His "You're Guilty! Guilty! Guilty!" Tie Should'a Been The First Clue.

A terror suspect has been trying to get his admissions thrown out because he thought he was talking to his defense attorney when being debriefed by federal agents and Assistant US Attorneys. In US v. Shahawar Matin Siraj 05-CR-104, the Defendant was told by his immigration lawyer to go to the local police station to get proof that a previous misdemeanor was dismissed.
While on his way into the precinct he was arrested and questioned by agents and US Attorney's as to his role in a plot to blow up the 34th Street Subway station. He confessed on video tape (which evidentially did not include a part where the AUSA told him he was an AUSA.)The court ruled that the defendant (who testified) knew the AUSAs were not his attorney's because he testified he wanted to call his mother so she could call the immigration attorney and tell her he needed her.

Question for Judge Gerson. (Link is to a picture. Her Honor is in the center) : Shouldn't that request be seen as a request for a lawyer?
Anyway Her Honor ruled that the defendant's behavior belied his testimony and that he knew he was talking to prosecutors. So much for the arguing against that big two level "obstruction of Justice" upward sentencing enhancement under USSG sec. 3C1.1.

Give A Drunk Some caffeine, And You Have A Wide Awake Drunk...

I am not sure where to post this one. It is appropriate for both blogs;this one and the our sister site (Long Island (Criminal) Trial Law. I decided to put it here because the lesson it teaches High School students and their families. I will provide a link to this post or just summarize its contents over there.

Newsday is saying that Red Bull energy drink mixed with alcohol, gives users a false sense of security. In fact it makes it more dangerous because it takes away the feeling of being drunk without restoring any of the muscular or psycho-motor skills that make driving safe. You get less of a hangover but just as much slurred speech difficulty walking and dizziness. In other words you're still a menace on the road.

In reality this makes the drunk driver on Red Bull even more dangerous. The young driver who does not feel drunk takes the greatest risks and poses the greatest danger. Worse yet, because they don't feel drunk, people wanting to get drunk increase their risk for alcohol poisoning as they try to get the full buzz effect.

If you are going to drink and drive, know your limit... Oh, and don't mix your alcohol with an energy drink either.

The "Divorce Hotline"Blog: It's A Good Read.

My friend and fellow blogger Janine Barbera is blogging over at the Divorce Hotline. She has a really well written blog. It isn't just about divorce. It's about adoption and Long Island and good resturants and just life in general. Janine started writing her blog to drum up business. I believe in time that will happen, but in breaking the rules about a business blog, (Thou shall not write about personal feelings [as opposed to opinions]in your business blog) Janine has really found an interesting voice. She is a career attorney, balancing life and law, business building and home building, Divorce and Family law, and telling us all about it.

I find her posts wonderfully done and strongly urge you to stop off at her blog and take a minute or two out to enjoy a special new voice in the legal blogging community. Like my friend Scheherazade I think there is a real story in what Janine is writing. I recommend you to her.

And while I am at it, check out Stay of Execution too, I think you'll really enjoy it. I know I do.

Major League Baseball Does Not Own Its Stats: Or How To Make The National Pastime As Inconsequential As Cricket*

The Robber Barons that run Major League Baseball (a name they have turned into an oxymoron) think that they own the statistics (stats), and that only they have the power to license these stats. These guys must really be hard up. Maybe they ought to sell Major League Baseball to the NFL and let those guys run things.

First, I am not going to spend a lot of time doing the research, but it seems to me that stats are historical fact. Moreover, who "owns" the stat (meaning here who set what record) is part of the history. (ie. That some one hit 714 homeruns is not as important as Babe Ruth hit 714 homeruns. That he hit most of them for the NY Yankees and that he mostly played Rightfield and that he wore number 3 and hit lefty are also facts.) This history is not, in my opinion, "copyrightable."

Baseball's millionaires want to sell the rights to the stats and personalities to fantasy baseball leagues. If you don't buy them you can't use them and are in vioation of their copyright. (Are you listening Blondie.)I guess they figure "Why should someone else get rich off our monopoly."

