Nassau District Attorney Rice: Making A Career Out Of Wasting Taxpayers Money: Arresting Tassone Is An Expensive Bush League Move

I have to think that Nassau District Attorney Kathleen Rice either doesn't care about the taxpayers who (barely) elected her, or she thinks we are stupid.  Her latest boondoggle is costing us a minimum of Ten Thousand dollars, for five days.

Frank Tassone is a non violent and evidentially very sick heart patient who also happens to have helped steal Eleven Million Dollars from the Roslyn (NY) School District (see this article.) The case has generated a lot of publicity here on Long Island, throughout New York State, and across the country. Though the investigation was completed by her predecessor, District Attorney Rice has been basking in the glow of the convictions her office has obtained even though she was unable to convince the judge in the case to impose the serious sentences she wanted. Getting the convictions and jail time without costing the already ripped of residents of Nassau more money, was laudable. Not happy however with coming in at the last moment, finishing the job, and getting all the good will that comes with the convictions her predecessor's investigation put in motion, Rice had to come in with one of the most bush-leauge moves I have seen in twenty two (22)years of practicing law. It again calls into question, Rice's professional maturity for her postion.

Tassone is in Lenox Hill Hosptial in NYC. He has congestive heart failure. He has surrendered his passport and returned a large share of the stolen money. As previously noted, he is not violent. He missed court twice while in the hospital. According to Newsday, the judwarranted a warrent for Tassone's arrest but also set another court date. Every real lawyer knows that the court is saying: "if he doesn't get in on the next day, I will be very angry." It does not mean go out to his hospital bed and arrest him.

NY Court of Claims Judge Alan Honorof, the judge in the case, is a very decent man. He would never unnecessarily cost taxpayers money. Unfortunately he underestimates the publicity seeking Ms. Rice. She went right out and had her police officers arrest Mr. Tassone at his hospital bed. Assuming Tassone is not released before his next court date of Tuesday, this little charade will cost we taxpayers a minimum of Ten Thousand ($10,000)Dollars in non overtime salary costs. If there is overtime involved, then it's going to cost nearly double. Those figures also do not inconveniencenconvienence to the Doctors, nurses and staff at the Hospital.

Rice complained "So am I supposed to wait until he does actually flee?" "Imagine the phone calls I'd be getting then: 'How could you let this happen? You should have known; he didn't show up twice before.'" Oh good now we are going to govern by trying to avoid bad publicity???

This lady has a bad excuse for every halfbaked scheme she comes up with. This county has more than its share of violent, healthy, dangerous, criminals that she cannot find in one day. But a sick fosuperintendentperintendant, he is a priority because he may garner her bad publicity if he gets out of a hospital bed with heart failure and escapes???? So now she is governing by the "Cover your ass" system of Justice?
It is rumored around the courthouse that Rice thinks she will be NY's next Jr. Senator from NY assuming the one we have now runs for a different office.

This is just one more example of Rice's nonchalance toward the costs of her immaturity in office on the taxpayers of Nassau County. Rice's budget proposal has been handed into the county legislature. It is a disaster. She has 4 more employees than she had in 2003 and her budget is 30% more expensive!!! That is more than 6 million Dollars!

I am unfortunately correct about Ms. Rice and her plans. She cares not a wit about the victims of Nassau County, unless of course their plight advances her publicity or career. When is Rice going to start to show some class in this job? I will analyze Rice's budget request and advise why the legislature should reduce it in my next post.

Our Firm Newsletter Is Available. This Month's Topic: Fraud

Every month The Law Offices of Anthony J. Colleluori and Associates, LLC., publishes a newsletter which is compiled for us by the legal publisher, FINDLAW.  I have found these Newsletters to be really well done. In fact they not only provide information on a number 0f important criminal law topics but they also provide really good checklists to help readers evaluate their cases.

This month there is a really good checklist on how to avoid behaviors that will attract the IRS' ire.
For example:
Claiming an exemption for a dependent whom you never supported.
Destroying your books to conceal tax evasion.
Creating false checks or receipts to support deductions that don't exist.

I am often suprised that people are being advised by others to do exactly these types of things.  Some of the items on the list seem to be obvious. (Don't lie about your income) but I hear it regularly from people who ought to know better.  Read the Newsletter by clicking here.  Sign up for monthly updates by clicking here and following the directions.

I hope you enjoy the Newsletter. If you find you need to talk about something you read there, contact us by phone or e-mail by clicking here

Ok You Got Your 9 Billion Dollar Fence, Now How About You Get US Some Real Immigration Reform?

Over a year, hundreds of protests, thousands of phone calls and e-mails, a gazillion promises, and all you guys can come up with is a fence??? A nine billion dollar fence???? Am I missing something? Did all that action over the last year not get through. What part of Immigration reform do you guys not understand?? How many of you guys own stock in Boeing?

Oh I see, maybe you're all too busy sending inappropriate emails to congressional pages.  They had a Republican House, Republican Senate and the President not only is a Republican but he had a plan even the democrats couldn't argue with, and you still accomplished NOTHING, NADA, ZIPPO ZILCH!!!!

You guys couldn't muster the courage to do the right thing.  Now you have the gall to ask us to return you? Morons, all of you.

Let me restate the problem. You have 12 Million people who are living here without anyone knowing where they are. They are indespensible to our economy especially agriculture and travel. They can't pay taxes so they use services and our cities collect nothing from them. Fire, ambulance, Health and Education budgets are streched thin.  
Employers who should pay taxes on these folks don't which is bad for those businesses that play by the rules.

Then there are the humanitarian reasons to act. Such as families being split apart, relatives being unable to attend the funerals or to the health of others because they can't leave or they won't be allowed back in. Again a lot of these people have become the fabric or our society.

Worse yet some of these 12 million are dangerous, and you don't know where they are.

But we have a fence!! I feel much better now. I mean, they can't get in, and maybe someday we won't be able to get out. Can't you just hear the soul of Ronald Reagan saying "Mr. Bush, tear down this wall" Nations that believe in Freedom do not build containing walls!!

I am sorry, but it is really time to vote all of your sorry rear ends out of Congress.

Congress really disgusts me lately.

Violence & Gun Crime Increase, As Overall Crime Rate Drops

Story here

The US Justice Dept. announced that the overall crime rate has dropped to a 32 year low. However the report contained the bad news that violent crimes Homicides and Gun related crime has risen over last year, confirming antedotal evidence.

Criminal Justice experts blame the increase on the Bush administration backing off gun control and with deep cuts in federal crime fighting aid. The fall off in aid is directly attributable to the increase funds the administration is giving localities for more Homeland Security, especially aid to cities.

Nancy Reagan Tries To Honor The Gipper... Right Medicine, Wrong Dose

I worked in three campaigns for President Ronald Reagan. I had the chance to meet him once in New Hampshire in the '80 campaign. I was already a Conservative when I worked for President Reagan. Coming of age under him, was however an unbelievable experience. His belief in our Nation and our way of life and our people was so very strong. He focused on what was right about our country. He was fearless. The First Lady was the perfect First Lady. She was elegant and well spoken. Most of all she was fiercely loyal to her husband, and she did him proud in public and in private. I wish President Reagan had stayed well till the end of his life. Our nation lost a tremendous Statesman when he quietly succumbed to Alzheimer's disease.

There is a tough campaign for senate going on in Virginia. One of President Reagan's former administration members (Former Secretary of the Navy Jim Webb) has changed party affiliation and is running against a Reagan loyalist Senator George Allen.

Webb has an old video of the late President praising Webb and his war record. Webb was a hero in Vietnam. He loved the Navy and he was very protective of it. He so loved the Navy he retired as Secretary of the Navy rather than allow others to dismantle it piece by piece.

Allen's campaign complained to, probably Ed Meese... (by far the one guy I didn't like around the President but he loved him so...) and Messe, as Mrs. Reagan's lawyer wrote to Webb saying that Mrs. Reagan opposed his use of the President Reagan's image to support a campaign of a democrat. He said it might even be illegal (it's not, but being wrong about legal issues was something Messe was good at.)

Some (like Allen) say that Webb abandoned the President. He has "no right" to use the images. I do not see it that way, but it doesn't matter. I don't know if President Reagan would support the Webb candidacy against one of his favorite senators. I do know that the President would never walk away from his praise of Webb's military service. If I had to guess, the President would have been out campaigning for the Republican candidate and what he stands for, while never denigrating the contribution Webb made to his country.

