I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.
Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.
In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!
Amateurs. Really.
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Showing posts with label Lawyers. Show all posts
Showing posts with label Lawyers. Show all posts
Thursday, January 02, 2014
Friday, December 20, 2013
A Little Good News For a Friday Before Christmas: Innocence Project Wins Again!!
I don't want this to be a blog that only criticizes. I think there are some good things happening in criminal law. One of those good things is The Innocence Project. Started by Barry Scheck and Peter Neufeld, the defense attorney DNA Gurus these guys work with lawyers and students to undue injustice in the criminal justice system.
This week, Barry did it again. He won the freedom of Gerard Richardson, a NJ man who was wrongfully convicted of Murder 20 years ago and has been rotting in jail doing time for a crime he did not commit.
Please consider a donation to the Innocence Project. Merry Christmas Mr. Richardson, and congratulations Barry. Thank you for keeping the dream alive.
This week, Barry did it again. He won the freedom of Gerard Richardson, a NJ man who was wrongfully convicted of Murder 20 years ago and has been rotting in jail doing time for a crime he did not commit.
Please consider a donation to the Innocence Project. Merry Christmas Mr. Richardson, and congratulations Barry. Thank you for keeping the dream alive.
Tuesday, December 17, 2013
One of the Things I Hate: Using Hate Crime Statutes to Punish Non-Hate Crimes
"During the debate on the NY Hate Crime bill, I was against the cause. It isn't that I do not think that there is something inherently wrong with a person who hurts another out of hate or prejudice, it is that : 1. I do not like to punish people for their thoughts, and 2. I know lawyers well enough to know that they cannot stand to see a statute NOT get abused.
As I predicted now comes my friend Tom Spota (DA of Suffolk County and I am not being sarcastic I've known Tom since his days as an assistant district attorney in the 70's and I really do like him even if I don't always agree with him)who seems hell bent on abusing the statute to get a greater sentence for a person who has no hate (as we define the term generally) for the person they have allegedly hurt.
Lisa Ferkovich aka the "Sweetheart Scammer" basically charms old men out of their pensions. If true, she is despicable. She evidently according to Spota picks old men b/c they are easier to scam. Hence because she targets a particular segment of society, she must be involved in hating that segment and is open to an enhanced sentence.
A close look at Article 485 of the NYS Penal Law shows that while Spota may be right about how he CAN use the law, it is far from how the law was meant to be used. The Hate Crime Statute begins with a legislative finding (I wish more laws did this) That finding is part of the law (as opposed to just a legislative history. In part it reads:
"The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs."
Reading the first sentence one gets the idea that the legislature was trying to limit the use of the statute to our understanding of hate. Prejudice and Bias. So far so good. The sentence that begins "Crimes motivated by invidious hatred toward particular groups..." also fits the definition of a hate crime however in between, there is the line "... victims are intentionally selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation."
That segment if read as part of the entire document seems to be consistent with the idea that one must have an invidious hatred in targeting a group however that is not how Spota wants to use the law. He wants to say that the targeting in and of itself is enough to trigger the enhancement. In other words he perverts the statute by suggesting that the targeting vitiates the need to prove "actual hate". The sad thing is that some courts (mostly in Queens County) see it the same way. I humbly think that if this is how the law is going to be used, then the whole thing needs to be thrown out.
Hate crimes are hard enough to define now. Sure there are easy ones, the KKK attacks a black man and his family for instance. Pretty easy to follow. Less so in a bar fight where someone calls some one a cracker or a "N" word in the middle of the fight. Heat of the moment or invidious hatred toward another group?
Assuming that the "reason" someone commits and act is a valid use of a sentencing enhancement, shouldn't that reason be clear? Does someone hate another group because he or she uses inappropriate epitaphs in the heat of the moment?
In the case of Ms. Ferkovich, does she hate old people or old men just because her scam is in part to target them? I do not think so. I think she does target old men because she is not going to succeed in targeting younger men (Her picture is not flattering) and they may not find her compliments as flattering or they may see through her or who knows maybe they do not want to have her as a companion. I do not see this as a dislike of older men. I see this as part of the crime itself, but it is a targeting. How it differs from her targeting men in general is unclear.
Put a different way, does a prostitute commit a hate crime because she targets johns??