With these guys at the helm, it will be no time before the game is completly trivialized. I mean come on! With all the steroid garbage, the stats barely mean anything anymore anyway. A game on TV is about a interesting to kids today as watching grass grow. The adults are killing the love of the sport on the Little League level, and the behavior of many of the star players doesn't give a kid much to look up to. Take away the fantasy leagues and what's left?

What really kills me is that these Bozo's made the same argument that the fantasy leagues are making in a case some years ago in a case in California...AND WON!!! What hypocrites.

There are two money quotes from the article:

"I think they quite rightly perceive that it is not a particularly popular position they're taking. A lot of people play fantasy baseball."

and:

"It sure sounds like a short-sighted move by MLB," Eilbott said. "These fantasy leagues, if anything, are great for baseball."

What understatments. What buffoons. What a shame.

*...is in America today. Don't write to me just because you love cricket. I like the little insects too but a whole day watching them try to hit a ball and chirp... COME ON

Over at Our Sister Blog: SCOTUS Debates What "Testimonial" Means

Over at our sister site Long Island (Criminal)Trial Law I am blogging about the oral argument in SCOTUS yesterday on two Crawford related cases. The argument by the defense in one case, shows how an original (and Libertarian)look at the constitution preserves freedoms of the accused. Enjoy

Training Children To Fight Cybercrime,

I found this post about teaching children to fight cybercrime such as attacks by viruses, spamming and hacking. I to think that this is an excellent idea. I think it is also important to add instruction in Web ethics. Arming kids with this information also arms them with the information as to how to do these things more effectively. A program in ethics might cut down on the behaviors before they grow into very big legal problems. Either way, I think it is better to arm the kids with the knowledge of how to fight back against these predators than to continue to let them fall prey to the dangers of the internet. It is about time we start to reclaim the internet from the slezzeballs and creeps. I also smile about this as a private initiative rather than a government attempt to control or further criminalize the internet.

First They Came For The Drunks And I Said Nothing Because I Was Not A Drunk: Is DWI Enforcement Destroying Our Civil Rights?

Our brother blogger Lawrence Taylor of DWI Blog is extensively quoted in an article in this week's Sunday Boston Globe entitled "Over the Legal Limit". The article talks about the creeping streak of cases (like Stitz v. Michigan which upholds DWI Roadblocks)in DWI litigation that is carving out an exception to the Fourth Amendment known as the public safety exception. I wonder if Alexander Hamilton or James Madison knew that there were exceptions to God-given rights? Ben Franklin would probably wonder how diminishing freedom from illegal search and seizure would ensure the publics safety.
John Wesly Hall (blog here) weighs in on the continued diminution of the protections of the Fourth Amendment as well. It is a chilling article, especially when you realize that MSM (main stream media) has not been particularly vocal on these issues.
Hat tip " How Appealing.

A Look At What's Making News Around The Blogosphere

Everyday I cull through about 50 blawgs. Many lead to interesting articles in newspapers throughout the country. Often I save them up in the futile hope that I will find the time to comment or write about the topics contained therein. Well so much for that. Anyway, here is what is filling up my feedsbox:

Seems like we have a homegrown solution to the important issue of Port Security. According to this article, a company out of Southern California has developed a screening method that is being tested in the second largest port in the world...HONG KONG.
Seems that we have been more interested in putting personnel at the ports shipping into the US and less in screening what actually hits our shores. Not anymore!. Seems Homeland Security Head Chertoff is onto this one. I like Chertoff in that job. (Don't get to excited it doesn't mean I will agree with him on everything I just think that of the potential candidates, I like him most.)On the other hand, he cannot afford another tragic mess like Katrina. IF he could jump on this and IF it worked (ie. It actually detected something bad trying to come in, or better helped us to find the idiot who sent it) it could be a real homerun for the former Judge.
Hat tip to: Sabrina at Be Spacific.

Holy Cow Batman!! LAPD has a new 21 century toy that might help them avoid high speed chases. Evidentially as they are chasing you they shoot a dart containing a GPS monitor into your vehicle and track it electronically. No more worrying about the bad guys getting to far away. Story at this post with a link to the newspaper article. Go GO Gadget Tools!!