Mrs. Reagan, campaign for George Allen. Don't however continue to call on Webb to walk away from the President or his memories of him. I have no doubt that the image Webb plays of President Reagan praising his war contributions was one of, if not, the proudest days of Webb's life. He earned the praise President Reagan gave him, and he has a right to let others know of it. Your support of Allen is fine. Do it in a way that honors President Reagan's memory.

One more thing while I am thinking of it, Mrs. Reagan. Get a new lawyer, may be one who knows the law.

Rummy Still Doesn't Get It: Anti-Rumsfeld & His Iraqi Adventure Does Not Mean Anti-War On Terror

I love to study international relations when I can rip myself away from the 1000's of legal blog posts and the 15 or so legal magazines I read each week. On this blog, which I treat as my voice in the Blogshere, I still try to keep to the issues of law that face us everyday, with a major focus on Civil Rights and Criminal Justice.

I have assiduously stayed away from speaking about the War on Terror abroad or the War in Iraq. As most of you know, just as the doves destroyed the word liberal(forcing it to mean appeaser and spineless) in the 1960's and early 1970's, the neoconservative (almost al of them) hawks are about to drive the word "Conservative" over an embankment and to a fiery death.

In the 1960's, one could not be "liberal" and support our troops or our work in Viet Nam. The "Doves" took over the Democrat party and drove out most of those who were patriotic and supportive of our military. They called you a "traitor to the cause". They would routinely commit hari-kari and run unelectable doves against more moderate but liberal Democrat candidates in primaries. They would kill any chance that the primary winner would have a shot in the general election by pushing the moderate so far left that he was unelectable in a general election. They would rather lose the base of the movement as a whole then have anything less than a purity of mission.

Let's get something straight from the beginning. A Neo-con IS NOT A CONSERVATIVE. In fact we should not use the word conservative in speaking about them. These guys are the old moderate liberals who got mugged by the Doves. They spend like money is water and feather their own nests just like the democrat/liberals of old. Just like those guys they cannot tolerate when someone disagrees with them. They will not tolerate anything less than purity in their message.

So now comes Donald "I wish I had thought of an exit strategy" Rumsfeld bitching and moaning that real conservatives are abandoning the reservation on Iraq. If we are against the Iraqi War, we're coddling terrorists. Next thing you know he will accuse us of out right treason. According to this Washington Post article Rummy accuses us of "moral and intellectual confusion." That translates into those that oppose us are immoral and stupid.

I have a word for Rummy: You need to go, now.

Tell the President that you resign, and will not accept his refusal to accept your resignation. You sir are confused. Yes, we cannot abandon Iraq now. Admit however that you were wrong to go in there until you defined a clear mission and one that was based on the right reason to be there. There were no WMD's there. Saddam was a bastard. He was killing people and torturing them. These conditions could lead to a breeding ground for terror. IF we understood the reasons we were going there, maybe we would have defined the conditions better. Maybe we would have stopped you. Maybe you would have had some semblance of credibility. Maybe you would not have to hide behind false patriotism.

For a second, Rummy, admit you screwed the pooch. You mistakenly thought that the immorality of the Saddam regime would bring the people to us the way they loved Patton in Sicily. You expected them to bring you Saddam dead, naked, and hung upside down in the town square ala Mussolini. You attacked the wrong regime for the wrong reason. You continue to tell us that you are fighting terror there when your war imported terrorists into the country. IF you wanted to find terrorists you could have by strategically attacking Iran and Syria. Hell there were less terrorists in prewar Iraq than there is oil in Israel.

Your war in Iraq is costing us a ton of money, prestige, and effort, not to mention life.

Come on Donald, admit the mistakes now, You and your boy need some credibility with those of us that understand there were mistakes made at the highest levels. Come clean and the real conservatives will stick it out in Iraq to stabilize things. What will cease to happen is the "democracy" building BS you've been hurling at us. We will fund and fight wars that make us safer and let the rest alone for a day when the concepts of Democracy win the hearts and minds of the people and they are not forced to accept the concept of freedom at the point of a gun.

NO Donald, we are not immoral or confused. We get that Freedom and Democracy is something you have to want and earn. We understand that we can't leave, we just want you to know, that this mission needs to end when stability is reached. Fighting for freedom and democracy is someone else's fight, a Iraqi Hamilton or Jefferson perhaps, not some old neo-con from Washington DC.

The Week In Review Vol I No. 2:Who Will Hire an Ex-Con; Even Justice Dept. Agrees Rape is Torture; Do Conservatives Think The Pres. Stupid? And More!

Ok this week in review thing is harder than I thought. Nevertheless we will try it for a while on both blogs and see how it goes.

A. Who is hiring ex-cons

This post on CrimProf Blog talks about a Dallas job Fair for ex-cons. Less than 10 percent of those business invited accepted their invitations. Ok how do we break the cycle of Crime if after people have paid their debt to society they can't get a job?
Jobs ex-cons could hold:
Drivers:Trucks,Cars, delivery van.
Paralegals: Yep some of those jail house laywers actually know what they are doing and know the streets.
Loading Dock workers
Trades, laborer
counselors, meter maids,
manager at fast food joints, pretty much anything.
I have met a lot of qualified people who for many reasons commit crimes. I have helped many others who society loves and admires who have committed crimes but have not been arrested or otherwise charged for crimes they did commit. Not every con is right for every job. Neither is every college graduate. To not even look and see what's out there is stupid and wasteful. I wonder how it would have worked out if it was held here in NY?
It depends on the previous crime, but many of these adults have abilities to handle jobs that earn more than minimum wage.

B. Even The Department of Justice agrees Rape is Torture.

I could not believe a US Court of Appeals found that: "The rapes and prolonged imprisonment she suffered were part of a "legitimate investigation," the Fifth Circuit Court of Appeals held in March 2006. WHAT?? They sit in New Orleans. Maybe they brains are waterlogged. WHAT??

That's right. It's right here in the L.A. Times. A Congolese woman was being framed for being part of an assination attempt. She is held for months and raped on a regular basis. Those facts are assumed true. AND THE FIFTH CIRCUIT HELD THAT THE RAPEA WERE PART OF A LEGITIMATE INVESTIGATION.
Why has noone called on the US Senate to impeach these people?? Are we really sure the President can't do better?? Oh yeah, that's right he appointed some of them...(sigh)

Money quote:
"Repeated rapes are never part of a legitimate investigation. Rape is torture," wrote law professors Karen Musalo of UC Hastings College of Law in San Francisco, and Joseph Vail of the University of Houston Law Center. In asking the 5th Circuit to rehear the case they cited a December 1994 United Nations resolution denouncing systematic rape as a weapon of war."

C. Do Conservatives think the President is an Idiot??

The libertarian Reason magazine asked that question and the answer they came up with was...Yes!!

Money Quote:
" While other presidents have been called stupid, Scarborough said: "I think George Bush is in a league by himself. I don't think he has the intellectual depth as these other people."

Seems George Will and Bill Buckley think he might be too. I think the jury is still out, but he does get failing grades from me too. Here's hoping against hope he can salvage his second term in the next two years. Can't say I am optimistic.

D. And More:

I am sorry, it's late. I need to drive to Washington DC in the morning. I will try to get to some of the other things I found tomorrow. Till then, I'm out.

Patterico Pontifications Takes On Jury Nullification: That Lawyer Dude Comments Set Off Quite The Debate.

Seems my discussion on Patterico's Pontifications here and righthere on That Lawyer Dude, on the rights and obligations of juries to nullify has set off quite the discussion at Patterico's blog.

Patterico took me on (See note 52-57) and then decided that the issue was important enough to blog separately (check it all out here) He had over 90 responses before I left my response.

Here is Patterico's position on Nullification:

"Any officer who decides for himself what the law ought to be, in violation of his oath to tell the truth on the stand, is a “rogue cop” and a criminal.

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

To supporters of jury nullification: would you violate your oath to follow the law, given under penalty of perjury, in order to bend the law to your own personal conception of “justice” in a particular case?

If so, what makes you different from a rogue cop who lies about probable cause in order to convict a guilty criminal?"

And here is my response (I am number 92!! Who knew people cared about jury nullification so much):

"Ah Patterico, I am loving you. Thank you so much for sponsoring this most interesting debate. Over 90 responses. Outstanding.
Ok you posit as follow:

But jurors take an oath, too: an oath to follow the law as set forth in the court’s instructions. In California, jurors cannot serve unless they first raise their right hand and answer “yes” to the following question:

Do you, and each of you, understand and agree that you will well and truly try the case now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?