IF the article is correct and complete, there appears to be no hate. If Spota is right then there needn't be any. If the law's general use is to be based not on hate but on targeting then it is a stupid unnecessary law. Every crime has a target. If he wants tougher sentencing he ought to lobby the legislature to get it. Abusing the hate crime law is wrong. The problem is, if she is guilty it is hard to find any compassion for this woman. That doesn't mean we should pervert our laws in order to get her for more time.
Funny.., I think Spota is over 60 now...
Let me know how you feel about the Hate Crimes Statute and this use of it in the comments below.
As I predicted now comes my friend Tom Spota (DA of Suffolk County and I am not being sarcastic I've known Tom since his days as an assistant district attorney in the 70's and I really do like him even if I don't always agree with him)who seems hell bent on abusing the statute to get a greater sentence for a person who has no hate (as we define the term generally) for the person they have allegedly hurt.
Lisa Ferkovich aka the "Sweetheart Scammer" basically charms old men out of their pensions. If true, she is despicable. She evidently according to Spota picks old men b/c they are easier to scam. Hence because she targets a particular segment of society, she must be involved in hating that segment and is open to an enhanced sentence.
A close look at Article 485 of the NYS Penal Law shows that while Spota may be right about how he CAN use the law, it is far from how the law was meant to be used. The Hate Crime Statute begins with a legislative finding (I wish more laws did this) That finding is part of the law (as opposed to just a legislative history. In part it reads:
"The legislature finds and determines as follows: criminal acts
involving violence, intimidation and destruction of property based upon
bias and prejudice have become more prevalent in New York state in
recent years. The intolerable truth is that in these crimes, commonly
and justly referred to as "hate crimes", victims are intentionally
selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation. Hate crimes do more than threaten the safety and
welfare of all citizens. They inflict on victims incalculable physical
and emotional damage and tear at the very fabric of free society. Crimes
motivated by invidious hatred toward particular groups not only harm
individual victims but send a powerful message of intolerance and
discrimination to all members of the group to which the victim belongs."
Reading the first sentence one gets the idea that the legislature was trying to limit the use of the statute to our understanding of hate. Prejudice and Bias. So far so good. The sentence that begins "Crimes motivated by invidious hatred toward particular groups..." also fits the definition of a hate crime however in between, there is the line "... victims are intentionally selected, in whole or in part, because of their race, color, national
origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation."
That segment if read as part of the entire document seems to be consistent with the idea that one must have an invidious hatred in targeting a group however that is not how Spota wants to use the law. He wants to say that the targeting in and of itself is enough to trigger the enhancement. In other words he perverts the statute by suggesting that the targeting vitiates the need to prove "actual hate". The sad thing is that some courts (mostly in Queens County) see it the same way. I humbly think that if this is how the law is going to be used, then the whole thing needs to be thrown out.
Hate crimes are hard enough to define now. Sure there are easy ones, the KKK attacks a black man and his family for instance. Pretty easy to follow. Less so in a bar fight where someone calls some one a cracker or a "N" word in the middle of the fight. Heat of the moment or invidious hatred toward another group?
Assuming that the "reason" someone commits and act is a valid use of a sentencing enhancement, shouldn't that reason be clear? Does someone hate another group because he or she uses inappropriate epitaphs in the heat of the moment?
In the case of Ms. Ferkovich, does she hate old people or old men just because her scam is in part to target them? I do not think so. I think she does target old men because she is not going to succeed in targeting younger men (Her picture is not flattering) and they may not find her compliments as flattering or they may see through her or who knows maybe they do not want to have her as a companion. I do not see this as a dislike of older men. I see this as part of the crime itself, but it is a targeting. How it differs from her targeting men in general is unclear.
Put a different way, does a prostitute commit a hate crime because she targets johns??
IF the article is correct and complete, there appears to be no hate. If Spota is right then there needn't be any. If the law's general use is to be based not on hate but on targeting then it is a stupid unnecessary law. Every crime has a target. If he wants tougher sentencing he ought to lobby the legislature to get it. Abusing the hate crime law is wrong. The problem is, if she is guilty it is hard to find any compassion for this woman. That doesn't mean we should pervert our laws in order to get her for more time.
Funny.., I think Spota is over 60 now...
Let me know how you feel about the Hate Crimes Statute and this use of it in the comments below.
Tuesday, November 08, 2011
A Strong Defense of Joe Paterno: Why Paterno Was Morally & Ethically Right Not To Go Further in The Sandusky Sex Abuse Case
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.
