Monday, August 28, 2006

The Week In Review Vol I No. 2:Who Will Hire an Ex-Con; Even Justice Dept. Agrees Rape is Torture; Do Conservatives Think The Pres. Stupid? And More!

Ok this week in review thing is harder than I thought. Nevertheless we will try it for a while on both blogs and see how it goes.

A. Who is hiring ex-cons

This post on CrimProf Blog talks about a Dallas job Fair for ex-cons. Less than 10 percent of those business invited accepted their invitations. Ok how do we break the cycle of Crime if after people have paid their debt to society they can't get a job?
Jobs ex-cons could hold:
Drivers:Trucks,Cars, delivery van.
Paralegals: Yep some of those jail house laywers actually know what they are doing and know the streets.
Loading Dock workers
Trades, laborer
counselors, meter maids,
manager at fast food joints, pretty much anything.
I have met a lot of qualified people who for many reasons commit crimes. I have helped many others who society loves and admires who have committed crimes but have not been arrested or otherwise charged for crimes they did commit. Not every con is right for every job. Neither is every college graduate. To not even look and see what's out there is stupid and wasteful. I wonder how it would have worked out if it was held here in NY?
It depends on the previous crime, but many of these adults have abilities to handle jobs that earn more than minimum wage.

B. Even The Department of Justice agrees Rape is Torture.

I could not believe a US Court of Appeals found that: "The rapes and prolonged imprisonment she suffered were part of a "legitimate investigation," the Fifth Circuit Court of Appeals held in March 2006. WHAT?? They sit in New Orleans. Maybe they brains are waterlogged. WHAT??

That's right. It's right here in the L.A. Times. A Congolese woman was being framed for being part of an assination attempt. She is held for months and raped on a regular basis. Those facts are assumed true. AND THE FIFTH CIRCUIT HELD THAT THE RAPEA WERE PART OF A LEGITIMATE INVESTIGATION.
Why has noone called on the US Senate to impeach these people?? Are we really sure the President can't do better?? Oh yeah, that's right he appointed some of them...(sigh)

Money quote:
"Repeated rapes are never part of a legitimate investigation. Rape is torture," wrote law professors Karen Musalo of UC Hastings College of Law in San Francisco, and Joseph Vail of the University of Houston Law Center. In asking the 5th Circuit to rehear the case they cited a December 1994 United Nations resolution denouncing systematic rape as a weapon of war."

C. Do Conservatives think the President is an Idiot??

The libertarian Reason magazine asked that question and the answer they came up with was...Yes!!

Money Quote:
" While other presidents have been called stupid, Scarborough said: "I think George Bush is in a league by himself. I don't think he has the intellectual depth as these other people."

Seems George Will and Bill Buckley think he might be too. I think the jury is still out, but he does get failing grades from me too. Here's hoping against hope he can salvage his second term in the next two years. Can't say I am optimistic.

D. And More:

I am sorry, it's late. I need to drive to Washington DC in the morning. I will try to get to some of the other things I found tomorrow. Till then, I'm out.

Patterico Pontifications Takes On Jury Nullification: That Lawyer Dude Comments Set Off Quite The Debate.

Seems my discussion on Patterico's Pontifications here and righthere on That Lawyer Dude, on the rights and obligations of juries to nullify has set off quite the discussion at Patterico's blog.

Patterico took me on (See note 52-57) and then decided that the issue was important enough to blog separately (check it all out here) He had over 90 responses before I left my response.

Here is Patterico's position on Nullification:

"Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?"

And here is my response (I am number 92!! Who knew people cared about jury nullification so much):

"Ah Patterico, I am loving you. Thank you so much for sponsoring this most interesting debate. Over 90 responses. Outstanding.
Ok you posit as follow:

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

Yes I would take the oath. I would mean it when I say it and I would hold to it. I can still nullify under it. Remember there is an instruction (I believe Johnny Cochran spoke about it during his brilliant summation in Simpson. It is known by its Latin name: Falsus in Unum, Falsus in Omnibus. In NY that reads:

If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

A verdict that rejects testimony in full because it is false in part is fine with me. Even when other evidence may lead to a diferent verdict. The problem with evidence that is false is that it often in real life casts doubt as to other evidence that might be truthful. Let’s assume that the police officer says that he gave Miranda warnings at 10 am. Lets further assume that there is proof that that a truthful statement was given by the defendant at 10:49am. Further lets assume that it is proven that the Miranda warnings were not given until 11am. Finally assume that the police officer testified to seeing blood in the back seat that matched that of the dead person and said that he thereafter found the murder weapon two days later looking into a hollow tree in the park next to the defendant’s home.

