Sunday, January 28, 2007

Where Are The Stars? How Long Should A Kid Spend In Jail For Getting A Blow Job?

Genarlow Wilson was a High School athlete of some reknown, when he and a couple of buddies got a few High School girls drunk and then filmed them providing oral sex. There was no question that the girls were under age 16, and that Genarlow was over 16. There is also no question that the girls consented to the act although it was probably easier to overcome their sense of propriety thanks to the alcohol provided by the boys (though accepted and consumed by the girls.) For these "crimes" Georgia has sentenced Genarlow to TEN YEARS IN PRISON. Had they had sexual intercourse he would have faced but one year in jail. Go figure.

I have blogged about the case before here. A ton of the Blogosphere has blogged the case too not the least of whom are Professor Volokh and our friend Professor Berman.

Berman asks an important question. Where are the stars who usually rally around these cases? Prof. Berman recieved two interesting responses to his suggestion that the stars come out for Genarlow. One suggested that because he acted like a cad, most of Hollywood is afraid to come to his aid. Unfortuately Hollywood has created the beast. Genarlow is simply acting like the idiots he sees on MTV, E! and even on the big three.

I have been interviewed on the subject in Newsday recently and on CNN but I truly believe that the culture of reality TV and the easy access to fame(YouTube, MySpace) make it "acceptable" in the teenage mind to be part of a life that makes most adults shutter.

While it is just like teens to push the envelope, the push has become stronger now that the Internet and TV is there to tell each of them where the line in the sand is drawn. (How's that for metaphor mixing?)

Anyway, the need for parents to increase their vigilance is even higher now. We have gone beyond the need to snoop into one's diary. We need access to web addresses and to passwords.

As for the original part of the post, maybe the guy who owns "BangBus" or "Girls Gone Wild" should be kicking in to the defense fund here. After all, was what these kids did, any different from what those two companies extol??

Wednesday, January 17, 2007

That Lawyer Dude Is Cited in Newsday On The North Babylon "Wilding" or "Hopping" Incident

Big week for being cited by the MSM (Main Stream Media, as opposed to the blogging community)for That Lawyer Dude. First and now these two stories in Newsday today.
The topic (sadly) is a wilding incident where three young women attacked another girl for no apparent reason (evidently it had something to do with a boy.)
Though the child who got beaten was not hurt, the incident passed by every one's notice until one of the kids or their friends put it up on the Internet. It went on some one's My and now it is all over the place.

The three aggressors have been suspended from school and now they are being prosecuted. I must admit if you see the video it looks pretty violent...then again assaults always seems violent. There is hair pulling and pinching and punching and pushing and probably a whole bunch of other stuff too (I think I saw kicking.)

On the other hand, it pretty much looks like every other fight I have ever seen. Whether it is now worth a criminal investigation is really questionable, but now that it is front page news, well we gotta have an investigation. Damn the expense there is a chance to be on a front page (or on Larry King Live.)

Now you maybe wondering why since I was quoted extensively I would be complaining. Well because the only reason anyone cares about this is because it is in the newspapers and on TV. I was shocked to see how little the interviewers (I was also vetted by CNN for their programs but I guess I wasn't willing to make enough out of it to be interesting to their viewers so they had Dr? Laura Schlessinger on to rant about our kids run amok.)

The incident does raise a lot of issues, but the least one is whether these kids need to be prosecuted. The girls have been suspended from school. This is even though the incident did not happen at their school or during school hours. It wasn't even an attack on a girl who goes to their school.

The issues I think are important are:
1. Why would they attack a girl 3 on 1?
2. Why did they film it?
3. After filming it, why did they put it up on one of their web pages?
4. What effect did reality TV playing in this?
5. What effect did violent entertainment (ie video games, TV, Movies etc)play here?
6. What if any responsibility does the hosting website have in this mess?
7. Why aren't the parents of these youngsters monitoring and editing their websites.