Planning a Cruise on the high seas? Better read this post Both this and the note above are brought to you courtesy of the Crim Prof Blog guys. (Think we will drive to Hawaii this summer.)

Next time someone talks to you about how the liberals want to make our country unsafe by all their complainant about spying and reading e-mails etc, make them read this post. Now maybe some of you who question my conservative cred will understand why I can be rabidly libertarian when it comes to the Bill of Rights. Chilling. Especially when juxtaposed next to this warning from the recently retired Supreme Court Justice Sandra Day O'Conner (it's in the last paragraph.)

And just for those of you who think O'Conner is "yelling fire in the crowded movie theater", think again. Our friends in the NYPD are keeping us safe from lawful protesters by doing all kinds of illegal things as noted by our colleague Sui Generis at this post.

Remember the words of Ben Franklin: People who give up Freedom for Security do not get security and don't deserve Freedom.

The Fallacy Of The "Best Interest Of The Child Rule"

A recent lawsuit by The National Center For Men has been making the rounds of the blogosphere over the past few days. Heralded here as Roe v. Wade for men, the suit is really about what happens when a woman lies about her ability to get pregnant and then gets pregnant and then sticks the father with 18-22 years of child support.

Since I have been practicing law, the prevailing position has been that paying child support is in the "best interest of the child" and that the issue of fairness to the father is unimportant. Indeed NY Courts declared that men had no rights in this area in a famous case involving former hero detective Frank Serpico.
In fact the law in this area remains very unfair.

As Ms. Young points out, there is still a prevailing position that only men have the responsibility to refuse to have sex if they don't want to become a parent. That rule gives an awful lot of freedom to women and can handcuff a young man for a long long time. A fair rule would be to give men a thirty day opt out opportunity. There after a woman would have time to decide whether she was going to keep the baby, put it up for adoption or terminate the pregnancy.

There is an additional fallacy to the "best interest of the child" rule requiring men to pay child support in a case of a pregnancy they didn't want. That is that it is rarely in the best interest of the child to be with parents who don't want her or cannot afford her.

If we were really going to look at what was in the best interest of the child and used a monetary ruler to determine that factor, wouldn't the best interest of the child be to put her up for adoption to a family where both parents wanted her and could afford her? Now I could see the front page of the newspapers now. Pictures of tearful birth mothers having their newborns ripped from them in their best interest.

The fact is that there are many birth mothers who look at their children as winning a lottery. After all they do not have to work or finish school. They receive money each week until the child is twenty two years old. I wonder how many women would chose to have babies out of wedlock and keep them if they knew that their support would be capped at say Four Hundred dollars a month?

To put everything on the woman in this matter is unfair. There are as many men playing games with support as their are woman. Nevertheless, the remedy as it now stands is tilted to far in one direction. The issue of the best interest of the child is false. The law doesn't really provide for the best interest of the child. It provides for the easiest solution for the court. Courts need to have direction to change the parameters of the equation so that the best interest of the family as a whole, even one that is not together is taken into consideration. Babies are born into families everyday that can't afford them. By virtue of being together they make do and often succeed thanks to the concept of Love. Children are born to mothers who lose their husbands before birth. Again the woman is able to make do. Only where there is a man capable of providing financial aid does the best interest of the child come into play. Do not the orphan and the children of the poor deserve what is in their best interest too?

There is no such thing as a blameless pregnancy. The financial responsibility needs to be better shared among the parties. There needs to be a penalty to all parties that bring a child into the world under the circumstances outlined above. We also need to keep in mind the children of both parents that are to come. The present system unfairly burdens Fathers for their lifetimes. It is high time it is changed so that each parent take responsibility for the life they bring into the world and that financial incentives to concieve unwanted babies be ended.
Hat tip: The Volokh Conspiracy

Christine Rice, Mother of Nassau County NY District Attorney Kathleen Rice, Has Passed Away

I would like to extend my deepest sympathies and prayers to the family and friends of Christine Rice, mother of Nassau County's new District Attorney Kathleen Rice. From the obituary in Newsday, Mrs. Rice sounds as if she was a quite a lady. Obtaining a college education in a day when that was not the norm for most women, she raised a family of ten (and instilled a sense of justice and accomplishment in her family.) Her children were her number one priority and one at which she clearly succeeded. Her death was caused by complications from Alzheimer's disease. Her funeral will be held at St. Joseph RC Church in Garden City NY at 9:30 Saturday March 18, 2006. Rest in Peace.

