Sunday, July 20, 2008

Around the Blawgosphere: The week of July 14 2008

Don't forget about 8:30PM tonight, I begin blogging once a week at Long Island (Criminal)Trial Law. Tonights topic: Voir Dire of the Prosecutions Expert.

Ok so what did I find interesting last week?

1.This article from CrimProf Blog about how Facebook can help prosecutors and defense attorney's destroy the character of young witnesses.

Word to the wise Attorney: do a screenshot of your client's Facebook/MySpace page and then have him take it down. Tell him not to let anyone take his picture and to be sure that no one "Tags" him. Then make sure he or a loved one monitors the page. Also be sure that you get him to "Friend" you.
BTW if you do not have a Facebook or MySpace page or know what they are... you need to adopt a high school kid.

2. Also from CrimProf blog: When in the Congo, don't do like the Congolese (or the Brazilians either) This one is one of the weirder ones. The US State Dept Hired a nudist (not just a nudist but a leader of the movement) made him a diplomat and then he went to the Congo and Brazil where he had sex with minors and had pictures of them on his laptop...Porno of course. His defense? This type of behavior is common and is acceptable in those countries...

By the way, check out the URL for the post on the CRIMPROF's blog... Poetic Justice??

3. Mike over at Crime and Federalism Blog takes NY Times columnist Adam Liptak to task for not having any idea about the true nature and effectiveness of the Exclusionary rule. Seems in Liptak's world we defense lawyers are winning these suppression motions so often that it is making the world an unsafe place. Title of the piece, Media Ignorance (of the Exclusionary Rule), sounds redundant to me.

4. If they were any good at science they Woulda been Doctors not Judges.

My friend and one of my favorite bloggers Lawrence Taylor blogs about how in a recent case, California appellate judges permitted a Driver to be found drunk even though the defense was stopped by the judge from showing that the science behind the machine was faulty. See his post in DUI BLOG. The law trumps the state of accurate science...

5. Another Fave of mine Doug Berman over at Sentencing Law and Policy Blog is wondering here if President Bush will grant more pardon's at the end of his term

My short answer? Don't hold your breath.

That is it for now. Hope you are having a nice summer.

Saturday, July 19, 2008

Long Island Criminal Trial Law Is Back:

I have decided to start posting on Long Island Criminal Trial Law Blog again.
I know, you may be saying that I barely post here, how will I find time to post to both blogs?

Well, I don't know. But here is the thing. I have a few things to say, that will appeal to people interested in the academia of the law and won't appeal to the regular reader of this blog. OTOH, I still have stuff I want to say, and when I feel like saying it, here is as good a place as any.

So if you want to read my Law Practice blog, go here and you will begin reading about Vior Dire of an Expert Witness. If you are not interested in the intricacies of trial practice, hang out right here on "That Lawyer Dude Blog". If you have the time, read both. Whatever floats your boat.

One more thing. I only intend to publish on Long Island (Criminal)Trial Law Blog once a week on Sunday nights.

Thursday, July 17, 2008

Why Caps on Attorney Fees Hurt Citizens: Fed Prosecutors say Cook County Jail (Chicago Il.) Systemically Violates Prisoners CONSTITUTIONAL RIGHTS

Russian novelist and philosopher Fyodor Dostoevsky once wrote that "The degree of civilization in a society can be judged by entering its prisons." If that is the case, then the jails of Cook County Illinois (Chicago) and I think those of Nassau County NY present an utter lack of civilization on their citizen's part.

Patrick Fitzgerald, bane to the Bush-(and more exactly) Cheney administration, and US Attorney of the Northern District of Illinois has issued a scathing report which bashes the nation's largest single sight jail for being violative of its prisoners basic civil rights under the 8th amendment.

The report gives the USA N.D.IL. The right to bring an action in about 1.5 months to force the city and state to fix the problems. These are very serious charges.

Now for specifics: the study found that the jail "Key findings of the investigation conclude that the jail has failed to adequately protect inmates from harm and serious risk of harm, including physical harm caused by inappropriate and excessive force used by staff and violence by other inmates; failed to provide adequate medical and mental health care, including suicide prevention; and failed to provide adequate environmental conditions, including fire safety and sanitation, all resulting in unconstitutional living conditions."

