Tuesday, December 31, 2013

Bad Cases Make Bad Laws: NYS Ct of Appeals Sustains the Martin Heigden Verdict

It was brought to my attention that one of my previous posts, where I predicted the Martin Heigden verdict convicting him of Murder (depraved indifference) would be overturned, in fact was NOT overturned. I was wrong about justice being done in the case. I am late acknowledging it but I did want to up date the information.

 The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.

The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.

As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.

Friday, December 27, 2013

"You Know Who Else Spoke Arabic? Osama Bin Laden"*: Sh*t the TSA Gets Away With When They Violate Your Freedom!

I was just about to give up on finding anything to blog about when I came across this little decision out of the US Court of Appeals for the 3rd Circuit. In George v. Rehiel et.al.  Dkt.:11-4292 (3rd Cir. 2013)( a Civil Rights case brought under 42USC1983)  an American college student of Middle Eastern Culture at a University in California was boarding a plane in Philadelphia (heading back to school) and under went an "administrative search" (which is a recognized "exception" to the 4th Amendment) at the boarding area. It is an everyday bother for airline passengers but it does keep us safer and it is usually minimally intrusive, that is until the Third Circuit decided to throw America's new obsession with paranoia into it.

During the search, the TSA employees (who seemingly have absolutely no training in law)  found handwritten flash cards that included the Arabic/English words for everyday language as well as for some words that if SAID ALOUD, would trigger an arrest in an airport (words like Bomb, Terrorist, Explosion, Attack, Kill, Battle, To Wound, to Kidnap). Now the fact that he was a student and one might want to know these words if involved in Mid Eastern current events did not matter. That he wasn't speaking the words but that the cards were in his carry-on so he could study didn't matter either.  That after finding the flashcards and swabbing everything around for explosives and finding zilch well that still did not matter. As far as the TSA was concerned these flashcards (and a treatise a college kid might read on the failures of American Interventionist Foreign Policy) required he be detained for a supervisor to question him AND for TSA to call the police.
The supervisor came and for 15 minutes more she stalled Mr. George in a  TSA security room (which by the way he was not free to leave) asking inane questions such as:
Q: Do you know who is responsible for 9-11?
A: Osama Bin Laden

Q: Do you know what language he spoke?
A: Arabic

Q: Do you see why these (flash)Cards are suspicious????????????

WTF????? Really???? Needless to say Mr. George was arrested, cuffed, detained for 5 hours, and missed his flight. Yes, if you were wondering, Philadelphia is part of the United States of America...

Mr. George and his attorneys sued the TSA agents, the cops, and FBI agents (who after five hours arrived, questioned the kid another 30 minutes and determined that he was not a terror threat) for violating his civil rights: His rights under the Fourth Amendment, Free speech and further sued for false arrest false imprisonment etc.

The question before the court was: did the TSA agents act outside of their employment authority by detaining young Mr. George, and if so did they have a reason to know that acting that way was against an established rule supporting the rights to privacy and speech.

The court never reached the knowledge element because it ruled that given the "totality of circumstances here could cause a reasonable person to believe that the items George was carrying raised the possibility that he might pose a threat to airline security". 

Re-read the quote from the decision that I highlighted above. Have you ever seen a more tepid comment?
"...could cause...to believe...possibility...might pose." Gee he could have been carrying a New York Times and all those words would be in it. It is indisputable he had the right to have those cards and that he had a right to have and read the book on the failure of American intervention in the Middle East.  Does it really raise a right to detain someone for 30 minutes or even 5 minutes once they found he had no explosives or contraband on him? Do you know what it feels like to be detained at an airport in an tiny room that you cannot leave. They have your phone? You can't call out check email tell others what's up? WTF??? Then they called the cops who arrested him and held him handcuffed in a cell for up to five more hours!! The court held the cops arrested him on their own.  In other words a cop came up and not on the say of the TSA he just decided to bust the kid for five hours without being asked because presumably he found probable cause to make an arrest!! Based on flashcards and a book? (In fairness to the court they did rule that you cannot arrest someone because of the books they read. Evidentially flashcards are far more dangerous...) The court held it was speculative that the TSA ordered the arrest. I am sorry but I don't see that at all, of course that is one of the myriad of reasons I will never be a judge. I cannot suspend my disbelief for a long enough period to excuse people when they act like idiots in the name of the USA.