Here's A Funny Look At The Law

Given yesterday's post on the Moussaoui case, I found this website featuring the slightly twisted mind of Attorney Charles Fincher. His post parodies the very funny Southwest Airlines commercials.

See lawyers can be fun and funny!

Prosecution blunder at Moussaoui trial threaten fairness of proceeding... AGAIN!!!

I am at a loss to explain the behavior of the government attorneys in the Death penalty phase of the Zacharisis Moussaoui trial. Their behavior has, by their own admission, been atrocious. The Judge had it right when she said "This is the second significant error by the government affecting the constitutional rights of this defendant and, more importantly, the integrity of the criminal justice system in this country."

The first act was a mistake. Prosecutor Novak asked a question that suggested the defendant had a duty to correct his previous statements to authorities after his arrest and after he requested an attorney. This is just a wrong thing to do. The court however could probably fashion a strong jury admonition along the lines of "Not only did the defendant have no legal or moral obligation to correct any errors he may have made to interrogating officers after arrest and before a counsel request but counsel for the government has no right to even illicit testimony about any failure to do so. It can be acknowledged that Moussaoui did not speak to authorities again by virtue of advice given to him by his attorney." That instruction given to the jury would have negated the harm sufficiently to keep the jury as a group from using the post request silence from coming into the jury room. Jurors are not the same as witnesses however.

The Governments second blunder (which really is too nice a word for a purposeful act meant to impermissible affect the testimony of a witness)is far more egregious, and far less repairable. Yesterday it was learned that in directly disobeying the courts pretrial order not to coach the witnesses, the government attorneys have tampered with witnesses, putting the entire case in jeopardy.

I am at a loss as to what to do, if in fact the witnesses are as tainted as they seem to be by reports of the governments attorneys. If the court dismisses the death penalty and sentences the defendant to life without probation, it risks an appeal and it denies the victims of 9-11 their only day to face Moussaoui. If she doesn't find a way to negate the tainted witnesses, she losses the control of her courtroom. Her admonitions mean nothing and worse yet, it will make our system of justice a sham. Instead of a justice system, we become a "just us" system, not fair, without integrity.

I am just unsure how the judge can be sure the testimony the jury might get from these witnesses will be the same as that which she would have gotten had they not been coached.

The immediate cause of this self made disaster is the FAA liasion attorney who clearly overstepped her bounds. She is not a prosecutor but is part of the "team." However, the witnesses themselves are also to blame. They knew their obligations and should have not participated in the attorney's attempt to coach them.

If the hearing on the issue bears out the defendant's position on this thing, then at the very least the government needs to have its witnesses barred from testifying. I would go further however. I would also deny the prosecution the right to cross-examine any of the four prosecution coached defense witnesses on stipulated issues. I would also instuct the jury that the prosecution team coached the witnesses before they testified, in direct defiance of a court order against both sides. I would tell the jury it could infer that the witnesses, had they not been coached, would have given testimony harmful to the prosecution's case. I would also file a grievance against the attorney on the prosecution team that committed the most heinous act of a trial team member since Chris Dardin asked OJ Simpson to try on the glove worn by the murderer of his wife only to find it didn't fit Simpson.
I guess the two things I would not do at this point, is grant a mistrial or take the penalty off the table.

Although I am not a proponent of the death penalty, I could impose one if as a jurist I felt the procedure was fair and just. If we are going to have a death penalty, we have got to preserve the rights of the accused. But this is about more than just this case. This is also about following the rulings of the court.