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.
Sunday, October 31, 2010
It's Election Day. Here Are My Endorsements
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.
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.
Monday, October 18, 2010
Some Fun Stuff for a Sunday Night: Funny Animation of The Carl Paladino Campaign and a Review of Innocent by Scott Turow
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.
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.
Tuesday, January 05, 2010
Justice Scalia Gives The President ( and the rest of us) Something To Think About
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.
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.
Thursday, January 29, 2009
Maybe You Are Wondering Where I Am.
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.
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.
Wednesday, December 31, 2008
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!!
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
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
Tuesday, December 30, 2008
Tony(c) Award for Best PD Blog :Gideon at A Public Defender
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
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.
Sunday, December 28, 2008
Let's Stop Lying to the Jury: The Case for Warning Jurors About Acquitted Conduct
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.
Sunday, December 21, 2008
Around the Blogosphere the Week of 12/14/08-12/20/08: Part III- In and Around NY and Long Island
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.
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
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.
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
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
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
Friday, December 19, 2008
Tony(c) Award for Best Legal Technology Blog: Dennis Kennedy & His Blog Get an Award and an Honor
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.
Friday, December 12, 2008
Just Some Interesting Links
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.
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.
Sunday, December 07, 2008
Revisionist History Lesson: Mauro on the Nixon Library Releases Tape of Nixon-Burger Phone Call
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.
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.
Tuesday, December 02, 2008
More Lists From That Lawyer Dude: Ten Poignant Final Photos and Two Lists of Important Blawgs. On One You Can Vote For Your Favorites!
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.)
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.)
Sunday, November 23, 2008
Public Defenders, If You Don't Want Clients To Think They Get What They Pay For, Give Them Value: That Lawyer Dude responds to S.Greenfield and Gideon
All day there has been a lively discussion on blogs and on Twitter between myself, Scott Greenfield over at "Simple Justice" and Gideon's Trumpet over at "a public defender."*
What started this discussion was a combination of this post and the comments by the anti-lawyer marketing Mr. Greenfield and then my reply to this post on Accident Prone by Miriam. My sarcastic response to Miriam was then challenged simultaneously by Gideon and by Scott. Well it was almost simultaneous, Gideon got off to a late start.
So if you cared enough to follow all of this, and are still interested, this post is my response.
Miram in her original post (which was brought to my attention through Twitter about 3 weeks after she wrote it) was upset because a client came to her and told her that another lawyer (allegedly a paid or private lawyer) told him w/o knowing any facts that he (the pvt lawyer) could get him a misdemeanor. Now her client is giving her a hard time.
Her response was to scold all Private Counsel and tell us not to tell clients what we could do for her client if we are not going to take the case. I have some sympathy for her plight. After all I am a former Legal Aid Lawyer and I also still take a few Assigned counsel cases each year. On the other hand, it is not all lawyers who put down public lawyers and it is not even always private counsel's fault. I mean unless the lawyer is in the hallways offering unsolicited advice, and unless he is wrong about it, the client must have come to him and asked why his "League Aid" or "P.D." was giving his case such a short shrift. Not only did Miriam paint all of us non-public lawyers with the same broad brush, but she absolutely took no personal responsibility for her client's feelings.
I responded to her sarcastic open letter in kind. I pointed out that Private lawyers often have more experience with the law and with the Judges and Prosecutors than do Public lawyers. I also pointed out that we often engender more trust/value because the client is gets a value if he hires the right lawyer. For example, many, maybe most, public lawyers do not have after hour services. Most paid lawyers do. Many Public Defenders don't work on court holidays but most private lawyers do. Many PD's do not give cell phone numbers but most paid lawyers do.
In other words, I pointed out to Miriam and others that there is a value that paid lawyers provide a client. How many times does a person hear "You get what you pay for." In the context of law, clients who have public provided attorneys feel that they must not be getting very much. That is untrue. They feel that these public lawyers do not care, also not true. They feel like one of a herd of clients and that the free attorney doesn't have time for them. Sometimes true, but sometimes, that is an appearance. (see Miriam's response to my reply on her site).
Why does the client who is getting a free lawyer think that the lawyer he has is not on his side?
Well let's look at the reasons. The Client comes into the arrangement already thinking the worse about your ability. How many times are you able to spend more than a few minutes with the client? Do you work to meet the clients after hours? Do you stay more than three hours after the day is done? Do you have weekly after hours? How do you expect to engender trust in a person you barely know or only know as a file?