I am accustomed to government paranoia. Look we are all gonna die someday but really can't we go as men and women and not as frightened sheep? Are these judges for real? Are they going to hide behind 9-11 to support clearly illegal conduct by federal agents for the rest of our lives?? Liberty does hang in the stakes. If the Courts will not rein in the government when it clearly goes beyond our ever more liberal rules for destroying our Constitution, then we are lost.

That the lead judge was a Clinton appointee not some Neo-con Bush appointee. So if you are learning Arabic, and studying Middle Eastern culture, you better watch out...you just gave your government the right to detain you based on what they unreasonably fear might be a possible preparation for an attack or maybe just a learning thing but they are really unsure but they don't need to be any more sure because that could cause them to not detain Osama bin Laden or the ENGLISHMAN who was the shoe bomber or THE LATINO that was an underwear bomber. If you understand any of that, you MAY qualify to be a Federal Judge...


H/t: Justia (US Third Circuit Court of Appeals Opinion Summaries.) and Rueters.

*The title of this post paraphrased the questions but the quotes here are from the decision and are culled from plaintiff's complaint.)

Tuesday, December 24, 2013

Opps She Did It Again!: Nassau County NY District Attorney Kathleen Rice Blows ANOTHER "Flush the Johns" Case

In a now fifth case decided by a different Judge, Nassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidenceNassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidence.
Last October, right before the election (of course) Rice used county money to run one of the dumbest sting operations in her history of dumb cases. It was called 'Flush the Johns". All it has done so far is flush good tax money down the toilet. Wasting literally hundreds of thousands of taxpayer dollars on what was basically a publicity stunt, Rice ran a sting by having police women pose as prostitutes on Craigslist and Backpage.com so that they could lure men into hotel rooms and arrest them. She then put their names and pictures into Newsday (which also should be ashamed of itself) and ruined marriages, professional careers and reputations.
Last week Judge Sharon Gianelli ( a fellow Democrat) dismissed two more cases and then there was one in November that went down the tubes. Now Judge Susan Kluewer (another fellow Democrat) dismissed this case for lack of evidence after a man was charged after entering a hotel room with his buddy (who claimed he had to stop and drop something off to the person in the room). The man neither called the alleged prostitute, nor did he negotiate a fee or pay said fee. In other words the case was the only thing in the room that sucked!! (Sorry I couldn't resist). The man's wife instituted divorce proceedings and the case has destroyed him. There was no probably cause to arrest this man, despite what Rice's overpaid PR guy says. Salvatore Marinello said his client is going to sue Rice and the Nassau County Police for False Arrest and Malicious Prosecution. Even if he loses it is going to tack more tax money onto this losing proposition to defend the county...
Rice just won re-election. Nevertheless she should step down. She and her crew of carpetbagging attorneys and nepotistic appointees have done nothing to protect Nassau and worse yet, she has wasted our dollars, inflated her budget all so she can run for higher office. Kathleen Rice is a disgrace. Shame on her, and Shame on Nassau Voters who supported her re-election.

Related Post: Flush Nassau DA Kathleen Rice: Her Flush The Johns Sting Goes Down the Drain

Sunday, December 22, 2013

Is There a War on Christmas? Yes! The Combatants Aren't Only Who You Think!

Every year for the last 20 it seems there has been a conversation about a "war on Christmas". My liberal friends think my Christian friends are crazy, and my Christian friends think the Libs are going to hell...I think they are both combatants against the holiday and to a large effect toward religion as a whole.

You see, the war on Christmas isn't about saying Happy Holiday v. Merry Christmas. I usually great groups with a Merry Christmas and Happy Holiday! Why because it is my holiday and likely theirs as well. It might not be Christmas they celebrate, but we are often celebrating the same thing, the coming of Christ. The coming of a savior.

