That Lawyer Dude

Guest Blogger Alena Shautsova: Bringing Your Family to Safety After You Have Received Asyum

2011-12-04T22:59:00.004-05:00

I am pleased to welcome Alena Shautsova as a guest blogger on the That Lawyer Dude Blog. Alena is quite a good young lawyer. She is a leader among young lawyers in the NYS Bar Association and is the liaison from our state bar (Young Lawyers Section)YLS to the ABA's YLD(Young Lawyers Division) and she is also very active in our State bar's Special Committee on Immigration Representation Reform. She is Of Counsel to our Law Firm concentrating on International Law, Immigration and Civil Rights/Employment litigation. She is a rising star in our bar. I commend her work to you.

Can I Bring my Family to the US After I Received an Asylum Status?

A person granted asylum in the United States may bring his spouse and children (unmarried and under 21 at the time the USCIS receives the application for asylum) to the USA.

Such an application (FORM I-730) has to be filed within the two years after the grant of asylum. Failure to file within 2 years however, can be excused for humanitarian purposes.

SPOUSES WHO LIVE ABROAD:

If an asylee would like to bring his or her spouse to the US, the following conditions must be met:
An asylee must be the principle applicant: that means that he or she was the person who applied for asylum and was granted asylum. Received the asylum status though a relative does not make one eligible to bring over other family members as a Principle Applicant ;
An asylee must remain in asylee status or become a permanent resident;
An asylee was married to the spouse he or she is petitioning for before the asylee was granted asylum.

The same rules apply to spouses who live in the US, and who were not included in the application but became married to the asylum applicant before he or she received the asylum status.

CHILDREN WHO LIVE ABROAD:

If an asylee would like to bring his or her child to the US, the following conditions must be met:
An asylee must be the principle applicant: it means that he or she was the person who applied for asylum and was granted asylum, and that he or she did not received the status though a relative;
An asylee remains in asylee status or has become a permanent resident;
The child was conceived prior to the grant of asylum: (Note from That Lawyer Dude: in a rather cruel twist, the mother of the child, if not married to the asylee prior to the grant of asylum is not eligible for these benefits,she must allow the child to leave and continue to face the torture of her original nation-state. Further any children not of the aslylee must also be left behind. Maybe noone in Homeland Security has ever watched the movie "Sophie's Choice") ;
on the basis of an employment-based petition; or
A child was under 21 on the date the USCIS received application for asylum. (True for I-589 filed on or after August 6, 2002);
A child is unmarried.

And now for the Good News:

SPOUSES and CHILDREN Who Live in the United States and Were Included in the Application for Asylum:

Spouses and children who are with the applicant in the United States and were included in the applicant’s Asylum application will receive status automatically as derivatives of the main applicant.

Once again I want to thank Ms. Shautsova for her contribution and look forward to her next one. Also I encourage you to check out her blog at: http://www.shautsova.com/law-publications/law-cases-articles.html

Kid Tweets That She Muscled Governor Brownback. Should She Be Made To Apologize? I Say YES!

2011-11-28T02:10:00.000-05:00

Here is the story from the Associate Press:

"A Kansas teenager who wrote a disparaging tweet about Gov. Sam Brownback is rejecting her high school principal's demand that she apologize.

Emma Sullivan (twitter@emmakat988) told The Associated Press on Sunday that she's not sorry and an apology letter wouldn't be sincere.

The Shawnee Mission East senior was in Topeka last week when she sent a tweet from the back of a crowd of students listening to Brownback. It read: "Just made mean comments at gov. brownback and told him he sucked, in person."

She actually made no such comment..."

Thereafter Brownback's Media hound found the tweet while searching the Governor's name. When she read the tweet, she contacted the school. The Principal got a call from the Governor's office, and had heart palpitations. He ordered the 18 year old woman to write an apology to help him with "damage control."

Our Question is: Should Ms. Sullivan apologize and for what should she apologize?

The kid claims to be liberal. Okay. She also claims not to like Governor Brownback. Okay again. She has decided not to write the apology...and every liberal and libertarian it seems supports her decision... NOT ME.

I am not being contrarian, I just think that there are some serious issues here that may not be affected by this young woman's right to free speech.

1. She was at a school function, representing her High School.
2. She lied, she said she told Brownback off, in person.
3. She tweeted, against the rules of the school at a time she was in class.

Now I want to make the following clear. If she had tweeted, on her personal twitter account at 3:30PM that she saw Brownback and wished she had told him he sucked, well then no problem.
That isn't what happened here. Here she was invited to meet with the Governor of her state.Not because she was someone who the governor would normally meet with, but because she was chosen by her school to go. While she was in the Governor's home or office, she took out her cellphone, and reported she told the man "He sucked" (Skip the fact that the statement is both juvenile and vulgar) in person. That was both against the rules about texting in class, AND, it was a lie.

Now imagine if she had said something dumber like she had assaulted or God forbid shot the man? Would that be okay?? What First Amendment line had been crossed? Isn't that still political speech? She is still saying she doesn't like the man. She is still lying. She would still be doing it on school time.

No, I don't agree that she is putting forth her opinion. I think she was going for a laugh, which is also okay as far as it goes, but the truth is, it was disrespectful not of Brownback (after all it goes with the territory of being a politician) but of the Office of the Governor. It was also a disrespect of her position as a campus leader of her school and all the people in it, including the few that may like the Governor, AND, she broke her school texting rule.

Now that doesn't mean she should have written a mea cupla, nor promise to help Brownback win his next campaign. It does mean that this college bound woman should show some understanding that: 1. The Governor of your state deserves your respect as the leader of the state and the choice of the people of your state; 2. You broke school rules and you are sorry for that, and; 3. That as a school leader, she has an obligation to represent her student body by asking smart questions, reporting accurately what was said and if she disagreed she had the right to state an opinion that criticized Brownback.

I am not asking her to agree with Brownback, but respect for our institutions is an important thing for schools to teach. The proper way to engage in debate is an important thing for leaders to learn. (Remember when some wingnut congressman yelled out at Obama during his State of the Union "you're a liar"? that kind of comment does not spur on the debate. It doesn't bring the other side into understanding your grievances. Saying Brownback "sucks" is just juvenile and frankly makes me think Ms. Sullivan is stupid. All I know is, she is entitled to an opinion, but you don't have the right to come into my house and crap on my carpet. Verbally, that is what she did. Her principal is right to demand an APPROPRIATE Apology. Not one that necessarily makes the Governor or his people happy, but one that indicates that the student understands where she went wrong.

Sexual abuse on College campuses, Internet Identity Theft Protection and a Few Silly Laws

2011-11-28T00:34:00.000-05:00

Thanksgiving was really good. I had a great time hanging with the family. Of course between courses, we had a long discussion about the Penn State situation. Then just as the Penn State Drama begins to simmer down, (I will not rehash the last 250 or so comments, the most ever on this blog, just click the link above.) Syracuse University fires its long time Assistant Coach Bernie Fine. Now originally Syracuse put him on paid leave, but another person has come forward to announce he was molested by Fine and a tape of Fine's wife is offered where she admits she had sex with a the then 18 year old ball boy who claims Fine molested him until he was 28...,(really, 28? Okay that is going to provide some fodder for the defense.) This story is getting more sordid by the day, yet I am so very unimpressed with yet another major University refusing to let the legal system do its job and waiting before casting dispersions upon someone based on what so far appears to be fairly flimsy "facts." My big question is "How are these guys ever going to get a fair trial??"

OK onto another Scary College Professor story. This one involves Professor Grant D. Smith an eEngineering
Prof from Univ. of Utah who, while flying first class to Boston, takes out his laptop and begins to watch alleged Child Porn!! Fellow passengers in First Class take out their phones and take pictures of what he is watching, they then send those pics to a family member who then calls the cops to report Smith to the authorities, where he is arrested at Logan Airport. This ought to be interesting. There are like 10 crimes here. Smith possession of Child Porn, using a cell phone while in mid air (aren't you supposed to turn them off? I don't know any more I haven't flown in a long while but this article in Sunday's NY Times makes me think you still must power off.) Possession by the picture taker/witness, transmission in interstate commerce to the friend, the friends receipt and possession of child porn, his transmission to police of same. Interesting no?? Smith's defense team will not be allowed to have the photos to see if they are real or nor how they could have gotten on his laptop because the government restricts the access to these photos to include not allowing the defense to have them. Of course the Just-Us Dept. lawyers can have them anytime they want and send them where they want to "test them"etc.

So far it appears that the state is prosecuting, however I think this will soon be taken federal as the penalties for possession of child porn carry such harsh jail times that the possessor prosecuted by the feds, will face far more time than the person doing the molesting will as the molester only is prosecuted in state. Further proof that criminals have no lobby in Congress.
In this case, Smith faces an uphill battle given the photos taken, but then again, we should know not to jump the gun on these things. At least Univ of Utah has a sane approach. The Professor is placed on Admin. leave, until the case is completed, then if guilty he is fired. Seems reasonable, let the courts run their course then decide. Wish Penn State and Syracuse would have shown similar trust in the judicial system to let it do its job.
As for Smith, I would eschew the usual suspect criminal attorneys and get one that works significantly in Cyber-sex crimes. The area is becoming an important sub-specialty of Criminal Law and he will need that expertise to help him avoid a very VERY long jail term.

I remember sending my boys to college campuses in the summer to learn from the college coaches how to play soccer. We also sent them to scholastic camps at Northwestern, Princeton and to the World College in Italy to learn debate skills. I spoke to my sons about those experiences and about whether those were positive experiences. Both acknowledged they were. I asked about the relationships between the participants and the teachers and both said they saw nothing inappropriate, but that the opportunity for abuse is always there, especially in Summers on large campuses with few people around but with lots of buildings. I think if there is any fall out from these scandals, it has to be how parents are going to determine if they can trust the adults with whom they entrust their children. I have no answer, but I think we really need to look into the supervisory relationships, staffing, dorms, and other things before we send the kids into even the most prestigious opportunities.

In another Cyber/ Interent Crime related story, Yahoo provides us with the 25 dumbest passwords. If you use one of these passwords, you are either asking to get hacked or you are a moron. I mean really a password called "Password"? 123456? ABC123?? Who are you the Jackson 5??.

A strong password is made up of letters that do not spell out a word, and those letters should be a mix of Upper and lower case letters. Add some numbers and some signs ie: (!@!@#$#%$%^&). Hence Hb3%eI2* would be a fairly strong password. (Now PLEAASSSEEEE don't use that as a password...) Sigh...

Lastly I thought you would all get a kick from this story about how it is illegal to hail a cab for someone you aren't traveling with in NYC. It is a little known law but it provides a cop with probable cause to stop you and even if that PC escalates to search you. The law was aimed at the Squeggy men. There are some decent underpinnings to the law, but I think it lends itself to selective prosecution defenses. It might be a trite over-broad and vague too.

Anyway, flame away all you rush to judgment types out there. For those who have a few ideas on how to judge what camps and opportunities are safe for kids please leave a comment. For any one with ideas on Safety of Identity please share your knowledge.

Happy Thanksgiving.

A Strong Defense of Joe Paterno: Why Paterno Was Morally & Ethically Right Not To Go Further in The Sandusky Sex Abuse Case

2011-11-08T13:41:00.002-05:00

In the comments section of an article in an SI online blog post by Joe Posnanski, Columbia Univ. Adjunct Professor Scott Semer assails Joe Paterno for not taking greater actions in the Jerry Sandusky case (Link is to the actual Grand Jury Report. It is not for the squeamish.)

Semer rests his opinions as a lawyer and an Adjunct Professor of Transactional Law at Columbia Univ. in NYC. He takes what I believe is the majority opinion as to Coach Paterno's decisions which is that he did the least he could do to cover himself but owed a moral duty to do more.

I too am an attorney, a criminal defense lawyer, a former special prosecutor, and an adjunct professor of Trial Advocacy, and as to his judgment of Paterno I completely disagree with Professor Semer. I think Paterno did what was both morally and legally correct.

After contacting his chain of command superiors, he let them do their jobs. He knew there was a campus police force that investigates ( and prosecutes ) crimes on campus. He took whatever information he had to the head of his department. He took it to the person who is, for all intents and purposes, the police commissioner of a 256 person police force which according to the Campus website says: "(The University Police are) governed by a state statute that gives our officers the same authority as municipal police officers."

Paterno didn't just give his information to a superior, he turned it over to the highest ranking official in that police department. That man, PSU's VP of Business called in the ACTUAL WITNESS and spoke to him. In other words Paterno could see an investigation.

Suggesting Paterno should have then done more is both ridiculous and dangerous. Paterno should not have approached Sandusky,for fear he tip him off to the investigation; he should not have called University police after nothing happened because 1. A police department has a right to set its policing priorities. The Courts have consistently held that: it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
2. Once he reported the incident (and not having any information as to the progress of any investigation or the results thereof) Paterno had no other action he could reasonably take. If he pressed further or went public he risked opening himself and the University up to a law suit from Sandusky for libel , and that is assuming Paterno thought the grad assistant was both reliable and accurate. By that person's own admission he was distraught. He would be accused of trying to eliminate a potential competitor for his job. He would also call into question the safety of the campus and without any proof of his own on the allegations of another. Pattern is not a witness and arguably isn't even an "outcry witness." ( an outcry witness is one who verifies that another witness was so distraught that what they are saying must be true. To be an outcry witness the original witness must make his statement to you first and within a few minutes top hours after witnessing the incident. More than a couple of hours usually spoils the outcry's reliability. It gives the maker too much time to make up the testimony)
3. Assuming Paterno did go to the Chief of Police for the Penn State police department, the person under Gary Schultz, would that not be an act of insubordination? What if he were wrong? He would lose a long time friend and PSU family member. He would hurt alums, recruits and his teams. His fellow coaches could not trust him, all of this without being an actual witness to anything. Taking one man's word against anothers.

Noone wants to see kids hurt, and I believe Coach Paterno heads that list. People suggesting he needed to do more either don't understand the law of criminal investigation, or have a different ax to grind ( like the head of the PA State Police who is grand standing in saying people have a greater responsibility than to report crime to the local Authority. He would be the first guy to defend a civil rights suit against his agency, (brought by a crime victim claiming that the failure to arrest caused her injuries) by invoking the Warren case.)

Paterno handled this exactly as he should have and to suggest otherwise is to use 20/20 hindsight to judge what was a fluid real time situation. I guess the path is always clear for the Monday Morning Quarterback.

Happy Fourth of July 2011

2011-07-03T23:59:00.001-04:00

Well in a few hours our nation celebrates its Independence from the Tyranny of the British Royal Crown. A few years after the decision to cede from British rule and after a war, we finally settled on a Constitution (there was a loose confederacy of states before that but we ultimately chose a federal system of government)to govern us. This Constitution tried to embody as much of the Declaration of Independence as it could, however the original document was thought lacking by the Declaration's author Thomas Jefferson, so he persuaded his friend John Madison to lobby through an embodiment of the Rights of Man our American Bill of Rights.

Jefferson wanted to preserve the fervor and feelings of his Declaration of Independence which begins with a statement about the self evident nature of the rights of man (meaning God Given rights) but he was well aware that tyrannizing politicians could do away with these rights as the King did to the Colonialists. Jefferson, wary of a big federal government wanted to limit the abuses that could become our government if Monarchists ever obtained an upper hand in our government.

In a large sense however, the Monarchists may have won if the goal was a large centralized government and a federal presence in the decisions of our daily lives such that the states have little to say about how they run themselves and we as citizens have little access to our Representatives. Our leaders appear only on news shows and before reporters who will report their views their ways and will not ask hard questions. Both major parties favor large government when it suits them and states rights when it doesn't.

For example Republicans favor states rights on Abortion and Immigration policy because they can't seem to get control of the federal government long enough to shove their view down our throats.On the other hand, they want a federal standard if a state doesn't follow their lead on an issue. In other words "States who agree with us get rights the rest of you be damned."

Democrats want state government to decide issues such as gay rights and gambling because they can't get the votes to work these out to their constituency favor on a national level. They favor state rights to decided what a marriage is, but would not allow states to determine what a "life" is.

I don't care where you stand on the issues of Abortion, gay marriage, Internet poker or the like. I care that things are actually interpreted by our Constitution with a view toward the Jeffersonian approach to our government. I'd also like to see a sense of shame when a party acts hypocritically.

Here is how some of this would shake out under my view of the world. Interstate commerce and Immigration policy are national in scope as are issues of Defense. These areas are reserved for Federal control. The Internet is also a federal issue, why? Because it is EVERYWHERE!

Health, Sex, Gambling, all criminal activity except for terrorism, treason, bank/mail/and wire fraud are state issues. There is an exception to that and that is that the Fraud must not just use the wires or mail to be committed, but must be committed against citizens or corporations on a national scope. Hence just because someone in NY calls someone else in NY to commit a fraud on a NY corporation, that use of the phone would not make for a federal case just because the phone line routed the call through a national grid of phone lines etc.

In my world, elementary education would be left up to the states, civil rights are federal. Secondary education (High school and up would be a mixture of Federal and State control depending on the issue however as somethings (like law or science) are things that need to be shared nationally we do need some national standards.

The feds could set standards that each state need to meet in the area of dealing with the imprisoned or the poor, but it would be up to the states to implement the standards. Economic Policy is a shared item as well. National Parks need to be part of a 3 way discussion Fed, State and local governments need to participate together. OTOH, the feds need to stay out of our homes, our hotel rooms our bank accounts and anything else that concern us as individuals.

Anyway, I could go on, and I will, but I want to know what you think of this whole concept of Independence. What does it mean to you, not personally, but as it relates to how we as citizens obtain a government that will uphold our right to live and conduct ourselves in the freest of fashions.

Edited to add a couple of links and clean up some spelling errors.

NEWSFLASH: Osama Bin Laden Killed by American Operatives in Pakistan: Other News of the Weekend.

2011-05-02T01:00:00.000-04:00

Tonight the PRESIDENT of the UNITED STATES OF AMERICA (POTUS) announced that the CIA in co-ordination with the Pakistani Government located and killed OSAMA BIN LADEN Public Enemy number one (here and abroad.) That news is important and it is welcomed. I cannot say I am disappointed in anything other than the time it took to find him. May he never rest a day in eternity. I hope those 76 Virgin(ian)s he thought he would get are kicking the crap out of him right now in Hell. Congratulations to President Obama, Leon Panetta and the countless agents of the FBI CIA and of course of armed forces who have worked in hopes of this announcement, for bringing this terrorist to justice. No, it doesn't bring back our loved ones and it will never erase the misery of 9/11 or the days that followed it, but it does provide a sense of closure.

As for other News I found interesting, all of it pales in face of the news above. Just in case however you want to know what I thought was otherwise interesting, here are a couple of articles I wanted to write about:

I was going to use the blog tonight to talk about the futility of charging a nine year old child with murder for shaking a baby and how we need to separate the emotion of the parents losing an infant from the need to avenge a death with the "death" of another child when that child does something horrible.

I was also going to talk about the need for an "Expungement" Statute in NY given the fact that people arrested and convicted for even minor crimes can not get jobs anymore because of the Internet's ability to derail their job search with convictions. I was going to point to an article in the NY Times (semi subscription) which points out that people who have paid their debt to society long ago still cannot get work because of small or substantial indiscretion decades before.

Happy Law Day!!

2011-05-01T00:00:00.001-04:00

May 1st ought to be a National Holiday. It is the day that America "celebrates" Law Day. Now some of you are saying "Tony what is 'Law Day'?" Well here is an excerpt from the Presidential Proclamation:

At the core of our Nation's values is our faith in the ideals of equality and justice under law. It is a belief embedded in our most cherished documents, and honored by President Eisenhower when he established Law Day in 1958 as "a day of national dedication to the principles of government under law." Each Law Day, we uphold our commitment to the rule of law and celebrate its protection of the freedoms we enjoy.

This year, we pay tribute to one of America's Founders and our second President, John Adams. As a young attorney in colonial Massachusetts, John Adams was asked to represent a British officer and eight British soldiers charged with firing into a crowd and killing five men in the Boston Massacre. In the face of mass public outcry and at great personal risk, he accepted the case and showed the world that America is a nation of laws and that a fair trial is the right of all people.

President Adams' legacy of dedication to fairness and the rights of the accused has been carried forward by members of the legal profession for more than two centuries. It is championed by those who represent the accused and exemplified by women and men who are devoted to securing equal rights for all, both in America and around the world.

I am working today on a trial that will begin on May 11, 2011. I am working on it as a Assigned Panel Lawyer. It is the way I participate in a tradition of a government by Law and not by tyranny. I won't earn much, I don't want to. I want to win this case just like I want to win everyone of the ones for which I am highly paid. I want this client to receive the fair trial to which he is entitled with a qualified lawyer representing his rights. Hence I will leave this post and return to work. It is in fact the best way I can think of to honor President John Adams and those other men of Law who helped "give birth" to our Nation.
Happy Law Day to you all.

It's that time again. WBCOOP IS BACK and BIGGER THAN EVER

2011-01-19T18:40:00.001-05:00

I have registered to play in the PokerStars World Blogger Championship of Online Poker! The WBCOOP is a free online Poker tournament open to all Bloggers, so register on WBCOOP to play.

Registration code: XXXXXX 580695

That's right, in an effort to repeat endlessly the same thing and hope to get different results I am once again entering PokerStars World Blogger Championship of On-line Poker. This year with over Sixty ($60K)Dollars in free Spring Championship of On-line Poker entries available I am hoping to snag at least a couple of free entries. You can follow me online (send me an e-mail and I will give you my name on line) or you can wait to see if my futility at the on-line felt continues. Or better yet, if you have an established blog YOU CAN JOIN AND PLAY.

Oh yeah BTW if you are a law blogger and would like to play in an On-line "Home Game" with others who do the same send me a request and I will help you into our Lawyer home game league on Pokerstars.

Either way, wish me luck!!
TLD

Nothing is more fun than a not guilty verdict... unless it is winning a poker tournament :)

2011-01-16T14:57:00.001-05:00

I entered a poker tournament at Turning Stone Casino in upstate NY. It was part of their Winter Super-Stack tourney. I entered event number 4 the Knockout which is where you play but if you beat someone and they are knocked out of the tournament you get their "Knockout chip" which in this tournament was worth $100. I came in 8th and had the most knockouts!! First cash in a major tournament! Anyway here is a picture of me after winning. I am standing next to a giant gingerbread house with a silo made of Hersey Chocolates!! I was exhausted by happy. I am looking forward to playing again soon.

Judge Scalia: The Constitution Permits Sexual Discrimination

2011-01-04T01:27:00.000-05:00

In an interview with the California Lawyer Magazine US Supreme Court Justice Antonin Scalia declares that the 14th Amendment to the US Constitution does not prohibit discrimination based on one's sex or sexual orientation.

Scalia is an "Originalist" is one who adheres to the words of the law and what the framers of the law meant when they wrote the words and the document was passed (by the electorate.

A fairly simple guide to Originalism and non-Originalist thinking can be found here

As a general fan of Scalia's I was asked if I agreed with his statement that the 14th does not encompass equal rights for women. I do not. That is because within the Originalist camp, there are two distinct branches. Scalia is an Intentionalist- Someone who interprets the Constitution according to the way he thinks the people who wrote it meant for it to be passed. This style of interpretation is popular among Neo-conservatives but a number of Classical liberals (libertarians) also hold the view.

I am a textualist. I believe the text means what the text says. I would probably be closer in vision to the late Justice Hugo Black who would decide 1st Amendment issues by reminding his colleagues that "Congress shall pass no law" meant NO. LAW. Textualists look at the words and give to them the meaning that they have. We do not believe that one can go back and decide what the collective voice of the people was except by using the words themselves.

Getting back to Scalia if he is correct that the people who framed the 14th amendment as well as the people who voted for it were not concerned with sexual equality or the equal treatment of those with non-traditional views of sexual orientation then in his view such discrimination would be as legally legislated as the banning of such discrimination.

I do not believe however, that the Constitution is limited by what the majority of people thought at the time of passage. I doubt we can truly discern that. I fall on the side that says read the statute literally as it is the only document we know was voted on. So in this case the 14th Amendment at least for me as a classical liberal means what it says:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Broken down: All persons (Male female black white other etc)born or naturalized in the United States (meaning born here not born here of documented or non documented aliens, BORN. IN THE USA. or given citizenship by us after birth somewhere other than IN THE USA),are Citizens of the US and the state where they reside (So the states do not have a choice in who they may bestow rights upon.)
No State (NO. STATE.)shall make or enforce any law (ANY LAW) which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person (ANY. PERSON)of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

I think Justice Scalia needs to rethink even his sense of Originalist thought. I do not believe that voters (who were mostly male at the time of the adoption of the amendment) did not think their wives or daughters were not persons or citizens. Whether they could conceive the law would someday be applied to women they could have understood it would. After all they failed to exclude them and they could have done so if they never wanted the amendment to apply to these women. I think that trying to apply what they would have decided to do had they issue been debated is just not possible. The original words speak for themselves Women were citizens. The end.

I expect to see Tea Party people try to limit the scope of the 14th amendment and claim to other conservatives that the original intent requires that the amendment not apply to citizenship of the American born children of undocumented aliens. THAT IS NOT WHAT THE AMENDMENT SAYS. Further I can guarantee none of those types of people are smart enough to discern what Americans of 1865 thought. They have no idea what Americans today think I don't want them straining to go back 150 years.

Hattip: Huffington Post

Understanding Islamic Discrimination: Wearing the Hijab or Islamic Headscarf Is Not Grounds For Firing Someone (or arresting them either)

2010-12-28T07:31:00.000-05:00

ABA Headline : Jailed for Wearing Headscarf to Court caught my attention for a few reasons: 1. It offends me that someone could be arrested for wearing religious gear to court; 2. I am interested in seeing how next month's House Of Representative hearings on the growth of Islamic Fundamentalism in America go (as in will we learn something about the reasons approximately fifteen percent of American Muslims between 18-30 believe suicide bombing can be justified.) or is it going to be the witch hunt some groups claim it will be?: and 3. Because I am seeing more and more valid complaints of discrimination coming into our NY and Long Island offices from members of the Islamic community as well as from Sheiks who are often confused for Muslims due to their headdress.

In the Georgia case cited by the ABA Journal it seems a woman who went to court to support a family member wore a Hijab to court. She was told to remove it. This is in my mind akin to asking a Jewish person to remove a Yarmulke. I am sure that the court staff will suggest that there were security reasons for their demand and when it wasn't followed they arrested. What I find curious is that it seems to be agreed that after the woman said she would leave they arrested her anyway. I thought the idea was to NOT have her in the courthouse. Either way, I think they will be hard pressed to show that they could not have found a way to allow her to attend the court date without removing the headdress. (For instance they could have asked her to walk through a scanning device or have "wanded" her to see if she were carrying a weapon. I understand that such a process would not negate her from carrying the parts of a bomb or other items of a deadly nature on her person but I don't see how the headdress alone rises to that issue. Further if she were wearing a full Burkha I doubt that she would be required to remove it any more than a Catholic Nun would be asked to remove her Holy Habit (the tunic part which is part of the uniform if you will). You cannot arrest this person solely because she dresses in a religious.

On the Issue of the proposed hearings, Peter King is the incoming chair or the US House of Representatives Committee on Homeland Security. Congressman King has announced his plan to hold hearings into why American grown Muslims are becoming more "Radicalized." The issue is, will Congressman King use the meeting to call members of the Clergy before Congress to name names of those in their congregation who are Radicals? That seems somewhat McCartyesqe. I hope Congressman King (who was a pretty fair lawyer prior to entering politics) focuses on why there seems to be an affinity for Radical faction of Islam among our younger members (those polled tween 18-30 years old.) I think you can start looking at the reason being that young Muslims are being discriminated against in larger and larger numbers. The Pew poll sited above notes that and I can say that I see it in our practice in both Nassau Suffolk as well as in NYC and it's outer boroughs.

