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.
Hattip: Newsday (subscription may be required)
Showing posts with label Plea Bargaining. Show all posts
Showing posts with label Plea Bargaining. Show all posts
Thursday, January 02, 2014
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.
Friday, October 29, 2010
Are Some Lives Worth More Than Others?: Only Your Prosecutor Knows
Today, two people will be sentenced for killing innocent others. One person will have made a series of very bad decisions while intoxicated ending in her killing a young girl age 11. The other will have made a conscious decision to kill 11 people. The former will receive a sentence of 12 years in jail. The latter will be released after only doing 8 years while he awaited sentence. The former is a young mother of a pre-teen girl, the latter was a mob hitman. The former, the mom who killed an 11 year old by driving recklessly while intoxicated, spawned a law that makes it a felony to drive intoxicated with a child in the car. The latter Mob hit-man will reinforce the idea that you can kill at will as long as you are willing to give up others, even if you lie to do it.
The young mother is Carmen Huertas. She made a decision to get into a car with 6 children (one was her own) and drive them home from a slumber party after she had embibed enough alcohol to blow a .13 BAC. (Not that I think BAC's are the least bit accurate but given her other behaviors that night I would think there was enough other evidence of intoxication to prove she was guilty. You can read the story here and decide for yourself. She was sentenced to a indeterminate sentence of 4-12 years in jail. She could theoretically be eligible to get out on parole in three years and five months
but given just the fact that this was a DWI and the fact that it was the type of death that brings out everyone against the defendant, she will likely do the whole sentence before she is released less any "good-time" she may accrue (about 1.8 years off the top number or 10.4 years in prison so far.)
The mob hit man is Sal (Good Looking Sal) Vitale, former underboss of the Bonanno crime family. Sal was an early follower of another neighbor Joe (Big Joe) Massino, the boss of the Bonnano crime family. Both men grew up in my old neighborhood in NY. Sal was always noted for how good his hair looked. I should know, he used to go to get his hair cut in the same barbershop as I did. He was a big deal there among the Italian barbers. They all knew who he was. I blissfully did not. I did notice he seemed like any other guy who went there. Slightly pampered and otherwise kind of nice. He always went with friends.
About 10 years ago, Sal and his Brother-in-law childhood hero Joe Massino got indicted. Joe was pretty jealous of Sal's popularity among the other under bosses in "the family". He was afraid that Sal may be so much better liked than he, that he ordered someone kill him. The feds moved in to save Sal's life. Sal was infuriated and so he turned on Joe and everyone in the old life. He had enough information to identify over 500 men as either members of or affiliates to the five families of NY. He also had enough information to put 50 of these men behind bars for a long time, some even for life.
Sal Vitale was a cold blooded killer. He didn't have to be. He had smarts. He was a former corrections officer, and he owned a series of small businesses that would have made money for him with or without patronage from Joe Massino and company. Instead, he helped end the lives of at least 11 men and maybe more. He made it possible for others to kill without being punished. He ran loan-sharking and illegal gambling operations. He provided protection for drug dealers and houses of Prostitution. He also however danced to the Governments tune. He turned and he will be rewarded. Is he sorry he was a creep, a killer, a monster? Only he knows. He knew however he created that man. If he could, would he turn down the life he led? Would he walk away from the jaunts to Vegas and Atlantic City? Would he give up his house in Dix Hills for all those years. Would he not have had the fancy haircuts and manicures he got that earned him the nickname "Good looking Sal"? If he knew he would never get caught would he? Or would he have preserved that life even if it meant killing eleven more people. Eleven more fathers brothers sons?
Carmen Huertas, a 31 year old mother who would like to take back about 2 hours of her life. Whether she was found guilty or not, the taking of that child's life would have stayed with her forever. Her chance of ever getting behind the wheel of a car drunk again, would be less than zero.
Jail is supposed to be for punishment and corrections. I fail to see the sense in this today. Carmen Huertas should have been sentenced to 1-3 years and should have been ordered to a program to address her drinking issues. Sal Vitale should have been sentenced to at least a long long period in jail. He could have gotten Death had he not cooperated. His getting a free pass calls into question every detail to which he testified. His testimony was bought and paid for by the government. He knew if he danced to their tune he would walk away, a free man, new identity, new home, new business.
As she addressed the court she said ""I am not a monster," "I am a loving mother who made a terrible decision that caused the death of a wonderful child."