The war on Christmas, is not when stores say HOLIDAY SALE. In fact I prefer Holiday sales because Christmas sales commercialize the day. While we are on the topic, XMass isn't part of the war on Christmas either. X is for the Greek "Chi" the first letter of the Greek word for CHRIST. Mas is the latin word for Mass. Go figure, we have been using the X to signify Christ (abbreviate the word) since the 10th Century. Go Figure. So if you are looking to make a big deal out of something, could you actually have something that has no historical significance??? How about you actually look at a historical document once in a while?

So where is the war? Well the last paragraph is a good find for it. The War on Christmas, is in the idiots who make the garbage up just to have the fight.
For example: The School on Long Island that changed the words to Silent Night so that it ignores the religious foundation of the song. Really? The did it so as to not offend others. If you do not want to offend others, don't do the song. Why however would anyone be offended. (I mean anyone with a mind?)

Of course I grew up in a community where Christians were in a minority. Jewish neighbors were outraged when we performed a Winter concert where non secular music was featured. We sang age appropriate songs and we learned the music. Catholics new the religious significance of the Christian music, but not of the Jewish music (what's a dreidel?) The opposite was true as well. in order to sing the music with feeling, the stories of the music were related by the kids to each other like a book report. WOW did we learn a bunch of stuff. I learned about the oils that never ran out. The Jewish kids learned why the eve of Christmas was so important. We learned our religions were alike in many ways. We also learned that many parents were idiots and bigots. They would not let their children sing the Christian songs or say the words Jesus or Christ. Some wanted their children to quit the choir. Talk about closed minded. The few Catholic kids in the choir felt terrible for our friends. We felt embarrassed about our songs being bad for our friends, we were angry too because these were songs we loved.  Some Catholic parents thought about a tic for tac response. It was very uncomfortable. Our parish Priest called the Rabbi. These two men of God, were completely flummoxed. What were these parents talking about?

We learned that the parents that began this stuff were not "regularly" attending religious services. We learned that both religious leaders understood the importance of religious music in teaching music to others and that most if not all of the greatest classical music was religious based. I also learned that our Priest and the Rabbi got together regularly were friends and that the Rabbi liked classical music especially Vivaldi!!

What was so important was that while we got protective about our "turf"s the parents of our community lost the actual meaning of the holidays. We were all waiting for the same thing. We were waiting for the coming of the Christ. For our Jewish friends, it was a Coming, for the Catholics it was a Second coming, but our religions wanted the same thing. They wanted Salvation.

I wondered how my Jewish friends dealt with the fact that "Santa" wasn't going to visit them. My father explained that pretty well. My dad embodied the spirit of Christmas. He told me that Santa was not a person, he was a spirit. Like the Holy Ghost (I don't think he agreed with the whole Holy Spirit thing but that is a story for another day) Santa came to us because we believed in him. The Holy Spirit came to the Jews when their fuel held out for eight days and in honor of that miracle our Jewish friends gave gifts to their loved ones like the gift God had given their ancestors. Dad would have hated all this war on Christmas talk. He would have been disappointed that someone would think to say Santa was white, or that Christians would be so hostile to others enjoying the Gifts of the season. Dad would do all kinds of things from great decorations to very private giving. I learned that the left hand should never tell the right hand what it was doing. I learned that being a Secret Santa was far more fun than getting credit for what you do. I learned that God loved me, and that He would forgive me, and that the Love of a Father ran very very deep. I learned that when one fought about things like Christmas that they denigrated the meaning of the word.

So Hannity, Fox, MSNBC, O'Reilly, the ACLU and the atheists are all in a war that doesn't matter. Christmas does not live in their debate or in the word Christmas or even in the Cress on the Village Green. It lives in our hearts. It lives in the stories we tell each other, the memories of family, the spirit of hope. When you are fighting about it, you show you don't understand it.