Here is a quick primer on religious discrimination in employment/labor situations.
Title VII of the Civil Rights Act codified under 42 USC 2000 e-2(a)states that (1). "Religion" is defined to include "all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's . . . religious observance or practice without undue hardship on the conduct of the employer's business." 42 U.S.C. § 2000e(j).

At first blush it is up to the person who claims to be discriminated against to prove that (1) she had a bona fide religious belief, the practice of which conflicted with an employment duty; (2) she informed her employer of the belief and conflict; and (3) the employer threatened her or subjected her to discriminatory treatment, including discharge, because of her inability to fulfill the job requirements." I suggest that if one is called in about one of these issues, that she take a small digital recorder with her and (at least in NYS) record the conversation. In New York only one party to a conversation need know it is being recorded (check your state rules here.) That should make the whole thing a lot easier to prove.

Thereafter, assuming the plaintiff (or victim of religious discrimination) has made her case the employer must then show
(1) "that it initiated good faith efforts to accommodate reasonably the employee's religious practices"; or (2) "that it could not reasonably accommodate the employee without undue hardship." Id. If negotiations between employee and employer "do not produce a proposal by the employer that would eliminate the religious conflict, the employer must either accept the employee's proposal or demonstrate that it would cause undue hardship were it to do so."

Now public employees in security positions have less rights to dress outside of the uniform than do other sectors of Public or private Sector employees. Nevertheless, short of showing that there was an economic loss or the potential for a morale disaster, the undue hardship will be hard for the private sector employer to prove. As for the first part again you can see how it is in your favor to record the conversation or negotiation. Rarely do I hear an employee say that they were listened to or negotiated with.

In our case, our client wore her hijab to work. She was ordered to give it up or go home. She worked that day without it over her objection. The next week when she went back to work, the same manager had the same complaint and further he basically told her to quit or be fired. She did leave but she was de Facto fired which saved her for unemployment benefits. We have just received a right to sue letter from the EEOC so you will be hearing more about this as the next year progresses.

If you should be incurring problems with employment religious racial or sexual discrimination or retaliation, why not give me a call to discuss it? You can still reach me through 516-741-3400.

Off Topic: Rain: A Beetles Tribute On Broadway

2010-11-07T22:53:00.000-05:00

I went to see "Rain" today. It is a tribute concert to the Beetles. Rain performs the Beetles kind of in concert. There is no Broadway musical ala BeetleMania or "Jersey Boys." The musicians in "Rain" (which is evidentially an actual "cover band") are very good, and the guy who plays Sir Paul McCartney is a good look-a-like, but all in all, I'd have rather saved the money and bought the real records (or CDs if you must...)
That is not to say that I didn't have fun, I did. Mostly because I saw it with 22 cousins and other friends of my family. Now that was fun. Of course again, "Jersey Boys" would have been more fun and that show is just phenomenal.

"Rain" begins at the beginning, with the Ed Sullivan Show and then moves along through "Help" and "Sgt. Peppers." It hits the "Revolver" album and the "White" album, and ends up with Abbey Road.
To their credit, "Rain" (the band) never tries to pretend they are acting as the Beetles. I mean yeah they look a little like them and dress like them and sing their songs but unlike Jersey Boys they do not take their names nor do they ever refer to themselves as the Fab Four. They clearly let you know they are a tribute band and this is a tribute to the Beetles.
The audience was fairly old (over 50 plus) and there were a lot of former hippies using walkers, wheelchairs, and the like, but on a whole for a group of "old folks" we were quite energetic.

If one has never seen the "Beetles" live and wants to "kinda sorta" hear the music as if the boys from Liverpool were still playing it, then do go. Squint a little and you will think they are up there singing to you. Otherwise, buy the albums or the re-released DVDs and save your money to go to see Jersey Boys which is across the street. Now that was some play.

Queens District Attorney Brown wants to Silence the Judge so he can make the Defendants talk: Another attack on Miranda

2010-11-01T02:24:00.001-04:00

Prosecutors hate quiet defendants. In fact they will go to great lengths to get them to talk, especially to confess. In New York City over the past few years, Assistant District Attorney's will go into the holding pens known as Central Booking and actually interview these arrested folks, telling them that this is their only chance to talk to a prosecutor before arraignment and that it may result (during a blue moon)in a dismissal of their case. Certainly the Prosecutor will check out anything they tell them (like their alibi which really means he will send a detective down to take partial statements from alibi witnesses and screw up a defendants alibi allowing them to convict many more innocent people.)

The way these interviews begin is for the prosecutor to tell their spiel to the defendants BEFORE THE DEFENDENTS ARE GIVEN THEIR "MIRANDA" RIGHTS.(Miranda warnings give a defendant their right to remain silent and their right to an attorney.) After they have promised them to listen to their stories then give Prosecutors read in the rights. It is a "Bull Shit" way to use gentle coercion to get a confession or admission. (Pardon the language but really can you think of a more blunt way to say it??)

What do I mean? Well, the ADAs are promising to listen to them, but in reality, the ADAs want to convict them (I know DA Brown will say that isn't true but if that were the case, why not let them speak to their own attorneys first and then let the lawyer decide if is in the best interest of the client to speak to the prosecutor. After all that is how they show it on Law and Order.)These ADAs are overcoming arrestee's will to assert their rights by promising something may happen for them if they do not assert their rights.

Remember where these people are when this is done. They are completely at the hands of the government. They have no advocate of their own there and are not entitled to one. If they don't speak to the prosecutor they don't have to, but they aren't going to see a judge until they have gone through this little ritual.

Holding pens in NYC hold defendants for 24 hours or more. After a few hours smashed in with 20 other people, with nowhere to sit without access to family or lawyers, these folks will do anything if they think it will get them out faster.

One Queens judge has threatened to look into the ethics of this behavior. The Honorable Joel Blumenfeld has a decision coming that may discuss among other things the legal ethics of a prosecutor saying and doing the things that the prosecutor says in Queens County NY. Now Courts look at ethical issues all the time, but DA Brown doesn't want Joel Blumenfeld, a former criminal DEFENSE Attorney to rule on that issue. So DA Brown has brought an order to show cause against the good judge to stop him from discussing the ethics behind the activity IN HIS JUDICIAL DECISION!!!

Unbelievable. Absurd. Legal ethics and violations thereof are perfectly good reasons to suppress evidence. (For example if a defense attorney "Friends" a victim on Facebook by pretending to be someone other than himself, the evidence he gets from that is not usable in the case. That isn't because it isn't good evidence, it is because such behavior is unethical for lawyers to engage in.)

On the up side, it is unlikely a fellow jurist will tell Blumenfeld he can't write his opinion the way he wants. It is supposed to be an INDEPENDENT JUDICIARY!

Oh did I forget to mention, DA Brown USED to be an Appellate Division Judge. I wonder how he would have taken to being told he couldn't discuss an ethical issue in a decision.

As for you readers out there I cannot point out how important it is to get a lawyer for your friends who are arrested or if you are arrested how important it is not to speak to ANYONE without first speaking to your OWN lawyer. Most of the people who give statements give them because they are waiting for LEgal Aid or an 18b lawyer (free lawyer from the court) to be appointed. DO NOT WAIT!! Get yourself a good lawyer right away and have him notify the prosecutor that you or your friend is represented by counsel and may not be spoken to by them without that lawyer being present.

IF you need a lawyer even in the middle of the night, I will take this opportunity to remind you that you can call my office 24/7/365 and speak to a lawyer if you or a friend or loved one has been arrested and is awaiting arraignment. You can reach us at 516-741-3400. DAY OR NIGHT. Weekday or weekend, holidays too!!

Hat Tip: The NY TImes

It's Election Day. Here Are My Endorsements

2010-10-31T15:16:00.000-04:00

Anyone who blogs for business reasons will tell you: "DON'T Get Political on your business blog." So much for my listening to common sense. I see a lawyer's job in part to help lead his community. That includes supporting candidates for office; not just anyone who runs on a particular party line, but candidates they know will make a positive difference in the lives of the people they try to help every day. I am more than aware (sometimes I think I am alone in this) that no one party has a lock on good ideas or good people. I endorse "bipartisanly" not because it is "good business politics" but because it is good government and I like to think exhibits leadership.

A proviso: I consider myself libertarian. Small "l". Which means I am not actively a member of the party, but I agree with much of what they stand for.

Libertarians are usually said to be fiscal conservatives and social liberals. To be libertarian, (small "l") I think you have to favor small federal government and very little government intrusion into private decisions.

With that said here are my picks and some analysis.

Governor:
Warren Redlich. He is the Libertarian. It is a minor party but Warren is anything but a minor brain. He seems to be the only candidate who understands you cannot cut taxes without cutting many MANY unnecessary and duplicative programs.
Look Cuomo is a great guy (really he is, I've known Andy politically since we were both kids. He is a tough/bully kind of politician but he also is very family oriented and has a good heart. He wants to make correct decisions, I just don't think he always knows what those might be.) Paladino is someone I'd like to like. He is a successful businessman, loves his family and is famously loyal to those he is surrounded by, but he is either a bigot or stupid at times. Until he learns to say what he means the first time he says it, there will always be a question in my mind as to which is which. Mutual friends of ours swear to me he is just a "regular guy". Maybe, but maybe you need to be more to be the highest elected state official in NY.
As for those who think that this is a wasted vote, so is voting for Paladino, however if Redlich gets enough votes (50K) the Libertarian Party gets a line in the next four elections. That will give it the power to get like minded people elected both to the statehouse and in local elections. Sure some people will be fringe candidates (so is Paladino if you think about some of the things he has said) but many will have new ideas that may work far better than the same old thing. VOTE REDLICH.
Attorney General:
Tough call. Politically, Eric Schniederman and I probably agree on a lot of social issues including death penalty, drugs and the proper emphasis of a state Atty' General's Office. Dan Donovan however is a good prosecutor and knows how to run an office. He worked under Guy Molinari, and is considered a Republican moderate. Schneiderman on the other hand knows Albany and has been an enemy of the corruption that runs the capital. He will be a watchdog over Wall Street, but I don't think he has the makeup of either of the previous two AGs (Spitzer or Cuomo.)
I will vote for Donovan and hope I was right.

Comptroller:
I have known Tom DiNapoli for 30 years. I like him personally. I am sure that Tom's heart is in the right place. He has been a good administrator but he isn't a comptroller. The Republican candidate Wilson is a tool of Wall Street.
I am voting for the Libertarian who understands Wall Street but also has the qualifications to be a Comptroller and who is just populist enough to understand he is a guardian of the Public fisc. I cast my vote for Carl E. Person. Take a look at his website. He has some interesting ideas. As with Redlich for Governor I know that not enough people will vote for Carl to elect him, but if he were to get 50K votes, it would send a strong message that the electorate wants a state government that gives greater power and less "pass down" legislation to local county and town governments.

I am not touching the US Senate or Congressional campaigns. Mostly because the Republicans decided not to show up. There are really no choices here. I don't support Schumer and I have no idea who Gillibrand is going to become. She is better than I thought she would be, but then again I didn't initially expect anything from her anyway. I will vote for Libertarian party candidates mostly as a show of dissatisfaction with the lack of a real choice.

Now locally (On Long Island) we have a bunch of Judicial elections. I am going to focus on Supreme Court and Family court.

I'd like to begin with the Supreme Court.
The most qualified candidates are without a doubt Daniel Palmeri and Andrew Crecca. I have appeared before both. They are outstanding trial judges. Palmeri is brilliant. PERIOD. Crecca has a great feel for the courtroom and for the issues. I think he has great ability to be the kind of judge who gets things done expeditiously both of these candidates are sitting judges and both are Republicans.

As for the other two spots, I urge you to vote for two Democrats (no I am not trying to be equal. I know these folks and they are worthy of the job.) The first is a sitting District Court Judge Robert Spergel
Judge Spergel has a good way of cutting through the garbage that is litigation. He needs to be careful of his urge to "get it right" and rule according to law. (He used to be a policeman, "Street Justice" may work on the street but in a court of law, law works best.) Outside of that however, he has a good "gut" understanding of when a side is taking an unfair advantage of others. He is aware of how to move a calendar and he seems unafraid to make hard and unpopular decisions. He does that expeditiously. It is important to move Supreme Court calendars quickly. Justice delayed is justice denied. Supreme Court calendars move at the speed of a glacier. Having a judge who can decide tough calls and do it quickly is a good thing.

The last vote is for my colleague William "Bill" Devore. Bill has had a storied career both in and outside of the Suffolk District Attorney's office. He is a reasonable person who understands the issues that occur in people's lives. He is a good lawyer and will have the guts to make the tough call in a timely manner. He has compassion yet he is a strong lawyer who will be unafraid to decide to do the right thing as opposed to the popular thing.

Here are four good candidates who all will serve us well. This is not to take away anything from the other candidates who all bring different qualities to the bench. The biggest issue is that the four judges I selected all are gutsy lawyers who do not appear to be beholden to anyone and who can do the job (or are doing the job) well. They each know the importance of moving a calendar and do so while maintaining a high level of legal acumen. Crecca and Spergel work in high-stress busy "specialty courts" (Crecca works Domestic Violence Court in Suffolk which mixes civil family and criminal court in one courtroom and Spergel is the judge in the DWI Trial Court in Nassau County, the busiest Criminal Trial Court by volume on Long Island.)

There is only one great choice for Nassau County Family Court. Merik (Rick) Aaron. Rick is a former HS Teacher. Went to Law School. He is bright and he is compassionate. He has the perfect disposition to work with juvenile delinquents and dysfunctional people (After all he worked for me for his last year of Law School!) Now for those of you who will claim some type of nepotism, I say that is just not true. I know Rick, and I have seen his work. He is THE CHOICE for Nassau Family Court.

Finally for State Assembly, I am supporting Charles Lavine a Democrat in the NY State Assembly's Thirteenth (13) AD. He has done a great job. He sits on the codes committee and he has been very effective in Albany.
I am also supporting Michael Montasano in his race in NY's Fifteenth (15)AD. Mike understands the issues that effect everyday folk. He is one of us. He is a former police officer and lawyer. He is gutsy. He challenged the Nassau County Forfeiture law and won!! Mike is a good assemblyman who will serve his constituency well.

I like Tom McDevitt in the Seventeenth (17)AD. A fine young man who is becoming more and more of a force in Albany for his district. Tom is active in his practice of law and he has been active in the Nassau County Bar Association. HE is up on the issues and provides a spirited loyal opposition to the Democrat controlled Assembly.

In the State Senate, I am supporting the Republican ticket right down the line. Why? Because a Democrat Senate has wreaked havoc on Long Island. Democrats have taken the STAR exemptions away which helped a lot of people stay in their homes in a bad economy. We pay a MTA Tax even if we never ride a rail or cross a bridge. In other words, losing in the Third Senatorial District broke up the Long Island Republican Senate block. The new guy Democrat Brian Foley wasted no time paying back his political benefactors at a great cost to Long Island. Sorry. I really don't like how Albany works. There is too much power in the leadership of each house and Governor, and the system rewards the corrupt and the stupid (can anyone say Brian McLauglin and Anthony Seminerio?)usually at the expense of Long Island and the North Country. A solid Republican Senatorial block, until Albany becomes a place where rank and file members have more power, gives Long Island the only chance it has for a fair shake.

Well let the commenting begin. I am sure I ticked off many of you and even a few friends who I'd like to support but can't in fairness to the principles I have politically and or because the other candidate is just in my humble opinion a better candidate. Agree or disagree you can help have the final say if you vote on Tuesday.

Are Some Lives Worth More Than Others?: Only Your Prosecutor Knows

2010-10-29T16:30:00.000-04:00

Today, two people will be sentenced for killing innocent others. One person will have made a series of very bad decisions while intoxicated ending in her killing a young girl age 11. The other will have made a conscious decision to kill 11 people. The former will receive a sentence of 12 years in jail. The latter will be released after only doing 8 years while he awaited sentence. The former is a young mother of a pre-teen girl, the latter was a mob hitman. The former, the mom who killed an 11 year old by driving recklessly while intoxicated, spawned a law that makes it a felony to drive intoxicated with a child in the car. The latter Mob hit-man will reinforce the idea that you can kill at will as long as you are willing to give up others, even if you lie to do it.

The young mother is Carmen Huertas. She made a decision to get into a car with 6 children (one was her own) and drive them home from a slumber party after she had embibed enough alcohol to blow a .13 BAC. (Not that I think BAC's are the least bit accurate but given her other behaviors that night I would think there was enough other evidence of intoxication to prove she was guilty. You can read the story here and decide for yourself. She was sentenced to a indeterminate sentence of 4-12 years in jail. She could theoretically be eligible to get out on parole in three years and five months
but given just the fact that this was a DWI and the fact that it was the type of death that brings out everyone against the defendant, she will likely do the whole sentence before she is released less any "good-time" she may accrue (about 1.8 years off the top number or 10.4 years in prison so far.)

The mob hit man is Sal (Good Looking Sal) Vitale, former underboss of the Bonanno crime family. Sal was an early follower of another neighbor Joe (Big Joe) Massino, the boss of the Bonnano crime family. Both men grew up in my old neighborhood in NY. Sal was always noted for how good his hair looked. I should know, he used to go to get his hair cut in the same barbershop as I did. He was a big deal there among the Italian barbers. They all knew who he was. I blissfully did not. I did notice he seemed like any other guy who went there. Slightly pampered and otherwise kind of nice. He always went with friends.

About 10 years ago, Sal and his Brother-in-law childhood hero Joe Massino got indicted. Joe was pretty jealous of Sal's popularity among the other under bosses in "the family". He was afraid that Sal may be so much better liked than he, that he ordered someone kill him. The feds moved in to save Sal's life. Sal was infuriated and so he turned on Joe and everyone in the old life. He had enough information to identify over 500 men as either members of or affiliates to the five families of NY. He also had enough information to put 50 of these men behind bars for a long time, some even for life.

Sal Vitale was a cold blooded killer. He didn't have to be. He had smarts. He was a former corrections officer, and he owned a series of small businesses that would have made money for him with or without patronage from Joe Massino and company. Instead, he helped end the lives of at least 11 men and maybe more. He made it possible for others to kill without being punished. He ran loan-sharking and illegal gambling operations. He provided protection for drug dealers and houses of Prostitution. He also however danced to the Governments tune. He turned and he will be rewarded. Is he sorry he was a creep, a killer, a monster? Only he knows. He knew however he created that man. If he could, would he turn down the life he led? Would he walk away from the jaunts to Vegas and Atlantic City? Would he give up his house in Dix Hills for all those years. Would he not have had the fancy haircuts and manicures he got that earned him the nickname "Good looking Sal"? If he knew he would never get caught would he? Or would he have preserved that life even if it meant killing eleven more people. Eleven more fathers brothers sons?

Carmen Huertas, a 31 year old mother who would like to take back about 2 hours of her life. Whether she was found guilty or not, the taking of that child's life would have stayed with her forever. Her chance of ever getting behind the wheel of a car drunk again, would be less than zero.

Jail is supposed to be for punishment and corrections. I fail to see the sense in this today. Carmen Huertas should have been sentenced to 1-3 years and should have been ordered to a program to address her drinking issues. Sal Vitale should have been sentenced to at least a long long period in jail. He could have gotten Death had he not cooperated. His getting a free pass calls into question every detail to which he testified. His testimony was bought and paid for by the government. He knew if he danced to their tune he would walk away, a free man, new identity, new home, new business.

As she addressed the court she said ""I am not a monster," "I am a loving mother who made a terrible decision that caused the death of a wonderful child."

She is right, her behavior was monstrous, but she herself is not a monster she just in fact made a horrendous decision that will forever effect the world of Leandra's family and her own.

Does anyone wonder if Sal Vitale could make the same statement? Is it fair that the prosecution can make these decisions based on how much they were helped? Is it fair that Vitale's victims should get nothing in the way of satisfaction for the loss they suffered?

Huertas is in jail, mostly because of who her victim was, and what that victims family wanted. Vitale is free despite what his victims want and despite what fairness dictates. She is sorry. Given the chance she would not be likely to repeat her poor judgment. He, well you decide: is he sorry or sorry he got caught? Given the chance, would he have turned down all the things his life gave to him and his family or would he have killed again and again, knowing he would never get caught?

The lives of poor people and the lives of rich have different values in a court of law. The lives of people who die at the hands of those that can give the prosecution what it wants, and the lives of those killed by someone who has nothing but remorse to give, have different values. Neither of these are fair, they just are.

If you ever serve on a jury however, when one of these rich powerful guys testifies, and he says he is not getting anything for his testimony, remember, that is just not true. Never was, never will be. They are just monsters who the government is paying to be tell they government's story, whether it be true, or not. Whether they be monsters... or what?

Here is the NY Post's coverage of the sentencing hot off the presses.

God Help Me. I Can't Believe I Am Writing This: O'Reilly is Correct. End Public Funding For NPR & PBS

2010-10-24T21:11:00.000-04:00

I have to admit, that I am not crazy about public funding of the airwaves in America. I have no problem with Radio Free Europe and its progeny. I mean NPR and PBS. Until now however I was more or less willing to over-look the two because as things go, I think Sesame Street is a better deal than... A bridge to no-where or a Big Tall Fence across the Mexican border. NO MORE!!

The Juan Williams firing has me agreeing with FOX's Bill O'Reilly that it is time to end all public funding of Public Radio and to be consistant the Public Broadcasting System.
The Williams fiasco is proof that the company funded in part by our tax dollars has a political agenda that is fundementally liberal and will enforce the policy whenever it choses to.

Now NPR has conservatives and libertarians and hell even crazy tea party people on as guests, but nope it seems you cannot be one of those people and work there. When NPR accepts money from the Government however, it is not to push it's political agenda but to provide programing in a non-partisan way that will help further the conversation. It is to present educational programing.

Believe it or not, Tea party activist tax dollars go to NPR the same way liberal dollars go there. The Tea Party conservative, or libertarians like me have a right to be hired by a semi-private corporation funded by my tax dollars. Evidentially that is not the case and these NPR snobs think that you may think only their way or it is the highway... Well not on my dollar.

I am ending all support for NPR. I am asking my Senators and Congressmen to exise it from the Federal Budget and will ask the same of my State House Representitives. If they want to run their company like FOX NEWS, let them fund it the way FOX News does. With advertisers and by working for every dollar it gets. It won't be easy. but at least it will be fair.

The Firing of Juan Williams: Liberals & Neo-Cons Two Peas in a Pod. They Only Favor Free Speech of Those With Whom They Agree.

2010-10-21T12:38:00.000-04:00

Juan Williams is a reporter and commentator for NPR (National Public Radio). He also tries to provided the "balance" on Fox News Network presenting the so called "Liberal" side of the Fox equation.

The other night, Bill O'Reilly was discussing whether or not America had a "Muslim Problem." (If we do it is in great part O'Reilly's fault. He went on "The View" last week and announced that "Muslim's killed us on 9-11." In reality it was 21 Muslim fanatics and their murderous handlers abroad) Williams was his guest. Williams said the following:

"I mean, look, Bill, I'm not a bigot," Williams continued. "You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."

Of course all the usual suspects (NAIR, Andrew Sullivan, and NPR brass) all started hand-ringing and accusing Williams of being prejudiced. Then in the expected second act, the NPR Brass fired him. Why? Because he had the temerity to express in words that he feels fear when he is placed in a situation where people of a certain background have in the past created havoc.

Sorry guys you are wrong.

I sent the following letter to the NPR Obudsman. I reprint it in full below.

To whom this may concern:
You and your organization have seen the last dollar you ever will from me. Are you all a bunch of crazy people? I am a Criminal Defense Attorney and a Civil rights lawyer.I have news for you. I represent thugs, gangsters, and the seriously deranged individuals. I walk the streets of ghetto neighborhoods and I am often in dangerous places around people who do not look like me.

I represent Muslims and Sheiks and all types of religious, ethnic and sexual orientations. I also represent gang members from Bikers, to Russians to Spanish (el Salvadorian and Mexican) to Italian and Albanian. I do not consider myself to be prejudice.

That said, I also see people who dress in a certain way or are in certain places and I feel nervous. It isn't prejudice, ITS SMART. Being aware of your surroundings is important. Being on guard when you are the odd person out is wise. Neither Juan nor I am advocating doing something stupid like not getting on a plane or leaving a restaurant. It was a true and natural reaction to what is going on.
If I walk into a Mosque I am not afraid. I am not unwilling to speak to a Muslim or anyone else. I am aware and a bit anxious when I see people wearing gang colors. I watch what they are up to. I observe more. I see a bunch of kids in the mall and they are dressed like Gangstas I watch them more, I look for behaviors like their creating a scene while another steals something. It happens occasionally. I see a bunch of Muslims speaking in foreign tongues and I watch them. I worry that maybe this is the next shoe bomber. I don't report them to security but I watch. It is the right and smart thing to do. It doesn't uncover deep seated prejudice. This didn't happen before 9-11-01. It isn't a deep seated fear. It is not something that happens in restaurants but it happens on trains buses planes. Around synagogues too.

Firing Juan Williams was a terrible error in judgment. I agree with the commentator that describes liberals as all for freedom of speech as long as they agree with it. You are no better than tea party activists. I am a libertarian. When I have the money I have donated to Public Radio stations in NY and to Public TV. I want more than one opinion. I don't want dishonesty. Williams is NOT the only person of reasonable mind who feels this way. His expression on O'Reilly was how he felt. It gives permission to others to admit their fears and to address them.

Juan Williams is not the problem. He is a solution. Frank discussion and truth are the ways to address the issues and pretending that people who are intelligent do not harbor fear because of the situation is a good way to be sure the underlying issues are never addressed.

Some Fun Stuff for a Sunday Night: Funny Animation of The Carl Paladino Campaign and a Review of Innocent by Scott Turow

2010-10-18T00:01:00.000-04:00

Hello all,
I have found a few light fun things to tell you about. If you have some time you might want to look into them.

First Al Nye the Lawyer Guy reviews the new Turow Mystery Innocent which takes up where Presumed Innocent left off, kind of. It is the story of Rusty Sabich a Chicago Judge who had been acquitted years ago (in the first book) of Murder, now being tried again by his old nemesis Tommy Molto for the murder of his wife... who has her own past if you remember book number one. Sabich is represented again by Sandy Stern and the book stings me knowing that Raul Julia will not be here to play that part again in another movie. Anyway, I won't give it away. Go over to see Al's opinion and order the book.

Second: I have been troubled from the start about Carl Paladino's run for Governor of NY. I wanted to like the guy who seemed kind of self made and a little unpolished. However the guy just has a part of him that makes him unbalanced. I talked to guys who know him and they like him, but I just can't help feeling he's like my friend George, a great guy to have a beer and a laugh with but not Gubernatorial material. Now I don't like Andy Cuomo for Governor either. I think he is heads and tails more qualified than Paladino is, but he is just way too liberal for me. I am going to vote Libertarian and vote for Warren Redlich. One thing about Warren, he seems to understand that you cannot cut taxes unless you cut services and waste. He has a plan to do that and so I am looking forward to the debate tomorrow night at Hofstra University

In the meantime I saw this and thought it was hysterically funny. It is the Taiwanese News bureau's cartoon take on Paladino. Shut down the sound and read the subtitles. It is about a two minutes long.
And that is it for now. Enjoy.

Stuff Even I Can't Make Up: Blabbing Bimbos, USHLS Keep Cartoons Characters Safe From Child Sex Abuse, Moonlighting Is Okay for Judges As Long As They Remain Unfunny and Surprise! Someone Got Angry in an Anger Management Class..