There is a trial technique wherein the proponent of evidence that is not going to be allowed into the trial will try to introduce it so that the jury can hear it. It is an overused technique, but the rules allow for it as the jury is told not to consider the question only the answer. If the question gets answered and then the objection to it is sustained, the jury must disregard both the question and the answer. When the tactic is deployed, it is usually worth trying to get the evidence in and hope that either it doesn't draw the objection, or that if it is objected to, at least the jury saw you try to get it in.

That tactic though, is a fair (if hardball) part of the game. However coaching a witness using the testimony of other witnesses, especially after a specific warning not to, is just plain out cheating. It not only implicates the rights of the specific accused but also taints the entire procedure in every case. How can any juror believe a government attorney when they say their witnesses have not been coached in the future?

I can hear proponents of killing Moussaoui moaning that we are putting form over substance, that the penalty we are giving the prosecution is far more than Moussaoui deserves. That he had far less concern about killing Americans than America has had about killing him. To those people I say that if our procedures in taking the life of the guilty are not trustworthy, we become no better than the killer. We become murders ourselves. You have to have standards and live up to them or else you are no better than the barbarian. For those who seek vengeance for vengeance sake, I guess that is fine. For those of us for whom life is sacred and the power of the state, something to fear, that is far from enough. As I said, taking the death penalty off the table, is an option, but one that opens a good judge up to criticism. If she doesn't do enough however, she will forever forfeit the control of her courtroom and the process becomes corrupted. That is far worse than sparing Moussaoui, far far worse.

This Is A Gang I Want To Belong To: Our Right To Be Patriotic

A twelve year old girl gets a bead kit for Christmas. She makes herself a Red White and Blue necklace to show her support for her four relatives serving our country in Iraq and to show her own patriotism. Of course the Schenectady City School District opposes her wearing the necklace because they have an anti-gang dress code rule that forbids wearing anything that could be "construed" as gang-related. Not that anyone knows of a gang with the Red White and Blue as their gang colors. Not that there is even a gang problem in the schools. Thank God the district decided to not let that stop them from doing something stupid. After all they're school administrators! Such are the facts that lead to the decision in Grzywna v. Schenectady City School District, 05-CV-0187.

I think more school teachers should be required to take Law Courses and Courses in the US Constitution so that they could teach basic civics and walk the walk they are supposed to be able to talk.

I have blogged about this before and probably will again. It is important that we foster a spirit of patriotism in our young people. It is just as important that we understand our Right to Free Speech. Fortunately this girl's mom understands the need to protect her daughter's rights. Seems she has done pretty good fostering a spirit of patriotism too.

Speaking of knowing our rights, lets look at the rights involved here. The First Amendment says (in part):
"Congress shall make no law...Abridging the freedom of speech." That seems easy enough to understand.

The Fourteenth Amendment applies the Bill of Rights to the states with the words: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Now the decision in this case is complicated. It basically held that the young girl in this case has a right similar to an adult's right to express her patriotism. The First Amendment does not always protect kids the way it does adults. I have more on the decision and it's niceties at our sister blog Long Island (Criminal)Trial Law.

Meanwhile as my friend Dennis Kennedy would say here is the money quote:

"Many school district officials became so enamored with their own power over these kids that they lose sight of both reality and common sense," Mr. Keach said. "They don't have a gang problem and they know she is not in a gang."

Mr. Keach is seeking a permanent injunction barring the school from punishing Ms. Furbert — she had already been threatened with in-school suspension — as well as damages and fees.

Oh when will they ever learn?

There Is An Important Difference in Learning To Think Critically And Just Plain Being Critical

Sometimes it is hard to find things I feel passionately enough about to put in my two cents. Other times there is so much I have to say, I can't get to it all, today is more like the latter time.

One of my favorite blogs is Michelle Malkin's. Michelle is a died in the wool Neo-conservative, so we don't always agree. However, in reading two posts recently (here and here), I started to germinate an idea about something that I feel passionate about: The manner in which we now engage in public discourse and the importance I place on the ability to think critically and yet act (or better engage) in an appropriate manner.