Today is my Dad's birthday. He was named for our Savior. Salvatore means savior in Italian, He would have been 81 today, but I lost him 13+ years ago. But he lives. Especially during this season. I miss him everyday, but I think of him everyday too, and that helps me to miss him less. I share his wisdom with you, so that you may share it with others. Merry Christmas and Happy Holidays to you all, and to you Dad, Happy Birthday in Heaven. I love you.

Friday, December 20, 2013

A Little Good News For a Friday Before Christmas: Innocence Project Wins Again!!

I don't want this to be a blog that only criticizes. I think there are some good things happening in criminal law. One of those good things is The Innocence Project. Started by Barry Scheck and Peter Neufeld, the defense attorney DNA Gurus these guys work with lawyers and students to undue injustice in the criminal justice system.
This week, Barry did it again. He won the freedom of  Gerard Richardson, a NJ man who was wrongfully convicted of Murder 20 years ago and has been rotting in jail doing time for a crime he did not commit.
Please consider a donation to the Innocence Project. Merry Christmas Mr. Richardson, and congratulations Barry. Thank you for keeping the dream alive.

Thursday, December 19, 2013

Breaking News: Newsday Special Investigation Into Police Misconduct on Long Island!

Newsday has broken a major investigation into police misconduct and its failures to be properly investigated or punished.  Police misconduct puts good citizens at risk and worse makes it very hard for good cops to do their jobs well. It corrupts a system.
Nassau and Suffolk have had this problem for a number of years. Whether it be the band of thugs that run the land of NO on Fire Island, or the insanity of the Nassau cop who beat and shot a taxi driver for no reason in Suffolk, or the many instances of testalying and other misconduct, it has to end.
I have regularly called for the institution of a Civilian Review Board with teeth. Now is the time. We need it here.
What do you think? How do you feel about a Civilian Review Board?

Tuesday, December 17, 2013

One of the Things I Hate: Using Hate Crime Statutes to Punish Non-Hate Crimes

"During the debate on the NY Hate Crime bill, I was against the cause. It isn't that I do not think that there is something inherently wrong with a person who hurts another out of hate or prejudice, it is that : 1. I do not like to punish people for their thoughts, and 2. I know lawyers well enough to know that they cannot stand to see a statute NOT get abused.

As I predicted now comes my friend Tom Spota (DA of Suffolk County and I am not being sarcastic I've known Tom since his days as an assistant district attorney in the 70's and I really do like him even if I don't always agree with him)who seems hell bent on abusing the statute to get a greater sentence for a person who has no hate (as we define the term generally) for the person they have allegedly hurt.

Lisa Ferkovich aka the "Sweetheart Scammer" basically charms old men out of their pensions. If true, she is despicable. She evidently according to Spota picks old men b/c they are easier to scam. Hence because she targets a particular segment of society, she must be involved in hating that segment and is open to an enhanced sentence.

A close look at Article 485 of the NYS Penal Law shows that while Spota may be right about how he CAN use the law, it is far from how the law was meant to be used.  The Hate Crime Statute begins with a legislative finding (I wish more laws did this) That finding is part of the law (as opposed to just a legislative history. In part it reads:

"The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs."

Reading the first sentence one gets the idea that the legislature was trying to limit the use of the statute to our understanding of hate. Prejudice and Bias. So far so good. The sentence that begins "Crimes motivated by invidious hatred toward particular groups..." also fits the definition of a hate crime however in between, there is the line "... victims are intentionally selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation."

That segment if read as part of the entire document seems to be consistent with the idea that one must have an invidious hatred in targeting a group however that is not how Spota wants to use the law. He wants to say that the targeting in and of itself is enough to trigger the enhancement. In other words he perverts the statute by suggesting that the targeting vitiates the need to prove "actual hate". The sad thing is that some courts (mostly in Queens County) see it the same way. I humbly think that if this is how the law is going to be used, then the whole thing needs to be thrown out.

Hate crimes are hard enough to define now. Sure there are easy ones, the KKK attacks a black man and his family for instance. Pretty easy to follow. Less so in a bar fight where someone calls some one a cracker or a "N" word in the middle of the fight. Heat of the moment or invidious hatred toward another group?