The statement goes out, but the jury would be well within the law and instructions to reject the evidence about the blood and the weapon find, and I would say that if they really find some of the government’s case to be built on lies, the jury would be well within it’s rights to reject the side that argues the testimony that is a lie.

Once again thanks for this very interesting discussion. I wish I could get this type of stuff going on my own blog. It is an important discussion that criminalists have been thinking about a lot since Simpson."

I think the right of the jury to keep the government in check is an important jury right. It is not to be used all the time. I would have no problem with it being used in extreme cases. I believe that testilying by police hurts the criminal justice system far more long term than does any one verdict that allows a guilty person to go free. In the right case it can change the way courts and prosecutors do business. It can change the way certain police departments react as well. I do not think the Simpson jury nullified so much as I think they just didn't know what to beleive so they chose to believe none of what the prosecution offered. It is important to know however that the verdict in Simpson changed the face of how evidence is handled in LA and in many other parts of the Nation, and that is good for everyone, especially the innocent.

What a fun and interesting exchange.

Saturday, August 26, 2006

The O. J. Simpson Verdict: The Jury Got It Right

Over at Patterico's Pontifications (a really good blog. I would love to know how its author keeps up with while he works as an Assistant District Attorney in a big city)Patterico has been blogging his remembrance of the OJ Simpson trial.

I added a comment and felt I owed it to you guys to post my thoughts here. I am the 52nd note over there but feel free to chime in here or there with your thoughts.:

Given the number of posts and the days since this post went up, I doubt anyone but Mrs. P will even read this.

I was a commentator for Fox in NY as well as other media outlets for the trial. I watched it gavel to gavel. I was one of four national commentators (according to Newsday)to "call" the correct verdict the morning it was to be announced.

It was a long time ago but I agree that venue made the defense job easier. The case was not the white v. Black thing it became after the verdict however. That happened as the case went on.

The problem from the beginning of the case has been outlined by many of the writers above. That the jury may have been more likely to believe police misconduct happened is not dispositive. "The Glove" had an effect on these jurors not on the commentators.
What really sealed it however was the evidence that the LA Police wanted to be sure to get this guy that they would lie and cover up lies to do it.

Jury nullification didn't play a role in the case, the jury didn't think he did it but nullified because of the misconduct. It didn't know and couldn't intelligently decide if he did it because of the obvious police misconduct.

One other point on jury nullification. It would have been appropriate here. The police and the District attorney not only work on behalf of the People of the State, they represent what these people stand for. When police or prosecutors (by the way I believe Clark and Darden for all the BS in this case were talented lawyers doing a good job against other exceptionally talented lawyers, I do not think they lost their case, I think they were beaten by their own witnesses and a top notch crew of attorneys)play the games and lie and fabricate evidence the way the LA Police did in this case, the jury has every right to say whoa this offends our sense of justice and we are not going to stand for it. While I firmly believe that the jury here didn't do this, it could have and it would have received no fault from me.