That kids fight, well, sadly that happens. Further it is probably age appropriate for 11-14 year olds. If I had been the principal, after I learned they had put the thing on the web, I too would have suspended the girls so that they would not be a distraction to other students. Had the item not appeared on the web and I learned of it I would have ordered peer counseling which has remarkable results on bullying, more than any other counseling I have seen in this age group when done correctly.

What makes this really scary, is the need of the girls to publically humiliate their victim, and to boast of their own violence on the Internet.

Our practice handles a lot of Internet/Cyber Crime. Up until lately that has been limited to Pornography, illegal Internet Gambling, Identity Theft, and of course Sexual Abuse. The addition of children (these are 13 and 14 year old girls) using the net to posit and boast or threaten other children is a burgeoning field. Every week we are getting more and more e-mails and phone calls about cyberstalking and calling people out.

It is in posts on My Space. It is not just on the weirdo sites anymore. It is on YouTube. There has always been a market for "backyard fighting" and such. These wilding incidents are just a push of the limits as to how far we will go to both protect the internet from censorship and to what controls we as adults will use to control our own kids.

For now, I am more a reporter of fact than I am a commentator. As a parent, and a lawyer I will tell other parents they have a right to snoop and check up on the internet use of their kids. Even so, there are limits how successful we can be. Our ability to monitor is difinitively going to be reduced as technology skyrockets. The new I-phones for example will be a huge test for us. When kids have them, even parents who are conscientious can easily loose track and control. Kids understand the technology much better than we do. These new smart phones will give kids access to the internet 24-7-365. Even the best of us cannot monitor that.

If we cannot monitor, what can we do?
*Well, for starters we can force internet companies like YouTube and My Space to take more responsiblity for monitoring their sites.

*We can to the best of our abilities monitor the sites our children use on the home or their personal computors.

*We can require the cellular phone companies provide us with detail bills of whom are children are sending text messages and MMS and other types of messages to.

*We can require e-mail to provide us with passwords to monitor our kids e-mail.

*Most importantly we can require that we talk to our kids. We need to find out if they are miffed at someone or if they are being threatened by someone. We can take phone calls from other parents who say their kid is afraid of our kids seriously. We can refuse to allow our kids to speak to us as they do thier friends. We can require civility.

*We can teach our kids about peace and love and even a higher power. We can stop eschewing formal religion and practice the ethics of the religion we adopt. We can be home when the kids get home, and we can be up and awake when they walk through the door.

Knowing that they will have to face us, and answer a host of imposing questions (like who were you with?, and where were you?, and what did you do?, etc) will be enough to slow most kids down. If nothing else, it's a start.

Monday, January 15, 2007

Fox News Cites That Lawyer Dude On The Heidgen Case

I want to welcome all of the visitors from Fox News. I hope you will visit often.
The hits on this blog more than doubled yesterday and I had no idea why. Now I know. This story on Fox News' website cites my post on the Martin Heidgen verdict. I am cited for differing with the prosecution and saying that the verdict will be overturned. I guess we will see. Coincidentally I just had another post on DWI's right below this one. I guess that's proof that "great" minds think alike.

Sunday, January 14, 2007

Drinking And Driving Does Not Equal Driving While Intoxicated

I have spent the better part of this holiday season trying to disabuse potential clients of the idea that because they had a drink and drove, didn't mean that the prosecutors could prove they were drunk at the time they were arrested. The anti-alcohol lobby has done an excellent job of telling America, wrongly of course that if you drink and drive, you're guilty of Driving While Intoxicated.

If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.

To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.

Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.

Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.

Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.

With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?

The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.

Saturday, January 13, 2007

And While We're On The Topic Of Porn & Computers... Check Out This Prosecution Boondoggle

In a couple of our last posts (here and here) I have been talking about prosecutors and government wasting taxpayers money, their time and our precious resources on sex crime issues. Just as I thought I was finished with the topic, I saw this article. Is this Prosecutor Thomas kidding??? Sadly no. The voters of Maricopa County AZ need to start a recall. In fact they should be outside of his office everyday until he resigns for being an idiot. I am sorry but putting a 16 year old through hell for possession of 9 pictures that he may or may not have downloaded and making a crime of one 16 year old showing another 16 year old a Playboy magazine is a crime in itself. Forcing the plea was at best a face-saving effort for a jerk DA. Maybe a Congressman should ask the Bar to investigate this guy. What ever happened to the saying "De minimis non curat lex?