She is right, her behavior was monstrous, but she herself is not a monster she just in fact made a horrendous decision that will forever effect the world of Leandra's family and her own.
Does anyone wonder if Sal Vitale could make the same statement? Is it fair that the prosecution can make these decisions based on how much they were helped? Is it fair that Vitale's victims should get nothing in the way of satisfaction for the loss they suffered?
Huertas is in jail, mostly because of who her victim was, and what that victims family wanted. Vitale is free despite what his victims want and despite what fairness dictates. She is sorry. Given the chance she would not be likely to repeat her poor judgment. He, well you decide: is he sorry or sorry he got caught? Given the chance, would he have turned down all the things his life gave to him and his family or would he have killed again and again, knowing he would never get caught?
The lives of poor people and the lives of rich have different values in a court of law. The lives of people who die at the hands of those that can give the prosecution what it wants, and the lives of those killed by someone who has nothing but remorse to give, have different values. Neither of these are fair, they just are.
If you ever serve on a jury however, when one of these rich powerful guys testifies, and he says he is not getting anything for his testimony, remember, that is just not true. Never was, never will be. They are just monsters who the government is paying to be tell they government's story, whether it be true, or not. Whether they be monsters... or what?
Here is the NY Post's coverage of the sentencing hot off the presses.
The young mother is Carmen Huertas. She made a decision to get into a car with 6 children (one was her own) and drive them home from a slumber party after she had embibed enough alcohol to blow a .13 BAC. (Not that I think BAC's are the least bit accurate but given her other behaviors that night I would think there was enough other evidence of intoxication to prove she was guilty. You can read the story here and decide for yourself. She was sentenced to a indeterminate sentence of 4-12 years in jail. She could theoretically be eligible to get out on parole in three years and five months
but given just the fact that this was a DWI and the fact that it was the type of death that brings out everyone against the defendant, she will likely do the whole sentence before she is released less any "good-time" she may accrue (about 1.8 years off the top number or 10.4 years in prison so far.)
The mob hit man is Sal (Good Looking Sal) Vitale, former underboss of the Bonanno crime family. Sal was an early follower of another neighbor Joe (Big Joe) Massino, the boss of the Bonnano crime family. Both men grew up in my old neighborhood in NY. Sal was always noted for how good his hair looked. I should know, he used to go to get his hair cut in the same barbershop as I did. He was a big deal there among the Italian barbers. They all knew who he was. I blissfully did not. I did notice he seemed like any other guy who went there. Slightly pampered and otherwise kind of nice. He always went with friends.
About 10 years ago, Sal and his Brother-in-law childhood hero Joe Massino got indicted. Joe was pretty jealous of Sal's popularity among the other under bosses in "the family". He was afraid that Sal may be so much better liked than he, that he ordered someone kill him. The feds moved in to save Sal's life. Sal was infuriated and so he turned on Joe and everyone in the old life. He had enough information to identify over 500 men as either members of or affiliates to the five families of NY. He also had enough information to put 50 of these men behind bars for a long time, some even for life.
Sal Vitale was a cold blooded killer. He didn't have to be. He had smarts. He was a former corrections officer, and he owned a series of small businesses that would have made money for him with or without patronage from Joe Massino and company. Instead, he helped end the lives of at least 11 men and maybe more. He made it possible for others to kill without being punished. He ran loan-sharking and illegal gambling operations. He provided protection for drug dealers and houses of Prostitution. He also however danced to the Governments tune. He turned and he will be rewarded. Is he sorry he was a creep, a killer, a monster? Only he knows. He knew however he created that man. If he could, would he turn down the life he led? Would he walk away from the jaunts to Vegas and Atlantic City? Would he give up his house in Dix Hills for all those years. Would he not have had the fancy haircuts and manicures he got that earned him the nickname "Good looking Sal"? If he knew he would never get caught would he? Or would he have preserved that life even if it meant killing eleven more people. Eleven more fathers brothers sons?
Carmen Huertas, a 31 year old mother who would like to take back about 2 hours of her life. Whether she was found guilty or not, the taking of that child's life would have stayed with her forever. Her chance of ever getting behind the wheel of a car drunk again, would be less than zero.
Jail is supposed to be for punishment and corrections. I fail to see the sense in this today. Carmen Huertas should have been sentenced to 1-3 years and should have been ordered to a program to address her drinking issues. Sal Vitale should have been sentenced to at least a long long period in jail. He could have gotten Death had he not cooperated. His getting a free pass calls into question every detail to which he testified. His testimony was bought and paid for by the government. He knew if he danced to their tune he would walk away, a free man, new identity, new home, new business.