Sunday, August 20, 2006

The Week in Review Volume I No.1:"Spoofing","Vishing" New Forms Of "Phishing"; The NSA Ruling; Capital Punishment For DWI? & A New Form Of Child Porn

All week I read a thousand web posts articles and such and wish I had the time to blog them all. Of course I could never do that and still practice law and spend time with my family. I decided to try to put together a post on a weekly basis that let's me bring the posts to your attention and throw in my two cents where I have the change in my pocket. (Tribute to the NY Times Sunday editionwhose Week in Review Section has been my favorite read for over 35 years.) I will be doing the same at our sister blog Long Island (Criminal)Trial Law. The difference will be the items chosen in each post will usually be a little different. Thus without further adieu here is Volume I No.1:

A. Phishing, Spoofing & Vishing OH MY!!

Newsday Long Island's paper of only daily newspaper reports that Long Island is seeing two new forms of "phishing." Wikipedia defines "phishing" as follows:

"...Phishing is a form of criminal activity using social engineering techniques. Phishers attempt to fraudulently acquire sensitive information,
such as passwords and credit card details, by masquerading as a trustworthy
person or business in an electronic communication. Phishing is typically
carried out using email or an instant message."

The new scams are called "spoofing" and "vishing."

"Spoofing" occurs when a thief uses something called "Voice over Internet Protocol" or VOIP. VOIP allows you to make calls over the internet. Thieves use it to hide their actual phone number and your Caller ID comes up with the name of a legitimate financial institution. You are asked personal information from account numbers to passwords and the like.

In the "Vishing" scenario, crooks call you and tell you there is a problem with your credit card account, and give you a number to call to straighten it out. When the victim calls the number he is asked to enter his credit card information using the touch tone keypad and Viola! The thieves have all they need to ripoff you and the credit card companies.

A third scam is a variation on a theme. The perpetrators already have your credit card information but do not have the three little numbers printed on the back of the card. They call you and tell you they are investigating fraudulent purchases on the card and ask you to provide the three numbers from the back of the card to "verify" who you are, or for "security purposes."

How to protect yourself:

a) Do not trust caller ID alone. Ask for the callers personal Identification information. Then tell the caller you intend to reach him back using the numbers provided on the credit card itself. Ask him for his telephone extension. Then call the number on your card and ask them to help you verify the problem.

b) Never release information on your card to someone you do not know. If they are from your financial institution they will know your numbers.

c) Ask what the last five purchases you made were and for the amounts and the dates. Ask them to provide your balance and your available funds and the date of your last payment and the method of same including the bank you paid the funds from. They may not have all the information, (especially your paying bank)but they should have all the rest of it.

If you have been the victim of an internet identity theft scam HIRE AN ATTORNEY PRONTO then call the police with the lawyer. You are going to have to act fast to protect your credit rating and personal information. You may also have a way to recoup your loses from the people who helped the crooks violate your privacy by their negligence or complicity.

B. NSA Wiretapping Is Ruled Unconstitutional

This is for all my readers who are about to go back to school and are trying to figure out what is up with the NSA wiretap case.

reported that Detroit Michigan US District Court Judge Anna Diggs Taylor ruled that the Bush administration's Domestic wiretap program was unconstitutional. This is the program that the President has decided he has the right to institute without congressional approval. It allows the NSA to listen in on telephone calls without the need to first get approval from a FISA court. The Bush administration through Attorney General Alberto Gonzales has promised to appeal.

Close reading of the decision shows that the Seventy Three (73)year old jurist, a Carter appointee and the first Black woman appointed to the federal court in Michigan, had written more of polemic than legal decision. Neo-Conservative bloggers and Bush apologists went crazy. (Check out this post by Professor Ann Althouse. A more shall we say cogent legal opinion was rendered by Howard Bashman in his column.

I have to agree with both Althouse and Bashman (and just about everyone else) that the opinion is weak on legal theory and long on political discourse. I think the reason for this is as follows:
a) The Administration is seeking to conglomerate the NSA Cases into one court. That is good judicial economy, except that it means that only one Court of Appeal gets to rule on the case. That may not be good for either side. Hence in order to avoid that from happening the judge decided to get the decision out no matter what it said for reasoning just to be sure that her Court of Appeals in Chicago would get to weigh in on the matter.
b) She is really tired of what she sees as this administration's regal attitude and this concept that they can rule by fiat. She may have succumbed to the frustration that many of the liberal and classically liberal persuasion feel, as they watch the erosion of our liberties by an administration that is haunted by the ghosts of 9-11-01 and their failure to protect the nation from it.
c) She intends to correct the decision. Unlikely but possible.