Do you or your office take the time to give the client a folder for his things? Do you copy him on all correspondence? Do you give him a chart or a letter explaining the system? How can a client think you know the system if you don't show him you know it? Is he supposed to go with sheer faith. When one is looking at a five year sentence that is asking an awful lot of faith.
How do you and the client best communicate? If he hasn't a computer, he cannot send you e-mail. If he doesn't have a cellphone, he cannot text you. Do you ask your clients if there is a relative? Someone else you can speak to? No? Do you not think that the client might be so scared he needs to have another person available to listen and help him make decisions? If you won't take the time to speak to his family, then why should he believe you care about him anywhere near as much as I do?
Have you gone with a client the first time you send him to Alcoholic's Anonymous meetings? The first time can be scary. Will the client think you are shoving him off to a meeting rather than help him with the problem yourself? Will he think that you are too busy to work with him so the meeting is an easy way for you to rid him of your schedule?
How active in the Bar are you? Do you write articles? Do you give lectures? Many PDs are fond of saying they have the most experience in the courthouse defending cases. That may be if sheer numbers are going to be our measure. If you are not however investing in your profession, then how does the client know if you are respected by your peers and the courts? How does the client know if you are as good as you say you are and not just robotically processing cases to plea?
I guess what I am saying is that public lawyers need to see what they did or didn't do that made her client doubt her. Too often Legal Aid lawyers think that the fact that they are a free lawyers is enough for the client to think them inferior. I do not agree. Even though they are skeptical of you, your clients want and need to believe in you. You however have to earn that belief.
One thing I will agree with, is that lawyers have no right to put down a Public lawyer's ability anonymously. On the few cases where I am approached by a Legal Aid Society client on a case, I obtain their permission to conference the case with their present counsel. On the other hand, do not expect me to back you up if your work has been less than stellar. Usually, thank goodness, the Legal Aid member has done a good job on the case, but hasn't built a relationship with the client. In my call I ask about that too, and I try to help them with that by both explaining the lawyer's position and by acknowledging their needs as well. That is not only good practice, but it is also good marketing. Which leads me to my next issue.
My friends Gideon and Scott think that when I write things like this I am marketing myself. That my interest in feeding my family and paying my staff "makes me dirty". Scott especially is of the opinion that marketing lawyers do a disservice to the profession. I heartily disagree. I think I am a very good lawyer. I also refer cases to lawyers I think are very good. I do not think most criminal clients have a clue as to who to ask for a recommendation nor what they need from the lawyer. If all I have is a website, that is no better than an ad. I am not teaching them anything about myself. On the other hand, my blogging and my tweeting and my question answering, all go to educate the client as to not only what I am writing about but also as to who I am. I am not saying "Hire Me I am good for you." I am saying "read what I write and see if that is what you want and if you will be comfortable with me." That is marketing, but is in my opinion talent related and legitimate. I feel I have a duty to help potential clients find a good lawyer.I am that person, and if I am not, I probably know who is.
I think Scott is deluding himself into believing that he is not marketing his talents by writing a blog. He says that since he is not trying to get clients from the blog, he isn't guilty of marketing. That marketing is but a by product of his more altruistic attempts to educate the masses.
Scott, if that is the case, Shut down the blog and write anonymously. Hell you know people are going to want to hire you. You have a disclaimer on the page that clearly says "
Now Scott, Gideon, if I were marketing, wouldn't I link my blog to my Homepage? Nothing on the front of my blog links you directly to my website. Further, even if you click onto my name when I leave comments, it links you to a page on my site that links to my blogs and does not mention one of my accomplishments (Stop snickering I have one or two!)If I were using the post at Accident Prone or this post only to market, I am doing a lousy job of it.
No I wrote the post to help Miriam and other PDs to see that advice is not all that they are good for. That clients value a relationship and knowledge and clout. That your poor clients and my wealthy ones both want a value to the representation given them. Just because your client cannot afford me, does not mean he doesn't want that experience. I wrote "harshly" because that is how I felt she wrote her original post. I am sure she can take as good as she gives. Nice of you guys to come to her defense by completely misstating the motive of my reply though.
Funny but I am not seeking, nor are many lawyers I know seeking legal aid clients. If they can afford me, they shouldn't have Legal Aid to begin with.