As she addressed the court she said ""I am not a monster," "I am a loving mother who made a terrible decision that caused the death of a wonderful child."
She is right, her behavior was monstrous, but she herself is not a monster she just in fact made a horrendous decision that will forever effect the world of Leandra's family and her own.
Does anyone wonder if Sal Vitale could make the same statement? Is it fair that the prosecution can make these decisions based on how much they were helped? Is it fair that Vitale's victims should get nothing in the way of satisfaction for the loss they suffered?
Huertas is in jail, mostly because of who her victim was, and what that victims family wanted. Vitale is free despite what his victims want and despite what fairness dictates. She is sorry. Given the chance she would not be likely to repeat her poor judgment. He, well you decide: is he sorry or sorry he got caught? Given the chance, would he have turned down all the things his life gave to him and his family or would he have killed again and again, knowing he would never get caught?
The lives of poor people and the lives of rich have different values in a court of law. The lives of people who die at the hands of those that can give the prosecution what it wants, and the lives of those killed by someone who has nothing but remorse to give, have different values. Neither of these are fair, they just are.
If you ever serve on a jury however, when one of these rich powerful guys testifies, and he says he is not getting anything for his testimony, remember, that is just not true. Never was, never will be. They are just monsters who the government is paying to be tell they government's story, whether it be true, or not. Whether they be monsters... or what?
Here is the NY Post's coverage of the sentencing hot off the presses.
Wednesday, October 13, 2010
The Battered Woman Syndrome Defense Scores a Big Win in Butterknife Stabbing Case: Some SOBs Just Need Killin."
When the Prosecution opens the trial with:"Kevin Cobb may not have been a husband or father any of us would want to have..." That ought to be the first clue there is going to be a problem with the prosecution.
When the next thing the prosecutor says is: the husband (Kevin Cobb) was out using coke, returning home around 3 a.m.
And when the alleged victim has done upstate time for drug and violent crimes, well then that would be a trifecta for a good reason not to bring a charge of Murder (or even assault First degree.
But when the defendant has suffered from "...bruises and (a) black eye and (a) punctured ear drum" all at the hands of the alleged victim...then you know you probably should have offered a plea bargain.
Note to prosecutors: "Some SOBs just need killin." It is not necessarily a valid defense but jury's do understand it. It is one thing for a defense attorney to stand before a jury and protect an accused who is also a miserable person, it is far different for a prosecutor to use the state to prosecute someone who is basically a good person ( Ms. Cobb is a nurse and the mother of six kids) and take the side of the miserable SOB who has been abusing them for years. Sounds like the jury understood that Kevin Cobb was one of those SOBs who got far less than he deserved.
Man a butter knife... OUCH!
HAT TIP:ABA Journal
and for some of the quoted material above the NY Daily News
By the way, gotta love the NY Daily News Headline in this case"I killed my coke-fiend husband in self-defense." Kind of says it all n'est-ce pas?
When the next thing the prosecutor says is: the husband (Kevin Cobb) was out using coke, returning home around 3 a.m.
And when the alleged victim has done upstate time for drug and violent crimes, well then that would be a trifecta for a good reason not to bring a charge of Murder (or even assault First degree.
But when the defendant has suffered from "...bruises and (a) black eye and (a) punctured ear drum" all at the hands of the alleged victim...then you know you probably should have offered a plea bargain.
Note to prosecutors: "Some SOBs just need killin." It is not necessarily a valid defense but jury's do understand it. It is one thing for a defense attorney to stand before a jury and protect an accused who is also a miserable person, it is far different for a prosecutor to use the state to prosecute someone who is basically a good person ( Ms. Cobb is a nurse and the mother of six kids) and take the side of the miserable SOB who has been abusing them for years. Sounds like the jury understood that Kevin Cobb was one of those SOBs who got far less than he deserved.
Man a butter knife... OUCH!
HAT TIP:ABA Journal
and for some of the quoted material above the NY Daily News
By the way, gotta love the NY Daily News Headline in this case"I killed my coke-fiend husband in self-defense." Kind of says it all n'est-ce pas?
Saturday, March 14, 2009
Seems We White Collar Criminal Defense Attorneys Are a Hot Date Commodity. Why? Cause we are IN DEMAND. Who Knew? You Should!!