For those that want to know what the 6th Circuit Court of Appeals might be thinking, there is this post supporting domestic intelligence gathering written by one of the 6th's greater conservative minds Judge Richard A. Posner.

The concept of Domestic Intelligence gathering is pretty much anathema to most counter-culture Americans and even to more mainstrean american civil libertarians. It brings back memories of President Richard Nixon and the Segretti Dirty Trick Squad and the domestic spying of the 1960's and early 1970's. However on Meet The Pressthis morning Senator John McCain made a case for at least some domestic spying performed under the watchful eyes of the Congress and the Courts.

I intend to keep my own watchful eye on this story.

C. Capital Punishment for DUI/DWI'S: A Modest Proposal*?

Over at one of my other favorite blogs, Sentencing Law and Policy
Professor Douglas Berman lays out the case for more severely punishing DWI offenders than sex offenders! Doug asks the question "Is capital punishment for drunk driving morally required?"

Shocking? Yes. Absurd? Maybe not according to the numbers. Why? Well, go see Doug's blog and see what you think of his thoughts.

*The phrase "A Modest Proposal" is from an essay of the same name by satirist Jonathan Swift written in 1729. It is probably my favorite political satire of all time. Swift could really "zing the king." Check it out here.

D. A New Form Of kiddy Porn Rears Its Ugly Head And May Split The First Amendment Lobby

The New York Times reports that kiddy pornographer are sending their smutty ideas through the internet under a potentially legal guise. They are posing kids in scanty attire, (covering the private parts) in suggestive ways to feed the sickos that "need" this garbage. I love free speech but this breaks its bounds. However, how much does this differ from a Calvin Klein Jean's or underwear ad?

There is no rule that says just because a child appears nude it is pornography and just because she is clothed it is not. In fact in US. v. Knox, the court specifically held that: "...Clothing alone did not automatically mean that images of children were legal."

There is a six prong test emanating from the case US v. Dost, which calls for the court to individually look into each case to determine if the poses render the pictures of a clothed child permissible or not.

Nevertheless, First Amendment Lawyers are uncomfortable with a rule that says children who are pictured wearing clothes can still be considered to be engaged in child porn.

My advice is to stay away from these sites as they contain Child pornography. In addition, if you are attracted to children that way, you should run and seek out counseling. RUN, before you are placed in the hands of Law enforcement. IF you have a problem with a child sex addiction there are places that can help.

Well that's my week in review. I am sure I missed stuff but hopefully you enjoyed this and I can keep it up.

Thursday, August 10, 2006

A Frivolous Response To A Serious Dilemma: Self Promoting Lawyer Sues Nassau County NY District Attorney Rice Over DWI Plea Bargaining Policies

Though still on vacation, I have been trying to keep up every other day or so with what's happening on sleepy Long Island. August 7th must have been a slow news day, because both the NY Law Journal and Newsday covered the self-aggrandizing "press conference" by some attorney (who shall remain nameless, less we give him an even bigger head than he already has) and the asinine law suit he filed against Nassau County District Attorney Kathleen Rice and Nassau County's Administrative Judge Hon. Anthony Marano. Now this particular lawyer, files more frivolous law suits than any other lawyer I have ever met. (I should know, he has filed at least 2 against me, making me a lot of money both times.) He usually holds a press conference each time he files one of them. Usually, the press overlooks these lawsuits, but like I said, the courts are vacationing, as are many of the lawyers, and it must have been a slow, slow, sloooowwww, news day on the 7th.

The law suit was filed, because this "Attorney" thinks that District Attorney Rice's plea bargaining policy is unconstitutional. He went on to cite a couple of Federal cases (that do not even remotely have anything to do with the issues), and then held a press conference. This is not the first time this guy has sued Rice. Back during the Halloween Egg Toss Case, this "lawyer" was the first one to run to the district attorney's office and beg them for a plea bargain, so his client could plead guilty to an act that was never a crime. Then, when the District Attorney's office didn't offer a plea bargain he liked, he invited them to put the case in front of a grand jury. When they did, he sued to be allowed to plea his poor client TO THE CHARGE (again he held a press conference to announce the lawsuit!!!!) DA Rice let him enter the plea to the charge. My client resisted the pressure of her co-defendants and instead went before the grand jury ALONE. She beat the trumped up charges that were brought against her. Mr. Lawsuit (obviously embarassed)then brought on a motion to allow his client to withdraw his plea based on my client's grand jury result!!! I have been told his motion was denied.