2010-10-16T22:47:00.000-04:00

For a little light reading, I thought I would take you for a short tour of what I found funny (that's to read funny strange not funny HA HA! I will admit there is some overlap however)

1. For the last time People, If you are going to "Kiss and Tell" DON"T DO IT ON THE INTERNET!!!
Exhibit One: A woman fighting for child support admits on Facebook that her child is not her husband's.
To quote our friends at ABA Journal News "...one mom posted photos of her children during a custody battle, eliciting a comment from a friend that they didn't look much like her husband. Her response: That's because they're not his." That was smart...
Exhibit Two: Another Duke University Sex Scandal.
An apparently Jock sniffing College Co-ed from Duke University decided it would be a cute idea to make a "Power Point Presentation" of her sexual hi-jinx while an undergrad at Duke University. She ranked 13 lovers, all jocks (many Lacrosse players btw) and was very "explicit" in her descriptions of the guys and the activities she and they engaged in. She sent it by e-mail to three friends and "Surprise" it got sent all over the net!!!
(Yeah like she didn't mean to leak it so that she would get the obligatory book opportunity and Playboy spread.)

I think the kids at Duke may have too much time on their hands. How in the hell do they keep getting that US News and World Report Ranking given that they can't seem to shut up??? What ever happened to discretion being the better part of Valor?? In the interest of truth in journalism, I admit, I could have been subject number 12... okay maybe not but a guy can dream can't he?? (You can read the whole report and see the pictures with blackened out faces here)

2. Your United States Bureau of Homeland Security: Keeping "Toon Town" Safe for Cartoon Kids. Now if they could only protect America.
Radley Balko of the "Agitator", one of my favorite bloggers, has put the only headline I could think of on a case of Simpson cartoon characters in sexual positions causing a conviction for Possession of Child Pornography (yeah you read that right.) In his blog post

Worst. Prosecution. Ever.

Radley describes a prosecution where the only "Images" were cartoon characters... Better get rid of any "Fritz the Cat" videos you downloaded.
I read the press release from the US Justice Dept. trying to decipher the real reason they brought this prosecution... If it weren't so true of the way some of these folks think, I'd have laughed. Here is the Money Quote: “We aggressively use our investigative authorities to protect our communities from those who seek to sexually exploit children for their own perverse gratification,” said Leigh Winchell, special agent in charge of ICE Homeland Security Investigations. “HSI continues to dedicate resources to identify those individuals who engage in this type of criminal behavior and ensure they are brought to justice.”
I am so very happy no moreTOON TOWN characters will be sexually exploited for someone's perverse sexual gratification, now could you use some of these funds you WASTED on this prosecution to freaking solve a crime in MY HOMELAND?? You know, a real crime not a cartoon crime... Maybe find some guy like, oh I don't know... OSAMA BIN LADENmaybe??? Where is Bob Hoskins when he is really needed
While on this same topic, If you happen to be a boss (say the Editor of "Innovation" at the Chicago Tribune, maybe it is not a good idea to use company e-mail to distribute a link to a website that has a fake newscast showing women in various stages of inebriation and undress... I'm just sayin'.
In this time of political correctness, all employers need to be more "sensitive", still I can't help feeling like this guy would still have a job if he wasn't always sending these kind of weird things out.
Hattip: NY TIMES

3. Judges in NY have not received a raise (Not even cost of living) in almost two decades. That is not only inconceivable but downright unfair to them and to the citizens (A well funded judiciary is essential to a nation of laws.) So to fix the problem, we gave them a raise right? NOOOOOO!
We will now allow them to "Moonlight". I can see it now:

Attorney: I have another witness your Honor
Judge: I'm sorry, I have to give the Katz kid a piano lesson at 5:15 on the dot. Otherwise I won't be able to tutor the Smith kid in Math at 6:30. Oh by the way, your decision on that stay of the death penalty? I won't have it done till tomorrow afternoon...
Attorney: Uh Your Honor, my client is due to be executed at 12AM tonight...
Judge: Hmmm well maybe if I skip dinner I can finish it by 11:45PM.

Oh yeah it seems that one job a judge can not have is doing "stand up" comedy... Has anyone read some of the decisions they write... KIDDING IT WAS A JOKE... REALLY... :)
Hattip: ABA Journal News Today.

4. From the Bureau of "I Don't Think She Gets It" comes this little ditty "Woman Stabs Another Attendee at Anger Management Class"
That's right, Faribah Maradiaga 19, stabbed a fellow classmate in her anger management class.
Wanna know what they were arguing about??
Men?
Kids?
Obamacare?
Here is your money quote: "A dispute over the value of a video on anger management being shown to the class sparked a war of words..." I guess that video wasn't as good as they thought it might be.

Okay and for those of you who stuck around this long, My old blogger friend Ken Lammers who was a defense attorney and is now a prosecutor (KENNY KENNY KENNY) has been touted as one of the "Hot Law Enforcement Types." Go visit his blog and vote for the picture you think is hotter, Summertime Head-shaven Ken, or Winter Sensitive bearded Ken. Tell him I sent you.

Oh yeah, If you liked this post, let me know. Leave a note on here or on Facebook.

And on a more serious note, if You or someone you know has been accused of Assault, Child Pornography Possession, or Sexual Harassment at work or at school, it is no laughing matter. It is also nothing to handle without the help of a good lawyer. I am more than willing to speak to anybody who needs help with this or any myriad of legal problems. You can reach me here

The Battered Woman Syndrome Defense Scores a Big Win in Butterknife Stabbing Case: Some SOBs Just Need Killin."

2010-10-13T19:17:00.000-04:00

When the Prosecution opens the trial with:"Kevin Cobb may not have been a husband or father any of us would want to have..." That ought to be the first clue there is going to be a problem with the prosecution.

When the next thing the prosecutor says is: the husband (Kevin Cobb) was out using coke, returning home around 3 a.m.

And when the alleged victim has done upstate time for drug and violent crimes, well then that would be a trifecta for a good reason not to bring a charge of Murder (or even assault First degree.

But when the defendant has suffered from "...bruises and (a) black eye and (a) punctured ear drum" all at the hands of the alleged victim...then you know you probably should have offered a plea bargain.

Note to prosecutors: "Some SOBs just need killin." It is not necessarily a valid defense but jury's do understand it. It is one thing for a defense attorney to stand before a jury and protect an accused who is also a miserable person, it is far different for a prosecutor to use the state to prosecute someone who is basically a good person ( Ms. Cobb is a nurse and the mother of six kids) and take the side of the miserable SOB who has been abusing them for years. Sounds like the jury understood that Kevin Cobb was one of those SOBs who got far less than he deserved.

Man a butter knife... OUCH!

HAT TIP:ABA Journal
and for some of the quoted material above the NY Daily News

By the way, gotta love the NY Daily News Headline in this case"I killed my coke-fiend husband in self-defense." Kind of says it all n'est-ce pas?

Should Lindsey Lohan Go To Jail? Why This Celebrity Means Something To You.

2010-07-15T20:29:00.001-04:00

There is a debate raging over at my favorite blog the ABA News today over what should happen to "poor little Lindsey Lohan". For the uninitiated, She has been in two drug related DWI's she has completely destroyed her probations and she has been sentenced to 90 days in jail and rehab. She then fired her attorney (yes it must be their fault that you are a F.U. and need to be ib jail the way fish need to be in water)and demands that she get a "pro bono" lawyer. Her rep said she had already paid for two lawyers and now the government should pay.

She is pathetic but aside from that, should Lindsey go to jail and for how long. You may be wondering why I care. I suggest to you that we should all care. Not only about Lohan, but Gibson, and Spears and a number of other A-list stars who while the tabloids make them fodder, corrupt our corrections and criminal justice systems.

Hat tip: ABA New Now

Look, in our system, “punishment is not meant to fit the crime” it is meant to fit the criminal. Despite the BS from “victim advocates” Corrections is about correcting. It costs us way too much money to incarcerate people who do bad things but whom we can handle in other ways.

I get really frustrated every time I hear a crime victim cry out for jail time. You want jail time, you pay for it. I only want jail when it is needed to get the person back into life and being a productive tax paying entity. I don't like crime and I feel bad for victims but not at the expense of my family and yours. Restitution and knowing that the perpetrator is being addressed so as to reduce the chance someone else will suffer, is all that a criminal justice system owes to the victim. If they want more, they can avail themselves of the civil Justice system. The Criminal Justice system owes me and you however a corrected and useful member of society. A person who can carry their own weight without again becoming part of the system again. It owes us some semblance of safety as well. Lohan is not a mass murderer, though she has been lucky not to take a life. If we incarcerate her without getting her help, she just comes out an older addict just as likely to re-offend and kill or maim someone. Hence Jail for Jail’s sake is a waste of my tax money and everyone's time. I abhor such waste especially by government.

Lohan is not just a person, she is a product. Just like Mel Gibson and Britney. Because of them, many people have jobs. Many more will have jobs and those people pay taxes and help an economy that we all rely on. Staff, record company employees, ticket takers and pop corn salesmen, people who clean up stadiums and offices, parking attendants, all have jobs because of people like these. So do the folks who feed these other people (like the lawyers who serve those people) (not the stars but the help staffs and others)need them working. Who gets really screwed in a baseball strike? The vendors and the fans. The superstars come out just fine. It is very much a butterfly effect. We need to remember this

I suggest more jail is needed for Lohan, not because I want to see her in jail, but because she is an addict and has an addict’s view of the world that needs to be addressed before she can begin to become productive. Until she is brought to bottom, she will not be receptive to the help available to her. She still see’s it as being all about poor little Lindsey. When it becomes about “look what I am doing to all those that depend on me, all those who believe in me, my fans family (as it is constituted) etc, that is when she will begin to be ready to get the help she needs.

Why Are American's So Dumb?

2010-07-11T13:40:00.001-04:00

This post is a rant, so if you don't want a rant, go elsewhere.

I am sick of seeing a bunch of lunatics try to run our nation on half lies and rumor. I am also sick of people trying to use half-wit reasoning and because they bellow the loudest they get treated like they actually know something. Let's have a nation where everyone's freedom of speech is appreciated and coveted and not just the people with whom we agree.

About a month ago, Helen Thomas went nuts in an impromptu interview with my old (like 40 years long)friend Rabbi David Nessenoff. Now David is one of my oldest and dearest friends. He is without a doubt one of the finest and bravest people I know. He was absolutely right to air his interview with the octogenarian Thomas and he was entitled to draw the opinion that Thomas was both biased against Israeli interests and that she maybe hit an age where she ought best to retire. The former opinion could be gleaned from her statements that Israeli's ought to get out of Palestine and go back to Germany and Russia. For this she shows a bias, but she is entitled to her opinion and no one, and I mean no one should have been asked to remove her from her job. She was a op-ed writer and to do that job she has to have an opinion. I am often moved to want to fire Rachel Maddow, Ariana Huffington, Anne Coulter, and a number of other people who think that debate is nothing more than a bunch of sarcastic comments strung together with a ridiculous idea to make one sound as ludicrous as possible. Then when she has insulted the other side enough she is crowned a spokeswoman for her side.

Not one of these people could hold a lamp to a William F. Buckley, Joan Didion, George Will, or John Galbrith. What passes as debate in today's hip-hop world is not the stiletto sharp barbed airing of ideas but the in your face name-calling that neither educates nor leads one to think. It is all pop and no corn. What's worse is that when we don't agree with them, we try to hound them off the air making them inconsequential.

The latest "High tech lynching" is over at CNN. I am speaking about the firing of 20ish year veteran Octavia Nasr.
She dare tweeted that she was sorry that Hezbollah leader Grand Ayatollah Seyyed Mohammad Hussein Fadlallah had died.

Now personally, I am not all that fond of this guy. He rooted for the destruction of Israel, and blessed the guys who later blew themselves and the US Embassy and a Marine Barracks (killing a number of Americans.) I think he is more terrorist and criminal sympathizer than hero, but I can understand Nasr's appreciation of his pro-women's stance in Islam (now that is something different) and that one may argue that as a Hezbollah leader he has a legitimately obtained dislike for Israel. (Legitimately in that he comes by it naturally having grown up Muslim in the mid-east and didn't come to his position by other choosing).

Of course that "serious" misjudgment that she may have an opinion other than those of her viewers caused CNN to shut her down. Now I get it. We here in the USA like Israel for a number of reasons both good and bad. However to act like a wounded dog and hound her out of a job she did pretty well shows the tolerance of a 3 year old. Freedom of speech with a large part of what makes debate possible. Intelligent debate requires that people who differ and have reasons. I am sure I could make a better case for Fedallah's death than can be made for him being a loving Human Rights figure. That is not the point. Nasr had a right to her views and I a right to disagree. I do not have the right to order her off the air to assuage my feelings.

I am just saying I guess that we aren't going to grow any more smarter just listening to those that agree with our position.

I am just saying...

Of Regan, Kennedy, and Rockwell: TIme To Reflect On Being An American Not a Republicat or Demorican

2010-07-05T00:14:00.000-04:00

A very interesting exhibit opened at the Smithsonian Art Museum In Washington DC. this Fourth of July weekend. It is a retrospective of the works of Norman Rockwell, as seen through the eyes of two of America's greatest living movie directors Steven Spielberg and George Lucas. Each has lent parts of their extensive Rockwell collections to the exhibit.

Rockwell is remembered as a artist who captured America and Americans at their best in worst times. Central to his work were the pieces that became known as the "Four Freedoms."

Rockwell told our story, the American story of the 1930's through the 1960's. His paintings captured the fear and strength of an emerging superpower. He captured our sense of wonder and our sense of determination. He was oft criticized for only capturing our "good times", but anyone who has ever really looked at his body of work, especially at "Southern Justice", and "The Problem We All Live With" knows that Rockwell understood both the American ability to do absolutely the right thing and the most horrible things. He just chose to most often show us, and remind us, of our best moments. His work reinforces that we proceed the farthest the fastest by working together.

In a like way, John F. Kennedy asked us to do the same thing. No one since Lincoln had been more divisive than the Boston Brahmin-like , Harvard educated yet Roman Catholic JFK. Our first WWII vet President and War Hero he was from an old line political machine yet like Theodore Roosevelt spoke like a populist.

He won a contested election. The nation was 50/50 for and against him, and yet Kennedy is revered by most Americans not only because he was killed by an assassin's bullet, but because he called on us to serve each other, to do not what was best or expedient for oneself but to do what was best for our nation. He ushered us in with a feeling that we could do ANYTHING. Land on the moon. Sure! Make the world safe for democracy. Absolutely! Equalize race relations. Without a doubt! We believed because he did. We believed because, our leaders, split as they were against each other, made it their job to do a job.

Ronald Regan. An Actor. A liberal labor leader turned Goldwater Republican. Was gonna lead us into war with the Soviets. Was going to destroy the poor and trample on the rights of everyone he didn't agree with.

Nope. He too saw the shining light on the hilltop as our nation. He engineered the fall of the Soviet Empire, and the rebirth of our nation as a superpower of import without firing a single shot. He stabilized our economy and made us proud of ourselves. Not by focusing on the things that kept us apart, but rather focusing on what brought us together. He fought with leaders of the left, and they with him, but the name calling we were now? The garbage that passes for political debate today? Non existent under his watch.

Regan Kennedy and Rockwell all understood the limits of America, but they called on us to remember not who we weren't but who we were and more importantly whom we could be.

To my Tea Party and Liberal friends, CUT IT OUT! Please don't send me another piece of E-mail that attacks President Obama or Senator McConnell. I don't care at this point where the hell Obama was born. I don't care that Michael Steele took some conservative yuppies to a burlesque show. Please never say "Rush Limbaugh" or "Rachel Maddow"to me, even in a joke.

I care that I want health care. I want my employees covered and I want to be covered. I know you want that too.

I want to be able to afford a vacation and still be able to retire some day. I know you want that too.

I want to give less money to the government and I want to make more money than I do. Who doesn't want this??

I want then poor to have shelter, and education. I want there to be no poverty in our nation. Republicans and Democrats want this too.

I want to live free. I don't want to have to be screened to get into my local library. Don't we all want this?

I want to save the environment and to know that our earth will feed my great great grandchildren someday. It isn't just my dream is it??

I would like you, as my elected officials to only tell me how you will do this. I do not want to hear your critique of the other guy's idea. (I am smart enough to do that critique myself, thank you.)

If I like your ideas better than the others that I hear, I will vote for you, donate to your campaigns and respect you.

If you shout down your opponent, call him or his ideas names mis-characterize his programs and act like a spoiled child if he wins the election, I will not vote for you, I will not support you and I WILL NOT RESPECT YOU!!

I ask, no I beg, the Sergeants at Arms of the United States House and Senate to post a print of Rockwell's "Freedom of Speech" at the door of each chamber. Maybe that will remind you those guys of what this is really all supposed to be about.

Hattip: NY Times

Happy Fourth of July: Ray Charles Sings America The Beautiful

2010-07-02T12:49:00.000-04:00

This is an ode, a love song to a country. My Country, Our Country. I love to hear Ray Charles sing America the Beautiful. Please listen to it with me today and all weekend. The words to the original are printed here below:

America the Beautiful
Words by Katharine Lee Bates,
Melody by Samuel Ward

O beautiful for spacious skies,
For amber waves of grain,
For purple mountain majesties
Above the fruited plain!
America! America!
God shed his grace on thee
And crown thy good with brotherhood
From sea to shining sea!

O beautiful for pilgrim feet
Whose stern impassioned stress
A thoroughfare of freedom beat
Across the wilderness!
America! America!
God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!

O beautiful for heroes proved
In liberating strife.
Who more than self their country loved
And mercy more than life!
America! America!
May God thy gold refine
Till all success be nobleness
And every gain divine!

O beautiful for patriot dream
That sees beyond the years
Thine alabaster cities gleam
Undimmed by human tears!
America! America!
God shed his grace on thee
And crown thy good with brotherhood
From sea to shining sea!

O beautiful for halcyon skies,
For amber waves of grain,
For purple mountain majesties
Above the enameled plain!
America! America!
God shed his grace on thee
Till souls wax fair as earth and air
And music-hearted sea!

O beautiful for pilgrims feet,
Whose stem impassioned stress
A thoroughfare for freedom beat
Across the wilderness!
America! America!
God shed his grace on thee
Till paths be wrought through
wilds of thought
By pilgrim foot and knee!

O beautiful for glory-tale
Of liberating strife
When once and twice,
for man's avail
Men lavished precious life!
America! America!
God shed his grace on thee
Till selfish gain no longer stain
The banner of the free!

O beautiful for patriot dream
That sees beyond the years
Thine alabaster cities gleam
Undimmed by human tears!
America! America!
God shed his grace on thee
Till nobler men keep once again
Thy whiter jubilee!

I cannot say it better than they did. Please have a safe and happy Fourth of July.

Hattip: Scoutsongs.com

and

Youtube.com

Planning to come to NYC this Fourth of July?

2010-06-28T00:36:00.000-04:00

A friend posted on Facebook that he was coming to NY City on the weekend of the Fourth of July. He asked for suggestions on things to do in NY City Queens Brooklyn and Long Island.

Here are my suggestions for food and fun in New York City:
July 2nd:
Dine early at Bella Blu on 70th and Lex then cab across town to catch
either "Promises Promises" or "Fences" (with Denzel Washington) before it closes on the 13th.)

July 3rd:
Go to the Museum of Sex, it is not what you think but you will learn a lot and there is usually no lines. Not sure if it is open on the holiday though.

GO to Houston Street and "Send a Salami to a Kid in the ARMY" at Katz's Kosher Deli 205 Houston street. It is correctly pronounced HOW STUN not U STONE like they do it in Texas. "Doze guys don't know nuttin bout how ta talk." By the way have a Pastrami and Corn Beef combo sandwich it is legendary. Do not order a RUBEN or anything with cheese. It's a KOSHER DELI!!
Shop in SOHO and NOHO, Catch the World Cup semi final match at a good Irish Bar in NOHO.
OR
For the more athletic head over to the HUDSON BOATHOUSE and paddle the HUDSON River for a 20 minute Kayak trip exploring the Hudson meet up at 72nd Street and Hudson River (Riverside Park) and boys and girls IT's FREE!!! Get there before 4 it is over at 5 and it starts at 11AM so plan accordingly. (Maybe only half of a Katz's sandwich)

Make reservations and eat at the best Steakhouse in NYC (but it is located in Brooklyn.) Walk over the Williamsburg Bridge and it is right at the bottom of the bridge across from the historic Williamsburg Savings bank. It is called Peter Luger's Steakhouse. It DOES NOT TAKE CREDIT CARDS BRING A LOT OF CASH (Order Steak for 3 (about$200 bucks) with the Homefried Potatoes and DO NOT ORDER the appetizers as you will not have room. Wash it down with Brooklyn Lager. Have any desert "MIT SCHLAG" (whipped cream but trust me, it is different here). Take a cab back to Manhattan, write me a thank you note...

On Friday or Saturday night: Go to Jazz at Lincoln Center's Dizzy's Coca Cola Club for the second show and stay for the after show and if there is one, the show after that (Cost you about 50 dollars pp for the night.) The Jazz is unreal even if it isn't the kind of music you usually listen too. GO BACK TO HOTEL IT IS AFTER 2AM.

JULY 4th
Walk across the Brooklyn Bridge and go to Grimaldi's pizza on the other side. They do not sell slices and do not take credit cards. Bring cash.
now walk back across and then go across to Battery park and get ready for the FIREWORKS (yup it is on the Hudson River this year) Find a spot by 7 the show starts at 9:30 and ends at 10ish. Bring a transistor radio and listen to the music on 1010 AM.

Want to do something... DECADENT???
Walk back up Canal street to the east side and then go north on the Bowery and go left on Spring Street (at the end of Little Italy and start of SOHO) then
Go into "Rice to Riches" on Spring and Mott streets, Have the most unbelievable gourmet rice pudding EVER. (Send some to me as a gift for all this insider info). It closes at 1 am. It will be crowded until the close. Taste all the different types then pick two AND get a topping or two. I like the Strawberries and they are in season now.

JULY 5th
Up early? Get to Jones Beach on Long Island and catch up with some sun. Get a spot early leave by NOON too much sun is bad for you.

Get a cab to Astoria, and enjoy some of the best Ethnic food in NY. There is great Afgan and Middle eastern cuisine on Steinway street smoke some hooka.
I love the Italian at Brick Cafe on 34th Ave and 31st St. OR you could get the best Italian anywhere at Trattoria L'incontro (Ditmars and 31st Ave)which features the creations of it's owner Rocco Sacrome. DO NOT EVEN THINK OF ORDERING FROM THE MENU!! Everyone will know you are a tourist! Rocco offers over 40 specials and trust me THEY ARE ALL SPECIAL. They are recited by the staff from memory. The place is unreal. The food is Abruzzese style. If you haven't tried it, try it today, Abruzzi is the finest region of Italy. If his new Cookbook is published, buy it and get it autographed.

okay time to finish the day:

Go to Citi Field get there by 5 and watch batting practice then look at the Jackie Robinson Exhibit in the main hall, Then catch the game Mets (a half game out of 1st as of tonight) v. Cincinnati Reds. Stay after it ends for the FIREWORKS (it is pyrotechniques nite) The stadium is beautiful the food there at all the vendors is top notch and I love fireworks.

Or you could just book down to Governor's Island for the afternoon, sunbathe listen to music, eat your picnic basket lunch (which you got from Dean and Deluca's in Rockefeller Center. Then stay till nightfall and listen to a free outdoor concert by the NY Philharmonic. Do I hear another trip to Rice to Riches? Or maybe a repast of French food at L'Express on Park and 19th it is open 24/7 and is good. If you get there before 12AM you can go to Les Halles a couple blocks north on Park Ave. it is the home of Chef Anthony Bourdin of Food Channel fame.

July 6th
On the way to La Guardia in the Morning catch breakfast at Jackson Hole just north of the airport on the Grand Central.

Or
You could visit me...
Have fun and have a safe trip.

Oh yeah we know have offices at 14 Wall Street in Lower Manhattan.

U.S. News & World Report Law School Rankings Shocker: Hofstra Law School Jumps 14 spots.

2010-04-19T12:54:00.000-04:00

US News & World Reports Law School Rankings came out last week and my Alma Mater Hofstra University School of Law just jumped Fourteen (14)points!

Just two years ago, Hofstra did not even qualify as a tier 1 school. Last year it squeaked in at number 99 but this year it establishes itself as a school on the rise.

As an Alum I am of course very proud of both the faculty and staff as well as the students who made this happen. I am not sure of the efficacy of a law school ranking system to begin with, but if you are going to have one, then I guess it is better to be in the top tier than not.

My fear is that the areas that the USNWR survey thinks are important may become over pronounced and take from the school the things that make it relevant to its students.

For example, Hofstra used to bring in a lot of returning students and students that had little or no intention of practicing law once they got their degrees. That number has been reduced to a large extent because of the shear cost of getting a degree these days. Those returning students however provided a real lesson in perseverance in their younger classmates. Their real life lessons made our classes more "interesting" and frankly less obtuse. If this were to be diminished in search of higher ranked applicants and at the expense of the small class sizes, then I would think that while the ranking would be better, the educational experience would be far lessened.

I am sure that the clinic program and trial program (which US News does not rank highly but whose students regularly win trial competitions against those schools that are well rated in these areas) remain a vital part of the curricular and will as the school's reputation grows become a source of US News pride as well.

For those of you who are thinking about law school, I highly recommend Hofstra School of law. Its proximity to both the hub of Long Island (Nassau County) legal practice and that of NYC, makes it an attractive place to go to school and increases the chance of finding a job Tenfold.

U.S. News & World Report Law School Rankings Shocker: Hofstra Law School Jumps 14 spots.

2010-04-19T12:42:00.000-04:00

Understanding Internships: Are You An Intern or a Slave?

2010-04-05T01:50:00.000-04:00

The summer internships are on their way. For many High School, College and even Grad Students, the economy is dictating that, in highly sought after opportunities, payment of any kind may be discretionary.

In a NY Times piece last week Reporter Steve Greenhouse described how many young people are not being treated fairly by employers who either paid them below minimum wage, or below scale and called the experience an "Internship."

I spent most of my law school career in unpaid or stipended (which is to say low paying) internships. I worked for government entities and learned a lot. I received hands on opportunities and I had a pretty prestigious resume line for the trouble. Now I was fortunate, my parents by this point in our lives were comfortable enough to allow me to take on these experiences and provided money for me to live on. Many however are not so lucky. Moreover, many students are getting internships that teach them nothing and take the job of other employees all for the aid to the employers profit margin.

Believe it or not, the government actually has a set of guidelines that one may use to determine if their unpaid internship is in fact an internship or a indentured servitude.

Essentially, an internship must have the following six requirements to be able to be unpaid:

The U.S. Department of Labor’s Wage and Hour Division (WHD) has developed the six
factors below to evaluate whether a worker is a trainee or an employee for purposes of
the FLSA:
1. The training, even though it includes actual operation of the facilities of the
employer, is similar to what would be given in a vocational school or academic
educational instruction;
2. The training is for the benefit of the trainees;
3. The trainees do not displace regular employees, but work under their close
observation;
4. The employer that provides the training derives no immediate advantage from the
activities of the trainees, and on occasion the employer’s operations may actually
be impeded;
5. The trainees are not necessarily entitled to a job at the conclusion of the training
period; and
6. The employer and the trainees understand that the trainees are not entitled to
wages for the time spent in training.
If all of the factors listed above are met, then the worker is a “trainee”, an employment
relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime
provisions do not apply to the worker. Because the FLSA’s definition of “employee” is
broad, the excluded category of “trainee” is necessarily quite narrow. Moreover, the fact
that an employer labels a worker as a trainee and the worker’s activities as training and/or
a state unemployment compensation program develops what it calls a training program
and describes the unemployed workers who participate as trainees does not make the
worker a trainee for purposes of the FLSA unless the six factors are met. Some of the six
factors are discussed in more detail below.