I found this little tidbit about finding wealthy guys for "gold digging" girls. It says that if you want to find wealthy guys hang out with lawyers...But not just any lawyers. No only Bankruptcy and White Collar Criminal Defense Lawyers. I just told my wife I am a hot commodity... she seems somewhat shall we say nonplussed...
Whether of not you are a "golddigger" White collar criminal defense lawyers are a good group with which to hang out. They are bright tough, and if you get one that is not afraid to try a case, interesting. The best of us know that the most important thing we can do is keep our clients out of the paper and unindicted. Hence the time to find a White Collar Criminal Defense Lawyer here on Long Island or in New York City, is as soon as you realize you could be (not may be or are) in trouble. Often you will be surprised to learn how few Nassau and Suffolk County Criminal Defense Lawyers are really White Collar Criminal Defense Lawyers. You need a Criminal Lawyer who is just as comfortable in State as in Federal court and you need one who knows how to conduct a money investigation as well as handle the criminal courtroom and the public.
I have taken on Ponzi scheme cases, as well as stock frauds. wire and mail frauds, and of course their by-product money laundering cases. I know that handling the press and getting a good face on the client in the court of public opinion is very important. Hence we work with our own Public Relation staff, media people and social workers to present our client well in the media and to the court. Judicious use of jury selection experts and a team approach to investigation and trial is another key aspect of what I think makes my firm different from most other Long Island (and even many New York City) White Collar Criminal Defense firms.
An additional worry for many White Collar Defendants is that even if they survive the criminal prosecution, they face lower standards for losing their licenses. Lawyers, Brokers, CPA's and even Notaries need to look for lawyers who have handled not only criminal cases, not only White Collar Criminal cases but also lawyers who have appeared before Grievance committees, NASD and SEC boards and the state education department. They need to find attorneys who have helped others hold onto the licenses after those individuals have been accused or even investigated for crimes.
Now a sentencing expert is not going to help Bernie Madoff too much. But when a White Collar Criminal Defendant is looking for a criminal defense team, especially in the federal Second Circuit (which encompasses New York Brooklyn Queens Nassau and Suffolk Counties), they should also be concerned with how much that trial lawyer knows about the Federal and State Sentencing guidelines. Working the guidelines and understanding the cases (such as Booker and FanFan and their progeny) is a key to avoiding lengthy prison sentences.
In all, I really enjoy working on White Collar Criminal Defense cases in New York and on Long Island. They provide a tremendous legal challenge and a personal challenge too. They require I reinforce to the jury that the clients are not bad people and that they are the same as those before whom they are called. They are just men and women who were trying to make an honest buck when a roof caved in.
It is also important to keep before the jury, that it is not the job of the white collar defendant to stop people from making mistakes with their money, it is their job to offer legitimate opportunities, explain the risks accurately and then let the chips fall where they may.
If you or someone you love is charged with a White Collar Crime whether in New York City or in Nassau or Suffolk counties, I would love to consult with you, or them, about it to see if we may help.
You can call us at 516-741-3400 24/7or reach out to us on this blog.
Whether of not you are a "golddigger" White collar criminal defense lawyers are a good group with which to hang out. They are bright tough, and if you get one that is not afraid to try a case, interesting. The best of us know that the most important thing we can do is keep our clients out of the paper and unindicted. Hence the time to find a White Collar Criminal Defense Lawyer here on Long Island or in New York City, is as soon as you realize you could be (not may be or are) in trouble. Often you will be surprised to learn how few Nassau and Suffolk County Criminal Defense Lawyers are really White Collar Criminal Defense Lawyers. You need a Criminal Lawyer who is just as comfortable in State as in Federal court and you need one who knows how to conduct a money investigation as well as handle the criminal courtroom and the public.
I have taken on Ponzi scheme cases, as well as stock frauds. wire and mail frauds, and of course their by-product money laundering cases. I know that handling the press and getting a good face on the client in the court of public opinion is very important. Hence we work with our own Public Relation staff, media people and social workers to present our client well in the media and to the court. Judicious use of jury selection experts and a team approach to investigation and trial is another key aspect of what I think makes my firm different from most other Long Island (and even many New York City) White Collar Criminal Defense firms.
An additional worry for many White Collar Defendants is that even if they survive the criminal prosecution, they face lower standards for losing their licenses. Lawyers, Brokers, CPA's and even Notaries need to look for lawyers who have handled not only criminal cases, not only White Collar Criminal cases but also lawyers who have appeared before Grievance committees, NASD and SEC boards and the state education department. They need to find attorneys who have helped others hold onto the licenses after those individuals have been accused or even investigated for crimes.