Hattip to : Classically Liberal.

Justice Department Doesn't Need More Money, It Needs To Get It's Priorities Straight: That Lawyer Dude's Solution To Justice's Staffing Problem

Seems that budget problems in Washington D.C. are creating a hiring freeze of sort at the big three Law-enforcement agencies; The FBI, The DEA and ATFE (formerly ATF the guys that brought us WACO.) According to the Beltway Brains, the failure to increase the budget on these agencies is costing us in the crucial areas of fighting violent crime and terrorism. Their answer of course is to pass a spending bill that increases the budgets for these agencies instead of stop-gap spending bills that create an inability to plan and hire more "troops." Well far be it from me to suggest that Congress shouldn't do its job and pass a budget. As for increasing the budget for the Justice Department to squander... well lets just say I have a better idea.

How about we scale back the DOJ budget and get the Justice Department to stop trying to enforce laws that the states should be enforcing? Additionally, how about we stop using federal funds to look into things that are the pet peeves of the political elite... like say Pornography? Yeah, lets take the Forty or so agents (and their staffs) whose job it is to scour the internet for porn (not child porn mind you but adult porn) to look at dirty movies and put them to work fighting Al Qaeda? In fact we can use the porn tapes they've been buying to torture the Al Qaeda operatives we capture. Instead of Water-boarding, they have to watch Mary Carey movies until they break. Sure it's cruel, but then again, think of how much we will save on the cellophane. After all the movies are reusable. Believe it or not, after watching the porn, the agents need psychological help which our government then has to provide.

The Justice Department's budget is OUT OF CONTROL because the Neo-conservatives have a basic misunderstanding of the Tenth Amendment to the US Constitution. (They need to read this and study these.) Unfortunately, so do democrats and liberals. Hence the Democrat Senator Barbra Mikulski (who chairs a panel that oversees funding of the Justice Department) is saying stupid things like
"Without a budget in place, "the FBI and DOJ will not be able to maintain the operations tempo they've achieved since Sept. 11."
Instead of saying smart things like:
"Without a change in priorities the FBI and DOJ will not be able to maintain the operations tempo in fighting Terror and Violence that they achieved since 9-11."
Talk about the fox guarding the hen house. Hey Barbra, instead of telling me how much money the Justice Department should get; first you do that "oversight thing" your supposed to do and find out what DOJ uses the money they are getting for, and then after evaluating that, you decide how much they should get for their next go around.

We cannot afford to keep looking to Washington DC to fight every battle that someone thinks needs to be fought. If people in Pittsburgh think porn is a bad thing and should be fought, let them pay for that privilege. In NYC we have bigger things to worry about. Porn is not even on the first fifty pages of the list. Al Queda doesn't even know Pittsburgh exists. I wish I could say the same about Manhattan.

Friday, January 12, 2007

Goodbye Mike It's Been Good To Know You...NOT!!: DA Nifong Asks Off The Duke Rape Case

You guys may know this by know but Durham (NC) District Attorney Mike Nifong has asked the State's attorney to assign another prosecutor to the Duke Lacrosse Rape case. It has been a disaster from the beginging. I still cannot figure out what Nifong was thinking about when he brought the charges. There was a rush to judgment and condemnation of the boys involved, who forever will have their reputations sullied by a District Attorney who seemed more interested in the publicity he could get from the case than doing justice.

A prosecutor has a different set of Rules than most lawyers. He doesn't represent a client unlike defense attorney's or even civil lawyers. He represents the power of the state. He doesn't have a right to put his interest before those of the state. He has an obligation to bring to justice people who it seems committed a crime by at least a preponderance of the evidence...that's the credible evidence.

The word credible was what Nifong missed throughout the case. Sadly he never took the time to speak to the alleged victim. In the fear I guess that he might further the harm to her, he decided not to speak to her. WRONG! He had an obligation to investigate and in this racially charged case he had an obligation to move ponderously so as to not rush to judgment.