In my office, we try to adhere to these six requirements strictly. It is impossible to work in a law office without there being some profit to our firm or clients, and it is impossible to work if people do not file. Heck even I file. However our intern program (which I have run off and on for 25 years now) has the qualities required.

For example, the interns work a part-time schedule usually 3 eight hour days unless we are in a trial. They get hands on learning under the watchful eye of a licensed attorney they participate in conferences, meet clients and visit them at the jail (when the client is incarcerated.) They go to court and work on briefs and articles as if they were working for a law review.

They go to meals and bar events with us and take their meals during the work day with the attorney to whom they are assigned.

Their work is usually not billed to the client (unless their name is on it such as on a brief) and they journal their experiences so that we may answer any unasked questions they may have. They have no guarantee of employment however we often do hire those that have interned for us.

If a kid is spending more than an hour or two a day filing, getting coffee for rather than with his boss, and answering phones (like a receptionist as opposed to say a para-legal) then the first prong of the test is violated as is the second, third and fourth prongs.

Internships are a great mentoring tool. They provided many young people an opportunity to obtain skills that give them a running start on a job. Unfortunately in the hands of the uninformed or worse unscrupulous they are torturous and a waste of the student's time.

If you are considering having an unpaid or low paid intern or internship program this summer, and want to know if you are in compliance, or if you are an unpaid or low paid intern and think you are being unfairly treated, give me a call and we will try to help you.

Hattip: The New York Times.

Happy Easter, The Lord Has Risen. Will You Help a Mom Of Two Find A Bone Marrow Donor?

2010-04-04T18:31:00.001-04:00

Christ has risen. I am in a hopeful mood. Maybe it is the sudden turn in the weather, or maybe it is the good food mom serves on Easter Sunday. Either way, I am blogging again for better or worse. If you want to know where I've been, I have been trying cases left and right.

I tried a Rape case (statutory) in Queens and a Retaliation Employment Harassment case in the US District Court Eastern District of New York in the Central Islip NY (that is in Suffolk County for the uninitiated).

The results in the former case were mixed but not up to what I had hoped. In the latter case the case went well despite the pleadings which were filed "Pro Se" (by the client without the aid of an attorney.) These were my Third and Fourth Trial since December 17th 2009. I have two more scheduled in April, both of which will go to trial. Both are in Nassau County NY. May will bring Mother's day, Graduation of my eldest and in the latter part of the month a huge Prisoner's Rights, Civil Rights trial in Syracuse NY. June and early July is filled with two very interesting trials in Riverhead (Suffolk.) In between I was just a team leader for the week long,NYSBA Young Lawyer Trial Advocacy program at Cornell Law School. Wow I am tired, lol

I don't usually blog my cases until they are over, lest some juror read it "by accident." I think I will continue that habit, although I will be mentioning some of the issues I am running into if I think they are interesting enough.

In the meantime, I have a received a request to help find a Bone Marrow match for Thespina Pontisakos. She is a wife of an attorney and a mom of two sons. Thespina has Myelodysplastic Syndrome(MDS) and she will die if we don't find a donor match. Be the remedy. Join the registry. (Go to the link above and enter the Promo Code: helpthespina

You see, if the match is found, and Thespina gets the Bone Marrow transplant, Thespina lives, if not she dies. That seems easy enough. Try to help, it is almost painless to find out if you match. If you match, you will have the power to save a life. If you don't match Thespina, maybe you can save someone else. Either way, it appears to be an easy choice.

If you are going to be registering, or have registered already, and want to leave a thought or two here, I will publish them. Meanwhile, please, spread the word.
TLD

San Diego Gestapo...uhhh police...Arrest Innocent Jet Fan

2010-01-18T23:35:00.000-05:00

People ask sometimes ask me "what can be worse than the murder of an innocent person by a violent criminal?
For me that is an easy answer: Members of the government allegedly acting on my behalf,and at my expense, who abuse their authority and arrest an innocent person. I am not going to get into the whole thing about allowing 100 guilty men to go free so that one innocent man is not imprisoned, but watching this tape enrages me just as much as the acts of these two idiots in Connecticut.

Thank goodness, a thoughtful fan from San Diego used his camera to record what can only be described as a totalitarian behavior from San Diego's men in blue.

These cops shamed their city, their taxpayers and their badges/uniforms. If I were Mayor of NY I'd be calling for an investigation, and if I were Mayor of San Diego there would be one ongoing right now. A bunch of cops would be on desk duty and a few would be looking at demotions and other discipline! Here is the story in the NY POST

PokerStars World Blogger Championship of Online Poker: I'm Playin Poker, Are You?

2010-01-16T00:17:00.004-05:00

I have registered to play in the PokerStars World Blogger Championship of Online Poker! This PokerStars tournament is a No Limit Texas Hold’em event exclusive to Bloggers, you too can take part by registering on WBCOOP

Registration code: 240027

Wish me luck. Look for regular updates about my success(or lack thereof)at the tables here and on Twitter at http://twitter.com/ThatLawyerDude.

Oh yeah, this provides a good opportunity to again remind everyone who cares about personal freedom to support the Poker Players Alliance. Go here for more information: http://theppa.org/

Seems even President Obama sees the benefits of playing poker

Justice Scalia Gives The President ( and the rest of us) Something To Think About

2010-01-05T20:21:00.007-05:00

It is a new year here and first thing out of the box is a story about, Justice Scalia suggesting there are too many judges on the Supreme court.

Note I didn't say too many lawyers. (He is not advocating the promotion of non attorney's to the bench.)Scalia is actually saying what a lot of libertarians have been saying over the past 20 years, that is, there are not enough trial lawyers and other non-government lawyers on the bench and it is skewing the court to a position of over favoring the government at the expense of the individual.

Throughout history up until the last 20 years, there have always been non-judicial members of the court. Now most of the makeup of the SCOTUS are former prosecutors and government lawyers who then became judges pretty much right out of the government service without spending any real time in the well on behalf of an individual or company. The mindset of a person who works with the government their whole lives is that the government is always right. That was the antithesis of the fabric of our Constitution writers.

Scalia makes an excellent point that the court needs people on it who have spent a good portion of their lives defending the needs and rights of people.

One doesn't need to be a "Constitutional scholar" to be a good appellate court justice. Mr. President if you are looking for a few names for consideration that may share your sense of right wrong and and the American way, how about Professor Charles Ogletree from Harvard, Hon. Dennis Archer a former mayor of Detroit, Michigan Supreme Court Justice and recent past president of the American Bar Association (also the first president of the ABA of color.) or Judge Nancy Gertler a trial judge in the first circuit who spent much of her early career as a Criminal Defense lawyer?

Whom do you think would make a good Supreme Court Justice??

Hat tip: Law.Com

Edited to add hyperlink to posting and Hat tip.

Does Anybody Out There Ever Read The US Constitution (besides lawyers I mean): Why Tiger Doesn't Talk

2009-11-30T12:04:00.000-05:00

Short post:

Everybody has a theory on why Tiger Woods is not being given the "third degree" by Florida Police.I have heard his money is buying him out of it, that he has important politicians on his side, that he has a bad attitude and a lot of other things mostly not complementary to either Mr. Woods or the Police. People think he was running from his wife, that he was drunk, that he was high, that he was sneaking out to see a girl and his wife was waiting 5 Iron in hand. I have heard the old tried and true "if he has nothing to hide, why hide???" God If gossip reporters were not bad enough, now we have sport reporters who think they are owed an explanation. It should be required that before one gets a press pass they pass a test on basic constitutional law. If you want to read some weird stuff look here and here and this video from Wanda Sykes which at least was funny.

Here is the reason Tiger Woods is not speaking to Florida Police and why they haven't hauled his rear end down to sweat him for a confession:
DRUM ROLL PLEASE

The Fifth amendment of the United States Constitution gives a person the RIGHT TO REMAIN SILENT. HE is exercising the right and there is nothing that police or Mike Lupica can do about it. (no I am not linking you to Lupica, he gets enough publicity all by himself)

Moreover it is the smart thing to do. There is no upside to him saying more. It was a one car accident. He will probably get another car tomorrow from Cadillac, his sponsor, and he will at least keep his privacy. Once he speaks, whatever he says is now food for the fodder. He can't stop speculation but he needn't add to it either. Anything he says will not be believed by some portion of the public and finally, the police do not need to know what precipitated the crash as there is no damage to anyone but Tiger and what they don't know or what they don't write in a report can't hurt anybody.

So Woods did the smart thing. I wish more clients and their families would follow suite and STOP talking to police. It isn't that I want to make the jobs of law enforcement harder, it is just that I do not have the obligation to make it any easier. Usually when clients speak to police without an attorney being present, they make if far worse for themselves even when "they speak the truth and have nothing to hide."

Okay so there you have it. Mr. Wood's lawyer has a smart client. Mr. Woods has a good lawyer, and the gossips of the world will be able to join the conspiracy theorists and debate what happened until OJ Simpson finds the person who killed his ex-wife.

Happy Thanksgiving.

2009-11-25T21:08:00.003-05:00

I haven't left a blog post here in a long time. Still for some reason, people occasionally stop by to see if I have been writing.
I am sorry I haven't been. I have been spending a lot of time reading other people's writing, and working, and writing articles for legal magazines, but short pity blog posts haven't been my thing lately.

I have been on this page (blank page) many times in the last few months trying to find my voice again. I am not sure I have, but I am well and having a relatively good time working hard. I won't promise to be back now, but blogging is back on my mind. Hence if you stop by every now and again, you may find something here and even something over at our sister blog Long Island (Criminal) Trial Law.

In the meantime, I want to wish all of you a very Happy and Healthy Thanksgiving.

We Are Not The Land Of The Free Until We Stop The Nanny State Bull Hockey

2009-07-04T13:46:00.005-04:00

I don't have the time for a long post today. I love America. I believe in its promise. I get frustrated however when I see that we refuse to trust our people with their own money and their own bodies. There are natural consequences from every act, but legal consequences must not be based on someone Else's subjective test of right and wrong.

My test for right and wrong in a law is simple: Does this law seek to prohibit an act that hurts no one but the doer of the act? If so then it should not be illegal. It is said that "the freedom to move one's arm ends at the tip of the nose on the next guys face." If it doesn't hit him, then his discomfort at the fact that I move my arm is not illegal.

Ok I don't have the time to go into all of it, but look at this story about a federal prosecution of a Doctor who asked two girls to come across state lines to "service" him. Not minors, not Sex Slaves or Human Traffic, 2 adult willing women who wanted to have sex w/ this guy and to get money for their effort.

Then look at this YouTube Video of Rep Barney Frank one of the US Congress' most liberal members and Rep Peter King, one of its most conservative members. They are on the same side of the fight to restore the rights of Americans to spend their money and time the way they want. Only a question about Liberty could get these two on the same side of an issue.

Now do something about this. Let your Senators and Congressmen know that these types of Nanny-State laws are unacceptable. Tell them to stay out of our bedrooms and our pockets. Do it for Freedom, Liberty and the American way. Do it today.
Happy 4th of July.

Madoff's Fools Get Vengeance at Taxpayer's Expense...Why the Madoff Sentence is Unfair to the Rest of US

2009-07-01T01:49:00.005-04:00

Denny Chin an otherwise pretty good judge really screwed the rest of the people that Wall Street cheat Bernie Madoff didn't screw over. By sentencing Madoff to 150 years, Madoff now spends the rest of his life living off the public. We take care of his room and board not to mention his health till he eventually meets the true God of Justice. How is this fair???

Look. Madoff was one of the worst (or best I guess) swindlers in history. However, the people he swindled, wanted to be swindled. They did nothing to investigate his "success" they only wanted his big gains.

The more he delivered, the more they delivered. While the market was tanking, Bernie was paying off. Didn't they wonder how? Did they really believe he was infallible?? Why should their bad investment now cost the rest of us over 50K a year?

Look I am not advocating for a soft sentence for Madoff, but it costs thousands more to imprison an older person than a young one. Health care being what it is, he will be treated better than 15% of Americans, on our dime!! Couldn't a message have been just as well sent to senior citizens who commit crimes that we will take back all your money and stick you in jail for your last few decent years and then throw you back on your family when you are about to rot over?

Why do I and most of my friends and colleagues have to worry about taking care of our elderly parents when his kids besot with illegally gained funds since their early years get to know they won't have to part with a freaking penny to take care of the old cheat who helped them get their money??

Lest you think I am alone in this thought, none other than Professor Steven Bainbridge appears to agrees.

Sorry Judge, you made a bad error. First, no one is deterred from crime by jail, criminals do not think they are ever going to get caught. (By the by, most investors who get into scams also do not believe that their scam is a scam and that they will be ripped off...)

Second, you sentenced the rest of the taxpaying part of America all because a bunch of supposedly savvy investors weren't so savvy and made a bad deal. Maybe all these so called investors who now feel that they are somewhat vindicated ought to pay for his stay in the Federal prison. After all, if putting him in jail for the rest of his life is supposed to vindicate them, they ought to pay for it.

I have been cheated, more than once. Mostly by people who promise to pay bills and then don't or can't. The government doesn't bail me out nor does it go around and claw back money for my fees. No one puts those that cheat me in jail for the theft of service. Why do Madoff's fools get some money back and get their vengeance on the taxpayer's expense?

Image Hattip: Mario Piperni dot Com

Freedom of Speech Does Not Permit You To Break The Law

2009-06-08T08:04:00.004-04:00

Ian Barry is a Seventeen year old who knowingly broke the law to make a point. Ian gave a speech as to why Marijuana ought to be legal to a High School class. During the speech, he lit a joint and by the end of the speech, ingested the joint. Police arrested him. He has been charged locally. He says in this article that he accepts responsibility for his actions and that he is ready to pay a penalty for his actions.

Ian points out that he had to break the law to bring any real attention to his cause. There he may be right. Many are calling his act a act of civil disobedience and claim that it ought to be protected from prosecution as freedom of speech. I think the kid understands free speech better than many lawyers do.

His act was not an act of free speech though it was an act of civil disobedience. He broke the law to prove a point; that the law is wrong. He may get attention to his cause, he may even earn jury nullification, which would go far in getting his point even more attention, but he is not protected from arrest prosecution and conviction for his act.

It is oft said that one's rights come to an end at the tip of another's nose. In other words, you are free to do what you like until you interfere with someone else's right to do the same. In Ian's case, he is not free to break the law, only to criticize it. He moved on from that when he carried the joint to/or in school. Given the SCOTUS recent decision in the "Bong hits for Jesus" case, Ian is headed for a criminal record assuming he doesn't go to trial and convince a jury to nullify the law. He is also garnering a lot of attention for his cause.

I am not sure this is a call I'd like a teenager to make. He has no idea, despite his bravado, of the trouble he has caused himself in the future. He has however made the decision and will have to live with the consequences until the law catches up with the rest of the society's view of marijuana.

Facebook and DWI: A Defense Attorney's Nightmare.

2009-06-07T09:52:00.009-04:00

Chicago IL. Criminal Defense Attorney Steve Komie is doing a bang up job in the case of an 18 year old who was allegedly drunk and killed a motorcyclist. Unfortunately the woman, now 20 can't get out of her own way long enough to help him out.

Komie has proved that Town of South Elgin Police destroyed the blood test prosecutors hoped would prove Erika Scoliere was drunk when she collided with motorcyclist Frank Ferraro. Without the test and sample, the defense cannot test the blood nor can it test the accuracy of the test at trial. That any evidence in an on going case is destroyed is a mystery, that the "best evidence" against a murder suspect is destroyed, right before trial, should lead potential jurors to wonder if the test actually showed ANY proof of alcohol at all.

The lead story in the news Friday should have been about how police malfeasance is causing Scoliere to get less than a fair trial. BUT NO!!

Seems that Scoliere or one of her inane "friends" posted asinine pictures of her on Facebook guzzling Tequila at a college party(in violation of her terms of release.)

Now first off, how did this young woman GET INTO a college to begin with? I mean what kind of brain damage do you have to have to realize that you killed someone and people are not happy with you? Prosecutors are looking for a reason, ANY REASON to convict you, and you decide it is a good idea to be in a place known for alcohol and stupid decisions (sorry Frat parties are Frat parties)?

Secondly, you are out on bail with an order to "call in" to probation while you are allowed to attend your "out of state" private college and go on vacations with your family. How do you "misunderstand" that Court Order?? ( I have to ask though why no one from probation notified Komie that his client was missing calls.)

The damage here is not that Scoliere now must wear a SCRAM (Secure Continuous Remote Alcohol Monitor.) It is that instead of being viewed as the victim of police, and a rush to judgment by an angry and hostile prosecution, she is seen as a ditzy, spoiled, bratty kid who needs to be taken down. She is the poster child for the over-indulged college student. She pushed the story of the lost evidence off of the headline and reinforced her image of being the "Paris Hilton" of Kane County. (Piece of unsolicited advice for Steve Komie, you may need to hire this client a PR consultant with a brain.)

We are now in the days of everyone, friends and foes, being able to record every waking moment of our lives. It is time to get smart. Ms. Scoliere's parents need to smarten up too. Get her into the house and keep her there until her trial takes place. How about considering placement into a rehab? It doesn't matter how unhappy she is. Drive her to Mr. Ferraro's cemetery plot every day, and remind her how unhappy his family must be. Have her leave a flower on the grave, a stone on his tombstone, and a prayer for his and her soul.

To my friend and colleague Steve Komie: Keep up the good work. You have a tough client there, but you represent all of us when you work to keep the government honest. Good Luck.

Hattip Avvo Legal News
Hey guys next time dig a little deeper, your article missed the "real story" the one about the Police destroying evidence!!

Judge to School District: "PISS OFF!!" & Let the Kids Play Chess!!

2009-06-06T19:59:00.004-04:00

Sometimes I love writing the title of these pieces can you tell? :P

When has a school district "nanny stated" itself too far?? Well in California, it seems that when the Shasta Union High School District wanted to drug test kids on the CHESS TEAM, a court said, uh NO!!! (Emphasis added...)

The district wanted to know who was using drugs so that they could ban them from school trips and other activities. So if the kid was in the Band, played on the Chess Team or was raising a pig for the state fair, he had to pee in a cup first. The reasoning is that the school has to supervise these kids while they are on school trips and if they are in a club or in the band they are more likely to have to go on overnight trips and they might be harder to supervise if they use drugs or alcohol. Brilliant! So we will just keep them out of supervised activities so they can take part in unsupervised activities... (No wonder Johnny can't think. These people have no idea about teaching anything.)

Now I have had the pleasure of "chaperoning" a few Forensic overnight trips, and while they have the ability to get out of hand, they don't, because DEBATE CLUB KIDS CAN'T DO DRUGS AND STILL PERFORM WELL!!

I have a feeling the same goes for members of the CHESS CLUB! Not to mention, it is far harder to play classical flute music than to improvise a new riff while you are high. Nonetheless, these examples of student spirit were told "pee in the bottle or no Drama club."

Now the SCOTUS, which is filled by people so old they don't remember BEING in High School, ruled about a dozen years ago that you can force a kid to take a drug test if he is even attending your school. Justice Marlow the judge in the case at bar held that under the California State Constitution the right to privacy is protected. One can debate whether such a right is in the US Bill of Rights, but Californian's passed this right in 1972.

I think the court in this case is right. It is the good kid who must give up his or her right to privacy while the slacker who does nothing in school but shows up can come and go as he pleases. Moreover, it shouldn't be a rule that to participate you have to allow someone to watch you urinate in a cup. High school is hard enough without having to pass every adult test. I'd like to know what you think however.

I could not find a copy of the decision to post, so if you know of one, pass it to me ok?

Thanks, TLD.

Hattip: Raw Story

It's D-Day and That Lawyer Dude Returns... Again.

2009-06-06T11:20:00.004-04:00

I may revive this blog more often than Pop Tart Britney Spears revives her career, but I am back. It has been a while. I know that most of you who stop by here come to see me rant on something or just to see if I am alive (thanks for those of you who stop by to see if I am alive). I am. I am also ready to take on a few people places and things.

Where to start?

Hmmm. Let's see it is June 6th, a foreign nut job is trying to rub out the free world, our troops are dying oversees, Our Democrat president is trying to bring us out of a depression by spending more and more money, and the NY Yankees are over .500 It must be the year.... 1944. That's right it is D-day. Imagine how history repeats itself?

To our Veterans of that war and that day, I salute you. I also thank you for a service well done.

To our Veterans of today, I salute you as well. I celebrate your return from war, I pray for those of you who are still there, and I thank you for agreeing to take on the task of keeping us free.

I also do not want to let today go by without remembering, Robert F. Kennedy who was killed by an assasins bullets on June 5th 1968 some 41 years ago. He was a man who whether I would agree with his politics, asked the question "Why can we not be better than we are?"
It is an important question to ask of ourselves everyday.

Tomorrow's post: The Case of the Chess Club Urinalysis and other stories about governments over-reaching.

Response to the Ridiculous: A Measured Rant in Resonse to an Idiotic Argument Against the DREAM ACT

2009-04-13T00:31:00.006-04:00

The DREAM ACT was reintroduced last month followed by President Barack Obama stating his intention to begin debating true immigration reform.

A twitter tweet lead me to this ridiculous commentary by a blogger on "BloggerBase.com" I would normally just leave a comment there but the idiot who wrote the piece didn't want anonymous comments (which is OK by me, I sign my work) and the site won't let you use your name unless you join. I do not see the reason to join, at least for now. So here Mr.J Malmberg is my response to your drivel. Your sad and embarrassing post on what is "wrong" with the DREAM ACT.

Sadly this is a ridiculous response to a real problem. Your arguments are no more than a dismissal of the Dream Act proponent's position. You offer nothing.

You misstate the facts. A kid can't just "come here at 15" & stay. He must be here for years before he qualifies. He must arrive before he is 15.

1. Kids do not come on their own. You suggest the reason this argument doesn't hold water is that it "rewards the parent who broke the law." WRONG. This law doesn't punish the child who is here through no fault of their own. The parent's wish is of no consequence. We do not punish children for the sins of their parents.
Which leads us to straw dog argument number 2:

"When people commit crimes the family is often hurt as much as their direct victims."

There is no US law that punishes a child for a parent's crime. What we do have is a situation where a kid may be the only one punished. That's right, mom and dad may be citizens but the kid might not be & will be sent back to a country where he knows no one & may not speak the language. The child will have no home or any way to survive there.

Your cavalier attitude shows a complete lack of understanding of law or compassion. In America, when we act in child cases, even juvenile crime cases, courts must always consider the best interest of the child. The DREAM act codifies that theory for immigration law as well.

3. Your final argument is a tautology. DREAM ACT kids will be offered in-state tuition in the states in which they reside. It is no different than it is for everyone else. Thousands are not being turned away. Nearly no one who wants to go to college is being kept out because of money. Cite a reputable study for gosh sakes.

Your xenophobic attitude towards these kids is an embarrassment. Your lack of candor is worse. We gave you your stupid fence. It isn't working. Now give us a workable immigration policy that secures our borders, guarantees our security & our economy too. PASS THE DREAM ACT.

Seems We White Collar Criminal Defense Attorneys Are a Hot Date Commodity. Why? Cause we are IN DEMAND. Who Knew? You Should!!

2009-03-14T21:15:00.007-04:00

I found this little tidbit about finding wealthy guys for "gold digging" girls. It says that if you want to find wealthy guys hang out with lawyers...But not just any lawyers. No only Bankruptcy and White Collar Criminal Defense Lawyers. I just told my wife I am a hot commodity... she seems somewhat shall we say nonplussed...

Whether of not you are a "golddigger" White collar criminal defense lawyers are a good group with which to hang out. They are bright tough, and if you get one that is not afraid to try a case, interesting. The best of us know that the most important thing we can do is keep our clients out of the paper and unindicted. Hence the time to find a White Collar Criminal Defense Lawyer here on Long Island or in New York City, is as soon as you realize you could be (not may be or are) in trouble. Often you will be surprised to learn how few Nassau and Suffolk County Criminal Defense Lawyers are really White Collar Criminal Defense Lawyers. You need a Criminal Lawyer who is just as comfortable in State as in Federal court and you need one who knows how to conduct a money investigation as well as handle the criminal courtroom and the public.

I have taken on Ponzi scheme cases, as well as stock frauds. wire and mail frauds, and of course their by-product money laundering cases. I know that handling the press and getting a good face on the client in the court of public opinion is very important. Hence we work with our own Public Relation staff, media people and social workers to present our client well in the media and to the court. Judicious use of jury selection experts and a team approach to investigation and trial is another key aspect of what I think makes my firm different from most other Long Island (and even many New York City) White Collar Criminal Defense firms.

An additional worry for many White Collar Defendants is that even if they survive the criminal prosecution, they face lower standards for losing their licenses. Lawyers, Brokers, CPA's and even Notaries need to look for lawyers who have handled not only criminal cases, not only White Collar Criminal cases but also lawyers who have appeared before Grievance committees, NASD and SEC boards and the state education department. They need to find attorneys who have helped others hold onto the licenses after those individuals have been accused or even investigated for crimes.

Now a sentencing expert is not going to help Bernie Madoff too much. But when a White Collar Criminal Defendant is looking for a criminal defense team, especially in the federal Second Circuit (which encompasses New York Brooklyn Queens Nassau and Suffolk Counties), they should also be concerned with how much that trial lawyer knows about the Federal and State Sentencing guidelines. Working the guidelines and understanding the cases (such as Booker and FanFan and their progeny) is a key to avoiding lengthy prison sentences.

In all, I really enjoy working on White Collar Criminal Defense cases in New York and on Long Island. They provide a tremendous legal challenge and a personal challenge too. They require I reinforce to the jury that the clients are not bad people and that they are the same as those before whom they are called. They are just men and women who were trying to make an honest buck when a roof caved in.

It is also important to keep before the jury, that it is not the job of the white collar defendant to stop people from making mistakes with their money, it is their job to offer legitimate opportunities, explain the risks accurately and then let the chips fall where they may.

If you or someone you love is charged with a White Collar Crime whether in New York City or in Nassau or Suffolk counties, I would love to consult with you, or them, about it to see if we may help.
You can call us at 516-741-3400 24/7or reach out to us on this blog.

What is Manly?

2009-03-06T01:07:00.003-05:00

Mars US Snackfood Division and Spearling's Best Places announced that it had chosen America's Most Manly Cities. In it, Nashville came in First, and New York came in last.

I know this little contest was meant in fun. It got a lot of attention in the press (I heard it on 880 WCBS an all News radio station in NY) which was the point. It was based on a number of "values" that show manliness, such as the number of Monster-Truck Rallies and Drag Races. The number (or lack of)Sports teams in a city or home furnishing stores, the number of Home Depot type stores and how many men fish or bowl or hunt, how many salty snacks are purchased, etc. All allegedly manly activities (except for the home furnishing stores...evidently it is manly to build a home but not to put furniture in it???)

Now this got me thinking, how would I chose a manly city. I have to admit, I am a big fan of men's codes. I love reading Robert Parker novels because his protagonists are people who live by a code and sometimes have to deal with moral dilemmas stemming from those "codes". I thought about the attributes that make men heroes, to me.

