in the JAG. Nevermind that all of the Arab world will now feel confirmation that they cannot get a fair shake in US Courts. The worst part of this is that guys like me who want to think the government might know what it's doing get really turned off by stuff like this. It seems petty and is ill timed. Stupid stupid stupid

Friday, October 06, 2006

Nassau District Attorney Rice: Making A Career Out Of Wasting Taxpayers Money: Arresting Tassone Is An Expensive Bush League Move

I have to think that Nassau District Attorney Kathleen Rice either doesn't care about the taxpayers who (barely) elected her, or she thinks we are stupid.  Her latest boondoggle is costing us a minimum of Ten Thousand dollars, for five days.

Frank Tassone is a non violent and evidentially very sick heart patient who also happens to have helped steal Eleven Million Dollars from the Roslyn (NY) School District (see this article.) The case has generated a lot of publicity here on Long Island, throughout New York State, and across the country. Though the investigation was completed by her predecessor, District Attorney Rice has been basking in the glow of the convictions her office has obtained even though she was unable to convince the judge in the case to impose the serious sentences she wanted. Getting the convictions and jail time without costing the already ripped of residents of Nassau more money, was laudable. Not happy however with coming in at the last moment, finishing the job, and getting all the good will that comes with the convictions her predecessor's investigation put in motion, Rice had to come in with one of the most bush-leauge moves I have seen in twenty two (22)years of practicing law. It again calls into question, Rice's professional maturity for her postion.

Tassone is in Lenox Hill Hosptial in NYC. He has congestive heart failure. He has surrendered his passport and returned a large share of the stolen money. As previously noted, he is not violent. He missed court twice while in the hospital. According to Newsday, the judwarranted a warrent for Tassone's arrest but also set another court date. Every real lawyer knows that the court is saying: "if he doesn't get in on the next day, I will be very angry." It does not mean go out to his hospital bed and arrest him.

NY Court of Claims Judge Alan Honorof, the judge in the case, is a very decent man. He would never unnecessarily cost taxpayers money. Unfortunately he underestimates the publicity seeking Ms. Rice. She went right out and had her police officers arrest Mr. Tassone at his hospital bed. Assuming Tassone is not released before his next court date of Tuesday, this little charade will cost we taxpayers a minimum of Ten Thousand ($10,000)Dollars in non overtime salary costs. If there is overtime involved, then it's going to cost nearly double. Those figures also do not inconveniencenconvienence to the Doctors, nurses and staff at the Hospital.

Rice complained "So am I supposed to wait until he does actually flee?" "Imagine the phone calls I'd be getting then: 'How could you let this happen? You should have known; he didn't show up twice before.'" Oh good now we are going to govern by trying to avoid bad publicity???

This lady has a bad excuse for every halfbaked scheme she comes up with. This county has more than its share of violent, healthy, dangerous, criminals that she cannot find in one day. But a sick fosuperintendentperintendant, he is a priority because he may garner her bad publicity if he gets out of a hospital bed with heart failure and escapes???? So now she is governing by the "Cover your ass" system of Justice?
It is rumored around the courthouse that Rice thinks she will be NY's next Jr. Senator from NY assuming the one we have now runs for a different office.

This is just one more example of Rice's nonchalance toward the costs of her immaturity in office on the taxpayers of Nassau County. Rice's budget proposal has been handed into the county legislature. It is a disaster. She has 4 more employees than she had in 2003 and her budget is 30% more expensive!!! That is more than 6 million Dollars!

I am unfortunately correct about Ms. Rice and her plans. She cares not a wit about the victims of Nassau County, unless of course their plight advances her publicity or career. When is Rice going to start to show some class in this job? I will analyze Rice's budget request and advise why the legislature should reduce it in my next post.