Now a sentencing expert is not going to help Bernie Madoff too much. But when a White Collar Criminal Defendant is looking for a criminal defense team, especially in the federal Second Circuit (which encompasses New York Brooklyn Queens Nassau and Suffolk Counties), they should also be concerned with how much that trial lawyer knows about the Federal and State Sentencing guidelines. Working the guidelines and understanding the cases (such as Booker and FanFan and their progeny) is a key to avoiding lengthy prison sentences.
In all, I really enjoy working on White Collar Criminal Defense cases in New York and on Long Island. They provide a tremendous legal challenge and a personal challenge too. They require I reinforce to the jury that the clients are not bad people and that they are the same as those before whom they are called. They are just men and women who were trying to make an honest buck when a roof caved in.
It is also important to keep before the jury, that it is not the job of the white collar defendant to stop people from making mistakes with their money, it is their job to offer legitimate opportunities, explain the risks accurately and then let the chips fall where they may.
If you or someone you love is charged with a White Collar Crime whether in New York City or in Nassau or Suffolk counties, I would love to consult with you, or them, about it to see if we may help.
You can call us at 516-741-3400 24/7or reach out to us on this blog.
Tuesday, January 13, 2009
Man Bites Dog: Victim Seeks Dismissal of Statutory Rape Charges Against Director Roman Polanski. Should It Matter?
The alleged victim in the Roman Polanski Statutory Rape case, joins with Polanski in seeking dismissal of the charges against him. Filing a separate affidavit, the victim accuses the former Judge and Prosecutor in her case of failures and misdeeds. She also claims that the prosecutors in the case now are seeking to cover up those misdeeds and that their failures are causing her unnecessary grief and embarrassment.
Ms. Geimer now 45 years old and a mother herself wants the case dismissed. Though not denying the facts behind the allegations, she feels that too much time has passed and that she has moved on in her life. She asserts that Prosecutors, who earlier this month used Grand Jury excerpts that gave vivid detail to the media about the accusations leveled at the Oscar winning director, are trudging the whole thing up to protect their office's good name at her expense.
Polanski was allegedly at the home of actor Jack Nicholson when he attacked the girl who was there alone to meet the famed director. Polanski lost his wife Sharon Tate a young actress and their yet to be born child in the Manson Murder spree.
Geimer's petition is an interesting one. Under her theory, as a victim she should have a say as to how the prosecution is handled and what should happen to the outcome of the case. This is essentially giving her veto power over the prosecutors office.
Nonetheless, Prosecutors and victim's rights advocates have been leading the charge to give victims more say in sentencing and other matters that, in the not so distant past have been the sole discretion of judges and lawyers. This would be fair turnaround. Often victims of crimes want to drop charges but are told that since they are not the prosecutor they have no say in what or how a case is handled. In cases where there are mandatory minimums, such as in many statutory rape situations, the victim's will is defeated.
If that were to happen in cases where a judge refused to go along with the victim, prosecutors rally to the victim's side and decry the jurist and often blame defense counsel as well. It feels like fair game to burn the prosecution at its own game. In fact, in Polanski's case it is even more than fair as the prosecutor went so far as to have ex-parte conversations with the court and it seems made a fair sentence for Polansky impossible. Griemer has a case it seems where the malfeasense of Prosecutors and the court now causes her more pain and suffering after the fact.
I suppose that I should look at this as a positive effect of Victim's rights. I don't. I see it as a furthering weakening of the criminal justice system and a further step away from what we should be properly doing, that is, establishing guilt and if there is guilt finding an appropriate sentence that will deter further misbehavior by the accused and return that person to society as soon as correction and rehabilitation has been established. It has nothing to do with victims. It isn't about their feelings or lack thereof. It isn't about vengence or hearing the victim's voice.
I am not against those things in the proper forum (ie a parole hearing or civil proceeding) I am against it when it comes to the job or the elected official and when it gets in the way of the goals of the system.
Whether Polansky should be allowed to attack his conviction while remaining in France is not my issue. Whether his conviction or plea should be allowed to be withdrawn is not my care now. Whether that decision should be left up to his victim, anymore than his sentence should be is the issue. I do not feel that it she has any say in this matter. It is for the District Attorney to decide how to enforce the laws of his state. I just think that it also has to be a two way street. If a victim cannot help an accused by being heard on her decision to prosecute, neither should she be able to assert her will on other issues in the criminal prosecurtion of the case in which she is not a party, but is a witness.