Salvatore Marinello, Chair of the Nassau County Bar Association's Criminal Law and Procedure Committee (a Committee I once chaired)was asked to comment on the tactic of suing the District Attorney. He told it like it is, to wit: ""As much as I don't agree with the policies, I really don't think I can say they're unconstitutional." He went on to say that the lawsuit has no merit.

Sal Marinello is right. The policies are ridiculously harsh for first offenders, however the self promoting, unnamed lawyer's lawsuit, is frivolous. You see, prosecutors have no duty to plea bargain cases. Hence Rice's position is not only constitutional, it's codified in the laws of the State of NY.

Nevertheless, there are a few things that the defense bar should be doing (that thus far it has not done) to convince District Attorney Rice that she should rethink her position. I will outline them in a post over at our sister blog Long Island (Criminal)Trial Lawyer. In the meantime the lawsuit that has been filed is a waste of taxpayers money and really gives a black eye to the legal profession. Far be it from me to tell Supreme Court Judge Tom Phelan what to do, but I think the case should be dismissed, and the lawyer fined for bringing it. Maybe then he will stop squealing about plea bargaining policies, and concentrate on winning the cases brought to him by clients who think they are hiring a criminal defense lawyer and not "Monty Hall."

Wednesday, August 09, 2006

What's Good For The Goose Is Gut For The Germans

Funny thing about many Americans; They think they are the only people inhabiting the planet. I've been vacationing in upstate NY and politics seems to be on everyone's mind. Most of the folks staying at the resort are wealthy and Republican. That's good by me, however in listening to them talk about the world and our nation, they act as if we have only a responsibility to ourselves. If "it" isn't good for us, it isn't good for anybody. In addition They seem to think that we can act any way we want, without fear that anyone else will follow our lead.

I dabble in International Criminal Law, (which is to say I haven't taken any cases in the field but I read about it a lot.) It harkens me back to my days at Tufts University where my Professors wrote the US' brief to the Court of International Justice in Der Hague Netherlands, supporting our position in the Iranian Hostage Crisis. An understanding of international law, I think, is an important tool to have if you are a policy maker.

Ellen Podgar at White Collar Prof Blog alerts us to an important international trend. For years the Justice Department has looked to punish conduct that occurred outside our country's borders when their actions violate our laws and such conduct has a negative effect on our nation. The term for this is "objective territoriality". Now it seems that a German prosecutor has decided to look into a possible money laundering scheme where money has been moved from the USA to banks outside of the US and then moved to German banks. The money laundering stems from the alleged attempt by an embattled CEO of a US company trying to avoid having to pay the US Government and 2 whistleblowers more than 10 Million Dollars in a qui tam action that the whistleblowers brought on behalf of the government for the company's (Custer Battles LLC)fraud.

The prosecution may be a good one, but Podgar asks an important question, How will we react if other nations try to prosecute our citizens if actions taken in this country (actions that may otherwise be legal) are illegal in their country and have a negative effect on their nations? The US has for years played the game of international relations with a certain "might makes right" additude. What if France were to seek to the arrest of Donald Rumsfeld because the Iraqi War has negatively effected the French ability to get oil and they decide that the execution of the War with its allegations of torture, violate french laws? How would you feel?

Wednesday, August 02, 2006

Two Of Our Favorite "Kens" Change Jobs

Gee Whiz, you go out of town for a couple of days and everything changes.

Surprise No. 1, Ken Lammers blogger extrodinaire (Crim Law blog) and one of the first guys to cross link this blog, has announced that he is switching sides and going over to a prosecutor's office. The change will very likely bring on at least subtle changes in his blog. More likely it will bring big changes. I am not crazy about change but if you read about his decision to switch, you will see that economically he had little choice. The Defense bar has lost a good friend in Va. Moreover, his reasons for leaving points out how important it is to properly compensate indigent defense counsel.