A juror cannot serve unless he answers this question “yes.” Like all questions answered by jurors, this answer is given under penalty of perjury.

And the instructions of the court mandate that jurors must follow the law, and not be swayed by sympathy, compassion, prejudice, or other emotions.

Yes I would take the oath. I would mean it when I say it and I would hold to it. I can still nullify under it. Remember there is an instruction (I believe Johnny Cochran spoke about it during his brilliant summation in Simpson. It is known by its Latin name: Falsus in Unum, Falsus in Omnibus. In NY that reads:

If you find that any witness has wilfully testified falsely as to any material fact, that is as to an important matter, the law permits you to disregard completely the entire testimony of that witness upon the principle that one who testifies falsely about one material fact is likely to testify falsely about everything. You are not required, however, to consider such a witness as totally “unbelievable.” You may accept so much of his or her testimony as you deem true and disregard what you feel is false. By the processes which I have just described to you, you, as the sole judges of the facts, decide which of the witnesses you will believe, what portion of their testimony you accept and what weight you will give to it.

A verdict that rejects testimony in full because it is false in part is fine with me. Even when other evidence may lead to a diferent verdict. The problem with evidence that is false is that it often in real life casts doubt as to other evidence that might be truthful. Let’s assume that the police officer says that he gave Miranda warnings at 10 am. Lets further assume that there is proof that that a truthful statement was given by the defendant at 10:49am. Further lets assume that it is proven that the Miranda warnings were not given until 11am. Finally assume that the police officer testified to seeing blood in the back seat that matched that of the dead person and said that he thereafter found the murder weapon two days later looking into a hollow tree in the park next to the defendant’s home.

The statement goes out, but the jury would be well within the law and instructions to reject the evidence about the blood and the weapon find, and I would say that if they really find some of the government’s case to be built on lies, the jury would be well within it’s rights to reject the side that argues the testimony that is a lie.

Once again thanks for this very interesting discussion. I wish I could get this type of stuff going on my own blog. It is an important discussion that criminalists have been thinking about a lot since Simpson."

I think the right of the jury to keep the government in check is an important jury right. It is not to be used all the time. I would have no problem with it being used in extreme cases. I believe that testilying by police hurts the criminal justice system far more long term than does any one verdict that allows a guilty person to go free. In the right case it can change the way courts and prosecutors do business. It can change the way certain police departments react as well. I do not think the Simpson jury nullified so much as I think they just didn't know what to beleive so they chose to believe none of what the prosecution offered. It is important to know however that the verdict in Simpson changed the face of how evidence is handled in LA and in many other parts of the Nation, and that is good for everyone, especially the innocent.

What a fun and interesting exchange.

The O. J. Simpson Verdict: The Jury Got It Right

Over at Patterico's Pontifications (a really good blog. I would love to know how its author keeps up with while he works as an Assistant District Attorney in a big city)Patterico has been blogging his remembrance of the OJ Simpson trial.

I added a comment and felt I owed it to you guys to post my thoughts here. I am the 52nd note over there but feel free to chime in here or there with your thoughts.:

Given the number of posts and the days since this post went up, I doubt anyone but Mrs. P will even read this.

I was a commentator for Fox in NY as well as other media outlets for the trial. I watched it gavel to gavel. I was one of four national commentators (according to Newsday)to "call" the correct verdict the morning it was to be announced.

It was a long time ago but I agree that venue made the defense job easier. The case was not the white v. Black thing it became after the verdict however. That happened as the case went on.

The problem from the beginning of the case has been outlined by many of the writers above. That the jury may have been more likely to believe police misconduct happened is not dispositive. "The Glove" had an effect on these jurors not on the commentators.
What really sealed it however was the evidence that the LA Police wanted to be sure to get this guy that they would lie and cover up lies to do it.

Jury nullification didn't play a role in the case, the jury didn't think he did it but nullified because of the misconduct. It didn't know and couldn't intelligently decide if he did it because of the obvious police misconduct.

One other point on jury nullification. It would have been appropriate here. The police and the District attorney not only work on behalf of the People of the State, they represent what these people stand for. When police or prosecutors (by the way I believe Clark and Darden for all the BS in this case were talented lawyers doing a good job against other exceptionally talented lawyers, I do not think they lost their case, I think they were beaten by their own witnesses and a top notch crew of attorneys)play the games and lie and fabricate evidence the way the LA Police did in this case, the jury has every right to say whoa this offends our sense of justice and we are not going to stand for it. While I firmly believe that the jury here didn't do this, it could have and it would have received no fault from me.

The Week in Review Volume I No.1:"Spoofing","Vishing" New Forms Of "Phishing"; The NSA Ruling; Capital Punishment For DWI? & A New Form Of Child Porn

All week I read a thousand web posts articles and such and wish I had the time to blog them all. Of course I could never do that and still practice law and spend time with my family. I decided to try to put together a post on a weekly basis that let's me bring the posts to your attention and throw in my two cents where I have the change in my pocket. (Tribute to the NY Times Sunday editionwhose Week in Review Section has been my favorite read for over 35 years.) I will be doing the same at our sister blog Long Island (Criminal)Trial Law. The difference will be the items chosen in each post will usually be a little different. Thus without further adieu here is Volume I No.1:

A. Phishing, Spoofing & Vishing OH MY!!

Newsday Long Island's paper of only daily newspaper reports that Long Island is seeing two new forms of "phishing." Wikipedia defines "phishing" as follows:

"...Phishing is a form of criminal activity using social engineering techniques. Phishers attempt to fraudulently acquire sensitive information,
such as passwords and credit card details, by masquerading as a trustworthy
person or business in an electronic communication. Phishing is typically
carried out using email or an instant message."

The new scams are called "spoofing" and "vishing."

"Spoofing" occurs when a thief uses something called "Voice over Internet Protocol" or VOIP. VOIP allows you to make calls over the internet. Thieves use it to hide their actual phone number and your Caller ID comes up with the name of a legitimate financial institution. You are asked personal information from account numbers to passwords and the like.

In the "Vishing" scenario, crooks call you and tell you there is a problem with your credit card account, and give you a number to call to straighten it out. When the victim calls the number he is asked to enter his credit card information using the touch tone keypad and Viola! The thieves have all they need to ripoff you and the credit card companies.

A third scam is a variation on a theme. The perpetrators already have your credit card information but do not have the three little numbers printed on the back of the card. They call you and tell you they are investigating fraudulent purchases on the card and ask you to provide the three numbers from the back of the card to "verify" who you are, or for "security purposes."

How to protect yourself:

a) Do not trust caller ID alone. Ask for the callers personal Identification information. Then tell the caller you intend to reach him back using the numbers provided on the credit card itself. Ask him for his telephone extension. Then call the number on your card and ask them to help you verify the problem.

b) Never release information on your card to someone you do not know. If they are from your financial institution they will know your numbers.

c) Ask what the last five purchases you made were and for the amounts and the dates. Ask them to provide your balance and your available funds and the date of your last payment and the method of same including the bank you paid the funds from. They may not have all the information, (especially your paying bank)but they should have all the rest of it.

If you have been the victim of an internet identity theft scam HIRE AN ATTORNEY PRONTO then call the police with the lawyer. You are going to have to act fast to protect your credit rating and personal information. You may also have a way to recoup your loses from the people who helped the crooks violate your privacy by their negligence or complicity.

B. NSA Wiretapping Is Ruled Unconstitutional

This is for all my readers who are about to go back to school and are trying to figure out what is up with the NSA wiretap case.


CNN reported that Detroit Michigan US District Court Judge Anna Diggs Taylor ruled that the Bush administration's Domestic wiretap program was unconstitutional. This is the program that the President has decided he has the right to institute without congressional approval. It allows the NSA to listen in on telephone calls without the need to first get approval from a FISA court. The Bush administration through Attorney General Alberto Gonzales has promised to appeal.

Close reading of the decision shows that the Seventy Three (73)year old jurist, a Carter appointee and the first Black woman appointed to the federal court in Michigan, had written more of polemic than legal decision. Neo-Conservative bloggers and Bush apologists went crazy. (Check out this post by Professor Ann Althouse. A more shall we say cogent legal opinion was rendered by Howard Bashman in his Law.com column.