What are your thoughts on the role of victims in the Criminal Justice System? Let me know in the comments or by send them to me via Twitter
Ms. Geimer now 45 years old and a mother herself wants the case dismissed. Though not denying the facts behind the allegations, she feels that too much time has passed and that she has moved on in her life. She asserts that Prosecutors, who earlier this month used Grand Jury excerpts that gave vivid detail to the media about the accusations leveled at the Oscar winning director, are trudging the whole thing up to protect their office's good name at her expense.
Polanski was allegedly at the home of actor Jack Nicholson when he attacked the girl who was there alone to meet the famed director. Polanski lost his wife Sharon Tate a young actress and their yet to be born child in the Manson Murder spree.
Geimer's petition is an interesting one. Under her theory, as a victim she should have a say as to how the prosecution is handled and what should happen to the outcome of the case. This is essentially giving her veto power over the prosecutors office.
Nonetheless, Prosecutors and victim's rights advocates have been leading the charge to give victims more say in sentencing and other matters that, in the not so distant past have been the sole discretion of judges and lawyers. This would be fair turnaround. Often victims of crimes want to drop charges but are told that since they are not the prosecutor they have no say in what or how a case is handled. In cases where there are mandatory minimums, such as in many statutory rape situations, the victim's will is defeated.
If that were to happen in cases where a judge refused to go along with the victim, prosecutors rally to the victim's side and decry the jurist and often blame defense counsel as well. It feels like fair game to burn the prosecution at its own game. In fact, in Polanski's case it is even more than fair as the prosecutor went so far as to have ex-parte conversations with the court and it seems made a fair sentence for Polansky impossible. Griemer has a case it seems where the malfeasense of Prosecutors and the court now causes her more pain and suffering after the fact.
I suppose that I should look at this as a positive effect of Victim's rights. I don't. I see it as a furthering weakening of the criminal justice system and a further step away from what we should be properly doing, that is, establishing guilt and if there is guilt finding an appropriate sentence that will deter further misbehavior by the accused and return that person to society as soon as correction and rehabilitation has been established. It has nothing to do with victims. It isn't about their feelings or lack thereof. It isn't about vengence or hearing the victim's voice.
I am not against those things in the proper forum (ie a parole hearing or civil proceeding) I am against it when it comes to the job or the elected official and when it gets in the way of the goals of the system.
Whether Polansky should be allowed to attack his conviction while remaining in France is not my issue. Whether his conviction or plea should be allowed to be withdrawn is not my care now. Whether that decision should be left up to his victim, anymore than his sentence should be is the issue. I do not feel that it she has any say in this matter. It is for the District Attorney to decide how to enforce the laws of his state. I just think that it also has to be a two way street. If a victim cannot help an accused by being heard on her decision to prosecute, neither should she be able to assert her will on other issues in the criminal prosecurtion of the case in which she is not a party, but is a witness.
What are your thoughts on the role of victims in the Criminal Justice System? Let me know in the comments or by send them to me via Twitter
Friday, November 28, 2008
Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude
Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Wednesday, September 05, 2007
NEWS FLASH CRAIG MAY NOT RESIGN!! Is This The Making of a Libertarian???
NEWS FLASH: IDAHO SENATOR LARRY CRAIG IS RECONSIDERING HIS DECISION TO STEP DOWN
The NY TIMES and the Associated Press (here)report Senator Larry Craig who said he was resigning from the US Senate after it was reported he was convicted of Disorderly conduct after being accused of soliciting gay sex in a public toilet, has let it be known he is reconsidering his decision... yet again.
By the time I had a chance to look into this matter and post about it originally, it was over. Sen. Larry Craig of Idaho was already resigning.
I remember thinking how sad it was that this fellow didn't trust the systems of justice that he had been part of for so long that he hastily entered a guilty plea.
Then I read about his family, and where he was from. Then I realized the shame he would have felt by putting them through what they are now going through. THEN I HEARD THE TAPE...
Pardon me, but I really do not believe... THE COP!!
Evidentially neither does former prosecutor and fellow US Senator Arlen Spector from PA. He has urged Craig to stay on and fight for his seat in the US Senate.