I wish Mars and Spearling had used these ideas:

How many men:
Work in the same job for more than 10 years?
What is the incident's of divorce?
What percentage of Families are headed by a father?
What percentage of divorced men are behind or do not pay child support?
How many men, who have wives that are partially or fully disabled, stay married to, and support those sick spouses?
What is the rate of domestic violence?
What percentage cheat on their spouse or significant other?
What percentage cheat regularly (i.e. an affair?)
What percentage of men in relationships over 10 years say they are still in love with the person they were with? 20 years? 30?

What percentage of men, cook, clean, help with infant care (change diapers...)?

How many men participate in youth sports as coaches, referees, league officials? How many do so even if they do not have children who participate in the sport?

What percentage of Men have been convicted of a crime?
What percentage have served in the armed forces?
What percentage vote?
What percentage have graduated High school, College?
What percentage of men have been arrested for DWI?
What percentage has given charitable contributions?
What percentage has given TIME to a charity?

What number of men are involved in Breach of Contract law suits or better what is the overall percentage of these types of law suits?
How many men, employ females? What percentage of those females are employed at high level jobs?

What is the percentage of male owned businesses that have pro-family benefits paid by the company such as maternity, bereavement , family leave. Medical benefits, for a family?

What percentage of Men have put away IRA's or 401K'S How many of those are left to the mother's of the man's child or the child themselves?
How many carry life insurance and what percentage is properly insured so that if they should die, their families will not be impoverished?
How many men carry Disability insurance?

What percentage of men have spoken to their kids about drugs, alcohol, sex, violence, and especially violence toward women?

What percentage would describe themselves as Homophobic?

What percentage has a good driving record? How many speed per capita?

How many men, spend at least an hour a day working with the kids on homework?

How many read the front and back of a newspaper?
How many read magazines that are news oriented?
How many are actively involved in politics by giving BOTH money and time to candidates and/or organizations that they politically ascribe to?

How many men spend at least 7 hours a week playing with the children?
What percentage of dinners are taken together with the whole family?
What percentage have gone bankrupt? What percentage are behind in their debt? What percentage has a credit rating considered excellent? what percent has a rating that is poor?

What percent of men, with elderly parents, visit with those parents for at least 3 hours a week, or speak to them by phone for at least 3 hours a week?

What percentage of men spend at least a half hour a day exercising?
What percentage smoke?
What percentage use illegal drugs or abuse prescription drugs?
What percentage is obese?
How many go regularly to Religious services?

Being a man has nothing to do with eating salty food, consuming beer, leering at women and drooling over them like they were a Peter Luger's steak. It has nothing to do with Speed contests or Women conquests.

Being a man is not telling everyone how brave you are. It is being brave. It is not in beating up another man, or worse a woman or child, it is in knowing how to get your way by persuading them, or walking away from the violence even though you want to and could kick the crap out of the other party. It is in not kissing and telling.

Being a man, is choosing to put your own gratification aside for a while so that your family or community is better off. It is taking care of your family first, your nation second and then yourself. It is keeping your promise even when it is inconvenient.

Being a man is helping others grow. It is learning and teaching how to be a better person.

The list I have compiled here is not exclusive. If you have some thoughts or ideas, please leave them in the comments. Maybe you will help some guy be a better and more "manly" man.

Lessons I Learned This Month: Eat Less Calories ,Exercise More, Doodle When You Can, and Don't Mess Around With Pres. Obama!

2009-03-02T00:06:00.007-05:00

I really envy the people who find something cool and interesting to say everyday. I blog in spurts A month here and a month there then a week off here and a month off there. Not much of a way to build a following. Nevertheless, I blog for the enjoyment so if it isn't fun I am not going to do it.

Now that I have found my way home again. I think I will start off light.

First off, Did you know doodling was good for you? Yup that's right. It HELPS you concentrate. Same with playing easy games like Brickbreaker on a Blackberry or Freecell. I am often guilty of this when I get board in an interview or on a phone call. Some clients find it quite distracting. I find if I don't do it I lose my concentration. Now I know why. Read about it here

As for diet and exercise, guess what, Eat less, move more, lose weight. It's all here in this study. NIH had to commission a study for this??
Eating less calories and moving more has never been a question. The reason for the various diets is that eating less and exercising more is not what calls to most obese people. Chocolate shakes and steaks call to us. Now I know you are saying just do that, it doesn't matter how you do it. That said, however, getting me to do this is not an easy undertaking. Food and the way we use is part of the answer. This study doesn't go into that. It repeats simple science. Put in less fuel, use more energy, you should need to get to surplus faster. Got it. Now tell me what, where and how. Keep me doing it and then you have something.

President Obama at least sounds like a President. He has issued a dare so to speak against lobbyist's who intend to stand in the way of his change platform on issues like energy and healthcare. I guess we will see if his bully pulpit is bigger than the soft campaign money of the special interests. So far I like the guy though not all of his programs.

I am not a big Rush Limbaugh kind of guy. Hey Rush, get a clue, the public threw you guys out. You sat there for 8 years as a bully pulpit for a President who took his marching orders from your playbook and it in part caused the greatest depression since the great depression. You aren't pulling for the President to succeed in putting us back on track? Screw you!! I don't like everything he is doing, but he is our guy and we need to give him a chance like we did Bush, and if his plan works, and works well, then the loyal (NOTE TO RUSH I SAID LOYAL) opposition is going to have to do some rethinking.

Personally I think we need to allow for a correction. We also need to get out of fixing markets and let them self correct. What we need to do better is recognize phony products (sub-prime loan credit default swaps or CDS)and not allow them to be traded to people who don't understand them. I think we need to roll back the bankruptcy rules too. By changing them, we let the banks loan out too much money to risky borrowers. The new laws encouraged banking officials to think they can't lose as borrowers could not just walk away from the loans anymore, they had to restructure and pay some of it back. Oh well...

There is one more thing I think we need to do. We need to start teaching, requiring state-wide teaching of economics in the schools starting with Micro-economics in the younger grades and Macro in the High School. It should be required of every kid to have at least 2 years of it in HS in order to graduate. Maybe then we will all understand the issues and how to read a public budget and a stock and shareholders report.

Okay that's it for tonight. It is nice to be back. See you all around.

Open Letter to Agape World Inc "Investors"

2009-02-01T09:20:00.002-05:00

Readers, I have been attempting to communicate with Agape World Inc. investors who have been talking trash as well as debating the issues of whether the President of Agape World Inc. was able to run an alleged "Ponzi scheme" by himself or if others knew what he was doing.

Of course, many of the folks on the bulletin board service do not like what I have to say. Others did not believe it was me saying it. They pointed to poor sentences and other grammatical errors which plague my writing when I am in a hurry. Of course I did what I usually do. I typed out my thoughts before I forgot them all, then went back to try to edit these thoughts and hit the wrong key thereby printing the response instead, errors and all.

A couple of folks were worried my post was by an anonymous person acting like they were me. I set the record straight in the letter below. I re-read the letter and decided it was worth reprinting it here too. I also edited the post before I sent it...

To whom this may concern:

Thank you for taking the time to ask if I posted on "Fat Wallet."

I am the person who posted to the board. For those that felt that the post was poorly written, I hit the send button in error before I could edit the post. Nevertheless, I think I put the salient points across.

I understand people lost money. Some lost a lot of money, and they are justifiably upset. I also understand that it easy to lash out at people, especially when you can do it anonymously. I am responding as best I can, to investors where I can find them, and I am trying to do it in a non argumentative way. I use my real name because I think that the "anonymity" on the bulletin boards in part led to people not taking the warnings about Agape seriously.

Anthony Massaro is, in my opinion, a good man. He met a person who by all accounts was the consummate "con man." Any "con man" worth his salt slowly builds confidence in his "marks" (BTW I saw that you are having a discussion on what to call people who have been cheated. They are neither "investors", "losers", or "victims". They are "marks".) Cosmo started on his friends family and acquaintances. The more he kept promises, the more they believed in what he was doing. ( I noticed someone asked if Anthony ever told anyone where he met Nick. He told anyone who asked. Did any of you ask?)

No one can deny that Cosmo kept his books to himself. No one has come forward with a single shred of hard evidence that VPs or sub-brokers knew of, or saw, anything awry. All I have heard from marks, reporters and on the boards, is that the salesmen "Had to know". While it is a reasonable suspicion it is by far not proof. When it is held to the facts as we know them, it is no longer a reasonable suspicion.

I understand that this business had accountants lawyers and bookkeepers. It filed taxes. Why is it no one on Fat Wallet or in the press calling for these people to answer? Moreover, if done well (and I have no reason to think Cosmo didn't do it well) even these financial employees can be kept in the dark. Nevertheless can you see that their signing off on these documents gave the VP's and brokers even more to believe in?

I agree, Cosmo surrounded himself with men and women who could not challenge him. They knew little. They were mostly not business law educated. Some people on the floor of the NYSE and other exchanges do not have more than a HS education. If they go to the right firm however they learn. I doubt Agape was the right kind of firm. Agape employees had no idea what questions to ask. Even if they asked, they did not know enough to understand whether they were getting the right answers. If the answers sounded right, their belief level rose again. Nick Cosmo knows how to answer questions. (See the 22 "seminars" he held in December '08.)

Finally, belief in the company hit a pinnacle when Entrepreneur Inc. named the company one of the Top 100 Up and Coming Businesses. Imagine the pride these employees must have had. Imagine if you can, the belief and excitement they must have generated and what they told their friends and families. Instead of thinking they were "in on it", just for a moment, imagine they weren't, and think about how they felt about themselves and their company's accomplishments.

Now maybe you can imagine the betrayal they feel. If I am right, and again I have seen nothing hard showing me otherwise, you were betrayed by Nick Cosmo, a man who you barely or didn't know. They were betrayed by their boss. A person they came to believe in like a business "guru." A man who told them he was their friend and who it turned out cared as little for them as he does for you. Now imagine having to go home to tell your spouse that your whole life was built around a house of cards. On top of this, add people calling for your death or arrest etc. The same people, who only months before were inviting you to dinners, weddings, house warnings, and other parties that you helped make possible through Agape World Inc.

These employees have families and homes, They had savings accounts and retirement funds invested too. They thought they had found the goose that laid the golden egg, and they were giving that to other friends and family. Now they are alone, they are not able to speak to these same friends and families. They are despised and the people who heralded them just a few short months ago, have turned on them.

Maybe you are too angry to hear this, maybe you are so angry that you cannot imagine what I am saying. That doesn't make what I am saying not true. In fact, what I am saying is by far more provable than what some "marks" are suggesting.

That "They had to know" line is certainly convenient, and may make a few "marks" feel better that they were ripped off by a team of "con men" instead of by one guy, but it doesn't equal proof by even a preponderance of the evidence, much less beyond a reasonable doubt.

Someone had mentioned that the "brokers" had to have a Series 7. I do not agree. I do not think the law presently requires people who pool money to lend at a profit have to have any regulation at this time. This case may change that, but if it does, it does so at a great risk to legitimate lenders and moreover to needy borrowers. I do not however, wish to debate the issue now.

I would like to say one more thing however. Some of you have suggested that I must not be a very good lawyer because I have chosen to come on Fat Wallet and other websites to respond to some of the things I have seen written there. I guess I have a different way of practicing law than most people do. I think that it is important to have someone challenge, rationally, the proposition that where there is smoke there must always be fire. Sometimes when there is smoke, all it is, is smoke.

My client is sad, dazed, and right now, alone. If I am right, he did nothing more than any other mark has, but he has lost far more than they, he has lost not just money he had counted on, but a support and a belief system. While I understand the anger, it is a shame that others cannot withhold judgment until all the facts are aired. Until then, these men and women are entitled to be presumed innocent by each of you.

There you have it. I may be unconventional, but I think that people should hear both sides of things before they decide something as important as whether to charge a person based on nothing more than conjecture.

I will try to catch up with you all later this week.
TLD

Maybe You Are Wondering Where I Am.

2009-01-29T01:02:00.005-05:00

I have not posted for nearly 10 days. I have a bad habit of going on "walkabout". I get the urge to write and then after a month or so, it goes away, I have little new to say or too little time to say it well.

I am in the second phase now. I have too little time to say what I want to say well. I am not sure who said it first, but I think it was Winston Churchill who said, " I am sorry for the long letter but I didn't have the time to write a short one." It takes time to write well. I do not write as well as others.

I have also been tied up with the case of the AGAPE WORLD INC. alleged Ponzi scheme. I am representing one of the Vice Presidents of the company and the man who called the authorities on behalf of his fellow VP's and employees of Agape World when he confirmed the President of Agape Nicholas Cosmo was stealing and running a Ponzi Scheme. I hope to have a lot to say on my blog this weekend on this matter. Meanwhile, I am thankful for the folks who follow me on Twitter and who call or send notes or e-mails wishing my client and I good fortune. I may add a few links later.

For anyone who is interested you can see me speak on Criminal Motion Practice at the Young Lawyer Section of the NYS Bar Association tomorrow from 9:30 to 10:30 in their CLE Bridge the Gap seminar. It is a highly attended seminar and I think you may enjoy it.

I will be back in a couple of days.

Our Sister Blog "Long Island (Criminal) Trial Law" : Why Wall Street White Collar Defendants Need Main Street Criminal Defense Lawyers

2009-01-19T23:45:00.004-05:00

With the new administration, and the recent Drier and Madoff scandals leading the way, White Collar Prosecutions are sure to be on the rise. Over at Long Island (Criminal) Trial Law, we are discussing how Main Street Criminal Defense Lawyers are the right solution to Wall Street White Collar Defendant's problems.

The Start of a New World, The Week The Dream Comes True : Martin Luther King Jr. and Barack Hussein Obama

2009-01-19T08:07:00.000-05:00

I have so little to add to all that is being said on the air, in the main stream media and in all the blogs. This is the start of a new world. A world that I am sure many in my lifetime feared, and many more doubted. A world, where finally the promise that any man woman or child can be President of the United States is fulfilled.

From the steps of the Lincoln Memorial, possibly the most revered land in the nation (other than a National Cemetery) Martin Luther King Jr. stood up to the powers that would liked never to see this week come and said:

"And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident, that all men are created equal."
I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all flesh shall see it together."
This is our hope, and this is the faith that I go back to the South with.
With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
And this will be the day -- this will be the day when all of God's children will be able to sing with new meaning:

My country 'tis of thee, sweet land of liberty, of thee I sing.
Land where my fathers died, land of the Pilgrim's pride,
From every mountainside, let freedom ring!"

Tuesday is another huge step in achieving the MLK Dream. But it is not just his dream that is fulfilled this week. With the Inauguration of Barack Obama, we also fulfill the dreams of Ganhdi, and Lincoln, and Jesus Christ. King said in his speech:

"In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force."

On Tuesday, we have an opportunity to show the world, that the concepts of peaceful protest, advocacy, education, and persistence can change the way the world works. War and killing doesn't have to be the way. In fact, war and killing usually just leads to more war and killing. Peaceful respectful disagreement will bring about permanent change. Discipline and Dignity... If that isn't a good description of our President-elect, nothing is. I don't know what he will do, or if it will work, or even if I will agree with him, but I already see he is a man, who exudes dignity and discipline.

There is a different feel in Washington DC. It is one of hope and renewal. There is a return of class to the city. People even speak of trust. I haven't heard the word trust in the city since 1969.

Obama is reaching out to the Republicans. He is seeking to work with the men in the middle. He may be saving the Republican party from itself by doing so. Brave Republicans like McCain and Graham understand that working in a genial environment is the only way to accomplish anything. Failure to do so will reign down anger from the people on the main streets of every city and town in the country. We cannot have 4 more years of nothing being accomplished in Washington DC.

Of course, such bi-partisanship will bring about rage from the neo-con right (or are they really left?) because, they will claim they cannot take pot shots at the President and the Democratic leadership if the moderate Republicans give them cover. Too bad. Rush and the idiotic blond bimbo who wishes she were he, will have to just shoot at each other for a change. They have been shooting the Republicans in the foot long enough. Liberals of the far out persuasion will have the same difficulties. If they want to accomplish anything in Washington DC without making their re-elections impossible, they will have to come to the middle with their social agenda, and maybe their economic agenda as well.

On the other hand, we all could go to a tax program allowing Americans to keep 90% of what they earn. I bet that stimulates the economy right away.

Finally, maybe the dreams of the man we honor on Monday, become fulfilled with the Inauguration he made possible of the man we entrust with our nation's well being on Tuesday. With great challenge, comes great opportunity. But with great opportunity, comes great responsibility not to squander that opportunity. The last eight years have been squandered opportunity. As a nation we have tired of that waste.

It will be an historic week. I will pray, it is an historic Presidency.Congratulations Dr. King, and welcome Mr. Obama, Mr. President. Welcome, and good luck.

Man Bites Dog: Victim Seeks Dismissal of Statutory Rape Charges Against Director Roman Polanski. Should It Matter?

2009-01-13T04:58:00.004-05:00

The alleged victim in the Roman Polanski Statutory Rape case, joins with Polanski in seeking dismissal of the charges against him. Filing a separate affidavit, the victim accuses the former Judge and Prosecutor in her case of failures and misdeeds. She also claims that the prosecutors in the case now are seeking to cover up those misdeeds and that their failures are causing her unnecessary grief and embarrassment.

Ms. Geimer now 45 years old and a mother herself wants the case dismissed. Though not denying the facts behind the allegations, she feels that too much time has passed and that she has moved on in her life. She asserts that Prosecutors, who earlier this month used Grand Jury excerpts that gave vivid detail to the media about the accusations leveled at the Oscar winning director, are trudging the whole thing up to protect their office's good name at her expense.

Polanski was allegedly at the home of actor Jack Nicholson when he attacked the girl who was there alone to meet the famed director. Polanski lost his wife Sharon Tate a young actress and their yet to be born child in the Manson Murder spree.

Geimer's petition is an interesting one. Under her theory, as a victim she should have a say as to how the prosecution is handled and what should happen to the outcome of the case. This is essentially giving her veto power over the prosecutors office.

Nonetheless, Prosecutors and victim's rights advocates have been leading the charge to give victims more say in sentencing and other matters that, in the not so distant past have been the sole discretion of judges and lawyers. This would be fair turnaround. Often victims of crimes want to drop charges but are told that since they are not the prosecutor they have no say in what or how a case is handled. In cases where there are mandatory minimums, such as in many statutory rape situations, the victim's will is defeated.

If that were to happen in cases where a judge refused to go along with the victim, prosecutors rally to the victim's side and decry the jurist and often blame defense counsel as well. It feels like fair game to burn the prosecution at its own game. In fact, in Polanski's case it is even more than fair as the prosecutor went so far as to have ex-parte conversations with the court and it seems made a fair sentence for Polansky impossible. Griemer has a case it seems where the malfeasense of Prosecutors and the court now causes her more pain and suffering after the fact.

I suppose that I should look at this as a positive effect of Victim's rights. I don't. I see it as a furthering weakening of the criminal justice system and a further step away from what we should be properly doing, that is, establishing guilt and if there is guilt finding an appropriate sentence that will deter further misbehavior by the accused and return that person to society as soon as correction and rehabilitation has been established. It has nothing to do with victims. It isn't about their feelings or lack thereof. It isn't about vengence or hearing the victim's voice.
I am not against those things in the proper forum (ie a parole hearing or civil proceeding) I am against it when it comes to the job or the elected official and when it gets in the way of the goals of the system.

Whether Polansky should be allowed to attack his conviction while remaining in France is not my issue. Whether his conviction or plea should be allowed to be withdrawn is not my care now. Whether that decision should be left up to his victim, anymore than his sentence should be is the issue. I do not feel that it she has any say in this matter. It is for the District Attorney to decide how to enforce the laws of his state. I just think that it also has to be a two way street. If a victim cannot help an accused by being heard on her decision to prosecute, neither should she be able to assert her will on other issues in the criminal prosecurtion of the case in which she is not a party, but is a witness.

What are your thoughts on the role of victims in the Criminal Justice System? Let me know in the comments or by send them to me via Twitter

Govenor Palin Attacks Katie Couric: Sarah Still Doesn't Get Why She Cost McCain the Election.

2009-01-09T08:14:00.004-05:00

Sarah Palin is the main subject of an upcoming documentary about the election. It is a documentary by John Zeigler, a Neo-conservative film maker who, from what I can see on the YouTube outtake from the movie, was tossing Palin softballs to hit out of the stadium. Unfortunately, Sarah struck out...again.

Palin acts snarky toward and jealous of Caroline Kennedy. Lets see, yes Caroline is wealthy. No Sarah, you do not go after a woman who is trying to enter public service (like you), whose family, whether you like them or not, has dedicated their lives to public service. Never forget Sarah that Caroline's father and Godfather were both assassinated on national television while she was a child because of their decision to serve the nation. She is a victim. You are not.

You also do not get to say you were being "flip" and were not taking questions seriously when you were asked what newspapers you read by Katie Couric.

(Paliin, when asked about Katie Couric's question in their disastrous interview about what newspapers she read, said that she thought Couric was trying to figure out what "they did up there" and that her answer was somewhat flippant and was meant to convey that she did all the same things and read all the same things as those of us in the lower 48.)

You said of Couric, "Katie, the world does not revolve around you." You are right, "the world" doesn't revolve around Couric, but on that day at that time, being the first time you had an opportunity to make an impression on the American electorate, your world should have "revolved" around Couric. What in the world made you think you could blow off a question because you thought it was flippant? What level of self importance do you harbor to think it was all about you? What it was about was showing the American people that you were a serious candidate who could step into the shoes of the President at a moments notice.

Palin also complained that McCain's handlers made her continue the interview after it was clear it went poorly. First off Ms. Palin, you are an adult. You could have said no. As for your decision to continue, it was said you couldn't get your act together, but you cannot cut and run when you are in charge of the free world. You could have prepared better. You could have even taken out those alleged pit bull teeth and polar bear nails and gone after Couric when she was being "unfair" to you. You cannot, however, cut and run. Not if you want to be our President. This is just further proof of your abject inabliity to be President.

As for the Tina Fey statements, who are you kidding? Of course it exploited you. That is what comedians do. You felt that the jokes and statements about your daughter's pregnancy were unfair? Too bad. You chose to thrust that child and her poor decision into the public view. You made her pregnancy an issue. You made her decision to keep the child and marry a boy who didn't want to get married seem shotgun-like. Here Boyfriend made the statements on Facebook that said he didn't want to get married. You announced their engagement. Fey's comment about unwilling children getting married because they got pregnant was vicious but it had a ring of truth to it. That is what made it funny. Your abject failure to recognize your complicity in the situation makes me question your judgement.

Here is the thing. You put yourself out there as a potential President. You decided you hate the intelligent, you are jealous of the successful and you act like a victim.

You are right, Ms. Palin, you are a victim. You are a victim of your own ego, lack of self esteem, petty jealousy, niavite, and, sadly, lack of "smarts". You keep trying to tell me how tough you are. Here is a lesson for you, Sarah. Tough guys don't have to tell people they are tough. They take on tough situations, handle them, and move on. They don't compare themselves to bears, pitbulls or any other animals. They just do their job.

If you need a tough guy to model after, look no further than John McCain. He makes no excuses, stands by his people (you included) and takes responsibility for his own statements failures and decisions.

Public Hypocrite #1: Sen.Arlen Spector Wants a Attorney General Who Can Say No To The President.

2009-01-08T09:11:00.004-05:00

This is rich. Arlen Spector, Republican Senator from Pa. and former Chair of the Senate Judiciary Committee has announced that although Attorney General Nominee Eric Holder has excellent academic and professional credentials he is "concerned" that Holder may not be able to say no to the President.

IS HE KIDDING???? This is the man who as chairman of the Senate Judiciary Committee approved Alberto Gonzalez as AG. Now I understand that Holder told President Clinton he had "no problem" with Clinton pardoning Marc Rich, but Gonzalez not only had no problem with Rendition, and torture, he actually approved of them with written memos. He approved the firing of US Attorneys because they wouldn't do Karl Rove's bidding.

Hey Arlen, can you say "I am a Hypocrite??" Probably not, politicians are just not that honest.

Police Use GPS and Google to Find a Kidnapped Child.

2009-01-08T07:35:00.002-05:00

I spend a lot of time on this blog criticizing police and Prosecutors. It isn't that I don't like them. It is that I think that since they represent the "people" I think they need to be held to a higher standard of conduct than any individual person.

When they "get it right" (and they do get it right far more often than not) however, I think they deserve to be acknowledged. Athol Police Officer Todd Neale managed to track down the missing girl by obtaining coordinates of her cell phone from the phone’s carrier and using Google Maps and Google World to locate the motel where she was being held.

Nice Job Officer Neale.

Full story here

Four Blog Posts You Should Read: An interesting Day in the Blogosphere

2009-01-06T16:52:00.006-05:00

Some days the quality of posting is just really good.

Check these out:

Love and Marriage is not for the Funky Brown Chick. Interesting comments.

Note to self...don't sarcastically ask if after a day of yelling and fighting with your toddler is it ok to smother her, at least not on Twitter. Some humorless follower may call the cops.
Hattip: Spin me I Pulsate

Wow US Attorney Patrick Fitzgerald says you're guilty of something and we don't even have to have a trial. Man the kangaroos are jumping in Illinois. Dissenting Justice Darren Hutchinson says NO WAY. At least he believes there ought to be a trial.

Keeping it real. An adult,orphaned in childhood, recounts being reunited with her family on her last Birthday. It will move you.It moved me. Read "Me..Being Anonymous". This lady has a story to tell.

A day filled with new voices and ideas.

Where the Hell is the Change Barack??? : Cabinet Choices are all Clinton Retreads

2009-01-05T16:03:00.008-05:00

Short post:

Is it me or is the "Change President" who promised to bring new faces and ideas to Washington just bringing back the same old Democrats we tossed out for 8 years of Bushies (who were just old retreads of his father's failed administration.

Let's see we have

Eric Holder for Attorney General, deputy Attorney General in the Clinton Administration. RETREAD. I like Eric, but come on he is hardly a fresh breath of air.

Hillary Clinton for Secretary of State. Uh the former first lady... Need we say more?

Bill Richardson for Commerce Secretary, I like Richardson. He is a fellow Jumbo. He is still a Clinton retread, former UN ambassador and Energy Secretary under "Uncle Bill."

UPDATE: Gov. Richardson has withdrawn from consideration.

Rahm Emanuel- Chief of Staff- Former Clinton Sr. Advisor on Policy and Strategy.

Leon Panetta for CIA- Clinton's Chief of Staff.

Where is the change?

Tony(c) Award for Best Criminal Law Blog for 2008 and an Honor: Professor Doug Berman Sentencing Law and Policy Blog

2009-01-01T11:22:00.004-05:00

Thinking of words and phrases to describe out Tony(c) award winning Best Criminal Law Blog is easy: Informative, cutting edge, authoritative, well written, incisive, thought-provoking. The one I like the most is consistant.

The 2008 Tony(c)Award for Best Criminal Law Blog is Professor Doug Berman's Sentencing Law and Policy Blog. The reason for the award? This blog is consistantly the best place to go to begin to research the latest issues in Federal sentencing. Professor Berman is not only a blogger extrodinaire but his blog is cited to on a regular basis by courts and in briefs at the highest (read SCOTUS) levels of advocacy.

Doug is also a real giver. In addition to writing a blog that is a readers delight he also often authors briefs and amicus briefs on behalf of positions he believes in dealing with Sentencing law. Doug is generous with his time and is a frequent lecturer on all thing USSG and USSC. His insights have helped me over and over again in getting fair sentences for my clients. If a young practioner (or an old one for that matter) wants to learn the ins and outs of the USSG, get a copy of the USSG and then start reading the archives of Sentencing Law and Policy Blog.

An extra honor from me to Doug and his great Blog: This Tony(c)Award is being named for its winner. Hereinafter the Tony(c) Award for Best Criminal Law Blog will hereinafter be known as the "Prof. Doug Berman Memorial Tony(c)Award for Best Criminal Law Blog"

Thank you Professor for all you do.