By the way, I am far from perfect. I don't always provide the value that I have described. I try to however, on every case. At least I acknowledge what the value is. Miriam's original open letter didn't seem to me to even see that maybe she needed to engender a more supportive relationship with her client. I also took her letter to be offensive to hard working Private lawyers. Do not "paint" me with a broad brush if you don't want to be "Spackled" right back.
After all, I am from New York.
* This column is not about twitter or blogging, but it is interesting to note how we three bloggers have used both the blogs and Twitter to enhance the conversation. IF you want to read some of the back story you can follow Scott Greenfield at Twitter.com/ScottGreenfield and Gideon at Twitter.com/Gideonstrumpet. Of course you can follow me at Twitter.com/ThatLawyerDude. Get on Twitter and follow the discussions.
What started this discussion was a combination of this post and the comments by the anti-lawyer marketing Mr. Greenfield and then my reply to this post on Accident Prone by Miriam. My sarcastic response to Miriam was then challenged simultaneously by Gideon and by Scott. Well it was almost simultaneous, Gideon got off to a late start.
So if you cared enough to follow all of this, and are still interested, this post is my response.
Miram in her original post (which was brought to my attention through Twitter about 3 weeks after she wrote it) was upset because a client came to her and told her that another lawyer (allegedly a paid or private lawyer) told him w/o knowing any facts that he (the pvt lawyer) could get him a misdemeanor. Now her client is giving her a hard time.
Her response was to scold all Private Counsel and tell us not to tell clients what we could do for her client if we are not going to take the case. I have some sympathy for her plight. After all I am a former Legal Aid Lawyer and I also still take a few Assigned counsel cases each year. On the other hand, it is not all lawyers who put down public lawyers and it is not even always private counsel's fault. I mean unless the lawyer is in the hallways offering unsolicited advice, and unless he is wrong about it, the client must have come to him and asked why his "League Aid" or "P.D." was giving his case such a short shrift. Not only did Miriam paint all of us non-public lawyers with the same broad brush, but she absolutely took no personal responsibility for her client's feelings.
I responded to her sarcastic open letter in kind. I pointed out that Private lawyers often have more experience with the law and with the Judges and Prosecutors than do Public lawyers. I also pointed out that we often engender more trust/value because the client is gets a value if he hires the right lawyer. For example, many, maybe most, public lawyers do not have after hour services. Most paid lawyers do. Many Public Defenders don't work on court holidays but most private lawyers do. Many PD's do not give cell phone numbers but most paid lawyers do.
In other words, I pointed out to Miriam and others that there is a value that paid lawyers provide a client. How many times does a person hear "You get what you pay for." In the context of law, clients who have public provided attorneys feel that they must not be getting very much. That is untrue. They feel that these public lawyers do not care, also not true. They feel like one of a herd of clients and that the free attorney doesn't have time for them. Sometimes true, but sometimes, that is an appearance. (see Miriam's response to my reply on her site).
Why does the client who is getting a free lawyer think that the lawyer he has is not on his side?
Well let's look at the reasons. The Client comes into the arrangement already thinking the worse about your ability. How many times are you able to spend more than a few minutes with the client? Do you work to meet the clients after hours? Do you stay more than three hours after the day is done? Do you have weekly after hours? How do you expect to engender trust in a person you barely know or only know as a file?
Do you or your office take the time to give the client a folder for his things? Do you copy him on all correspondence? Do you give him a chart or a letter explaining the system? How can a client think you know the system if you don't show him you know it? Is he supposed to go with sheer faith. When one is looking at a five year sentence that is asking an awful lot of faith.
How do you and the client best communicate? If he hasn't a computer, he cannot send you e-mail. If he doesn't have a cellphone, he cannot text you. Do you ask your clients if there is a relative? Someone else you can speak to? No? Do you not think that the client might be so scared he needs to have another person available to listen and help him make decisions? If you won't take the time to speak to his family, then why should he believe you care about him anywhere near as much as I do?
Have you gone with a client the first time you send him to Alcoholic's Anonymous meetings? The first time can be scary. Will the client think you are shoving him off to a meeting rather than help him with the problem yourself? Will he think that you are too busy to work with him so the meeting is an easy way for you to rid him of your schedule?