That I find the cop to be somewhat sureal and to be lying should come as no suprise to most of my readers I guess, but when I heard the tape, I realized that there was no case and the cop was desperately trying to get Sen. Craig to incriminate himself so he wouldn't look like the buffoon he was, sitting in a toilet all day waiting for someone to do something he could say was solicitation.
Maybe my mind was colored by all the hogwash I hear NY and Long Island vice say about solicitation...
Prosecutor:"What did you say to her?"
Undercover:" I asked her if she liked to listen to oldies music."
Prosecutor:" What did she say."
UC:" She likes Frank Sinatra and Billy Joel. So I arrested her."
ADA": What was the significance of that answer?"
UC:" In my 5 months as a vice squad cop (the judge is now ruling he is a vice expert) I have learned that the names Frank Sinatra and Billy Joel are euphamisms for Full service or vaginal sex and a blow job the venacular term for oral sex..."
It's hogwash. Everyday people get cowed into pleading guilty to a violation or crime they didn't really commit because these guys are to lazy or stupid to put together a real case.
Now I will pass on the whole issue of why it is a crime to ask a guy if he wants to have gay sex with you and it is considered a badge of honor to go up to a girl and ask her if she will have straight sex with you, as long as there is no discussion of payment. But come on. He LOOKED,TAPPED & WAVED??? So obviously, not only does he want to have sex with me, but he wants to do it in a public bathroom stall... IN MINNEAPOLIS???? Yet all the scarry cat Republicans who never met a cop they didn't want to believe blindly just cast Senator Craig aside. Gosh they fought harder for Congressman Jefferson and the cold cash in his frezzer!!!
Sen. Craig. You are a Neo-con Christian Right conservative. More anethma politically to me than anything to the right of Clinton and Kennedy. ( I save a special place for those two senators and the rest of the ADA clan)
I don't think you have voted for anything I believe in in all your time in DC... With that said, I would like nothing more than for you not to continue to serve in the US Senate, though I admire your willingness to do so.
My advice to you Sir is " DO NOT RESIGN. DO NOT GO QUIETLY INTO THE NIGHT. TRUST OUR SYSTEM OF JUSTICE. In the end you will prevail."
Yes, I want you out, but not like this, not for these reasons. The people of Idaho elected you. It is not for a bathroom cop in Minnesota to say who may represent them. If you are as innocent as you sound on the tape, and as you say you are, DO NOT GO. DO NOT RESIGN.
Who knows what will happen now that you have learned about police testilying??? Maybe you will start looking at the executive branch with the same distrust the founding fathers did when they proposed those first 10 amendments...
( I reserve the right to clean this up later and maybe add a few links.) I wanted to get this out. By staying up this late, I actually may have a blog scoop and I want it up ASAP.) TLD.
The NY TIMES and the Associated Press (here)report Senator Larry Craig who said he was resigning from the US Senate after it was reported he was convicted of Disorderly conduct after being accused of soliciting gay sex in a public toilet, has let it be known he is reconsidering his decision... yet again.
By the time I had a chance to look into this matter and post about it originally, it was over. Sen. Larry Craig of Idaho was already resigning.
I remember thinking how sad it was that this fellow didn't trust the systems of justice that he had been part of for so long that he hastily entered a guilty plea.
Then I read about his family, and where he was from. Then I realized the shame he would have felt by putting them through what they are now going through. THEN I HEARD THE TAPE...
Pardon me, but I really do not believe... THE COP!!
Evidentially neither does former prosecutor and fellow US Senator Arlen Spector from PA. He has urged Craig to stay on and fight for his seat in the US Senate.
That I find the cop to be somewhat sureal and to be lying should come as no suprise to most of my readers I guess, but when I heard the tape, I realized that there was no case and the cop was desperately trying to get Sen. Craig to incriminate himself so he wouldn't look like the buffoon he was, sitting in a toilet all day waiting for someone to do something he could say was solicitation.
Maybe my mind was colored by all the hogwash I hear NY and Long Island vice say about solicitation...
Prosecutor:"What did you say to her?"
Undercover:" I asked her if she liked to listen to oldies music."
Prosecutor:" What did she say."
UC:" She likes Frank Sinatra and Billy Joel. So I arrested her."
ADA": What was the significance of that answer?"
UC:" In my 5 months as a vice squad cop (the judge is now ruling he is a vice expert) I have learned that the names Frank Sinatra and Billy Joel are euphamisms for Full service or vaginal sex and a blow job the venacular term for oral sex..."