Surprise No. 2, Another loss to the criminal justice system, this time closer to home, is the announcement that Nassau District Court Judge Ken Gartner is leaving the bench less than a year after being re-elected. I have been told the decision is reflective of the good judge's need to earn more money to support his young family. The NY state legislature's failure to pass much needed judicial raises is causing us to lose strong judges who have experience and training. If we do not soon see a pay raise, we will have a bench of burned out lawyers who couldn't make the salary in private practice or really rich lawyers who have no need for money but crave the power. Lazy and/or power crazy judges are the last thing we need. Ken Gartner has written a number of really good decisions (two of which I have blogged about here and here. I will miss appearing before him. He was often on the cutting edge of the law. Judge Gartner should be moving up to the state Supreme court, not looking to take off the robes and return to practice. LISTEN UP ALBANY... PASS A JUDICIAL PAY RAISE AND STOP SCREWING WITH THE COURTS!!!!

In the meantime, I wish both of these fine lawyers much luck with their future endeavors.

Nassau District Attorney Rice and Newsday's Joye Brown GUILTY of Conspiracy To Commit Murder In The First Degree: They Killed The Strawman

Newsday's Joye Brown: "For Rice It's Broom For a Change."

Wikipedia the online encyclopedia that anyone can write, defines a "Strawman" as an argument that:

" (is a)logical fallacy based on misrepresentation of an opponent's position. To "set up a straw man" or "set up a straw-man argument" is to create a position that is easy to refute, then attribute that position to the opponent. A straw-man argument can be a successful rhetorical technique (that is, it may succeed in persuading people) but it is in fact misleading, since the argument actually presented by the opponent has not been refuted. Its name is derived from the use of straw men in combat training where a scare crow is made in the image of the enemy with the single intent of attacking it(see [1]). It is occasionally called a straw dog fallacy [2] or a scarecrow argument."

It is said that the "Strawman argument" is a form of Media Manipulation. Boy do they have that right in this case. Whether unwittingly or complicity, Brown and Nassau County District Attorney Kathleen Rice set up a strawman and kill him in two sentences.

Brown asks Rice: "Are you the "Witch" your critics say you are?" Brown then lets Rice off the hook by letting her answer:"Would they say that about me if I were a MAN???"

OH PULEEEEEZE!!!! I can't wait to hear Rice moan and groan someday when she loses a case because someone plays the "race card" in a trial.

No one I know has ever said Kathleen Rice is a witch. We all have however had our criticisms of her office.

Lets see, speaking strictly for myself, I have said Rice acts without consulting with other parties who have an interest in her office's actions. I have said that she may not have received the "mandate" she thinks she has. She is a neophyte politician who was swept in on Tom Suozzi's coattails. I have said she risks her conviction rate by firing assistant district attorneys whom the Taxpayers have paid to train.

I have said that many of the major changes Rice tries to "wreak", has the effect of costing the county and the taxpayers far more money than the system presently in use, and increases (unnecessarily) the size and budget of her office. I have accused her of feathering her own nest both in her office and (by hiring her sister-in-law and a number of old friends from her days as a Brooklyn Assistant District Attorney)in her own "house."

I have said that forcing people in her office who work part-time for family reasons to return to full-time work or quit is cruel, unnecessarily costly, and most of all sets a bad example for employers in a time when the need to parent children and care for elderly relatives is something that government should be trying to foster. I said District Attorney Rice is guilty of judge shopping with her attempt to have a dedicated DWI part (which she has been given) and her request for "community based County court trial parts (which the court has smartly refused). I have said that her insistence in having a veto in sentencing is overstepping her bounds and is a usurpation of a court's authority (most of the county's judges have agreed with me on that one too.)

I have also said that many of her objectives are laudable but her approach is wrong. A case of right diagnosis wrong medicine (or in DWI cases wrong dose.) I have said that she has a right to surround herself with her own people, but that in positions that are important to the safety of the county, she should make sure they are not "on the job training". I also suggested that this Long Island bred and educated woman who worked briefly in the Nassau courts as a law student might want to see what works here, and let us know what changes she thinks need to be made.