As I continued to read favorite Blogs, I came across this post at Professor Bainbridge's Blog, a more classically liberal (which is to say conservative with a libertarian streak) read than Malkin's. Bainbridge's posts along with the comments left by reader's (sure wish I could get that many comments on something I wrote)helped me crystallize my column today.

I have come to the decision that, schools are getting better at teaching the 3R's, at the expense of teaching students how to "think."

"What do you mean how to think? Isn't learning math and history thinking."
Yes it requires thinking but that isn't what I am talking about.

"Oh so you are suggesting that teachers teach students what to think, shouldn't that come from a kids parents?"
No I am not suggesting they teach kids what to think, only how to think. How to ask questions. How to criticize and how to think critically.

"Oh so you're like the guy in the Bainbridge post who wants only to rabble rouse and force kids to become "social activists." No again. I am just tired of seeing today's youth walk around like political zombies.

I can't listen to another kid, parody the arguments of his teachers or parents. I see almost no ability to appropriately analyze an issue or statement, to determine the speakers prejudice (or lack or same), or even the validity of the statement. They merely regurgitate. We need to go back to teaching Rhetoric and Debate. There is a reason we call Politics a science. Political actions must be put through the cauldron of critique.

When I was a student I remember being told not to believe everything I read. Nowadays if a kid can't spew back exactly what he read, he can't even begin to pass the test. A part of the problem is that in an age of standardized testing, with an emphasis on higher and higher grades, teachers have very little classroom time for discussion.

A further problem is that, as we teach to the tests, we find that the best answer is the answer the test grades correctly. Be a kid who disagrees and the answer you get from the teacher is that "Your answer is not the best one." Who says? I guess if the question is 2+2=4 then 4 is the best and only answer. However when one is talking about the best reason for the Civil War or the best reason for the Louisiana Purchase, the opinions can differ. It can be even more hairy if we talk about the Impeachment of Clinton, or the reasons for the War in Iraq.

I can remember a day when Seventh and eighth graders could intelligently discuss the 5 freedoms guaranteed in the First Amendment of the US Constitution. Now less people can name the five freedom guarantees than can name the 5 main Simpsons characters. Even adults can't do what we could do 30 years ago. (Check out these sad findings.)

You can require memorization of the Bill of Rights, but to really understand them, you need to learn about the people who wrote them. Why they felt they needed them. Is it any wonder why so many citizens are willing to cede their freedom for security (and why that concept sends most attorneys into orbit?)

Concepts of criticism are important. How to evaluate, criticize, disagree, or support are all essential skills an engaged citizenry must possess. Calling each other names, such as Moonbat and Wingnut does not pass as intelligent debate!

Suggesting that state schools do not have to fund professors or research that calls into question the states motives or actions is ridiculous. Does that not suggest that only privately educated people can question the state's authority? Is Bainbridge suggesting that state law schools cannot fund litigation that attacks unfair state programs. Do state law students have less of an interest in public fairness than their private school counterparts. Should we defund scholarships to those students who engage in clinical litigation that attacks the government? Would he suggest that we defund Prosecutor's offices that indict officials for wrongdoing in office because they are attacking the status quo?

Likewise, just as ridiculous is the thought that the only purpose of education is to criticize and attack sound policy in the name of academics or academic freedom.

Students today need to have an intellectual curiosity that causes them to question the status quo. It needs to be nurtured, and in this case school may be the best and safest place for that to happen. If they reject the status quo after they have critiqued it then so be it. IF they decide to accept it, that too is important. They need teachers who can help them to learn how to question not only the status quo, but those that criticize it as well. They require teachers who know how to teach critique and not those that bully students into accepting their viewpoint. (See this sad excuse for a teacher.) I am not saying that the teacher can't have an opinion or even voice it. In fact that can make the exercise more fun. I am suggesting that before he do so, he makes sure that his opinion is stated in such a way that a student does not fear speaking up against the position for fear of being rejected by the teacher. I also suggest that the teacher not suggest that the leader of the free world is the moral equivalent of Adolph Hitler! After all that will just lead to some kid thinking the guy is a Moonbat, and where will that get us?