These violations have led to suicides, murders, amputations (by the jails own doctors) and beatings at the hands of the guards. The level of violations rises to that of a constitutional violation.
What's worse is, these folks are HAVE NOT BEEN CONVICTED OF ANY CRIME. They are awaiting trial and are too poor to make bail. In other words they are PRESUMED INNOCENT

Now things in Chicago are pretty bad, but are they any less so here in Nassau County? The Nassau County (NY)Jail in East Meadow is a miserable place. There is gang violence and regular violence against people who are different (think gay). Medical attention in the jail (as opposed to the NCUMC next door) is very poor and many inmates do not get any much less proper doses of their medicines. The Jail instituted programs that made it impossible to file complaints, made it so that prisoners had to file the complaints with the same people who they were complaining about, and came up with a scheme to make sure complainants never exhausted the administrative remedies they had to finish before they could sue. Oh yeah, lawyers were not permitted to help for those that did get to file a complaint.

Now why are things like this allowed to fester?

Because Congressmen do not understand the laws they pass. Because Prisoner's have no lobby. Because politicians pander to voters by being "tough" on Crime. Because Americans are stupid. No not in the imbecile kind of way, but in the "I don't want to think about or learn about this" or the "Government will take care of this stuff" or in my personal favorite "those people don't deserve better" kind of way. Because even though most of Congress is made up of lawyers, they hate lawyers.

What happened here is that under the original civil rights law, prisoner's could file suits "willy nilly" and were costing the local governments a ton of money in legal fees for "Frivolous litigation". (One inmate sued both the Devil and G-d in two very separate law suits.)

Normal solution: require that the litigation be filed by an attorney who has reviewed it and is open to Rule 11 sanctions.

Congressional solution: Close the court house door to most prisoner civil rights suits and while we are at it, make it impossible for a lawyer to make any living in representing someone who is in jail and has a legitimate civil rights suit by capping his legal fee at 150% of the recovery.

This is the gravamen of the Prison Litigation Reform Act of 1995. Now why cap the legal fee, well civil rights cases allow the court to switch the legal fee of the winning party to the losing party. That means a lawyer will get paid by the government. Now it was completely lost on the congressional geniuses that wrote this bill that most of America's best lawyers charge more than 350 per hour and that they were already taking less because they are paid at no more than 112.50 an hour under the civil rights act (See also the Lodestar case).

NOPE, if the lawyer succeeds in saving prisoner's lives, the jury can give the victim/prisoner a buck and the lawyer gets... $1.50. That's absurd right?? I mean a guy can work for 300 hours on a case, win it, save lives because he wins it and all he gets for all that work would be a half cent an hour?? That's got to be absurd right? Well the 10th Circuit court of Appeals thought so (See this decision) but then when they looked at the decision en banc (a fancy way of saying all of the judges on the Circuit Court of Appeals reheard the case) they agreed that absurdity wins out, Congress screwed up and they couldn't legally fix it. Hence the Court house doors are effectively shuttered because a lawyer has to feed his family and pay his staff and we can't do that on this type of fee. Big law firms don't take too many of these types of cases pro bono. Hence disturbing behavior begins, goes unchecked, increases, and people die.

There are a few proposed laws to reform the PLRA. You can learn more about those proposals here.

Lawyers and the threat of a law suit, while expensive and not without some downside, keep people safe without sacrificing the needs of these people. Our professions ability to find a wrong and right it without taking up arms makes our nation stronger and our people healthier and safer.

Do not give in to the platitudes of others. Ask questions. When a Congressman or lobbyist wants to limit the right of someone to use the capitalistic system to better themselves, usually it betters all of us. Putting artificial stops on the free market never succeeds in anything but waste and loss of life and limb.

It is the same with Medical Malpractice and Class action fees. Doctors still want to make money, and so do insurance companies. They will continue their services. Same with Pharma and other developers. It may make things a little expensive at times, but then again, would you rather pay more for a safe drug, or less...

Wow What a Summer, (And It Is Not Even Half Over)

When I last left you, I was sad that Debra Jean Paltrow decided to end her life. I think it was a permanent solution to what was a temporary problem. I also thought her prosecution (not to mention her conviction) was a monumental waste of taxpayers time and money not to mention personnel resources.

So then what happened?? All hell broke loose That is what happened.

In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)

9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.


10. I was cited as a blogging lawyer in an article at Get LEGAL.COM

11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.

I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.

Corrections: Spell checked and links added.