It's hogwash. Everyday people get cowed into pleading guilty to a violation or crime they didn't really commit because these guys are to lazy or stupid to put together a real case.
Now I will pass on the whole issue of why it is a crime to ask a guy if he wants to have gay sex with you and it is considered a badge of honor to go up to a girl and ask her if she will have straight sex with you, as long as there is no discussion of payment. But come on. He LOOKED,TAPPED & WAVED??? So obviously, not only does he want to have sex with me, but he wants to do it in a public bathroom stall... IN MINNEAPOLIS???? Yet all the scarry cat Republicans who never met a cop they didn't want to believe blindly just cast Senator Craig aside. Gosh they fought harder for Congressman Jefferson and the cold cash in his frezzer!!!
Sen. Craig. You are a Neo-con Christian Right conservative. More anethma politically to me than anything to the right of Clinton and Kennedy. ( I save a special place for those two senators and the rest of the ADA clan)
I don't think you have voted for anything I believe in in all your time in DC... With that said, I would like nothing more than for you not to continue to serve in the US Senate, though I admire your willingness to do so.
My advice to you Sir is " DO NOT RESIGN. DO NOT GO QUIETLY INTO THE NIGHT. TRUST OUR SYSTEM OF JUSTICE. In the end you will prevail."
Yes, I want you out, but not like this, not for these reasons. The people of Idaho elected you. It is not for a bathroom cop in Minnesota to say who may represent them. If you are as innocent as you sound on the tape, and as you say you are, DO NOT GO. DO NOT RESIGN.
Who knows what will happen now that you have learned about police testilying??? Maybe you will start looking at the executive branch with the same distrust the founding fathers did when they proposed those first 10 amendments...
( I reserve the right to clean this up later and maybe add a few links.) I wanted to get this out. By staying up this late, I actually may have a blog scoop and I want it up ASAP.) TLD.
Sunday, January 14, 2007
Drinking And Driving Does Not Equal Driving While Intoxicated
I have spent the better part of this holiday season trying to disabuse potential clients of the idea that because they had a drink and drove, didn't mean that the prosecutors could prove they were drunk at the time they were arrested. The anti-alcohol lobby has done an excellent job of telling America, wrongly of course that if you drink and drive, you're guilty of Driving While Intoxicated.
If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.
To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.
Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.
Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.
Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.
With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?
The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.
If you were not driving while intoxicated, under NY law you are not guilty of the crime. There are many ways to attack an unlawful charge of driving while intoxicated.
To begin, If there were others in the car with you, and they can testify to your sobriety that will help. In a recent trial a policeman testified that the defendant was weaving within his lane and twice hit a divider. The police officer wrote a ticket for failing to maintain lane (he needed probable cause to stop and otherwise legally driven car so he could breath test the driver.) The defendant and his friend both testified that it never happened. The jury failed to convict on the charge. Juries do not always believe the police.
Second, assuming that the accused was drinking at a bar or restaurant before driving a bill from the bar or restaurant that delineates what was consumed can be strong evidence of total consumption especially when coupled with the bartender or waitress testimony or that of fellow diners.
Inaccuracies as to how the Standardized Field Sobriety Test is given also can lead to a jury raising reasonable doubt as to one's guilt of intoxication at the time they were operating a motor vehicle.
Finally if the judge will allow it, there is the issue that the breath test does not test your actual blood alcohol level and there may be medical evidence to attack the validity of the test.
With new plea bargaining rules in place in Nassau and Suffolk Counties it may behoove those that are facing the real possibility of jail to skip the Breath test. If one has taken the test, there is a very good attack on both the science of the machine and the way the test is taken. One of the most damaging pieces of evidence is that police will not allow defense experts to examine their machine. After all, if they have nothing to hide, why won't they let our expert take a peek?
The main message here is that even though the politicians and the advocates for the anti-alcohol lobby have been snowing America for years there are very strong defenses for someone who is wrongfully accused of drinking and driving. The most important part of the puzzle is finding a lawyer who is not afraid of the jury and is not in it to cash in on your misfortune. A lawyer who is really going to put the people to the test is going to be expensive. There will be motions and hearings and trials involved. With the cost of an expert witness or witnesses the cost could easily run in the tens of thousands of dollars. That said, with District Attorney's in both Nassau and Suffolk counties on Long Island and even in Queens County tightening up their plea bargaining rules, and with the New York State Legislature making ridiculous rules that can ruin lives of good people wrongfully accused of this crime, the investment in winning a trial is far more than worth the cost.
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