I have to agree with both Althouse and Bashman (and just about everyone else) that the opinion is weak on legal theory and long on political discourse. I think the reason for this is as follows:
a) The Administration is seeking to conglomerate the NSA Cases into one court. That is good judicial economy, except that it means that only one Court of Appeal gets to rule on the case. That may not be good for either side. Hence in order to avoid that from happening the judge decided to get the decision out no matter what it said for reasoning just to be sure that her Court of Appeals in Chicago would get to weigh in on the matter.
b) She is really tired of what she sees as this administration's regal attitude and this concept that they can rule by fiat. She may have succumbed to the frustration that many of the liberal and classically liberal persuasion feel, as they watch the erosion of our liberties by an administration that is haunted by the ghosts of 9-11-01 and their failure to protect the nation from it.
or
c) She intends to correct the decision. Unlikely but possible.

For those that want to know what the 6th Circuit Court of Appeals might be thinking, there is this post supporting domestic intelligence gathering written by one of the 6th's greater conservative minds Judge Richard A. Posner.

The concept of Domestic Intelligence gathering is pretty much anathema to most counter-culture Americans and even to more mainstrean american civil libertarians. It brings back memories of President Richard Nixon and the Segretti Dirty Trick Squad and the domestic spying of the 1960's and early 1970's. However on Meet The Pressthis morning Senator John McCain made a case for at least some domestic spying performed under the watchful eyes of the Congress and the Courts.

I intend to keep my own watchful eye on this story.

C. Capital Punishment for DUI/DWI'S: A Modest Proposal*?

Over at one of my other favorite blogs, Sentencing Law and Policy
Professor Douglas Berman lays out the case for more severely punishing DWI offenders than sex offenders! Doug asks the question "Is capital punishment for drunk driving morally required?"

Shocking? Yes. Absurd? Maybe not according to the numbers. Why? Well, go see Doug's blog and see what you think of his thoughts.

*The phrase "A Modest Proposal" is from an essay of the same name by satirist Jonathan Swift written in 1729. It is probably my favorite political satire of all time. Swift could really "zing the king." Check it out here.

D. A New Form Of kiddy Porn Rears Its Ugly Head And May Split The First Amendment Lobby

The New York Times reports that kiddy pornographer are sending their smutty ideas through the internet under a potentially legal guise. They are posing kids in scanty attire, (covering the private parts) in suggestive ways to feed the sickos that "need" this garbage. I love free speech but this breaks its bounds. However, how much does this differ from a Calvin Klein Jean's or underwear ad?

There is no rule that says just because a child appears nude it is pornography and just because she is clothed it is not. In fact in US. v. Knox, the court specifically held that: "...Clothing alone did not automatically mean that images of children were legal."

There is a six prong test emanating from the case US v. Dost, which calls for the court to individually look into each case to determine if the poses render the pictures of a clothed child permissible or not.

Nevertheless, First Amendment Lawyers are uncomfortable with a rule that says children who are pictured wearing clothes can still be considered to be engaged in child porn.

My advice is to stay away from these sites as they contain Child pornography. In addition, if you are attracted to children that way, you should run and seek out counseling. RUN, before you are placed in the hands of Law enforcement. IF you have a problem with a child sex addiction there are places that can help.


Well that's my week in review. I am sure I missed stuff but hopefully you enjoyed this and I can keep it up.

A Frivolous Response To A Serious Dilemma: Self Promoting Lawyer Sues Nassau County NY District Attorney Rice Over DWI Plea Bargaining Policies

Though still on vacation, I have been trying to keep up every other day or so with what's happening on sleepy Long Island. August 7th must have been a slow news day, because both the NY Law Journal and Newsday covered the self-aggrandizing "press conference" by some attorney (who shall remain nameless, less we give him an even bigger head than he already has) and the asinine law suit he filed against Nassau County District Attorney Kathleen Rice and Nassau County's Administrative Judge Hon. Anthony Marano. Now this particular lawyer, files more frivolous law suits than any other lawyer I have ever met. (I should know, he has filed at least 2 against me, making me a lot of money both times.) He usually holds a press conference each time he files one of them. Usually, the press overlooks these lawsuits, but like I said, the courts are vacationing, as are many of the lawyers, and it must have been a slow, slow, sloooowwww, news day on the 7th.

The law suit was filed, because this "Attorney" thinks that District Attorney Rice's plea bargaining policy is unconstitutional. He went on to cite a couple of Federal cases (that do not even remotely have anything to do with the issues), and then held a press conference. This is not the first time this guy has sued Rice. Back during the Halloween Egg Toss Case, this "lawyer" was the first one to run to the district attorney's office and beg them for a plea bargain, so his client could plead guilty to an act that was never a crime. Then, when the District Attorney's office didn't offer a plea bargain he liked, he invited them to put the case in front of a grand jury. When they did, he sued to be allowed to plea his poor client TO THE CHARGE (again he held a press conference to announce the lawsuit!!!!) DA Rice let him enter the plea to the charge. My client resisted the pressure of her co-defendants and instead went before the grand jury ALONE. She beat the trumped up charges that were brought against her. Mr. Lawsuit (obviously embarassed)then brought on a motion to allow his client to withdraw his plea based on my client's grand jury result!!! I have been told his motion was denied.


Salvatore Marinello, Chair of the Nassau County Bar Association's Criminal Law and Procedure Committee (a Committee I once chaired)was asked to comment on the tactic of suing the District Attorney. He told it like it is, to wit: ""As much as I don't agree with the policies, I really don't think I can say they're unconstitutional." He went on to say that the lawsuit has no merit.

Sal Marinello is right. The policies are ridiculously harsh for first offenders, however the self promoting, unnamed lawyer's lawsuit, is frivolous. You see, prosecutors have no duty to plea bargain cases. Hence Rice's position is not only constitutional, it's codified in the laws of the State of NY.

Nevertheless, there are a few things that the defense bar should be doing (that thus far it has not done) to convince District Attorney Rice that she should rethink her position. I will outline them in a post over at our sister blog Long Island (Criminal)Trial Lawyer. In the meantime the lawsuit that has been filed is a waste of taxpayers money and really gives a black eye to the legal profession. Far be it from me to tell Supreme Court Judge Tom Phelan what to do, but I think the case should be dismissed, and the lawyer fined for bringing it. Maybe then he will stop squealing about plea bargaining policies, and concentrate on winning the cases brought to him by clients who think they are hiring a criminal defense lawyer and not "Monty Hall."

What's Good For The Goose Is Gut For The Germans

Funny thing about many Americans; They think they are the only people inhabiting the planet. I've been vacationing in upstate NY and politics seems to be on everyone's mind. Most of the folks staying at the resort are wealthy and Republican. That's good by me, however in listening to them talk about the world and our nation, they act as if we have only a responsibility to ourselves. If "it" isn't good for us, it isn't good for anybody. In addition They seem to think that we can act any way we want, without fear that anyone else will follow our lead.

I dabble in International Criminal Law, (which is to say I haven't taken any cases in the field but I read about it a lot.) It harkens me back to my days at Tufts University where my Professors wrote the US' brief to the Court of International Justice in Der Hague Netherlands, supporting our position in the Iranian Hostage Crisis. An understanding of international law, I think, is an important tool to have if you are a policy maker.

Ellen Podgar at White Collar Prof Blog alerts us to an important international trend. For years the Justice Department has looked to punish conduct that occurred outside our country's borders when their actions violate our laws and such conduct has a negative effect on our nation. The term for this is "objective territoriality". Now it seems that a German prosecutor has decided to look into a possible money laundering scheme where money has been moved from the USA to banks outside of the US and then moved to German banks. The money laundering stems from the alleged attempt by an embattled CEO of a US company trying to avoid having to pay the US Government and 2 whistleblowers more than 10 Million Dollars in a qui tam action that the whistleblowers brought on behalf of the government for the company's (Custer Battles LLC)fraud.

The prosecution may be a good one, but Podgar asks an important question, How will we react if other nations try to prosecute our citizens if actions taken in this country (actions that may otherwise be legal) are illegal in their country and have a negative effect on their nations? The US has for years played the game of international relations with a certain "might makes right" additude. What if France were to seek to the arrest of Donald Rumsfeld because the Iraqi War has negatively effected the French ability to get oil and they decide that the execution of the War with its allegations of torture, violate french laws? How would you feel?

Two Of Our Favorite "Kens" Change Jobs

Gee Whiz, you go out of town for a couple of days and everything changes.