In NY right now I have been listening to complaints about the Queens District Attorney's office handling of the Club Kahlua/Sean Bell police shooting. I have refrained commenting on the case because I have been involved with both Kahlua club and another area club in the past.

Despite my distaste for the vice squad and their tactics, I nevertheless, commended the District Attorney's office for taking time to investigate the case and not be pressured by community activists and outside pundit's comments. I do not know what happened the night of the shooting, but I do know that on its face, it would be easy to condemn the police officers who shot Shaun Bell. Condemnation however is different from using the criminal justice system to destroy and potentially jail an otherwise "innocent" person.

If criminal charges are brought against one or more of the police officers whose bullets killed Mr. Bell, well at least we know that the decision to prosecute them was made diliberately and with thought.

The kids from Duke cannot say that. In fact they probably can say that with Nifong facing a tough re-election and needing the minority vote to win, their case was political and he used it for his own political gain. Win lose or draw, the damage to the Duke 3 is done, and there is nothing anyone can do to give them back their youth.

10000 hits since April...

I know that 10000 hits since April is no big deal for some blogs but for this one...WOW. Anyway, Thanks for all of you who stop here regularly. And thanks to you guys who get lost here courtesy of Google or Blogger. Don't forget to look for the return of Long Island (Criminal)Trial Law next week. Take care.

Tuesday, January 09, 2007

A Life Well Lived: Rest in Peace Lieutenant (FDNY) Joseph P. Colleluori

One of my heroes died last Thursday evening. My cousin Joe. I am profoundly sad, and a bit angry, but mostly I am proud of him. I am proud of him for the way he lived his life, and for the way he died.

If eulogy leaves you maudlin, or if you think sentiment cheap, tune out now.

Joe's dad and my dad were brothers. Two of five brothers and three sisters children of Italian immigrants. Though seven years separated them, they shared the same birthday. Each lived only 67 years. They died 7 years apart. Joseph is his father's eldest son. His death on Thursday night came about seven years after my dad's. Each of these three men worked in fields where they were constantly exposed to toxins, especially asbestos.

In High School he was a state champion hurdler, and married his High School sweetheart (his next door neighbor) basically right out of High School. They have been married for 30 years. It is impossible to think of Coleen without thinking of Joe. Even as young people, these two were wise beyond their years. The one thing you could say about them is that they were not selfish. As their young marriage went on, they were thrust into situations that were difficult.

They helped care for Coleen’s dad and sister after her mom passed away. They cared for my uncle and aunt as they too contracted Cancer and died difficult deaths. They adapted to be there for others.

Joe was supportive of everyone’s endeavors. Whether you were trying to be an athlete, or were an artist or wanted to be a professional, Joe urged you on. In my own life, I wanted to be like him and my other cousins. I wanted to be as athletic as they were. Alas, Music and schoolwork was my forte. One day when I was still in High School, I was bemoaning the fact that I was just not very good at sports, Joseph took me aside. He knew I wanted to be a lawyer. He told me that while sports were a great thing, I should be proud of what I was good at. That someday, I would be able to do things that the athletes in the family would never be able to do. That I would help many people through my efforts to be a lawyer, and that they would be as in awe of me, as I was of them. I don’t know that I accomplished exactly what he had in mind, yet, but I strive to everyday. He was that kind of a motivator.

In 1983, Joe became a fireman in part at the urging of his friend Battalion Chief Brian Hickey NYFD dec. 9-11-01. Brian and Joey were friends forever. They worked together and Brian convinced Joe to take the fireman's exam. On 9-11-01, Joe was ordered to Shea Stadium to help organize the men there who would relieve the firemen at Ground Zero. It was a tough assignment for him. He wanted to be downtown where the action was. Where his son Brian was, where his friend Brian Hickey was.