How active in the Bar are you? Do you write articles? Do you give lectures? Many PDs are fond of saying they have the most experience in the courthouse defending cases. That may be if sheer numbers are going to be our measure. If you are not however investing in your profession, then how does the client know if you are respected by your peers and the courts? How does the client know if you are as good as you say you are and not just robotically processing cases to plea?
I guess what I am saying is that public lawyers need to see what they did or didn't do that made her client doubt her. Too often Legal Aid lawyers think that the fact that they are a free lawyers is enough for the client to think them inferior. I do not agree. Even though they are skeptical of you, your clients want and need to believe in you. You however have to earn that belief.
One thing I will agree with, is that lawyers have no right to put down a Public lawyer's ability anonymously. On the few cases where I am approached by a Legal Aid Society client on a case, I obtain their permission to conference the case with their present counsel. On the other hand, do not expect me to back you up if your work has been less than stellar. Usually, thank goodness, the Legal Aid member has done a good job on the case, but hasn't built a relationship with the client. In my call I ask about that too, and I try to help them with that by both explaining the lawyer's position and by acknowledging their needs as well. That is not only good practice, but it is also good marketing. Which leads me to my next issue.
My friends Gideon and Scott think that when I write things like this I am marketing myself. That my interest in feeding my family and paying my staff "makes me dirty". Scott especially is of the opinion that marketing lawyers do a disservice to the profession. I heartily disagree. I think I am a very good lawyer. I also refer cases to lawyers I think are very good. I do not think most criminal clients have a clue as to who to ask for a recommendation nor what they need from the lawyer. If all I have is a website, that is no better than an ad. I am not teaching them anything about myself. On the other hand, my blogging and my tweeting and my question answering, all go to educate the client as to not only what I am writing about but also as to who I am. I am not saying "Hire Me I am good for you." I am saying "read what I write and see if that is what you want and if you will be comfortable with me." That is marketing, but is in my opinion talent related and legitimate. I feel I have a duty to help potential clients find a good lawyer.I am that person, and if I am not, I probably know who is.
I think Scott is deluding himself into believing that he is not marketing his talents by writing a blog. He says that since he is not trying to get clients from the blog, he isn't guilty of marketing. That marketing is but a by product of his more altruistic attempts to educate the masses.
Scott, if that is the case, Shut down the blog and write anonymously. Hell you know people are going to want to hire you. You have a disclaimer on the page that clearly says "
Nothing in this blog constitutes legal advice. This is free. Legal advice you have to pay for."You then provide two links to your website one that links to a page where highlighted is the comment
"If your goal is to achieve the best possible outcome, you need a lawyer who can get the job done." That page lists your accomplishments including your AVVO.com rating and your Martindale rating. (Both very impressive btw)
Now Scott, Gideon, if I were marketing, wouldn't I link my blog to my Homepage? Nothing on the front of my blog links you directly to my website. Further, even if you click onto my name when I leave comments, it links you to a page on my site that links to my blogs and does not mention one of my accomplishments (Stop snickering I have one or two!)If I were using the post at Accident Prone or this post only to market, I am doing a lousy job of it.
No I wrote the post to help Miriam and other PDs to see that advice is not all that they are good for. That clients value a relationship and knowledge and clout. That your poor clients and my wealthy ones both want a value to the representation given them. Just because your client cannot afford me, does not mean he doesn't want that experience. I wrote "harshly" because that is how I felt she wrote her original post. I am sure she can take as good as she gives. Nice of you guys to come to her defense by completely misstating the motive of my reply though.
Funny but I am not seeking, nor are many lawyers I know seeking legal aid clients. If they can afford me, they shouldn't have Legal Aid to begin with.
By the way, I am far from perfect. I don't always provide the value that I have described. I try to however, on every case. At least I acknowledge what the value is. Miriam's original open letter didn't seem to me to even see that maybe she needed to engender a more supportive relationship with her client. I also took her letter to be offensive to hard working Private lawyers. Do not "paint" me with a broad brush if you don't want to be "Spackled" right back.
After all, I am from New York.
* This column is not about twitter or blogging, but it is interesting to note how we three bloggers have used both the blogs and Twitter to enhance the conversation. IF you want to read some of the back story you can follow Scott Greenfield at Twitter.com/ScottGreenfield and Gideon at Twitter.com/Gideonstrumpet. Of course you can follow me at Twitter.com/ThatLawyerDude. Get on Twitter and follow the discussions.
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