Surprise No. 1, Ken Lammers blogger extrodinaire (Crim Law blog) and one of the first guys to cross link this blog, has announced that he is switching sides and going over to a prosecutor's office. The change will very likely bring on at least subtle changes in his blog. More likely it will bring big changes. I am not crazy about change but if you read about his decision to switch, you will see that economically he had little choice. The Defense bar has lost a good friend in Va. Moreover, his reasons for leaving points out how important it is to properly compensate indigent defense counsel.

Surprise No. 2, Another loss to the criminal justice system, this time closer to home, is the announcement that Nassau District Court Judge Ken Gartner is leaving the bench less than a year after being re-elected. I have been told the decision is reflective of the good judge's need to earn more money to support his young family. The NY state legislature's failure to pass much needed judicial raises is causing us to lose strong judges who have experience and training. If we do not soon see a pay raise, we will have a bench of burned out lawyers who couldn't make the salary in private practice or really rich lawyers who have no need for money but crave the power. Lazy and/or power crazy judges are the last thing we need. Ken Gartner has written a number of really good decisions (two of which I have blogged about here and here. I will miss appearing before him. He was often on the cutting edge of the law. Judge Gartner should be moving up to the state Supreme court, not looking to take off the robes and return to practice. LISTEN UP ALBANY... PASS A JUDICIAL PAY RAISE AND STOP SCREWING WITH THE COURTS!!!!

In the meantime, I wish both of these fine lawyers much luck with their future endeavors.

Nassau District Attorney Rice and Newsday's Joye Brown GUILTY of Conspiracy To Commit Murder In The First Degree: They Killed The Strawman

Newsday's Joye Brown: "For Rice It's Broom For a Change."

Wikipedia the online encyclopedia that anyone can write, defines a "Strawman" as an argument that:

" (is a)logical fallacy based on misrepresentation of an opponent's position. To "set up a straw man" or "set up a straw-man argument" is to create a position that is easy to refute, then attribute that position to the opponent. A straw-man argument can be a successful rhetorical technique (that is, it may succeed in persuading people) but it is in fact misleading, since the argument actually presented by the opponent has not been refuted. Its name is derived from the use of straw men in combat training where a scare crow is made in the image of the enemy with the single intent of attacking it(see [1]). It is occasionally called a straw dog fallacy [2] or a scarecrow argument."

It is said that the "Strawman argument" is a form of Media Manipulation. Boy do they have that right in this case. Whether unwittingly or complicity, Brown and Nassau County District Attorney Kathleen Rice set up a strawman and kill him in two sentences.

Brown asks Rice: "Are you the "Witch" your critics say you are?" Brown then lets Rice off the hook by letting her answer:"Would they say that about me if I were a MAN???"

OH PULEEEEEZE!!!! I can't wait to hear Rice moan and groan someday when she loses a case because someone plays the "race card" in a trial.

No one I know has ever said Kathleen Rice is a witch. We all have however had our criticisms of her office.

Lets see, speaking strictly for myself, I have said Rice acts without consulting with other parties who have an interest in her office's actions. I have said that she may not have received the "mandate" she thinks she has. She is a neophyte politician who was swept in on Tom Suozzi's coattails. I have said she risks her conviction rate by firing assistant district attorneys whom the Taxpayers have paid to train.

I have said that many of the major changes Rice tries to "wreak", has the effect of costing the county and the taxpayers far more money than the system presently in use, and increases (unnecessarily) the size and budget of her office. I have accused her of feathering her own nest both in her office and (by hiring her sister-in-law and a number of old friends from her days as a Brooklyn Assistant District Attorney)in her own "house."

I have said that forcing people in her office who work part-time for family reasons to return to full-time work or quit is cruel, unnecessarily costly, and most of all sets a bad example for employers in a time when the need to parent children and care for elderly relatives is something that government should be trying to foster. I said District Attorney Rice is guilty of judge shopping with her attempt to have a dedicated DWI part (which she has been given) and her request for "community based County court trial parts (which the court has smartly refused). I have said that her insistence in having a veto in sentencing is overstepping her bounds and is a usurpation of a court's authority (most of the county's judges have agreed with me on that one too.)

I have also said that many of her objectives are laudable but her approach is wrong. A case of right diagnosis wrong medicine (or in DWI cases wrong dose.) I have said that she has a right to surround herself with her own people, but that in positions that are important to the safety of the county, she should make sure they are not "on the job training". I also suggested that this Long Island bred and educated woman who worked briefly in the Nassau courts as a law student might want to see what works here, and let us know what changes she thinks need to be made.

Those are the facts. Rice has not answered a one of them. Brown's article is trying to set up the "all the good ole' boys are pickin' on me 'cause I'm a girl" argument. As if forcing women, who wish to raise a family and work, back into full time employment wasn't enough, this type of "defense" really set's back the Woman's rights movement. Nobody active in the Nassau County, NY Courts cares a whit about your gender, Madame District Attorney.

Moreover, I have never been a Nassau County District Attorney's office "insider." I never worked for them and I worked for working as a Legal Aid Society lawyer. I am not a member of either "major" political party, (I am a registered Conservative) nor do I think I am a good ole' boy as most people define it. My criticism of Rice comes not as someone who supported her opponent, I supported her.

I am excited about her decision to root out public corruption. I hope she looks at Labor Unions and Organized crime issues too. Dillon promised that too when he first started. It either doesn't exist (at least to the extent the press wants us to think it does, or Dillon wasn't really looking very hard.)I also hoped she would look into Police corruption and the department's violations of civil rights. That is not happening at all from what I have seen. Rice is said to have nearly no interest in these issues unless it's about a bribery case or something like that. Testilying?... It's business as usual on the south second floor of the Nassau County Courthouse.

When I spoke to Ms. Rice, before she was elected, I had hope that instead of harsher penalties for crimes of addiction and poverty, she would seek to get people help and make greater use of available rehab programs that would reduce recidivism. Instead she wants to hold otherwise good people to criminal records so that if they do beat their addictions they can never get a decent job. They can't find work and the chance for relapse goes waaaay up. Talk about a self defeating policy.

I quickly tired of the annual arrest/photo opp stings that Dillon and friends ran. Every year (and twice in election years) we would have a sweep in the ghettos of corner drug dealers and a mass arrest of mostly young and foreign carpenters and plumbers who were working without licenses. I had hoped that DA Rice would use her office's power to get training and outreach programs going. Instead it appears that by trying to dictate the sentences of plea bargained cases, she is forcing trials on cases that for years were handled to conviction without trials. I predict her conviction after trial rate will go down.

No, Kathleen Rice is not a witch. No one with any credibility has ever called her one in my presence. No one with any credibility, is challenging DA Rice(or criticizing her)because she is a woman. No, our criticism is that she is acting like a spoiled child and her answers to tough questions are nothing more than an attempt to grab power and money. Maybe she will mature into the position. Thus far our criticism's is that she lacks leadership.

By the way, Leadership, requires the ability to form consensus and rally people to your position Kathleen. It is not the same as a dictatorship where one person calls the tune and everyone better dance to it and if they don't they are against you. That is called Paranoia a dangerous trait in any elected official

When A Court Gets IT Right. Stopping The Federal Sentencing Guidelines From Running Amok

From our friends at The Second Circuit sentencing blog:
Judge Rakoff of the US District Court SDNY, was faced with the same issue as described in this post below. A federal prosecutuion of a white collar defendant who materially overstated the financial results for his company. Co-defendants received three (3)months jail. The government asked Rakoff for life imprisionment. Fact is that while some people probably lost a lot of money, nobody died or was tortured of killed or even injured. Life is just an unreasonable sentence for someone who hasn't killed or tried to kill or injure anyone. The details are more appropriate to our Sister blog Long Island (Criminal)Trial Law however Rakoff provides some very good policy arguments that the Second Circuit and Congress as well as the SCOTUS ought to take into consideration before their is a negative reaction to this courts careful consideration of what is a fair sentence.
Money quote:
""To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have run so amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences. This court has endeavored to do, as reflected in its reasons set forth at the time of sentencing and now in this Sentence Memorandum prompted by the dictates of Rattoballi. Whether those reasons are reasonable will be for others to decide."

In considering the Booker fix, the courts job is to give a fair sentence. Despite what some appellate courts have said the Federal Sentencing Guidelines are not per se fair. Judge Rakoff's sentence however was very fair.

When Judges Punish For Exercising One's Right To Trial

Professor Podgor over at White Collar Crime Prof Blog has a post about what is quickly becoming a trend in sentencing issues sending a white collar criminal away for life.