When the towers came down, My heart was in my mouth. I knew how many firemen were there and I was sure either Brian or Joseph was there. Fortunately for us they weren't there. Unfortunately, then Captain Hickey was there. After serving his tour at Shea, Joe volunteered at ground zero on his days off. He had to search for his friend and golfing partner, Brian Hickey. Until the day he died, Joe missed Brian, and many of the other men who he had worked beside. Many have mentioned that if Heaven has a golf course on it, Joe and Brian are with Mr. Kelly and Coleen’s brother Frank teeing it up and enjoying the game. I guess my anger comes wondering what effect the work Joe did at Ground Zero effected the brain cancer that took him

I was amazed to see how many boys who played ball for Joe and Brian became firefighters. These two were a recruiting poster for the NYFD. One way to judge a man is by the mark he makes on others. Joseph certainly made a mark on these young men. These boys, now young firemen, were at the wake in droves, as were all the kids Joe had touched in life. Through the entire 2 year ordeal they have been there supporting the family, helping where they could. They are a tribute to their coach and mentor.

Joe's was a life well lived. He has 2 beautiful daughters and two handsome sons. Brian, the eldest, followed in his dad's boots, and is a NYFD firefighter. Brian married his high school sweetheart and they gave Joseph his pride a joy for the last 10 months, a granddaughter, Saige. They have another on the way.

I think Kevin, a sophomore in College, will be an all American lacrosse player. He is studying to be a dentist. Diana is going to be a teacher when she graduates college soon, and Melissa is a Doctor of Physical Therapy. Joe coached each child, in soccer or football or lacrosse or some other sport. They carry with them his steely determination and love for life.

Joe gave back to his hometown. Raised in Bethpage NY, Joe and his brothers excelled in Track and Field. Joe was a state finalist in the hurdles. By the time his son Brian hit high school, Joseph was active in the Bethpage Dad's club. He became President of the club and raised thousands of dollars to offset the extra costs of being a high school athlete. In a blue collar neighborhood like Bethpage, those extras can mean the difference between a kid playing ball, or never having the chance. Joe and those he worked with, made a difference, and they had a good time doing it. They helped obtain defibrulators and bought batting cages. Mostly they taught the kids they helped to have pride in their hometown and to give back to it.

Joe was Mr. Bethpage. He knew everyone and they knew him. He either coached them or went to High school with them, or worked with them in the Dad’s club. He helped them in a snow storm, or saved them from a burning building. Bethpage came to the wake by the hundreds. The wake was a tribute to a man who understood what it meant to be a neighbor, a friend, a Father, a husband, a man.

About two years ago, I was laying in a hospital in NYC, I had had surgery the day before, but I started bleeding, and had to undergo a second surgery. Unbeknownst to me, Joseph had taken a seizure earlier that day. The next morning I learned that we were in the same hospital, a floor apart. Joe had a deadly form of Brain cancer. The doctors had gone in and removed the tumor. Even so the survival rate was low. Because Joe was in such good shape they expected him to do as well as anyone. We spent Easter in the hospital together. It was one of the best Easter's I have ever had. Our families were together, and supported each other. Joe's firemen friends were there too. They helped to lighten the mood, as only those who regularly face death can do. I will never forget that week.

Thereafter, life changed for Joe. It was a regular routine of doctors and medicine. I never heard him complain about it. I never heard him whine about the unfairness of it. I only saw him work hard as he always did to beat his new foe. For over a year Joe was doing well. He even thought about returning to the FDNY on light duty. Then the cancer reappeared. Though he put up a valiant fight, Cancer won this time. Joe died at home, among his family, where he belonged.

As we prepare to bury Joseph today, at 10:45AM, we bury only a body, a carcass. The man’s spirit will never be buried. All that knew him and loved him, will carry that spirit forever. After today, we will be finding out how we will live without him. It will not be an easy task, he has set the bar high. No matter what, we will never forget him.

Rest in Peace Joe, we’ll get together again someday.

Wednesday, January 03, 2007

Joining The NARP: Keeping Railways Open To Passengers

I joined the National Association of Railway Passengers. I suppose my money will be spent fighting the money I send to the Cato Institute, but I really believe that funding the Nation's RailRoad System now is an investment in our future...yes I said future.