Those are the facts. Rice has not answered a one of them. Brown's article is trying to set up the "all the good ole' boys are pickin' on me 'cause I'm a girl" argument. As if forcing women, who wish to raise a family and work, back into full time employment wasn't enough, this type of "defense" really set's back the Woman's rights movement. Nobody active in the Nassau County, NY Courts cares a whit about your gender, Madame District Attorney.

Moreover, I have never been a Nassau County District Attorney's office "insider." I never worked for them and I worked for working as a Legal Aid Society lawyer. I am not a member of either "major" political party, (I am a registered Conservative) nor do I think I am a good ole' boy as most people define it. My criticism of Rice comes not as someone who supported her opponent, I supported her.

I am excited about her decision to root out public corruption. I hope she looks at Labor Unions and Organized crime issues too. Dillon promised that too when he first started. It either doesn't exist (at least to the extent the press wants us to think it does, or Dillon wasn't really looking very hard.)I also hoped she would look into Police corruption and the department's violations of civil rights. That is not happening at all from what I have seen. Rice is said to have nearly no interest in these issues unless it's about a bribery case or something like that. Testilying?... It's business as usual on the south second floor of the Nassau County Courthouse.

When I spoke to Ms. Rice, before she was elected, I had hope that instead of harsher penalties for crimes of addiction and poverty, she would seek to get people help and make greater use of available rehab programs that would reduce recidivism. Instead she wants to hold otherwise good people to criminal records so that if they do beat their addictions they can never get a decent job. They can't find work and the chance for relapse goes waaaay up. Talk about a self defeating policy.

I quickly tired of the annual arrest/photo opp stings that Dillon and friends ran. Every year (and twice in election years) we would have a sweep in the ghettos of corner drug dealers and a mass arrest of mostly young and foreign carpenters and plumbers who were working without licenses. I had hoped that DA Rice would use her office's power to get training and outreach programs going. Instead it appears that by trying to dictate the sentences of plea bargained cases, she is forcing trials on cases that for years were handled to conviction without trials. I predict her conviction after trial rate will go down.

No, Kathleen Rice is not a witch. No one with any credibility has ever called her one in my presence. No one with any credibility, is challenging DA Rice(or criticizing her)because she is a woman. No, our criticism is that she is acting like a spoiled child and her answers to tough questions are nothing more than an attempt to grab power and money. Maybe she will mature into the position. Thus far our criticism's is that she lacks leadership.

By the way, Leadership, requires the ability to form consensus and rally people to your position Kathleen. It is not the same as a dictatorship where one person calls the tune and everyone better dance to it and if they don't they are against you. That is called Paranoia a dangerous trait in any elected official

Tuesday, August 01, 2006

When A Court Gets IT Right. Stopping The Federal Sentencing Guidelines From Running Amok

From our friends at The Second Circuit sentencing blog:
Judge Rakoff of the US District Court SDNY, was faced with the same issue as described in this post below. A federal prosecutuion of a white collar defendant who materially overstated the financial results for his company. Co-defendants received three (3)months jail. The government asked Rakoff for life imprisionment. Fact is that while some people probably lost a lot of money, nobody died or was tortured of killed or even injured. Life is just an unreasonable sentence for someone who hasn't killed or tried to kill or injure anyone. The details are more appropriate to our Sister blog Long Island (Criminal)Trial Law however Rakoff provides some very good policy arguments that the Second Circuit and Congress as well as the SCOTUS ought to take into consideration before their is a negative reaction to this courts careful consideration of what is a fair sentence.
Money quote:
""To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have run so amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences. This court has endeavored to do, as reflected in its reasons set forth at the time of sentencing and now in this Sentence Memorandum prompted by the dictates of Rattoballi. Whether those reasons are reasonable will be for others to decide."

In considering the Booker fix, the courts job is to give a fair sentence. Despite what some appellate courts have said the Federal Sentencing Guidelines are not per se fair. Judge Rakoff's sentence however was very fair.