Here is the rub. We often complain that the poor get screwed while the rich usually get a slap on the wrist. The Enron scandal got the attention of Washington, and as Washington is wont to do, it over-reacted. Now we have the spectacle of watching(usually)old men, who have worked gainfully for years, provided jobs and support to others, supported charities in their communities, and who are not well suited for long term imprisonment to begin with, be carted away for 20 or more years.

The proletariat in me says, "well they do it to twenty something minorities all the time, why not the fat cats? The realist/conservative in me says "It costs me a ton of money to care for these guys and the chance one of them will commit another crime is next to nothing so, what's the point?

I am sure that deterrence is one point, but deterrence only works when it punishment is used uniformly. You see, the government is giving the store away on sentencing on these cases...If you waive your right to a trial and plead guilty.

In the case Ellen Podgar is talking about above, the co-defendants who forwent trial received 28 months. According to the Miami Herald, the defendant in the above case faced a minimum of Thirty (30) years if convicted. His co-defendant's faced a maximum of Six(6)years, and received far less.

Professor Doug Berman makes some keen observations on the effect this has on the right to a trial here.
Berman's money quote is as follows:
" The government is, of course, eager to send the message to white-collar defendants that going to trial could cost you the rest of your life, but pleading guilty and cooperating will likely only lead to a slap on the wrist."

Now I am not arguing that the government "has a right" to try to save us the money and the time it takes to try a case. Plea bargaining makes the system work more smoothly and moves out cases that do not need a trial to resolve. However I would agree with Ellen Podgar when she says:
" With sentence differentials like these, it may start coming down to whether the accused is willing to take a risk, as opposed to whether the person believes they are innocent and have a constitutional right to a jury trial."

No one should have to face a choice of being able to walk away with a veritable slap on the wrist if he pleads but if he puts the government to the test he gets life. It is not only inherently unfair, (after all if the case is worth 28 months without a trial can it really be worth 30 years with one?)but it begs the question, are we in the business of doing justice or are we just here to process arrests. Saving money is great, but not at the expense of justice.

Let me be clear here. I am not suggesting jail for the banker here is certainly required. What I am afraid of is that someone who is not guilty will plead guilty to avoid a longer jail sentence if convicted than if he pleads guilty. I am not for the imprisonment of innocent people. Sentencing the guilty to life on a white collar case sends a message that even if you think your innocent, it is better to take the deal. That is wrong.

I often hear people say if someone pleads guilty then they must be guilty because "they would never say they did something they didn't do, even if it meant life in prison"... of course life in a federal prison is never facing them when they say that. Thirty years...That's a long time in prison, especially when no one got physically injured and the chance of recidivisim is nil.

I hope what sentence and plea bargaining in cases like this doesn't deter the wrong thing. It is meant to deter someone else from committing the same crime. I don't think that works. I just hope it doesn't deter an innocent person from seeking to explore that innocence at trial.

A Hellacious Trip Home: The Illegal Imprisonment Of The Weary Traveler

My son, Frank, was tired after almost 4 solid weeks of arduous work learning about the US Political System and Political Communications at the Jr. Statesman Foundation's Summer College Program at Northwestern University in Evanston IL. The kid left the day school here ended, and then started the 6 day a week, 12 hour a day program to learn about how our country runs, and how to debate. He and his fellow Jr. Statesmen worked very hard taking college courses conducted by college professors for 6 hours a day, then preparing and participating in Model Congress debates for 2-3 hours each night.

Frank had earned superlative grades at Northwestern in the classes and was selected as a "Powerhouse" debater (one of only 6 out of the 60+ students by the professional staff), and also selected one of 3 top Speakers by his classmates. He was the only student to win both designations. After graduation, we celebrated with a great meal at Chicago's Grill on the Alley and a tour of the city's sights. The next morning it was off to O'Hare.

Along with over 150 other passengers we left Chicago O'Hare Airport on United Airlines Flight 680 headed for LaGuardia Airport in NYC on Friday at 12pm. Normally it is a two hour flight. Unfortunately, Friday last was a terrible day for traveling to the NY area. Now it is never a good day to fly into LaGuardia (nor Kennedy or Freedom/Newark either.) They have one of the the worst on time schedules around. Friday however they were shut down for most of the day with blasts of wind and lightning that caused massive flooding.

Air Traffic Control entered our plane into a series of holding patterns over Pennsylvania. More than a few times passengers on the flight thought and spoke about the heroic Americans who were aboard United Flight 93 who died on 9-11-01 bringing their plane down in a farm field not too far from where we were holding rather than allow the Islamic terrorists who had hijacked her to crash her into a building. Talk then came around to the way the President was handling the war. There were a lot of Midwesterners on the plane who want to like the President and trust the government. There were a lot of New Yorkers who have grown inpatient with the government and especially the President. I liked the respect both sides of the debate showed the other. I liked that Frank was so up on the issues and spoke about them so well that other passengers commented on his knowledge and presentation.

After a couple of hours of hovering, we needed to refuel. We landed at Harrisburg (Pa.)International??? Airport. That's when Hell took over. After refueling we were denied permission to take off, as Queens NY was under the siege of Mother Nature. Ok, most of us could understand the prudence of not flying into a lightening storm with 80+ MPH wind gusts. However what we couldn't abide was the refusal of TSA to let us off the plane. For over 7 hours we were held captive on the flight.

We were told that the airport didn't have a gateway to get us off the flight. Then we were told they didn't have a staircase, then we were told there was no tow bar to get the plane out of the gate once we went in. Finally we were told the truth. There weren't enough TSA officers to check us back through the gate if we left to get food or take care of other bodily functions. The cafe on the "right" side of the security gate was too small to handle the whole plane so some of us would have to go to the McDonald's on the other side of the gate and TSA couldn't handle us.

Seven hours of being on a cramped dark plane. Seven hours of baby's crying and people bitching and heat. Little to drink, and no food except for a few oat bars that tasted and had the consistency of cardboard. Seven hours of nothing but cellphone calls to loved ones telling them what was happening as if we had any idea.

It occurred to me that this is a microcosm of how our government is dealing with the terror threat. Screw our citizens to protect them??? I am tired of the mishandling of the domestic terror threat. Spying. Torture. Constant fear of our own neighbors. Threats to our newspapers and their reporters for telling us what our country is up to in our names. Holding prisoners without charging them and refusing to let them talk to their lawyers. Forcing children and Moms and old people to stay on a plane for 7 hours because the government can't get their act together.

Call me un-American I guess, but I am just plain tired of the incompetence and arrogance of this administration. I am tired of a President who has no idea how to handle foreign affairs. I am tired of his Texas Mafia and how he runs the country by poll. I'm tired of hearing that everytime anyone criticizes this administration for the way it is handling things, they are un-American or a traitor. I can't wait for November. I have every intention of showing them just how tired I am, when I get to the ballot box and register my vote. I will be encouraging others to do the same.

Finally a little after 9 pm they let us out. An obnoxious 20something who was the customer service rep told us that he was only going to announce the flight once so if we missed his announcement we were spending the night in Harrisburg. What an obnoxious bastard. A number of folks rented cars and cabs to go to NY. Frank and I stuck it out and went to the Capital Cafe on the "right" side of Security. We were repaid for staying by finding out that we could finally get into LaGuardia by midnight.

I will spare you the fiasco that United created at baggage claim (for more on consumer's complaints with United go here) Suffice it to say I will do whatever I can to avoid United in the future.

Meanwhile a big That Lawyer Dude thanks to the staff of The Capital Cafe at Harrisburg Pa. airport for staying open for us, even though the food choices had dwindled to frankfurters, ham sandwiches and chips with salsa. (And that goes for the kids who worked at the airport McDonald's too.) The hot coffee was appreciated as were the smiles and the understanding.

The House of Representatives is Wrong on Immigration

The House of Representatives is Wrong on Immigration

The House and the Senate will be be taking on the immigration issue and trying to compromise the two very different versions they have passed. After listening to House Republican leaders, we have a better chance of compromising the Israeli-Palestinian conflict between the Menachem Begin and Yasser Arafat...and they are DEAD!!!