I know that people think that railway traffic is a thing of the past but I have to say that I would rather take an Acela Express to Washington DC than fly into Reagan National or (G-d forbid Dulles.) The Railroad is an inexpensive, profit making travel alternative for me.

Look it takes me 1 hour to get from my home on Long Island to either of the big airports closest to me. It takes the same time to get to Penn Station NYC by taking the Long Island Railroad or driving. I have to drive to the airport. I can work on the LIRR. I cannot work on the LIE. (That's the Long Island Expressway for the uninitiated. Alan King called it the Worlds longest parking lot...He was right)

I have to be to the airport at least an hour and if I really want to be safe two hours before flight time. By the time I get through the gate and to my gate, buy a coffee and find a place to open my laptop it can take almost an hour.
I also have to "strip" first to get past the metal detectors...not a pretty site.

At Penn station I have use of a nice lounge and I only have to be there a half hour before my scheduled departure.

On a flight to DC I cannot get up to use the restroom... or really for any other reason. I can roam the train if I want to. The train seats are spacious. I am a big guy. On the plane, I have to buy a second seat or talk my way into first class if I really want comfort. I have plenty of legroom and work space on the train. I have no legroom or work space on the plane.

On the train I have full Wi-fi connectivity for nearly the whole time, on the plane I have to shut off my Verizon WWAN device or take responsibility for a mid air disaster. On the train I even have a plug.

On the train I can sit at a table across from my colleagues. We can spread out like in the law school library. On the plane? No way.

BUT WHAT ABOUT TIME???? What about it? It takes the Acela about 2:45 to get from NY to Washington. I bill about 2 hours of that minimum. It is nearly always on time. The shuttle is 45 minutes and it always takes off late. There are almost always flight delays getting into NY this summer. I can't work while I lose and hour or two at the gate. From my house to my hotel in DC it is a 4 hour ordeal. I took the plane three times from Chicago to NY. Direct NON STOP FLIGHTS!!! Average time spent in travel from Home to hotel 9 hours. Why...Delays Laguardia, Delays O'Hare. Expressway (an oxymoron)delays both cities. If we had a Acela Express to Chicago, time home to hotel... 6 hours!!

Now unfortunately we do not have Acela Express service to Chicago or Pittsburg or anywhere not in the Northeast Corridor, but we should. We should be making the kind of financial commitment to rail travel that Europe has made because in the long run it will increase profits for small and even big business.

Rail travel is stress free (at least for me) and efficient. If we had begun proper funding of Rail travel 30 years ago as we should have, we could have a lot better travel at a fraction of the cost.

Now before anyone goes on to tell me that Acela fares rival plane fares, let me say that based on my hourly billing rate, I would rather pay the Acela fare, than ride the plane...FOR FREE!!!That is the difference. If you haven't taken a intercity railway in a while, and can take the Acela Express, try it out. You will never go back. Heck I once became retained in a case for in excess of One Hundred Thousand Dollars, because I was able to call the client from the train. He was so impressed that I called him while I was traveling. I couldn't have done that from 30,000 feet.

If you do not live in a city that has Acela Service you should be writing your congressman and screaming. As prices go up and service gets weaker(on the airlines,) those trains are gonna look a lot more sweeter... Ok I will stick to polemics and avoid poetry. You get on your Congressman and Senators and don't just ask them to save Amtrak but ask them to make it even better!

Tuesday, January 02, 2007

The Blogosphere At The New Year: Back From The Party

I don't know about all of you, but this last week felt like a whirlwind of hello's and goodbyes. It felt like a food orgy too. I am going walking tomorrow just to see if I still can.

In the meantime the blogosphere has been posting everything from Saddam's death to the Duke Rape case. Here are some of my favorites from the week that was, the last week of 2006:

On Tuesday, the Profs over at Crim Profs blog were talking about a potential bipartisan effort to pass the Second Chance legislation that might make it a little easier to help felons on parole succeed in moving on with their lives. Here's a thought on that, how about we get an expungment law on the books in NY?