Happy New Years to all of my readers.
TLD.

Follow me on Twitter and get updates througout the day of the best legal blog posts and news articles addressing the criminal law, law practice management and Constitutional law on and around the blogosphere.

Tony(c) Award Best New Voice: Sharon And Her Blog Red Shoe Ramblings

2008-12-31T21:58:00.002-05:00

The Tony(c) Award Winner for Best New Voice in the legal Blogoshpere goes to Red Shoe Rambling and its vivacious and energetic author Sharon.

I met Sharon through her Twitter persona No Reins Girl. Her tweets were sassy and filled with positive statement. Her Avatar was a sexy picture of a woman holding a pair of red shoes. I was hooked from her first tweet.

I got to know Sharon through her thoughtful tweeting and then learned she had just been accepted to law school and would be starting law school very soon (January). We then had the chance to speak. I learned that she was blogging and I began to follow her blog. I have not heard a voice as interesting in the law school blogosphere since Energy Spatula stopped blogging.

I am excited for No Reins Girl. She still has that unjaded view of the good lawyers can do for others. She is excited about learning about the law as an academic pursuit as well as a "trade". Her most recent post is just like her. She is already sharing what she knows.

Now don't go off thinking No Reins Girl is some kind of Cock-eyed optimist or another lil' star struck law school wannabe. Nope Sharon does not suffer fools and she has a quick wit. That means she has an ability to cut one to the quick and do it fast. I expect as she starts to deal with some of the "Law school regulars" I think we will see a lot of her more biting side come through. Always the lady though I suspect we may have to read the post a couple of times to really catch the "meaning" of the stilletto sharp sarcasm.

I also predict her law school colleagues both at her law school and on line are going to learn a lot from her. More importantly we older colleagues are going to re-learn a lot too.

The Tony(c) Award for Best New Voice on a Legal Blog for 2008 is Sharon and Red Shoe Ramblings. Congratulations and please all have a happy and safe New Year's eve.

Tune in tomorrow for the last of the Tony(C) awards the Best Criminal Law Blog.

See you in 2009.

Free Ride Home For HS Students IN SYOSSET-WOODBURY, PLAINVIEW/OLD BETHPAGE , or JERICHO SCHOOLS Stranded on New Year's Eve: NO DWI'S TONIGHT!!

2008-12-31T08:00:00.001-05:00

This New Year's Eve I am offering any High School Student at any High School located in the Plainview/Old Bethpage, Syosset-Woodbury or Jericho-Brookville School Districts, a free ride home from a party, bar or Train Station (Hicksville or Syosset stations) in those school district boundries, if:

1. You are too drunk to drive home

of

2. You do not have a safe ride home because the person driving You is intoxicated.

For a driver under 21 on Long Island that means if you had more than 1 drink and you are 100lbs or 2 drinks and are 150lbs or 3 drinks and 200lbs YOU ARE NOT SAFE TO DRIVE!!!

All you have to do is call 516-741-3400 and request a ride. The service will be provided between 11PM tonight December 31 2008 and 7AM January 1st 2009.

Doesn't matter if the intoxication is by drugs or alcohol. NO QUESTIONS ASKED. I will even arrange to have your car brought to your home the next day!!

That is right, if you have no way to safely and legally get home I will either pick you up, or have a car service pick you up, on my tab, and Drive You HOME.

No one needs to be arrested tonight. No High School parent needs to call me in the middle of the night to tell me that his or her son or daughter is lying in a hospital, or sitting in a cell because of a driving while intoxicated issue in the Syosset-Woodbury, Plainview or Jericho-Brookville school districts on Long Island. All rides are courtesy of:

The Law Offices of Anthony J. Colleluori & Associates, PLLC
180 Froehlich Farm Blvd.
Woodbury, NY 11797

Tony(c) Award for Best PD Blog :Gideon at A Public Defender

2008-12-30T15:30:00.000-05:00

Being a Public Defender (and in that I am also including members of the Legal Aid Society) is difficult work. Usually thankless work they get the hardest of the cases & clients. Public Defenders have the worst working conditions, carrying big case loads and the pay is... well modest would probably be a pay raise for most. Given those realities, that someone takes the time to blog is in and of itself a wonder. That a PD takes the time to put together a blog as well done as the one I honor is amazing.

Although I don't always agree with Gideon, He is without a doubt the best PD Blogger I have read this year. Gideon can be biting, is usually witty, and often controversial. In addition, he is unabashedly pro public defense and more importantly pro public defender. In fact he chooses to honor his colleagues in two ways. One he has named his blog "A Public Defender" two is that he remains anonymous. His name is not attached to the blog. Any PD could be authoring this blog, at least any Connecticut Attorney

Now earlier this year we had a disagreement over how I value PD work. I do not wish to rehash the argument. I do think however that if all lawyers much less PD's brought Gideon's attitude to the office, there would be far less unhappy clients in the world.

It is my pleasure to award a Tony(c) Award to "A Public Defender" and its author, the anonymous Gideon.

Tony(c) Award For Best NY Blawgger: JaneAnne Murray for NY Federal Criminal Practice Blog

2008-12-30T07:05:00.001-05:00

The Tony(c) Award for the "Best NY Blawgger" (that is a writer who blogs about legal topics in NY) goes to JaneAnne Murray for her blog "NY Federal Criminal Practice Blog." JaneAnne's writing is crisp and understandable. The Blog reads like a law schoolstudent's recitation brief on a casebook case. Her analysis of the cases is clear and understandable. It is also a great niche blog.

I loved the way JaneAnne Murray covered Judge Weinstein's decision in US v. Polizzi which I covered in a post yesterday. She took a complex, 288 page, tome on sentencing and other issues, and whittled it down to a few paragraphs laid out brief style. The facts, holdings, and synthesis is clear to any attorney having to work with this case.

The fact that the blog is a little light on links and analysis on some of the bigger cases leaves room to improve. Covering the large amount of decisions she covers in the circuit (a circuit that has 2 of the most cited US District Courts and one of the top 3 cited US Circuit Courts of Appeal) Ms. Murray has a lot of cases to comb through and brief. Additionally, unlike most state court decisions(which generally run a few pages) these decisions are long and often tedious. I think her blog is a useful tool for research, and a definite worth-while read if one is just trying to keep up with criminal practice in one of the busiest US Circuits in the country.

Thus The Tony(c) Award for the Best NY Centric Legal Blog goes to NY Federal Criminal Practice Blog. Congratulations.

Let's Stop Lying to the Jury: The Case for Warning Jurors About Acquitted Conduct

2008-12-28T23:00:00.000-05:00

Earlier this year US District Court Judge Jack Weinstein of the Eastern District of NY, one of the most reviled and respected judges on the US District Court Bench, issued a Magnum Opus of a decision. The 288 page tome has been roundly criticized by academics, politicians and prosecutors (as if there was really a difference) as a waste of judicial assets and paper. The case, United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008) held that Judge Weinstein erred when he failed to tell the jury of the potential effects of a guilty verdict in a case of possession of child pornography under the US Sentencing Guidelines. Weinstein reasoned that a jury in colonial times would have known what the potential sentences would have been, and an originalist view of the US Constitution would permit that jury to ignore the law and manipulated the verdict if it felt the law did not reflect the view of society as reflected by the jury. (Today we call that Jury Nullification See the John Peter Zanger verdict)

Many so called conservative (but I note not libertarian) bloggers were unhappy with the decision. Many think that the case will be overturned in the Second Circuit. Weinstein however makes a point however; juries do play with verdicts.

This "playfulness" comes in two forms, the aforementioned Jury Nullification (which is uncommon but works in favor of an accused) and the more common "Jury Compromise" (where the jury is otherwise deadlocked between guilt and not guilty so to appease one side or the other the jury "compromises" and convicts of something less than charged. This usually although doesn't always work against the accused), but it is still however a conviction on less than a reasonable doubt standard. An accused is owed the benefit of a doubt, not a compromise.

Now prosecutors and other "law and order" types hate Jury nullification. Yet somehow these clarions of justice find it just fine for the jury to act on less than proof beyond a reasonable doubt in convicting an accused.

On the other hand, it is wrong to mislead the jury as to facts. In other words, if a lawyer knows a fact to be untrue, he is forbidden to argue it to a jury. Hence recently a lawyer was sanctioned very severely for telling a jury that her client was "mild mannered" when in fact she had kept his actual violent behavior out of the case through a Motion in Limine.

Notwithstanding that, Judges in Federal cases mislead jurors all the time (see the Bazelton dissent) by not telling them about their power to nullify. Not telling a jury that their failure to acquit a defendant of all related conduct exposes the defendant to having the conduct for which he was acquitted used against him to enhance his sentence. In fact, the judge can use the acquitted conduct to enhance the sentence so much, that the resulting sentence can be high enough to render the acquittal a nullity. In other words, we are not telling jurors that their decision to acquit doesn't count for sh.... well you can rhyme it yourself.

We tell jurors that serving on a jury is an important and that their voice counts, but we yet through the use of acquitted conduct, we lie to them. Dress it up any way you want to, when jurors find out that defendants are sentenced to far more time in jail than they thought was appropriate for the crime the accused was actually convicted, they feel like their work didn't matter. To them it doesn't matter how we lawyer types word it, they were ignored.(My colleague and "blog as marketing" sparring partner Scott Greenfield has a great step by step explanation of how we lawyer types "explain" such nonsense)

Continued use of acquitted conduct hurts jurors even more when a jury works hard to come to a decision. If it is deadlocked, we demand it return to come to a decision. If it then decides to compromise, an activity we know they partake in, only to find that their compromise meant nothing and they were better off to just hang their verdict they feel cheated (almost as much as the accused does).

We have been at this charade for better than 20 years. Acquitted conduct is part of the USSG but the advent of the Internet makes this kind of behavior really well known. How long before jurors refuse to sit, or catch on and lose all respect for the criminal justice system altogether?

One way to handle this, is to explain to the jury, that compromise verdicts are not legal.Compromises that are based on less than every juror believing that every element of every charge was proven beyond a reasonable doubt is cheating the parties of a fair trial. Tell them that a conviction on any related count will result in the court being allowed to use the acquitted related behavior to enhance the sentence of an accused to what it would have been if the accused had been convicted of the higher charges in the first place. And let's add to the Allen charge the following: a compromise verdict is not what we seek. We would rather you return as a hung jury, than reach a compromise that left anyone unconvinced beyond a reasonable doubt that a charge was proven.

To do anything less than tell that to a jury, cheapens the work that they do, and frankly cheapens the verdict they render.

The Tony(c) Award for Best Law Practice Management Blog Goes To: My Shingle

2008-12-26T17:19:00.005-05:00

Law Practice Management for the Solo and Small Practitioner is the difference between demise and survival. Network marketing, hiring staff, CLE, SEO, M.O.U.S.E. (that one is a joke understood best by those who are baby boomers) and others skills are not taught but are expected of a solo or small firm lawyer. Not only do we know how to advise others on how to run their businesses, but we are expected to know how to run ours.

Law Practice Management blogs are a good way to save the money on the book and stay up to date on changes in managing one's office and staff. If a young lawyer asked me what is the one thing I wish I had when starting my office, it would be the Internet. The one thing I would want in addition would be access to Law Practice Management bloggers. I especially favor those that blog for the solo/small firm member.

There are many blogs that focus on this area of practice. Some are from people who make a living coaching others to be better lawyers. Allison Shield's Legal Ease Blog is a good example of the best of that genre. Others are Bar Association blogs where the primary job of the writer is to help others succeed in opening and maintaining a practice.

Then there are bloggers who are practicing lawyers who are willing to focus there blogs on issues involving law practice management. Today I honor one of those bloggers: Carolyn Elefant and her blog My Shingle

My Shingle is a very well written blog. It encourages people to take the plunge into solo and small firm law. It extols the virtue of being in charge of one's shop while not sugar coating the experience. Moreover it is a cornucopia of links to ideas and items that can help the lawyer better run his office.

Carolyn is an active Tweeter on Twitter and also gives a lot of time to solo and small practitoner groups. Again, I have spoken with Carolyn and much like Dennis Kennedy she always tries to make herself available to bloggers and others starting out in the practice of law.

While awarding Carolyn this years Tony(c) award probably make me ineligble to win anything over at her site(she runs great contests), (and for a Presidential Pardon as well) it is the right thing to do.

Thus this year's winner of the Tony(c) award for Law Practice Management Blog is My Shingle.

Merry Christmas: A Dad Fable

2008-12-25T00:01:00.000-05:00

Every writer, blogger, priest and politician hopes to come up with something profound to write tonight. Something that will help people take the spirit of the birth of the Christ child into the new year, and make this spirit part of their daily lives.

The truth is, Christmas is special because it is hard to live this way everyday. Imagine however if we did.

Imagine if you can, a world where we see the other guys point of view, and he saw ours. Imagine a world, where we made it our business not to close our eyes at night until we made a positive difference in someones life that day. Imagine a life, were those that did the most for others, were the ones who attained the riches, where those that gave the most, not those that took the most,received the most.

My dad used to tell us a story about a poor man who walked onto a big estate. The Master's house had been empty for many years as the Master had been away fighting wars for the emperor, others rented from him their homes, but since the Master had been away, no one had collected the rents.

As the old man approached the first home on the estate, a terrible snowstorm whipped about him. The man was dressed as a rag man, he looked tired, old, and poor. He came to a house of a woman and he asked her for a loaf of bread. She looked at the bread in her home and said to herself, "I have a loaf, but if I give him my whole loaf I will go hungry." She returned with a two slices and said, "I have one loaf but if I give it all to you, I will have nothing." The traveler thanked her but refused her "hospitality".

At the next house he again came to the door. There was a party going on inside. He asked for a loaf of bread and again explained he had come far and had not eaten, but the hostess who had more than five loaves of bread brought only a few slices back and said, "I have five loaves of Bread, but I am having a party and I can't take a chance I will run out."

He again thanked her, and went on his way. He walked from home to home on the estate, and all he was ever offered was but a slice or two from the loaves that were available.

At the last house he came to, he notice that it was a clean home, but it was clear that the residents were of modest means. When he knocked on the door, the woman of the house opened the door and inside the home there was a house full of children and a Christmas tree inside. There were stockings by the fireplace. A tired man sat at the head of the table. The old man made his request of the woman. She asked him into the home. Then she took the only loaf of bread that she had, and gave it to the old man. She gave him the rest of the food in her cupboard, and at the end of the meal, the old man and the head of the household shared the last of the wine.

The old man stood, and as he was about to take his leave he asked of the woman and man, why they had been so generous. They had given him the last of all they had. The man said,

"You are wrong. We have plenty. We have 5 strong sons and 3 beautiful daughters. All of them, my wife and I are healthy. We have a generous landlord who while he has been away at war, has allowed us to remain on his estate rent free. Finally we have faith that tomorrow, when we are hungry, God will provide us with an opportunity to fill our stomachs. We do not have a lot of material things. But what we have, all of the money in the world cannot buy. We are the richest family on this estate."

The old man looked around and smiled. He thanked the man and woman for their hospitality, and patted each child, and took his leave.

The next day, the ells at the Master's house rang out. He had returned from the war and all who lived on the estate were to come to him. They all came wearing their best clothes and bringing food and gifts.

The Master looked out upon them. He was tall and regal. He was clean shaven and well dressed. He thanked them for their gifts and then said to the couple who had all the children "Where are your gifts?" The father spoke up, "Our gifts sire, are our children. We are here to till your fields and work in your home. we cannot afford presents."

The Master asked why they had not brought any food to the feast and the father told the Master about the visitor the night before. "I have not had the chance to get more food nor has my wife had a chance to bake more bread."

The Master then smiled. He looked at the residents of his estate and said

"This man and woman, fed me last night when I was hungry. They sheltered me from the storm. They gave me their last drop of wine. You all had more than they, you all have partaken of my hospitality, yet when I was hungry, you gave me crumbs from your table. These people, though they only had crumbs, shared them with me. They did not know when I would be coming, yet they treat everyone as if they were I."

The other residents gasped in the realization that the beggar man from the night before had been the Master of the Estate. "Master" they all said if we knew that it were you, we would have given you all we had too."

He roared out at them "You know not when the Master will come! You should treat all as if they were your Master.Then you will not have to worry that you did not recognize me!!"

The master continued:

"I am leaving to return to the lands that I have conquered for our emperor. I have been made Governor, and I will have an estate there twice as big as this one. I have decided to give this estate to one of you to collect the rents and to do what he will with the land and its bounty. I have chosen to give the land of my Estate, to the people who took in a stranger last night, and with the last bit of food and drink that they had, provided for him."

And with that the poor man and his wife became the owners of the estate, and never wanted for anything again.

Imagine if we constantly remembered that God is always around us, and that when we act charitably towards another in his flock , He sets a place at his table, and provides an estate for us in Heaven. Imagine what the world would be like if we all remembered my Dad's fable.

Merry Christmas to all of you, and a Happy and Healthy New Year too.

Tony"That Lawyer Dude" Colleluori and Family.

Around the Blogosphere the Week of 12/14/08-12/20/08: Part III- In and Around NY and Long Island

2008-12-21T23:00:00.000-05:00

IN part III of this trip around the Blogosphere I found myself looking at some of the things happening in legal life around "here." ("Here" is Long Island and the five boroughs of NYC)

1. In the News on Long Island; Freaky Driving stories:

A. From Newsday (off twitter feed): A Long Island woman jumps from a moving SUV because the driver didn't want to take her to a bar. He wanted to eat dinner. She died. I heard of dying for a drink, but this one is ridiculous.

B. Also from Newsday Suffolk County Cops taze a 62 year old driver who is experiencing bleeding on the brain. He refused to follow orders of cops, they pull him over, he won't get out of car, they taze him, have to then take him to the hospital and wind up saving his life... Now that is making Lemonade from lemons.

2. The Agitator has this post on the indictment of a NYC Police Officer who attacked a guy on a bike, then arrested the guy for running into him!! The officer probably would have succeeded in getting the bicyclist busted on Felony charges had there not been somebody there with a camera phone taking a movie of the incident. The camera man gave his recording to reporters and the cop is now the first cop to be indicted for "Testilying" in as long as I can remember. Radley of course uses the indictment as a teaching opportunity. He scolds Pennsylvania prosecutors for using an old privacy law to allow cops to prosecute people who take photos of them while they "fail" to do their jobs.

3.NYS Governor David Patterson will be appointing a new Jr. Senator from NY to replace Hillary Clinton if she becomes the new Secy of State. So far we have Caroline Kennedy and Fran "The Nanny" Dresher. I would love to throw my hat in the ring too, as it seems the only qualification you need is that you have no qualification...
Ok you have to be at least Thirty years old.

Anyway, Kennedy is campaigning for the job (Dresher was on Larry King but she has a snowball chance in hell of getting the job unless she runs for it and gets a voice coach) Now here is the thing
In this story Caroline says she is a "Clinton Democrat". Now that does nothing for me but assuming it does something for a democrat, How can she call herself a Clinton Democrat when she supported Barack Obama against Clinton for President??? (Maybe Caroline is more qualified for the US Senate than we think, she clearly already knows doublespeak.)

Then I notice her voting record in general elections is "spotty". That means sometimes she doesn't chose to vote. Now while it is popular to say that it is everyone's duty to vote, I for one do not agree. I refuse to vote when I think that I am voting for the lesser of two evils. That is usually how I feel when I vote for President and sometimes Governor but at least there are lesser offices I might care about. I also do not vote when I don't know anything about the candidates or their opinions. I see nothing wrong with that. (About not voting, not knowing positions is a different post entirely, sometimes that is not my fault.)

Ms. Kennedy-Schlossberg is not unqualified to be a Senator from NY because she has missed votes, nor because she has never held nor run for public office. She is unqualified because she knows nothing of the needs of New Yorkers and we do not need another celebrity senator coming from this state when there are a number of people who do know what they are talking about and what to do about the issues. Unfortunately none of them are even in Congress right now.

Finally there is this interesting choice for US Senator, one that the Governor should really think about, one who has served our state very well over the last 20+ years and who is well aware of the needs of the people of our state. I think Eric Turkewitz of New York Personal Injury Attorney Blog is on to something when he recommends Chief Judge Judith Kaye who retire in 2 weeks to be our new Junior Senator. The only qualm I have with Eric's post is that he compares Ms. Kennedy with Pres. G.W. Bush. I am sorry Eric, there is no comparison. Caroline was an excellent student and a very good child. She has always been thoughtful and concerned about others while she guarded her privacy. Comparing her to Bush is like comparing the Pope to Saddam Hussein. Still I think Judge Kaye would make a great democrat possibility for US Senate.

4. Finally, The New York State Bar Association has a general Practice committee. It has a blog. The blog written by Leonard Sienko has a lot of important stuff on it. You don't have to be a member of the State Bar to read the Blog. So READ THE BLOG!!

Two important posts:

A. NY has finally adopted the Model Rules for Professional Conduct. It goes into effect in March 2009. I will be blogging on that I imagine a lot in the next few months.

and

B. The IRS is willing to help struggling homeowners refi and sell their homes by allowing Federal Tax liens to take a secondary position to some mortgages. It's a start anyway.

5. Over at the Divorce hotline, Janine Barbera (aka MatMaven) has a post about the way some judges just lord over a court, forgetting the people that use the court are not there to serve them so much as to be served by them. The post is short on facts but that is fair, Janine wants to be able to continue to practice law. Besides if any judge she appeared before in the last couple of days sees himself, then he should CHANGE HIS WAYS!!!

Q: In the meantime here is a quiz... What is the shortest time span known to man??

A: The period of time it takes for a newly minted judge to forget he was ever a practicing lawyer...

Ok that is a generalization, but sadly it is true way too often. Maybe it is something they should address in judge's school.

OK so much for Part III.

Around the Blogosphere the Week of 12/14/08-12/20/08:Part II- Law Office Management

2008-12-21T10:00:00.001-05:00

Continuing my trip around the blogosphere with you, we move on to the Second Part of our Journey Law Office Management and Tech posts.

1. Cornell Univ. Legal Information Institute is a really great service providing case law and statutory law for no cost (but you should donate)to users. LII has a new beta program for attorneys to get referrals from other LII users. Go to the NYS General Practice Section Blog for more information. Oh by the way, did I mention that it is free?

2. Susan Cartier-Liebel's Build a Solo Practice Blogis one of the most popular blogs in the legal world. Susan is the founder of the Solo Practice University a great resource for CLE, "bridge the gap" and "develop a new practice area" learning.

In this blog post she shares a new service that can help a solo (or anyone else) organize the business cards they get, loose receipts, as well as other information. Really it is a scanning operation for your stuff, but if you don't have the time to do it yourself, or you just are not going to do it (or you don't own a scanner) then this service is cost effective. It is called Shoeboxed and it looks pretty interesting. I will be checking out myself before the year is out. You may want to do the same.

3. Susan also has a second post that is very important as money for legal services begins to dry up. In her post "When Pricing Your Legal Services, Remember Your Client" Susan suggests that we might want to start understanding what our potential clients are going through financially, and start to think about how we can help them through this difficult stage in their lives. I think if we are just looking at this problem now, we may be too late, but while not answering any questions, Susan raises the issues that are on our clients pricing minds and makes us think about these issues too. Which leads me too our next post:

4. The Dirty Thirteen, or as the post writer (the modestly named Greatest American Lawyer) calls it, the Thirteen Worst Things About Hourly Billing.

As a long time fan of "Value" billing I see the last two posts going hand in hand. I will have my own Value billing post up in a couple of days (weeks?) and will discuss it further, but I want to say one thing now: In a time of economic uncertainty, the two things a client wants most is a fee certain, and a fair shake. Value billing provides both.

5.Allison Shields is the President of Legal Ease Consulting and is a business consultant for law firms. She also writes another really great legal business blog by the name Legal Ease Blog.(What else would you call it if you were she?)

In her recent post she talks about "When E-mail Isn't Appropriate."

I have to say that I disagree to an extent with Allison. In a day and age where time is money, and money is scarce; where clients complain that lawyers do not communicate enough, I think E-mail, text messaging, and now Twitter Direct messaging, can really reduce client anxiety. I will agree with her on one point however, if you will be bringing important information to a client by electronic medium, it is only fair to the client to make yourself or another in your office available to answer any questions your client may have thereafter.

I find the best way to do this is to send the e-mail late in the day so that the client will get it in the morning (if it is more urgent than that, I pick up the phone.) I then ask that they respond with questions which I can peruse while waiting in court; answer from my blackberry; or call my secretary or associate to help me respond. Then I return calls at the end of the day, or at least I try to. I am not perfect but I am improving.

6.Your best source of new business is your present client. If you are in a practice area that doesn't lend itself to clients who have other legal matters you could work on (like Criminal law for example)then you need to constantly look for new work or referral sources. This post on the Rainmaker Blog gives some excellent suggestions and ideas. It is worth the read.

Well that is two posts down but I have a few more to go. I will have more for you in a little while.

Around the Blogosphere the Week of 12/14/08-12/20/08: Part I- Twitter Posts

2008-12-21T09:30:00.002-05:00

Here is the deal: This was a pretty good week for blawggers. We had the Madoff thing, the Blago thing, and well, lots of things. We have bloggers finishing their year off with ideas for next year, and we have best of lists for this year (including my Tony(c) Awards). I had some extra time for reading this week and thought I would give you the best of my week.

That meant culling well over 1400 blog posts and Twitter links galore. So I have decided to give you "the best of this weeks blogosphere" in a bunch of posts with various central themes. The goal is to get at least three out on Sunday, and as many as necessary to finish the project up on Monday. Lets see how we do.

We will begin with Twitter links.

These are links to articles I have seen because a fellow tweeter (a person who uses twitter) directed me to the post and I found it interesting. Many of them, as you might imagine deal with this new found information and social networking site itself.

1. The Year in Tweets- Mashable's Ten Biggest Twitter "Moments". My favorites were all the election tweets and the coverage from on the scene at Mumbia India.

2. This video about taking your office paperless was pretty informative but of course the devil is in the details. I am not ready for the paperless office. I need to hold something in my hand. I am becoming more comfortable with electronic storage however. I just get nervous about all the crashing and hacking. I may not be completely ready for the E-Generation, but I am trying
Hattip: Small Firm Resource Center

3. Andrea Cannavina is a friend and my virtual secretary. She has a website called Legal Typist and she is DAFT... No I mean she is teaching me DAFT, eh, well, maybe you should read her work yourself and see if it doesn't get you out of your e-mail disorganization. Follow Andrea on Twitter

That about does it for my favorite Twitter links. Oh yeah, you can follow me on Twitter too

Stupid Cops Are As Big a Threat To Kids as Stranger Pedophiles: Two Cases of Keystone Kops Actions That Will Scar Innocent Children For Life

2008-12-20T13:07:00.006-05:00

My first civil rights case, was on behalf of a Haitian kid who had the temerity to cut his grandfather's lawn while being black and wearing dreads... no joke.

Three dolt cops were looking for a car with the license plate WTZ 469 my client had a plate, WZT 469. The car they were looking for, a stolen vehicle, was a white SUV. My client's car was a green coupe.

They watched him as he took a lawn mower out of the back of his car, and started to mow the grass at his Grandfather's house. Then these dyslexic cops jumped out of their car, without identifying themsleves, jumped him onto the cement sidewalk causing contusions to his face, and set off a mini-riot as people were yelling at them for arresting an innocent kid. His mom (the rightful owner of the kid's car) pulled up and tried to tell these idiots that the car belonged to her. No matter. They slammed the kid into the vehicle so hard that his face broke the window!!