If I hear one more House member tell me, that they are not anti-immigration nor anti-immigrant one more time, I might throw up. The House will not talk about a guest worker program until we "succeed in securing the border". How about securing the nation first, then the border, then we can talk some more. We have 3 Million people for whom we cannot account. Why doesn't that bother these Bozos. Opposing any immigration is the one thing that will get them re-elected in their gerrymandered districts. It is not a position of leadership. The Senators are not going to agree to that, unless the President takes the heat. Problem is, the President is actually leading by not agreeing to the House's garbage. He understands that he governs a nation, not a sure thing district in West Podunk. He is a lame duck and can secure a positive place in history by not blowing this opportunity to stem the flow of illegal immigration, while securing the safety of our nation.

The House's position is pure hyperbole. We can in fact secure the borders, punish people who cheated on coming in and against those that hire them, increase our Homeland Security and still not destroy the economy of our biggest cities or the hopes and dreams of millions of our own citizens... the people who love these other people.

We do not have to just punish and throw out people who, though they cheated to get in here, have become part of the fabric of our community. They are coaching our kids in Soccer, forming relationships with citizens, cleaning our offices, running businesses. They are Parents, and bothers, and sisters, and grandparents, of Marines fighting for our country, and kids who are playing with ours husbands and wives to our children.

They hope against all hope that American politicians who have booted the Immigration issue for years, and who made it both necessary and possible for the present illegal immigration situation will rise to the occasion. They will be sadly disappointed, Leadership seems beyond most members of Congress. I made the case for the Senate bill here. The homeland security issue alone should be enough for the House to support it.

As long as these "futile" feudal House princes (That Lawyer Dude being "punny") insist it is "their way or the highway", there is not going to be a compromise that will fly in the Senate. They deserve to be punished at the ballot box, but they will not be. The Republican Senate however may be.

In states where the Republicans have candidates for the senate this year, the pro immigration lobby needs to have the same intensity they had as the Senate considered the bill back in the spring. Let people know, and remember, what it means if all the illegals go home at once. Who knows maybe it will effect some republican House memebers too.

Now lest you think I am advocating overthrow of the Republican Senate majority or the Republican House majority, I am not. I am saying that the Republican leadership in the House is not leading and they need to pay for that with a defiant Senate opposition and a smaller advantage in their house. I do not usually vote on one issue. Even I may make an exception this year. Not because the immigration bill is the most important issue to me, but because the House Republican Leadership needs to learn a lesson about being smug. For the sake of the Republican party and the nation, they better hope that people like me do not feel the same way in two years.

A Proud Father Returns To The Blog

Hi I am sorry I have been away for so long. It is just that for the last month I have been splitting my time between practicing law, raising money and awareness for Scleroderma and the Scleroderma Foundation, and being both a full time Dad and part-time Mom to my two son's.

As most of you who read this blog know, my beautiful wife MaryRose has been afflicted for the last nine years with Scleroderma. It has not been an easy fight for her or our family. I stroved to keep things together even when frankly I thought the world was falling apart. It has rarely been easy, but always been worth it. Over the years, MaryRose has slowly lost her ability to walk distances and her physical strength and stamina has been greatly reduced. She suffers from cataracts which render her blind in the sunlight due to the steroids she takes. She lives a half life and misses a lot of the good stuff. However it is better than missing all of the good stuff so we usually look at the glass as half full around here. Besides we are confident that a drug that will better her lot is right around the corner.

For almost Eighteen years now, I have also been a Father to two wonderful sons. Though very different in temperament and talent, they share certain values that make me proud to be their dad. They are both very honest. They are dependable. I can count on them to complete any task I give them. They are indispensable to me in the office and at home. They too have had to deal with a lot of things kids their ages shouldn't have to deal with, all things being even.

Probably in large part due to their mom's illness, they both share an empathy and sympathy for those less fortunate, although they may handle it differently. Sal my older son is very generous and will participate or donate his money or time to charity. He really doesn't talk a lot about it. He expresses his emotions about the disease and about suffering through the music he makes. Frank my younger son is more hands on. He will organize and run events, he will take more time out of his schedule to console and listen. He is my wife's main caregiver when I am away. Both entertain us. Sal with his tremendous musical talent, Frank with his ability to improvise funny stories and speak in various voices. Both are very fine students.

June was graduation and moving up month. I attended Four concerts and four separate awards nights. I took pictures at Pre-Prom and I watched both boys in their formal ceremonies: Sal's graduation and Frank's moving up program.

Sal's big award was the Louis Armstrong award for Jazz musicians. He has led his school's jazz band all year on Tenor sax but he anchored it for the previous three years on Baritone Sax. He was also a All-State Jazz alternate selection on "the Bari" and of course was again in the All county jazz band. Additionally Sal began teaching younger students how to play. His spirit of giving back to others and his patience with children and interest in teaching, awes me.

He also won a number of awards for his work on the High school speaks and debate team. His graduation was a tough one for me, in that I coached Sal for many years, and so not only is he leaving but so are so many kids that meant so much to me over the years. Sal has had an amazing gift for picking good friends. It is a tribute to his personality. Sal graduated with honors. He is heading off to study the Middle East and International Relations in Washington DC. I am sure this blog will be featuring some stories about him and his studies as the years wear on.

Frank has always been "the little brother". A tag along to Sal's many games, concerts, and other pursuits. This year Frank continued however to shine himself. Frank is interesting in so many ways. He is quiet much of the time. He is humble but not falsely so, and he has a confidence that belies a number of physical ailments that have been debilitating.

Frank was this year's student council president. He wanted this to be a meaningful year for his classmates and himself. His student council succeeded on many fronts. They raised a lot of money and awareness for Cystic Fibrosis and The Scleroderma Foundation. Throughout the year I saw Frank represent his classmates by taking their issues to administration and pushing for change. I also saw him become a sounding board for kids who were going through their own kind of Hell. Illness, divorce, bullying, death, suicide, Frank was often the first person they would go to. He would push them to Guidance counselors, teachers and sometimes he brought them to me to help. Othertimes. When those adults weren't getting through, they asked Frank to lead and befriend a suffering kid or speak to the bully.

I was amazed at his ability to get people to listen to him. Students, teachers, administrators and even other parents would come up all year and tell me stories about my "little boy." I would sit and wonder who they were talking about, because at home Frank is not the President, he is my comic relief. As the year has worn on he has done some amazing things for and with people. He has also kept up top grades.

At the time of the Moving up assembly, Frank recieved two big awards. He was first chosen by his teachers as the "Core student" the valedictorian of his section so to speak. Moreover, however, he was selected as the winner of this year's "Bartels" award (named for a former teacher and community leader) for the student that overcame great personal struggle and still succeeded showing courage and perseverance.

In giving the award, the Vice Principal made a point that taught me a lesson. I will use his words:

"Although facing difficult personal issues at home...Frank still came to school everyday ready to work and succeed. However it wasn't his academic success that so impressed his fellow students and teachers. Rather it was the way Frank dealt with (his peers and everyone else that he met.) It is said that his ears are bigger than his mouth, yet when he speaks, everyone listens..." Wow. Now there is a lesson for every lawyer if I ever heard one.

Right after the last ceremony, Frank, MaryRose and I flew off to set him up in a summer program at a college out west. He is spending the summer on a college campus, learning about one of his favorite subjects: US Government. It is a very rigorous program and I am sure Frank will do well in it. Sal is working in the law office with me this summer helping me on a book I am hoping to write and working on our civil rights cases. In all it has been an exhausting emotional time. I have not have much of a chance to put together these blogs. I also would not have traded the last 30 days for anything in the world. What a great month this was.

Thanks for letting me brag a bit. Tomorrow I will return with all the things I have been thinking about for the last 30 days. In the meantime visit our sister blog Long Island (Criminal)Trial Law

Only The Good Die Young

There is nothing much to add to this. It is tragedy on a Shakespearean level.

My heart goes out to Fireman Robert (Bobby) Getschel and his classmates in New Hyde Park NY. This seemed to be a very special boy and friend. That all our kids should know a soul like his, and be so honored as to call him their friend. I will pray for you.

A Proposal For Changing The Way We Select Candidates: That Lawyer Dude Gets Political in Washington D.C.

I will be in Washington D.C. for the rest of the week. This could mean I barely blog or it could mean I blog a lot. It depends on how tired I am after a day of learning how to be the parent of a "Colonial".

My eldest son (the one that gave me the nickname "That Lawyer Dude")has decided to spend the next four years of his education at The George Washington University in our nation's capitol. Though I was initially disappointed that he decided not to attend my alma mater, I have to admit, GW is a really good school and an excellent fit for him. Though not active in politics, "Jr. Lawyer Dude" has always been into current affairs and excelled in Extemporaneous speech events through out High school. He also loves Jazz and jam band music. Hence a city like D.C. will give him a lot of outlet for his playing and listening pleasure.