In Wednesday Professor Berman brought our attention to a really good decision on Booker and the career offender guidelines by Judge Nancy Gertner of the US District Court's Mass.District. The judge evaluated the career offender requirements and noted how in the case before her it meant a big co-defendant disparity as well as a roll disparity and the incarceration of a very elderly defendant. The case is US v. Ennis, No. 03-cr-10298 (D. Mass. Dec. 21, 2006). You can link to the decision from Sentencing Law and Policy's post.

Wednesday also saw the Foundation for Individual Rights in Education (F.I.R.E.) release it's end of year report on First Amendment freedoms on campus...pretty dismal reading. Between the Cartoon wars and college newspaper thefts and attacks on religious freedom on public campus's it was a pretty busy year, for Fire Volunteers.

In another example of bad cases making bad law, Talkleft's TChris blogged about a federal judge releasing Major League Baseball Drug testing results to US Prosecutors in the widening Balco Steroid case. Here is the warning quote:

Your employer wants you to submit to drug testing but assures you that the results will be kept confidential. Is your privacy protected? Don't count on it.

On Friday Eugene Volokh asks What's Wrong With Retired Federal Judges Filing a Friend-of-the-Court Brief?. Seems a bunch of former federal judges got together to suggest to the DC Circuit how to decide one of the Guantanamo cases attacking the new military tribunals law. The Circuit felt the judges were trading on their titles as former judges. What is interesting is that the chief judge who opposed taking their former colleagues amicus briefs (which the government did not oppose) was David Sentenelle who always would address Ken Starr as Judge Starr during the Clinton/Whitewater investigation.

On Saturday Harlan Protass over at Second Circuit Sentencing Blog blogs two cases seeking (and getting) significantly below guideline range sentences. Harlan worries that the amount under guidelines will set off an appeal in the Second Circuit.

Harlan is right back to us on Saturday morning with this post concerning whether the Second Circuit panel in United States v. Jones, No. 05-5312-CR, 2006 WL 3687530 (2d Cir. Dec. 12, 2006) has impermissible changed the standard of review of Booker sentences.

Here is the money quote from the decision:

What does the Second Circuit mean when it says it reviews sentences for "unreasonableness"? We know from cases like Fernandez and Rattoballi that the Second Circuit is deferential to sentencing court determinations. But does Jones indicate a higher level of deference? In other words, if the Second Circuit's review is only for "unreasonableness," is the Second Circuit indicating that a sentencing court's sentence is presumptively reasonable? And, if so, does that gut the entire purpose of reasonableness review?

Sunday saw the late night release of Justice Roberts report on the state of the Courts. Roberts basically demanded a raise for judges. I think he makes a very good point. Federal judges earn less than Law Professors and Law school deans. Roerts points out that if we don't start to give raises soon we are going to get judges who are so rich they are not in the same situation as the litigants before them or judges for whom the present salary is a pay raise. He points to the evidence of how many Government lawyers leave to go to the Judiciary. The guys over at the Wall Street Journal talk about it here. They see it differently. At over two hundred thousand a year they feel judges should be thankful for having their jobs.
I disagree and hope that a pay raise will attract some practicing criminal lawyers onto the bench.

Finally there is a rather mystical journey over at Blawg Review 89. Check it out. It was quite the travelogue.

Ok till next time, you can reach us with an email to me at and enjoy a happy and healthy New Year's Day. Drive carefully.

Monday, January 01, 2007

I've Been Tagged Part II: Things That Lawyers Appreciate

Happy New Year Everyone!!

Today seems like an appropriate day to answer the tag of Ernie "Ernie the Attorney" Svenson.

Ernie asked me to discuss things that lawyers appreciate. I can of course only speak for myself. Here is how I see it.

I appreciate my clients. I love practicing law, and clients make that possible. I am not saying that there are times when we grate on each other, but that is more because they may not be happy with the advice I have to give them or that they want a faster response to a call or e-mail. It is a two way street. I want to be paid faster and have the materials I ask them to get me faster. Usually we learn to work it out. I appreciate how important their case or cause is to them. I feel honored they trust me to help them with that work.