Backups had to be called in to quell the disturbance, and while that was going on one of the jerks calls into the precinct only to learn they had the wrong car. Now one would figure that such a finding would result in releasing the kid, apologizing and of course telling the kid to contact the department to pay for the damages to his face...Right.

No the cop on the radio informs the patrolman to switch to another "unmonitored" channel and then they have a conversation about how they better arrest the kid and the mother and charge something or they are going to pay a lot of money out to some "%^&ing Lawyer and the kid". So they arrested the kid and the next day his mom.

Case got dismissed and then I sued. Why? Turns out an amateur radio operator was "monitoring" the band the cops used to come up with the story that they were going to tell. There was an internal investigation... No charges brought. My case settled for just under $25k + free medical and attorney's fees. Kid was happy, and at the time, I was happy. Looking back, I wish we had gone whole hog on it, you know trial and all. On the other hand, it was the early 90's and pre-Louima so who knows maybe it would have gone no where and $25K was all we would have gotten. Maybe the press could have cared less. One thing I know, though is that this wasn't isolated in Nassau County NY and it sure as hell isn't isolated in America.

So you can imagine my frustration and anger at reading these 3 posts by Tony(c) award Winner in News blogging The Agitator's Radley Balko

The Dymond Milburn case (posts one and two) especially has my attention. Here is a 12 year old girl, black doing a chore on her own property in Texas. 4 plainclothes cops who are supposed to be looking for 3 white sex workers attack a little girl thinking she is one of the white sex workers??? I am sorry but WTF!!!!.

They are trying to take her away and she is holding onto a try screaming for help. They are beating her up with flashlights and she is afraid she is about to be abducted! Her father comes out and he is tries to explain to these "officers of the law" that the child is 12, a middle school honor student and not a prostitute.

His protests are met with: "I don't care if she is twenty-two, thirty-two or forty-six, tell her to calm down."

Ok, tell me why that asshole shouldn't be shot on the spot by the father? Maybe he had identified himself to the family at that point. Ok don't shoot, but still "I don't care if she is twenty two thirty two or forty six..."??? Screw him, all he wanted was to be in control of a situation that he caused to be out of control in the first place. Oh and did I mention they told her they were gonna shoot her puppy which had come to her aid with barking and biting.

Now for those of you who say that this is only one side, I agree and I still do not care...SHE IS 12. Can anyone imagine what would have happened if one of these Keystone Cops had a taser??

Finally it comes to an end, the kid goes to the hospital for her physical injuries which are fairly serious (two black eyes and wounds to the head consistant with being struck with a flashlight), and the Chief of Galveston Police sends her a dozen roses and an apology right? WRONG!!! No, they go to her SCHOOL three weeks later and arrest her in front of everyone else for resisting arrest and injuring AN OFFICER!! Geeez can they be more arrogant?

If you have the stomach for it, take a look at the complaint. Trust me, if you care an iota about what is left of Civil Rights in this country you better have a barf bag available.

Now even if the first part were entirely made up ala Tawanna Brawley, why did they have to arrest her at school??? SHE IS 12. What part of "12" do these dumb bastards not understand. Call her in, go politely to her home. Why embarass the child? Why is the Governor or Texas not sending his best Assistant Deputy Attorney General and his top State investigator down to Galveston with an order to bring him back some badges?? Maybe it is because Dymond is black, and her parents are poor, and so, well, maybe they think it will go away.

Has anybody seen this on the MSM??? Is Katie Couric focusing on this mess? No, but trust me, I have seen the power of Radley Balko's blog following, and there is about to be some hell to pay. I don't have his readership, but I too am pissed and I want some answers. I will be forwarding this post and a letter to my Congressman and asking that we fix 42 USC 1983 to give it the teeth it had before the SCOTUS and friends dismantled it.

As for the child, Dymond Milburn, she has nightmares about being carried off in the night and being raped by cops. Surprise!

BTW Balko got his story from the Houston Press

Then there is the attack on three kids when SWAT came into their bedroom... well maybe I will have more time for that one later. Oh yeah, the police are still shooting innocent animals too.

Tony(c) Award for Best Legal Technology Blog: Dennis Kennedy & His Blog Get an Award and an Honor

2008-12-19T19:59:00.006-05:00

From this day forward, the Tony(c)Award for Legal Technology Blogging is going to be named for its First recipient: Dennis Kennedy. Dennis is the author of the Dennis Kennedy.Blog

Dennis is responsible for starting me on blogging. It was an article he wrote for the Law Practice Management magazine, which talked about things that would be hot in 2004 that got me thinking about starting a blog of my own. Dennis was right about all of the things he said would be hot. Blogging was a great way for me to get my name out there and for others to think of me as an expert on the things I blogged about.

Over the years, Dennis became a friend. He encouraged my blog and my work. He continues to inform our profession about ideas, gadgets and processes to make our forays into the tech side of things easier. He makes technology fun for us non-techno geeks. He remains on the cutting edge of technology (see his twitter feed and his microblog) and he is a prolific author. He was actually holding tweet-ups before there was a Twitter by hosting blogger cocktail parties at the big tech shows.

Now I will be the first to admit, I don't always understand what Dennis is talking about. If you send him an e-mail however, he is always willing to help, which is actually a really good addition to a blog.

Finally, Dennis is a champion of bloggers. He started me on the idea of handing out an award for bloggers I file. His awards are called The Blawggies. That is what I mean, he has always championed the work of other bloggers. That is very cool, and generous.

I owe a lot to Dennis, and one of the ways I want to thank him for the difference he has made to my life, is to name an award after him, to honor his mentoring of me. So, from here on in, the Tony(c) award for Legal Technology Blogging is named the Dennis Kennedy Memorial Tony(c) Award for Legal Technology Blogging.

That Lawyer Dude to my Anonymous Grammarian: Good Grammer Ain't My Goal

2008-12-19T14:35:00.004-05:00

In a comment on the last post a poster posted:

Anonymous said...

Uh, why do you capitalize words that needn't be so? Why do you you write run-on sentences?

As an attorney you really should know proper grammar. This is kind of disturbing to read--for the crimes against written English, not for the content.

In response, did you look at the time it was posted? After a long day in Depositions I got to sit down at the computer and put together a rather long post, which I thought was one of my better ones. I was trying to explain how I came to be part of the Sex Worker's Rights movement, on the day (The International Day to End Violence Against Sex Workers)it was being recognized. I was, in fact, rushing, and I was not careful. That however is a cop out. What is "more real" is that I am a horrible writer and a worse typist. I am however a pretty good editor when I have the time. Sometimes I do, and other times I don't. If grammar is your thing, don't read this blog on any regular basis. It just isn't my thing. If understanding my take on the world and specifically on crime is why you're here, then please go easy on the grammar stuff. My feelings are easily wounded...NOT!!

BTW Thanks for taking the time to leave a comment. It is nice to know someone reads this stuff.

If you would like to read comments that have less grammar than my posts follow me at www.twitter.com/thatlawyerdude

Why I Support Sex Worker's Rights: Part I My Introduction to "Patty"

2008-12-17T23:24:00.010-05:00

I couldn't wait for my first case. I was a brand new "Lawyer" in Hofstra University's brand new Criminal Defense Clinic (we hadn't taken the bar yet but we worked under a student practice order while supervised by an admitted attorney). I was getting a case load, and a client or two that I could "help". I was so excited.

When the assignments were announced Doug Colbert (now a Prof at Univ. of Maryland Law but then first director of our clinic at Hofstra Law)had assigned me to a trans-gendered Prostitute!

I was stunned. I thought to myself "how am I gonna do this?" Not only was the guy gay, HE DRESSED LIKE A GIRL!! This was not what I expected. It was also going to be a great personal problem... How was I going to go home and tell my Father and Mother that the son they had spent a life savings on educating, was going to be representing "he-shes?" My Family was going to disown me. Forget my friends. They will all think I flipped! I mean I was Mr. Prosecution at school. I was so conservative, I had actually met and liked President Reagan (still do). "Oh and then what would happen to my political career if I took this case?" NO NO NO I could not represent this...GUY?!

I went to Prof. Colbert, Doug was cool, he would get it. He wouldn't put me with a client I was morally against representing! And I was right!! He wouldn't. He however pointed out a few realities to me:

1. I wanted to help people and my client needed help and a lot of it.

2. My Client needed fearless advocacy and I was fearless (I have no idea why, but this is still basically true. I rarely have ever cared what others thought of me, kind of funny now looking back and thinking I wanted to be in politics. I also always hated bullies.)

3. Morally, I needed to figure out if I could defend anyone, if my morality was more important than the "God given" rights in the US Bill of Rights.

Doug was thought provoking. I went home and spent the whole weekend thinking about what he had to say. I didn't tell the family about my new client. I did a lot of soul searching. I was the first in my Dad's family (along with my cousin Donald who is now a biglaw Corp. litigator) to go to law school. I wanted the others to think what I was doing was important. I figured if nothing else, if this got out I would get a lot of teasing. Well I could live with that. Dad on the other hand was a different story. He was CONSERVATIVE. I didn't think he would like this at all.

As luck would have it, my aunt Rosie, (who was in High School when I was born and is closer in age to me than to my mom, her sister) came over for dinner with my grandparents. She was very excited about her work. Rosie was a Medical Doctor (MD) and an Infectious Disease specialist. She was going to be a co-director of a clinic to help people who were very sick and dying from a "new plague" it was called Acquired Immune Deficiency Syndrome (AIDS). She was describing some of her clients and the work. She was way ahead of the reporting on the matter. She was telling us about how it was a scourge of the Gay community. She described the suffering of these people. The fear, the ugly death. Her frustration with the lack of funding because it seemed to be a disease that homosexuals got. No one wanted to come out and help them. I asked Roe, who is very religious, about whether she had qualms about helping "that group of people." She mentioned that our religion left judgment up to God. That all of her clients were God's children. I thought about that a lot too.

When dinner was finished, I took Rosie aside, and told her about my client. She was so excited for me. She was happy that I would use my talent to help people others had abandoned. With her encouragement, I told my dad I had a client. I told him about the crime, and about the client. Then I waited. He looked at me and then he said, "Everyone deserves a defense."

Now for most people that line wouldn't have sounded too good, but dad was a man of few words, and that was a full out message of support. I promised him that he would get the best defense anyone would give him. Dad's response was perfect... "Good,sounds like he needs it. Do the best you can". I was very happy, that was a huge hurdle. He probably wasn't happy with the situation, but at least he would support me in the endeavor.

I thought a lot about this client. A lot about how I would act when I met him, a lot about what I would say in his defense. The following Monday, I told Colbert that while I was still somewhat uncomfortable, I wanted to try to represent him.

When I met Patty, I immediately became angry. She described her treatment at the hands of the Johns and the Cops. She told me about how they would abuse her. How she was often the victim of crimes from johns, gangbangers (who wanted to prove their "manhood") and how if she went to police, they would beat her up, berate her, feel up her breasts (she was pre op) and toss her out of the precinct. Her family was completely repulsed by her. Worst of all, she had a bad drug problem, yet she was not allowed into the local clinic. They were afraid she might be carrying "the virus".

This was the most marginalized person I had ever met. Black, gay, transgendered, abandoned by society, family, government. She had no one. Well she had me, and my friend Sab who was co-counsel. Neither one of us had passed the bar, neither one of us had ever been in charge of a case before, and neither one of us were ok with Patty's sexuality, but we were sure that we weren't going to let her get run over by the government again.

We went to court that week and told the judge we weren't going to accept the plea offer to the charge and his "generous offer" of 30 days in jail. We were going to call the john as a witness and we wanted motions and hearings. He thought we were nuts. We brought him a subpoena for police records and we even filed a motion to declare the law she was arrested under unconstitutional.

In the end, the District attorney's office offered to allow Patty to plead guilty to "Disorderly Conduct" and the judge agreed to a fine of Two Hundred Fifty Dollars. Sab pointed out to the court that Patty would have to give 12 blow jobs (they went for Twenty dollars each on the streets of Hempstead back then) to afford the fine. I pointed out that it might cause a lot of people to become ill. The judge thought about it, asked how much she had in her purse and accepted the forty dollars she had. She then said she wouldn't have bus fare back to Hempstead. Sab joked loud enough for the judge to hear, that she could probably make a fast buck at the bus station around the corner from the court. The judge lowered the fine to Twenty five dollars and Patty walked out thanking us and promising to tell all the "girls" on Main street about what we accomplished for her.

I went home that afternoon and waited for dad to get home from work (he owned a construction company.) I couldn't wait to tell him how I did. I told him everything. He beamed in that quiet way of his. Then he smiled, "Sounds like you guys did a great job" He got up, and walked to the dinner table, and we had dinner, and Dad encouraged me to tell mom about my day. She wasn't comfortable with my decision to go into criminal defense, and she was not into my representing poor, transgendered/transvestite, male prostitutes, but she followed dad's lead and congratulated me. She added that she hoped my next client was more "normal", and we went on to dinner conversation that was more appropriate for supper at my family's house.

As a kid growing up, I guess I would say I was mildly homophobic. I wasn't against them per se, I just wasn't comfortable around them. I had no interest in hurting them, I just wasn't interested in their problems or issues. Patty was the first step in a career where I have represented many people who work in the sex industry. My comfort level and acceptance level rose as I began to realize that I liked some of them and didn't like others. Some were good people and others were not. I learned they had dreams and hopes, same as me. I found myself mourning a lot of these men and women as AIDS decimated the community. I find that I miss many of them.

Now that my career has taken a turn toward more "normal" clients I still cannot forget the men and women who work, either by choice or happenstance, in the sex industry and who as a society we continue to marginalize. I know from dozens of first hand observations how that marginalization, makes them exceptionally vulnerable to crime, medical issues, suicide and homelessness. I also refuse to turn my back on them. I still accept their cases in court assignments and for those that are more "successful" I take them on as private clients. I have instituted office policies and trained staff not to judge their lives or choices. I want to make the experience as comfortable for every client as I can. I have learned to work in a team approach with doctors, therapists and others to handle these clients as best as I can.

To this day, I hear my dad's voice, accepting my choice to use my education on behalf of anyone who the government has targeted. I do the very best I can.

Today was the The International Day to End Violence Against Sex Workers. There were walks and vigils attended by anywhere from a handful of people to thousands.

Next Monday would have been my dad's 76th Birthday.

Today, I honor both of these events. And Dad, I still miss you, everyday.

Happy 50th Birthday Dr. David Leach of the Tampa Eye Clinic.

2008-12-15T17:04:00.007-05:00

On my drive up to Albany NY yesterday, I received a strange text message on my cell phone. It said
"Hello. We have not heard from Fred. Any word on whether his cell is operational?

I noted the area code number and wondered who I knew named Fred. I only know one person, my son's roommate at College. I had no idea if the person was talking about him or why he might be texting me. As it turned out, the texter was Fred's dad whom I have heard quite a bit about but haven't met. Fred and Sal have roomed together since Freshman year. They are juniors. As dads we both were happy that they had found each other, as the two boys seemed to be good for each other.

After the call, I thought about 1977 in cold snowy Boston. My College roommate at Tufts David Hayes Leach. He was a lanky basketball playing kid from Michigan's U.P. He is now a Eye surgeon in Tampa, Florida. We don't see each other much, but it doesn't matter, he will forever be a brother to me. I grew up with a sister I am very fond of, but it wasn't the same thing. In Dave (we used to call him Doc b/c that was his undying goal) I had a confidant, a sounding board and a partner in crime.

We had different majors and goals so there was no competition. We had each other's back. We were very different. People couldn't figure out how the hell we didn't kill each other. Dave was a tall slim blond haired boy and a HS basketball star. I was shorter dark and rounder and I led the pep band in HS and was in the choir. He was quiet, I was outspoken, He was neat, I was sloppy, He studied all the time, I studied when I had the time.

Nevertheless, We got along because when it came down to it, we lived by the same code. We treated each other the way we wanted to be treated. We kept our word to each other, and there was no question about what we had promised, because we both went beyond what we would promise. We treated each other with respect. Yeah we had fights and arguments, but we always tried to see the other guys point, at least after we calmed down. We tried to work it out before we went our separate ways. We both realized how lucky we were to find a roommate who was as good as the one we had found in each other.

We were generally interested in each other's family. I really enjoyed talking to his sisters, brother and folks. My folks and whole big Italian extended family adopted him. I never came back without a care package of NY Bagels and fresh Mozzarella wrapped around Prosciutto for him to melt on the bagel for breakfast. If I bought supplies, Dave bought dinner. If either of us had a party, we always invited the other. We might argue between ourselves, but to the world, we were a united front.

After graduation, we stayed in touch. I married first, and Doc was my best man. He is also my son Salvatore's Godfather, a very honored position in an Italian family. As MaryRose and I went through our marriage, I always had Dave to run ideas past.

Dave married a few years later and has two beautiful children. I am sure neither of us had anything to do with how beautiful the kids are. Thank Goodness we both married beautiful women. Dave's wife Nancy had to get used to the uh "interesting" ways we would greet each other on phone calls or messages (we had to stop after we both had kids...)I was in his wedding party, and MaryRose and I were treated at the wedding as if we were part of his family.

I was in Tampa recently. Our schedules were impossible, but Doc got up really early to take me to breakfast and show me around Tampa. I saw ads on signs that told others about Dave's skill in eye surgery. I saw the awards and heard the accolades. No surprises there. Even a blind gypsy would have predicted Dave's success.

Today, Dr. David Leach, turned 50. Our relationship has lasted more than 32 years. I am in cold wintry Albany tonight. I wish I was there, but my thoughts are with Dave in warm Tampa Florida, and his beautiful family. I miss my brother, but I know, that the next time I pick up the phone and he is on the other end of it, I will be talking to my brother.

HAPPY BIRTHDAY DOC. Nancy, take care of the old guy, we can't have him falling out of his chair, he might break something he needs...

This Week Around the Blogosphere: Good Trial Technique Suggestions and the Case of Julie Amero.

2008-12-15T07:30:00.000-05:00

I know I am supposed to get this out on Sundays but with the Tony(c) awards and the Giants and Jets both in first place in their divisions and my weekly haul up to Albany to handle Depositions in a Civil Rights cases there, I am a little behind. So lets get to them.

Blonde Justice has started a series on trial prep. Blondie usually keeps her posts light and talky but she is clearly a good attorney and has a lot to share and I am always happy to see her share her valuable knowledge with us.

In Reason Magazine online, TONY(c) AWARD WINNER IN NEWS Radley Balko hits a home run with this post on the strange case of Julie Amero, the middle school substitute teacher accused of endangering the welfare of minors when X-Rated Popup ads for X-rated websites kept attacking her computer at school and she couldn't or didn't shut it down fast enough for the kiddies not to see (wonder how many of these suburban yuppie kids have the Playboy Channel plugged into their homes on cable?) Anyway, when the techies found out that the poor lady might go to jail because she had malware on her computer they helped her fight back against the puritanical Conn. State's Attorney's office. They won. Balko was a part of that fight. After looking at my stat counter from last week, it seems he is a good guy to have on your side.

As a lawyer who is constantly fighting the fight to keep good people from being labeled sex fiends by Megan Law Crazy prosecutors, in the latest Internet sex persecution, I mean Prosecution, scam, I appreciate the work done in the Amero case by the experts who came to her aid. Read the article. It is a good one.

Prolific blogger and lawyer Robert Ambrogi has put up his list of the Top 10 Expert Witness cases of the Year 2008 here. I would like to add the case of Shorty Rodrieguez where yours truly kept the governments ballistics expert from testifying on "muzzle to wound" Distance in a gun-shot case.

Winning Trial Advocacy Blog has this very good advice about taking time each month to look at your active files and make sure T's are crossed and i's are dotted. It may seem like simple advice but it is a good idea to do a regular file review and see what you have missed or what else you can do on a case. It will certainly impress the clients that you are so up to date on their files.

Last but not least was this macabre and odd little story in Time Magaizine online, about an actor who almost killed himself onstage when someone put a real knife out where the prop should have been a fake knife. In the play the actor slits his throat but this was for real.
People just didn't know it. Scary.
In the actor's next role, his character dies by gunshot wound to the head... as Time suggests, Someone ought to check out that gun first...

Ok most of the leads for these stories come from Twitter. If you are not on Twitter.com, What are you waiting for???" and if you are on Twitter, YOU BEST BE FOLLOWING ME!!! LOL

Tony(c) Award for Best Relationship and Sex Blog: Sex, Lies and Dating in the City

2008-12-14T12:20:00.000-05:00

I had such a huge boost in readers after announcing that The Agitator was my favorite News Blog. If you are still reading me after visiting from Radley's blog welcome. Stay around and let me know what you think.

Today I am announcing my Favorite Relationship and Sex blog.
Now this is a very difficult category to choose because each blogger is really telling their own story. There is the heartbreaking story that is Rebecca Deos outing as a sex worker and how she and her family are being attacked in her small home town.

Then there is the very compelling story of the Debauched Domestic Diva telling the story of her going from seemingly happy housewife to an affair with another blogger that almost tore her marriage apart. Diva's journey to understand her marriage, her needs and her world are riveting. It read like a novel. Read it from its first post.

There are actually dozens of these personal glimpses that are well written and cover the gamut from sex worker to people learning about their own sexuality or relationships.

Some of the writers I read are friends from work. I know them from the clubs I represent or from e-mails they have sent to me seeking legal advice about their work. Others I haven't met but have befriended on Twitter or through their blogs or from my support for Sex Workers rights. In fact the blog supporting the NYC SexBloggers 2008 Calendar is one of my favorites. These additional ties make this a very tough decision.

In the end though, I chose to honor with a Tony(c)Award Sex Lies and Dating in the City.

If there is anything a man wants to know, it is what is in the mind of a woman. How do they see us? What are they feeling?? Why do they freak out when we check our e-mail on the dating site we met them on???

Well while the answers are not spoon fed to us, SINgleGIRL (the anonymous blogger who writes the blog) speaks her feelings and her truths about dating and life as a cosmopolitan single girl. It should be required reading for all young men. Old men (like me) can learn a thing or two about women too.

SLD is a well written blog that exposes the writers disappointments excitement and realizations about the dating scene. As her name says, she is not too shy about sharing the SIN in SINGLE either. Now she has added the HNT (Half Naked Thursday) posts we see that in addition to being smart and witty, she is also quite pretty. (Don't worry, while provocative, they are SFW.)

SINgleGIRL is beginning a new relationship. Mr. Potential seems to be making some good moves although the bozo better stop checking out his dating site e-mails. Now is probably as good a time as any to check out this blog.

SINgleGIRL. you are the Winner of the Tony(c) Award for Relationship and Sex blog for your blog Sex Lies and Dating in the City.

Just Some Interesting Links

2008-12-12T07:12:00.000-05:00

A court found a 91 year old man who hallucinates due to dementia legally able to stand trial on a murder. He killed a nursing home attendant who happened to come into his room. He thought the guy was an intruder. God Bless the Criminal Defense Lawyer in that one.

Hattip: ABA Journal News Now.

Haven't blogged about the sale of the Obama Senate seat. Why? Cause everyone else has. I did wonder why I hadn't seen a high profile NY Washington or Chicago White Collar lawyer on the matter. This post From the Online Wall Street Journal tells us. The Governor of Illinois can't pay his legal bills.

Finally I found this interesting piece on adult entertainment and law. It deals with how feminists can impove the Porn biz. What I find interesting in it is that here is another pro-sex Feminist. Like Camille Paglia, Tatiana Von Tauber is saying that feminists that rage against women in porn are not any more interested in women making decisions about their body than Phyllis Schlafly. They just want to control them in their own way. If Feminism is to mean anything, it means that women have the same rights to use their bodies any way they want the same way as men can. Take a look and tell me what you think.

Hattip: The Legal Satyricon.

NYS Democrats Should NOT Be Given Gun Permits. They Have a Habit of Shooting Themselves in the Foot: NYS Senate May Not Have a Democrat Majority.

2008-12-12T07:00:00.002-05:00

What an interesting time to be in Albany.
According to yesterday's NY Times, last night the "agreement" that would have kept the 3 renegade NYS Senate members in the Democrat caucus has broken up with allegations of lying, cheating and misrepresentation going back and forth between the Renegade 3 and Senator Malcolm Smith, who was the Senate Minority leader in the last session but was due to be the President Pro Tem in the new Session and thus the "Majority Leader" (one of the three renegades known as the Gang of Three would have held the title but we have to assume Smith would have been the real leader.)

I didn't like the deal between these three guys and Smith. Then again I am not crazy about Smith as leader either. Smith is no David Patterson (who was the minority leader until he went to the Lt. Governor's job and was promoted to Governor when Then Governor Elliot Spitzer resigned after being caught in a Federal investigation into prostitution...and you think Illinois is a screwed up state. I just think it is less interesting than NY politics).

Unlike Patterson, Smith carries a band with him everywhere he goes. There are little secrets when Smith is around. He is not a classic dealmaker(here is proof)because he has not proven to be trustworthy nor can he keep his foot out of his mouth.

On the other hand, Sen-elect Pedro Espada (who said Smith wasn't ready for prime time) has some nerve criticizing anyone. He barely missed getting indicted last time he was in the Senate, he owes 50K in fines for his last campaign.

I have been active in politics however for nearly 40 years and through that whole time, the NYS Senate has never, NEVER had a Democrat majority. If you are a Democrat Governor, this is not a good time to blow that. You may not get that Obama bump in your election and you could get saddled with the NY Economic situation. Moreover, if the Governor is going to go along with East River tolls, and screwing Long Island on School aid, Dems are not going to hold the Senate long unless they can capitalize on having the majority now.

Now from my end. I am hoping that the Democrats lose the Senate leadership, and that my former "colleague" Dean Skelos takes over as Majority leader. Dean has been groomed for the spot, is easier to get along with than his predecessor (Sen. Joseph Bruno) and is from Long Island. But this isn't about my interests. (I am just stating them so no one can say I had an altierior motive in writing this post)It is about the future of the Democrats in the State Senate. The Senate change will move power in the Senate to the cities and away from upstate and Long Island. It will focus all three players in Albany politics in the hands of the Dems, and in a month or so, Patterson is to name the chief judge of the State Courts too. Further, with another census about to come (2010 is a census year) Dems can control the district lines giving them the opportunity to control NYS Politics in the Legislature for more than the next 50 years.

So far, the Senate Democrats look like a bad circus led by a clown. I don't doubt however, that David Patterson, a strong politician and the Governor, will put this together. How he does it, I have no idea yet (He may need to move Smith into his administration and give the Pres. Pro Tem to Senator Klein, a far more savvy pol than Smith in my humble opinion, but the end of this is far from in sight.

I will be back in Albany next week working right next door to the zoo. I will let you know what I hear.

Announcing The Tony(c) Awards : That Lawyer Dude Honors His Favorite Blogs and Podcasts. Today We Honor The Agitator Blog

2008-12-10T19:43:00.006-05:00

Over the course of the next 21 days I will be slowly, tantalizingly rolling out the Tony(c) Awards. Instead of one big post on all my favorites, I do it the way the Nobel Committee does it, over the course of a few days. Why?
1. It gives me a lot of posts and one never knows when I will announce another so maybe I will coerce a few potential winners into reading and commenting on the blog over the last few weeks of the year, and
2. It is my award and I can

Now, less anybody here believe that the (c) is a copyright or that I am laying claim to the Awards that honor Broadway's greatest shows (which btw is a far better show than the Oscars and Grammy's and all the other garbage award shows put together) I am not. It is just that as many of our readership knows I sign off on most of my e-mails with the end TonyC. and since that is my name and my sign off, I thought it would be apt to name these awards that way.