Assuming that the "reason" someone commits and act is a valid use of a sentencing enhancement, shouldn't that reason be clear? Does someone hate another group because he or she uses inappropriate epitaphs  in the heat of the moment?

In the case of Ms. Ferkovich, does she hate old people or old men just because her scam is in part to target them? I do not think so. I think she does target old men because she is not going to succeed in targeting younger men (Her picture is not flattering) and they may not find her compliments as flattering or they may see through her or who knows maybe they do not want to have her as a companion. I do not see this as a dislike of older men. I see this as part of the crime itself, but it is a targeting. How it differs from her targeting men in general is unclear.

Put a different way, does a prostitute commit a hate crime because she targets johns??

IF the article is correct and complete, there appears to be no hate. If Spota is right then there needn't be any. If the law's general use is to be based not on hate but on targeting then it is a stupid unnecessary law. Every crime has a target. If he wants tougher sentencing he ought to lobby the legislature to get it. Abusing the hate crime law is wrong. The problem is, if she is guilty it is hard to find any compassion for this woman. That doesn't mean we should pervert our laws in order to get her for more time.
Funny.., I think Spota is over 60 now...

Let me know how you feel about the Hate Crimes Statute and this use of it in the comments below.

Sunday, December 15, 2013

Going Rogue: Who in the Hell is Watching the ATF??

Okay I am back, for a while I guess. Somehow my long term writers block seems to have lifted. Lets hope it stays this way for a while.

We have spent most of the year looking at how the NSA is really an internal spying organization run by former military men whose level of paranoia while likely defensible is waaaayyy to high to actually run a spying agency in a democracy. Thanks to Edward Snowden, we now know that the US government has since 2001 been doing an really good job acting like the KGB of 1955. Now this comes as no surprise because for a nation that prides itself on talking about civil rights, we suck at providing them to anyone who isn't in our view when we look in the bathroom mirror.

Nevertheless, while the NSA, CIA, DEA, FBI and main Justice (Just us?) Dept. have all been seriously scrutinized these last few months by the libertarian (and only reluctantly by the main stream) press, our old friend of merry makers, the original set 'em up and blow them up gang over at the AFT (Bureau of Alcohol Firearms and Tobacco) (remember WACO? RUBY RIDGE?? FAST AND FURIOUS??????)  have been on the down low... until now.

Seems that the agency hasn't had a real director since 2006. That is 7 years... for the last two years the "acting director" was also the full time US Attorney in Minnesota!! All this lack of supervision has given the merry men of the ATF way too much time on their hands. Hence they have come up with all kinds of ways to screw up on our dime. (Actually on our $1.23BILLION DOLLAR dime)

Lets lookie see what they have been spending money on...:
Well they have been picking on mentally challenged men and encouraging them to have tattoos of Giant Squids Smoking a Joint put onto their necks
They have encouraged robberies so that they can then buy the stolen merchandise back and lock up the guy who stole it, except most of the robbers never stole before the ATF decided to give away money by OVERPAYING for the stolen stuff
Oh yeah they like over paying for stuff, so they offered to buy guns for more money that they could be purchased for at a place like Dick's sporting goods... so even the mentally challenged figured out that it was worth it to BUY THE GUNS Legally and sell them for a profit to the MORONIC Special Agents...
Then they discovered that teenage boys like sex...SO  They have been trying to get teenager boys to buy guns and drugs in the vain hope a particularly sexy "special agent" will have sex with them. (Too bad she didn't twerk, maybe the mainstream media woulda picked up the story.)
Finally they are slobs too.

I hope there is a Republican Congressman who sees this. WANNA FIND A BUDGET TO CUT?? Start with the ATF!!!!

Hat Tip: The Atlantic.com

Friday, December 13, 2013

Flush Nassau DA Kathleen Rice: Her Flush the John's Sting Goes Down the Drain!

Thursday, December 12, 2013

Local Doctor Busted by the FEDS!!