I appreciate the court. Even the judges I do not love, I still appreciate the effort. Most of the judges I know could earn a lot more money than they do as judges. Frankly on what we pay them, I couldn't survive. Judges work far harder now than when I was coming up. Rarely do they finish their day before 5 and I have often seen them working till well into the evening. That effort is important. It should be properly compensated. Judges need to earn at least as much as law school professors or even Deans.

I too really appreciate a judge who rules quickly and impartially. Most of the ones I appear in front of do exactly that, so I consider myself lucky. Finally I appreciate it when a Judge understands the vagaries of private practice. Judges who work with you on scheduling and do not try to hold you to some artificial standard and goal are especially appreciated. I like judges that try to work things out between parties without getting involved in pushing one side or the other.

I appreciate court personnel especially Court Officers. I think they are the unsung heroes of the courthouse. I know they can be surly sometimes, but having to say the same thing over and over usually annoys an adult. Let's face it. I love my clients but not somebody else's client. The court personnel work with seriously dangerous people everyday, and help keep me safe from them so that I can accomplish pretty serious work. I appreciate the effort they make.

While I am on this subject, I also, believe it or not, appreciate Police department members. Now I often have an adversarial position with the police department, and I may take a hard line in cross-examining the individual officer on the stand, but in reality, I see my relationship with them more as two people testing one and other. I think the problem for many police officers is that they do not like to be made to look like they are careless or worse liars. What they do not understand is that it is the rigorous cross that tests best what they accomplished. An inability to keep it business is a problem for some officers.

In my recent life I had a terrible run in with a policeman on a hearing. About a month later, someone close to this officer was arrested in a neighboring county. The officer went to his PBA attorney who brought the fellow to my office. (Yeah I share space with the PBA attorneys.) The officer and his friend saw me and he almost hit the roof. His friend saw that and said " I want this guy" the cop looked at him and he replied "If he pissed you off that bad, then this is obviously the guy I need." It took a second to sink in but the policeman shook his head in agreement and they are now both clients. I love it when he asks me if I am working as hard for him as I am for my "Scuzzy clients" (his words not mine.) I know no one likes being made to look stupid lazy or like a liar. I also know that no one likes being convicted and especially not if they are innocent of the charge. I do my job so that if they did theirs then no one has a gripe. When you look at it like that, maybe they appreciate me too... yeah probably not but life goes on...

I appreciate the chance to blog and to teach. I learn so much from both activities. That it is fun makes the work of it seem like nothing. I especially like the give and take of the classroom experience. God the energy my students bring to the law. It is inspiring.

I appreciate my fellow bloggers. Every night when I come home and read the blogs I do it with a pen and paper at my side. I forward links and copy posts and send them to my staff for us to remember and maybe even implement. I get a lot of my laughs from you guys too. I hope I provide you half the enjoyment you all provide to me. I know I can never teach you guys half of what you teach me. Thanks for letting me be part of the community. I treasure your advice and counsel.

Ok I hope you're still reading, because here come the really important ones:

I really appreciate my staff of attorney and non attorney team members. I have a giftedly smart group of people around me. From the High School intern who has taught himself to brief cases, to my two associates and two "of counsel", I am blessed to have people around me who give a damn about my clients, my work and me. They treat my business as if it is theirs. They care about my family and they understand my dedication to the law, even when the client isn't paying me. Oh, and they are beautiful too. I am privileged to work with these young people.

I really appreciate home. Not the actual 6 walls (though I must like that too I have lived here for 42 years. No I mean my family and community. Our friends take a lot of garbage for defending me. I am not easy. I am most definitely an "acquired" taste. I am often thinking of other things when you talk to me, and when not preoccupied I can be cynical. Nevertheless, my friends and family accept the focus and give me the slack to achieve to the best of my ability.

Finally I appreciate MaryRose and the boys...To quote Billy Joel, "Wherever we're together,That's my home." 'Nuff said about that.

Ok I tag Nicole, Professor Doug Berman and Patterico (after all Prosecutor's must appreciate stuff too.)Happy New Year.