In case anyone is wondering why I of all people should have an award named after me, or better why anyone should care who I think blogged best this year, I will point you to this post by one of my Blogging mentors Dennis Kennedy who each year gives out his Blawggies. (Find it in the 12-26-04 post at the end.)

Now if you don't want to read the blogs I read, or if you think this is a bad idea, or a good idea, give out your own awards and give a link to a deserving blog or blogger.

For my First Tony(c) Award 2008, I am going to give a big Shout out to:(Cue the drum roll please)
The Agitator which is my favorite blog about Politics. If you aren't reading Radley Balko you ought to be. He is intelligent, conservative, and he is controversial without being shrill (Malkin you listening??). Most importantly he is funny. Funny is a good thing. I like a blog that can make me laugh and think at the same time.

So the very First Tony(c) award goes to Cato Institute and Reason Magazine's favorite bad boy The Agitator,and its real life voice Radley Balko.

PS. Help Radley to keep blogging buy the button/magnet shown on the top of this post by clicking here and following the instructions. It only costs a couple of dollars. Come on the kid needs to eat.

Inspector General Finds Health Dept. Investigator Stomps on Rights of the Accused: Forget the Miranda Violations HE IS A PARKING VIOLATOR TOO!!!

2008-12-08T07:45:00.005-05:00

This story is sad. We have an investigator in the NYS Health Dept. (which oversees the Dispensing of drugs) who has a thing for pain killer lollipops. He also has a thing for violating the civil rights of people he arrests. (He goes after Docs who write bad scripts and patients who try to use forged prescriptions). He actually told one poor guy who demanded a lawyer "We NEVER had this conversation". Thanks to the poor management and convoluted reporting of the Dept. this out of control maniacal investigator ran the local Manhattan office using fear as his main weapon. Everyone there was afraid of him.

So how did it come to an end? How did it come that the Inspector General finally stepped in and ended this Reign of Terror??

Turns out the guy abused his parking pass privileges one too many times, came to the attention of a reporter at the NY Times and viole` he was brought down faster than Marie Antoinette's head hit the basket.

Moral of the story?: NEVER screw with the Parking Meter Lady.

BTW Prosecutors are now looking at the cases this guy brought to see if anyone was wrongfully convicted... I bet I know how that will turn out.

Photo Credit: www.phawker.com

That Lawyer Dude Is Coming To You Cryogenically From Albany: It's Not the Temperature It's the WindChill

2008-12-08T07:00:00.001-05:00

GOSH IT IS COLD HERE.

I am in happy Albany,NY home of the State University, the Govenor's Mansion, The NY Bar Association, and the NY State ZOO (um I mean Legislature.)So I thought I would rumble through a few thoughts about the happenings in our State Capital just to keep warm.

First we have the NY State Senate. It has changed hands from the Republicans to the Democrats. That gives us a Democratic Govenor, Senate, Assembly, 2 Democrat US Senators, and a Democrat President. OK, I hated Bush and Pataki too, but I have a feeling that all this power in the hands of one party is going to spell DISASTER.

So too do the people of Upstate NY who with Long Island are about to lose a lot of "say" over things in this state over the next two years. To allay those upstate fears our new State Senate President Pro Tem Malcolm (I can put my foot in my mouth almost as often as Joe Biden)Smith, is going to appoint a political ally from Buffalo to the powerful? position of Deputy Majority Leader. Smith has to do this because Senator William T. Stachowski (Stach to his friend) is losing his seat as Chair of the powerful? Finance committee to incoming Senator-elect Pedro Espada Jr.

Now you may ask, how does a rookie Senator get to be the head of the most important committee in the NYS Senate? Well you threaten to leave the party that just elected you and join with two other guys to keep the Republicans in charge. Now of course, the appointment of Espada and one of the other turncoat democrat Senators causes complete turmoil because it effects people who have worked for the right to head committees and hold party political postitions. If you read this article in the NY Times you will catch right up.

Now one more thing about Mr. Senator Elect Espada... He hasn't filed his last 5 FIVE Election Finance Reports... Tell me this is not going to end badly.

Oh yeah and one more thing... Senator Smith, it is time to empty the litter box in the Donkey's cage. It's already starting to smell.

Picture Credit to Mountain Visions' photostream @Flicker.com

Revisionist History Lesson: Mauro on the Nixon Library Releases Tape of Nixon-Burger Phone Call

2008-12-07T11:21:00.004-05:00

When I was in College, I had a Professor named Parkman. He was a phenomenal teacher. Right out of central casting. He could just as well have been at the Louisiana Purchase as written about it. He had to be 115 years old (or so it seemed to me as an 18 year old Freshman).

Anyway Professor Parkman wasn't one to get excited about much. The one thing he was excited about however were the "Revisionists". A "Revisionist" was someone who looked at history but through the light of how he wanted it to be and not report it in the light it was created. (check out Wikipedia's links for a more complete look at "revisionism" both positive and negative)

I can hear Parkman "railing" as I read this post on the release of a taped conversation between President Richard Nixon and then SCOTUS Chief Justice Warren Burger (who Nixon appointed to the high court as CJ.) It seems that Tony Mauro could not help but to express that Nixon and Burger were engaged in a conversation that would be "frowned upon". They were discussing the Miller v. California 413 U.S. 15 (1973) case which set up the "community standards test" for obscenity.

In fact, not until after Watergate would it be frowned upon. At the time of the phone call, both men led separate branches of our government. It was not even "frowned" upon for POTUS prior to President Ford to speak to SCOTUS Justices, especially the Chief Judge, for opinions about how certain initiatives would fair if brought before the court.

Listen to the conversation, it doesn't seek to nail Burger down on the issue although Burger himself opines that he is "coming down hard on it". It is a general conversation about the work that the judicial branch is involved in. Nixon being a lawyer, and a bit of a gossip, wanted to talk shop with a colleague. He had worked with Burger during the campaign in 1952 and was there when he was appointed by President Eisenhower to the bench. Nixon elevated him to the Chief Judge's spot. Is it hard to believe that they had a professional friendship? Nixon had argued a first Amendment case in 1966 before the SCOTUS. It was an area of law both men felt was important from an academic as well as a political point.

After Watergate, the court took on a more important role in everyday politics, hitting what I hope was its zenith in Bush v. Gore. Until then the Court generally stayed above the political fray though individual justices were always political beings. I agree that for better or worse, this type of conversation would be frowned upon. I am of the opinion it is for the worse. Nevertheless, to place 21st century mores on a 20th century conversation and suggest something nefarious where such conversation was de rigeur strikes me as not only unfair, but dare I say..."Revisionist".

By the way I think it is interesting that Ron Howard's Frost Nixon(link is for the trailer) is coming out this month. I have no idea what to expect, but I cannot wait to see it.

Hattip: Law.Com

PS Thanks to the Nixon Library for a link to the tape and to Findlaw for the Miller case, and LII for the link to Bush v. Gore.

My Final Words on Blogs, "Blads" and Other Forms of Legal Marketing

2008-12-03T16:11:00.005-05:00

Certain legal bloggers led by a couple of people I hold in moderately high regard, are ticked off about what they see as a proliferation of Blogs that are not conversations but are in their not so humble opinions "advertisements". These "BLADS" are annoying to them because:

1. they aren't about substantive issues they are more along the lines of "Hey, hire me I'll set you free."

2. They do not add to the quantum of knowledge or foster discussion about the law and,

3. They ( these "Bladders") make it look like lawyers who blog are hucksters.

I concur with both points 1 & 2 and I understand that those types of blogs are not really helpful. I will also not allow spammers to leave messages and I will not allow "nonsense" on this site.

I vehemently disagree however with the third reason that is put forth against "Blads." I do not see how these Blads effect how anybody else looks at me or my blog, any more than allowing Homosexuals to get married makes my marriage look cheap.

I do not consider my blog a "blatant marketing blog" and I too don't like the "Call me and get out for free" bloggers. On the other hand, I have no problem with someone who occasionally says on his blog, "Hey I do this type of work and I would like your case if you have one." I have said that in the past on here but not recently. In fact I think it is a duty of the bar to let people know there are honest good and hard working lawyers willing to take cases on.

Now I also don't have a problem with the guy who writes for the love of teaching. In fact that is what led me to blogging. I just think that guys who do that, who aren't teachers and who then take cases from the blog, need to realize that the blog is a marketing tool. A well written blog tells people a lot about the author, a lot more than the client learns about a lawyer from solely reading a website or a yellow page ad.

Look, I like Jazz. I like that Coca Cola sponsors Jazz at Lincoln Center. I like that they don't come on before every song and say "Have a Coke while you listen to Wynton blow that horn and smile." I am also aware that if I buy a drink at JALC, I am going to get a Coke product. Now I may buy a Coke product if I am outside of JALC, just because they give money to a cause I care about. Their subtle marketing in that situation works. That type of marketing is not the same as the Coke Commercial during American Idol. One is sublime, the other is in your face.

Now, I don't know of any real blogs, indexed and respected blogs, blogs that have been cited by other lawyer's blogs, that are no more than advertisements for their authors services. I get newsletters all the time from colleagues that talk about their wins and analyze the legal news and mention themselves in the article. I don't consider that sublime, but I don't think it is advertising either, it is in a in between state.

Finally take a look at one of my favorite blogs, DUI Blog by Larry Taylor. DUI Blog is one of the most informative blogs about a single subject that I have ever read. To that end, in the upper right hand corner of Larry's blog is a picture of him as a talking head on Court TV. If you click it, it brings you to a page that says Larry Taylor is the "Dean of the DWI Bar". Isn't that marketing and maybe advertising?

And what of the blog of that great anti-marketer from the Big Apple Mr. Scott Greenfield himself? I notice he still has not explained why I am a marketer but he is a writer, when his blog links directly to his webpage and he even tells readers that reading the blog doesn't equal him giving legal advice, but if you pay him then you may have the advice. Come on, is that not a fairly blatant attempt to say "Look, if you like what I write, this is how you hire me?"

And what of Mr.Bennett's banning any blog(ger) that has a so called "Call to action" on it (The outright "If you want to hire me, click here and it will take you to my website)? I am not offended by this type of blog and I will link to a commentor who has such a blog, as long as his blog posts have some value in explaining the law to lay readers or lawyers. If you have something to say, then I am willing to let you let others know you have something to say by allowing NAY encouraging you to comment here.

Frankly I am tired of this fight. It isn't my fight. I don't care what others are doing on their blogs. I am doing what I want on mine. My blog is a conversation. Anybody who wants to add to that conversation is welcome to do so here. I am aware that what I write is being read by my adversaries, my enemies, as well as my friends family and clients. It is also being read by writers and newspeople. I guess it is being read by potential (and I hope future) clients.

They can follow me on Twitter but they cannot log onto my website from my blog.Does that make this less of a marketing tool than Greenfield's or Taylors blogs? No. It is just a different degree.

Nevertheless, I am going to brag about my victories and whine about my losses. I am going to grab my soapbox and hope it holds me up as I say whatever the "You KNOW WHAT", I want to say. I will let others do that too as long as it is not a flame post, or a spam post, or some type of rubbish that only spammers know why they put it there.

If that means that Greenfield, Gideon, and Bennett don't want to blogroll me, then fine. If they do, that is fine too. Oh and if you leave a comment on my blog, I won't edit away and I won't attack you. That goes for BLADDERS as well as for all the rest of the "non-admitting marketing attorneys who write blogs but delude themsleves into think they are writing for a law review."

The only non-marketing lawyer-blogger I know of, is the person who writes Blonde Justice. She is anonymous. after all the garbage about this topic, I now know why...

You can follow me on Twitter, by going to Twitter.com/thatlawyerdude. Try it, you may find you like it. Oh yeah, please go to the ABA Top 100 Blogs and vote for Blonde's blog, she wants to win, and I like it when Blonde is happy.

More Lists From That Lawyer Dude: Ten Poignant Final Photos and Two Lists of Important Blawgs. On One You Can Vote For Your Favorites!

2008-12-02T21:37:00.004-05:00

This is a quick hit. I was sent the link to this site after my blog roundup on Sunday. I love lists. I don't know why. While I was looking around, I saw this list of the last photo's taken of famous people. Though they did not know they would die soon after taking these pictures, there is a haunting aura about them as we know what is about to happen. I don't like to be maudlin, but I liked these portraits very much. What do you think? Have you thought about what you would like to do in your Final Photo?? I

Let me know what you think your's will look like in the Comments Section below.

While we are on the topic of Lists, Two Lists came out yesterday featuring the best of the law Blogs or BLAWGS.
One by E-Justice is called "The Top 50 Internet & Digital Law Blogs"

You will see some duplication with the "Top 100 Blogs of 2008" by the ABA Journal Law News Now. If you go on the site, you can vote for your favorites. I am following about 35 of those blogs in my RSS feed (I use Google Reader for law and news, and Opera Feeds for everything else.)

Do Not Support Mother's Against Drunk Drivers: That Lawyer Dude Responds to a Request for Financial Support

2008-12-01T21:03:00.003-05:00

My friend Bob Kraft is a great lawyer and great and giving guy. Why just a few months ago I paid good money to get his rear-end out of jail on bail, as a fund-raising gimmick for MDA.

Bob is a man who not only gives his time and money, but his name to charities. That is why I hesitated to respond when he posted a plea for money on his blog P.I.S.S.D. (Personal Injury Social Security Disability Blog). (Further proof that not only is he a good guy but has a warped sense of humor.)

After thinking about it for a while I decided I could not let it go, so I posted a reply. I repeat it here in case any of my other readers are thinking about wasting valuable charity dollars on a group known as Mother's (they aren't) Against Drunk Driving, a now multi-million dollar fraud on the American public.

Robert I love you but you have got to stop drinking the kool-aid with this one. MADD has gone so far off course that even its own founder won't have anything to do with it.

Money to MADD goes to paying the over-inflated salaries of its humongous staff. A staff by the way which perpetuates itself by making false claims about how many real innocent lives are taken each year by Drunk Driving.

MADD makes more than Fifty One Million Dollars ($51,000,000) a year and pays its executive director over a quarter million dollars a year. Most Executive directors of charities earn far far less. Staff for MADD is nearly 45% of its budget.

Additionally it has one of the lowest efficiency rankings in the Charity Navigator's rankings. (www.charitynavigator.org) Over-all it only has a rank of 2 out of 4 stars. The American Institute of Philanthropy gives it a "D" (A+ is the highest).

The continue to perpetuate that drinking and driving is a crime (Drinking and driving intoxicated is a crime) and they continue to try to lower the BAC for legal driving where in fact there has been little proof that .08 is an accurate figure for such a criminal charge. They also support laws that are designed to keep people charged with DWI and DUI from having lawyers and laws that are designed to further shore up their view that alcohol should be a banned substance.

MADD as presently constituted is nothing more than a lobbyist group they are corrupt and they publish false and misleading studies. They are at the front of a movement to keep real science out of the courtroom so as to support their positions and salaries.

NO BOB do not be fooled. MADD IS NOT A CHARITY WORTHY OF YOURS OR ANYONE ELSES "SUPPORT".

If you wish to follow me on Twitter, log into www.twitter.com/thatlawyerdude. Please be careful, Twitter can become an addiction.

Some Fun on the Blogosphere: Kicking Back

2008-11-30T21:10:00.008-05:00

Photo courtesy of The Perrysteins (Congratulations on the Baby!!)

This has not been a relaxing start to the Christmas season. Today was the first Sunday of Advent and I am not thinking Christmas Music. I am thinking death, destruction and doom. Hence it is time to change the Music in my head. Here are my favorite pick me up posts from this week.

Speaking of Music this post teaches you how to pimp out Pandora which is a pretty neat music site. Entitled 15 ways to get more out of Pandora. The writer saves a little surprise for you if you read the article to the end.

Staying on lists I thought these two posts were interesting:

A. This one has 8 hints on how to be a better blog writer. I will do my best to follow each of these tips. Hattip Copyblogger.com

B. This Post gives you a list of things you need to know to map out a successful marketing strategy. I think this one is not meant for guys like me, but it has a few ideas if you are marketing against another firm. I try to stay above that and market with less focus. Maybe I ought to rethink that. Hattip: the Rainmaker Institute

Here is bonus list:

From Matt Homman comes the list of Ten Rules of Legal Technology. Remember this you techie lawyers. There is some sage advice in these rules
Hattip: The Billable hour, which is where these rules actually came from. To the Person or people who write that Paralegal Prof site, learn to attribute. It is one thing to link or even republish, it is a whole other thing to Plagiarize!

Ok, moving right along, Blawgger extraordinaire Robert Ambrogi's Lawsites blog has the Top Ten List of ESSENTIAL PODCASTS FOR LAWYERS. I know that Robert's podcast Lawyer2Lawyer is always a very interesting show and he also acknowledges Monica Bay's Law Tech Now and the ABA Litigation Sections podcast as well. I have an Apple Ipod. Time to start downloading.
Hattip: Robert Ambrogi's Legal Lines

My last list post is my favorite list. It is the Fifty Things You Need To Know How To Do. The post names the 50 things and then links you to websites that explain how to do them. I already know how to do 20 solid and 10 more I am more than familiar with, however I could brush up. See how many you know and see if you think there is anything that should be added to the list. Let me know how you did. Hattip Marc and Angel Hack Life

Updated to reflect Matt Homman and the Non-Billable Hour blog as the true author of the 10 Rules of Legal Technology. Sorry Matt, Thanks for letting me know.

Porn Stars In the Classroom, Hookers Right Next Door, Here I Am Stuck In The Middle With You

2008-11-29T14:36:00.007-05:00

This story and this blog post caught my attention. In their own way, each is about the same thing. Unlike the way sex workers are portrayed in the movies or on TV (especially during a "sweeps" month), most of the people in the trade are not really different than the person in the next apartment.

In the news story, a woman who earlier in her life was known to the world as Crystal Gunns, a porn star, was unwittingly hired by a local school to be an aide. She works part-time. She earns less than Six Thousand Dollars a year and works on the play ground and as a lunch aide.

Now though she is not shy about her past, she has also put it behind her. She is 32 now not 22. She may be a mom. I don't think I would have named her for others to deride her, as she has committed no crime but only sought to earn a living. I know had she been in another business the press would not have named her.

Parents want her fired. The Superintendent of her school district wants to fire her too (

Superintendent Charles Ottinger, who is of the same mindset as (Principal)Giordano, says they have been advised against firing the teachers aide, “Not that we don’t want to.”)

It is just that you see, Ms.Gunns would be able to sue the living daylights out of the school district. After all, what has she done wrong? Adult films (as opposed to Pornography) is legal. It is also a way that some men and women make money. Sly Stalone was in an adult film, as was Jackie Chan. There is no crime and thus there is no reason to fire her unless she is inappropriate with the kids. Interestingly, the kids would have not had any idea this is happening at their school but for someone publicizing it.

Now on The Debauched Domestic Diva's blog, Dee blogs about having lived a double life. She was a sexy women cheating on her husband and exploring her sexuality while leaving the chains of a dead marriage, and was his Mrs. Cleaver at home and work. (I'll leave out the Usher lyric). She talks about how she feels now that she can be more of herself. She had recently "come out" to some of her friends and now she feels she has a better relationship with her friends and is more close to them now she can be honest with them about her sexual affairs.

Now this immediately got me thinking about a blog post by Rebbeca Dios that dealt with how she would now handle being part of a community that would not accept her decisions nor recognize her needs. It comes as no shock to me that being outed has disturbed her income and negitively affect her family. She was threatened, and shunned in her small town. She fears for her husband and children. Rebecca is an enormously brave woman who faces illness in her home and her choices of how to deal with those choices straight on.

Then I remembered this post that really began me blogging occasionally of the people I represent that work in the sex trade.

It has been three years since I wrote those words and the fact of the matter is that I was right then and now. What makes me laugh is that these women are the same people who shop with us, and bowl with us, and eat at the table in the restaurant right next to us.

I am representing women now who work in the sex trade who also hold down full time jobs as teachers, nurses and secretaries in big Multi-national companies. These are not women who have left the adult business, but who are still "transitioning." I have represented women who serve on Congressional staffs.

I know one who is actually quiet religious and intends to join an "order" when she returns home (Latin America) but right now she sells herself (she is a stripper who offers "extras" because she is caring for a sick mother and father both of whom require serious surgeries at home.) She is well aware that she is sinning. So is her priest. She is honest with him. She fears being shunned at home, but more, she fears being arrested here and returned to home before she makes enough to pay the doctors and hospital and thus gets her folks thrown into the street. She is a beautiful young woman who is bright and earnest. She just cannot earn the money she earns here at home, and she cannot get a job here without being thrown out. So she "goes" to school and gets decent grades and strips at night and works for tips. She goes to Church on Saturdays and admits her sins, and on Sunday to pray for forgiveness. She is back at her "job" on Tuesday night.

I even represent a police women who has a very active though very exclusive escort life which she takes out of town.

There is a very competent lawyer I know who used to act in "B" movies with a lot of sexual tension and nudity. At first the men she worked around snickered. Maybe some still do, but that is likely before she beats their sorry butts in court.

Not one of the women I have represented or know, if others knew of their other job, would be able to work in their day jobs. (the exeption being the lawyer who interestingly works as a criminal defense attorney) On the other hand, not one of them is not outstanding in their work. I know, I have spoken or met co-workers, bosses and seen grades and met teachers. Sometimes these women come to me through those referral sources.

From all that I can see being somewhat of an outsider, sex work is neither easy nor is it "fun". It is work. Now I did not say it is drudgery. For most of these women it has its good times and bad. The one thing I have not seen is how it negatively affects their ability to be good teachers, nurses, or employees. I do not see why once they give it up, it should stygmatize them and make them unable to serve children food or watch them play.

For whatever reason a person enters the work of sex, their should also be a way to exit the world and join the ranks of those with less "interesting" jobs. When are we as a society going to look at people for who they are and not what they do. Yes I know that part of what we are is what we do, but just because someone doesn't view the world the way we do doesn't disqualify them to live next door.

It is funny but I know of people who have in my opinion done far worse things than agree to have sex with others. I know people who cheat their clients, who lie to the court, who are sworn to secrecy but can't keep a secret for all the tea in Boston. I know people whose ideas of right and wrong include telling their minions that stealing and obfucation are just part of the job. Yet many of these mostly men are lauded by colleagues and hired at quiet a good price. I know men who will beat or rob or rape a sex worker knowing that she cannot go to Police for fear of "outing" herself.

That is the normal way I these clients find me. They are not usually arrested. They are victims of assaults. They come to me because they fear reprisals from authorities. I often tell them they shouldn't but I will admit there have been times when they should and I am glad I or a staff member was there to stop some SOB from refusing to listen to their story or from firing them for their job. Fear of lawsuits and crusading lawyers is a good way to keep certain types(like School Superintendent Ottinger and Principal Giordano above)in check. (I remember Professor Monroe Freedman on the first day of classes telling us that from the minute we entered the room that we were going to be feared by all the other professions in the world, that as lawyers we were the ones they most worried about. He taught me to use the strength of our profession to do good. I try every day.)

What is funny, is that I have had potential clients who have not hired me, because I will not abandon these sex worker clients and won't keep the fact that I take such cases a secret. They feel it makes me something less of a lawyer. If anything, it makes me far better a lawyer, but I am not upset. They can keep their fees and their lawyers who look down on these clients and maybe me too. Everynight I can look at myself and feel like I have really helped someone who if not for my effort would have had no one to fight for them, no one to protect them.

Frankly however, it shouldn't have to come down to the largesse of a few hearty souls like the men and women of NACDL or FALA. People even sex workers, have a right to be protected and to expect that the law will not punish them for seeking to be protected. They should have a right to re-enter "straight" society when the time comes and to be judged on who they are and what they know and not on how they earned a living.

There is a March in Washington on December 17, 2008. The National March for Sex Worker Rights . It is a day when those of us who believe that no one should live a life of fear of attack nor fear of reprisal for being a sex worker will lift our collective voices and call on our leaders to bring an end to this kind of hate.

If you are available, you might want to check this out. You never know, the person you fight for, may be someone you know, and love, but is afraid to tell you about her choices.

Breaking News Black Friday Tragedy : Disturbing Video

2008-11-28T22:47:00.003-05:00

OThers bloggers are turning their attention away from India and onto the "Black Friday Tragedy" that killed Jdimytai Damour of Jamaica, Queens.

This is a very disturbing Video (Hattip: Anderson Cooper 360)

Newsday has a story about the kind of guy Jdimytai was. A gentle giant of Haitian roots he grew up on Long Island. He was the kind of guy who loved poetry and his family.

Money quote from his distraught father: "I don't know what happened to him. He's gone. Only God knows what happened to him," said his father, Ogera Charles.

Savages At The Gates: Walmart Shoppers Stomp Store Security Guard To Death On Long Island

2008-11-28T20:32:00.009-05:00

"They kept shopping. It's not right," a hysterical co worker said. "They're savages."

Jdimytai Damour of Jamaica, Queens a 34 year old man was stomped to death as alleged shoppers stormed into a Walmart store to get at early morning "Black Friday" sales.

The facts are easy. There is so much blame to go around it is hard to say just who is really responsible. In blamiing Walmart we in fact fail to recognize that there is a personal responsibility that is just missing from the people who went to the store this morning.

Kmart had people at a frenzy, they had too few security guards and they had no security lines. They also failed to understand how people can get together become such fools.

People lined up outside decided they had waited long enough for the store to open at five in the morning so the people in the back pushed and the others pushed and the door came off the hinge and a sea of flesh ran over the guy who was supposed to stop them and killed him. Dead, a human life exstinguished so some neaderthal could get at a video game 2 minutes sooner.

As workers and police asked the throng to step out of the store now crime scene, they just kept on shopping. THEY KEPT SHOPPING!!! A detective on the scene called the scene "Complete Chaos".

The Walmart press flack said the usual horse hockey that hacks have to say. From down in Arkansas he said:

"The safety and security of our customers and associates are our top priority." Yeah I bet. It is there right after saving the bonus, getting more money to put fuel in the company jet and wondering who will win the SEC Football championship.

Oh yeah, back to blame:

Then you have the stompers. They just kept stomping on the guy. I am told they couldn't have stopped walking because you had people pushing from behind and they had to flow into the store or be stomped themsleves. That makes sense. Too bad I wasn't there with my friends George and Pete. 1100 lbs of bodies and muscle will put a stop to any crowd. IN ITS TRACKS. Which leads me back to Kmart. Where the hell were the baracades? The Jersey Blocks? I know that this kids death is probably going to go down to a Worker's Comp. claim, but they were so, so ridiculously unready that it ought to rise to the type of gross negligence that allows it to go to civil suit.

Then you have the Pushers. The true jackasses in the back of the line who just had to get in. I bet they thought it was hysterical. Push on in and get those sales. It's always funny until it gets someone gets "KILLED"!! This is why you teach children to wait their turns. This is why you have to tell kids don't run in the hall. This is why you have to disipline kids who don't learn. Because when they become adults, they are still untrained juveniles.

Maybe every person who walks into that, or any tri-state area Walmart should have to pay an entrance fee of a buck to give to the estate of Jdimytai Damour before they are allowed to get at those amazing sales.

I have an idea. If I were this family's lawyer I would look at those Security tapes and I would match up the sales receipts with the pictures on the tapes. I would then bring a lawsuit against everyone who I could match up. Even if I don't get them all, just a few would likely stop this stupid behavior or at least put a little justice into the situation. Let them find the other idiots that killed a man today because they never learned or at least couldn't practice simple civil behavior.

Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude

2008-11-28T09:32:00.007-05:00

Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.

Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.

Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.

What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.

If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:

1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.

2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.

3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.

4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.

For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.

5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.

6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.

7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.

IF you want to increase your knowledge of your BAC log on here

8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)

9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.

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