Orientation, or what George Washington U. calls Colonial Inauguration is taking place this week and I will be seeing how they will be spending my money. In the meantime coming out of Union Station and seeing the Capitol Building got me thinking about politics. I ran across this story which is making for some real buzz down here.

The issue is that Senator Joseph Lieberman is running into trouble in Conneticut in the Democrat primary because his opponent is trying to paint Joe into a corner. He and other liberal democrats are upset that Lieberman has close ties to the Bush Administration. As a result Lieberman (who runs really well with both Republicans and independents in his state) is considering whether he should launch an independent campaign should he lose the in the Democrat primary.

I don't have the time here to go into all of it, but I spent a lot of time in my youth helping moderate democrats win in a boss controlled and somewhat corrupt Nassau County in the 70's. I watched them shoot themselves in the foot too many times to count, just over this issue. The fact is that Lieberman would trounce both the Republican and his Democrat challenger in the general election. To assure a win in the Primary however he would have to abandon his principals and join the far left wing of his party. The modern Republican party is no better. For a moderate to win there he has to join the Far right. Hence the rest of us do not get a candidate to vote for if they do not run as an independent. I am not a fan of the old Boss system of naming candidates, but the primary process has marginalia the majority of the electorate and left them with no one to vote for, so they either vote against someone or do not vote.

I think that the way we go about nominating people for these offices is the problem. I would rather see each party put up 2 or 3 candidates from the various wing of that party, hold a run off "primary" and then let the top 2-3 run in the general election. The difference would be that everybody could vote for anyone in both the primary and the General Election. Hence the nominators would hold a meeting each would identify himself as a liberal moderate or conservative. They would hold a caucus and nominate a person from their party and their "wing" of said party. Then they would all run in a "runoff" style primary. Any candidate garnering 30% of the primary vote would run in the head to head, or the top two candidates would run off into the general election.

I am not sure if this "solution" will help bring the rest of us back into the election fold but as Bill Murray said in Groundhog Day "anything different is good.".

Is It Me Or Does The Duke Lacrosse Rape Case Just Keep Getting Worse And Worse

I am loath to discuss cases where the testimony hasn't come out yet. Unless you are a party to the case, there is no saying what the otherside may have in its trial bag. Nevertheless, the Duke University Lacrosse team rape case has more holes in it than a Swiss cheese.

For those that are unaware: a party was held by some of the students on the Duke Lacrosse team. The Team at the time was favored to win the NCAA National Men's Lacrosse championship. At the party the boys invited (hired) two strippers to perform. At the end of the night, one woman, a 27 year old mother and student at a local college, Ms. Crystal Gail Mangum claimed she was raped and sodomized. Ms. Mangum is also a former member of the US Navy reserve and a convicted criminal who stole a cab and tried to run down a sheriff's deputy. She has claimed to have been raped before. She also has charged her ex-husband with threatening to Murder her, a charge he denies.(I learned most of this by reading the Johnsonville News which has excellent coverage.)

Now why all this information in this post? Because it seems to me that before a District Attorney brings charges like these against a young person (let's remember these kids are in their early 20's)he ought to have a very good case. In this case he has more reasonable doubt than hard facts.

Forcible Rape: a legal definition

The forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus."(link).

So:
1.We must have force and 2.We must have penetration of the vagina or the anus. And 3. It must be by a penis or any other object.

In this case, all three elements are in dispute. First, lets deal with elements number two and three. There is proof that someone penetrated the accuser with his penis. However that someone's DNA matches the accusers boyfriend's. That doesn't mean that she wasn't raped. Nor does it come in to show the accuser has had out of wedlock sex. In fact, I don't think it matters a wit that she had semen in her vagina. What matters, is that not one of the three boys she has accused of violating her had his semen in her vagina... or seemingly anywhere else.

Then there is the issue that she alleged she was force to have anal and oral sex. Again no semen. Now I have read on a feminist blog that sometimes men do not ejaculate enough semen to test. Ok maybe that happened here... but three times with three different 20 year old boys?.

Then there is the statements of the women who was dancing with the accuser. She originally called the allegation of Rape "a "crock" and said she and the accuser were together for all but 5 minutes of the evening. The accuser said the rape happened over a half hour.

Even assuming that when one is being assaulted it feels like a lot longer than it might have been, and assuming that the rapes could have occurred within five minutes, how do you account for the fact that both the witness (who has since said the story may be true)and the first security person to see the accuser ( woman security guard at a local Wal-mart both said the accuser never mentioned being assaulted and that the first police officer on the scene said she didn't appear to have been a victim of assault but rather appeared to be drunk.? (See posts here, here and here for attribution of alleged facts herein.) All of these things seem to negate the truth and veracity of the accuser.

Not to mention that there may not have been any alcohol or drug testing of the victim and that according to hospital records given to the defense attorney's the only harm to the accuser seems to be a cut, a scratch, and some vaginal swelling that would be just as consistent with consensual sex as it would with rape.

Remember the Burden of Proof

The Prosecution, in this case Durham NC. District Attorney Mike Nifong has a heavy burden of proof. He must prove this accuser was raped by these three boys,Beyond a Reasonable Doubt. Even if he personally feels that the accused boys raped this woman, it seems to me that as a trial attorney he should be able to see that there is reasonable doubt all over this case. His obligation unlike the defense attorney is to do justice. Justice when used in a criminal justice system is not truth, justice means fairness.

It is beyond unfair that the three accused kids in this case should have to face a jury and the public for the rest of their lives as accused rapists. It is unfair that they have had there faces and lives shoved in front of America for a crime that this District Attorney's office should not be able to prove beyond a reasonable doubt. This case is a sad commentary on what has become of our criminal justice system. Maybe we should have complete press blackouts of names of accused until a court finds that there is at least proof of a clear and convincing case.

Nifong is not stupid and he is not to be underestimated. He is Phi Beta Kappa and has been a teacher and a social worker while he worked toward his law degree. He has tried over 300 felony trials many as serious as murder. Nevertheless he has a duty as the distict attorney an elected official to speak to the press and to the public before he costs his county anymore money on this case. He needs to show some kind of a smoking gun and to do it soon. He has spent hundreds of thousands of tax dollars in police time, testing, and court time. That is an unfair burden on taxpayers because one doesn't have the intestinal fortitude to tick off substantial parts of the electorate.

Worse it leaves him open to attacks of playing politics with a criminal case. It wouldn't be the first time a District Attorney was accused of that, nor would it be the first time it actually happened. It just shouldn't. And this time America is watching.

Gideon's Trumpet is Being Muted

Click the title of this post to link to an article in Slate the online e-zine, concerning what is passing for indigent criminal defense in many parts of the country.

The need for fairness in Criminal defense is running right into the frustration with higher defense costs and the unbearable cost of a systemic vision that wants to incarcerate rather than rehabilitate more and more people.

It seems that with the economy in relative good shape and crime down dramatically over the last 2 decades, now would be a good time to reduce incarceration and dockets and put more money (not all money) into rehabilitation programs which will further reduce Criminal Justice costs.

Moreover the need to fairly fund defense costs is a constitutional guarantee. As a nation we are not doing it. As a state we are barely doing it. Counties seeking to put a cap on defense costs are going to underfunded Public defense offices. Many (definitely not all) are no more than ministering to the plea bargain machine.

Meanwhile in giving people convictions they should not take we are destroying their job prospects. The cycle is going to catch up with us sooner than later and we are lacking a real national criminal justice dialogue because the powers that be are talking at each other not to each other.

Politicians, especially House Judiciary Committee chairmanF. James Sensenbrenner, Jr. need to stop the pandering and really focus on the long term issues.

Truth first. There is no need to fix the Federal Sentencing Guidelines. So far they do not seem to be broken. Booker was a good fix.
Second. We have got to have a way for people who make mistakes to fix their lives and to be fully restored to full citizenship. If we incarcerate we need to be sure these people can support themselves when they get out without committing new crimes. It is important we get bills that take away some of the post conviction penalties to employment or we are going to have a bigger and bigger permanent underclass.

Third. Most crime is best handled on the local level STOP FEDERALIZING CRIME. CONGRESS DOES NOT KNOW BEST. I do not want the mores of the Utah citizenry or the Wisconsin citizenry or even the New Jersey citizenry telling me what I should have as laws here in NY. I like living in NY and especially on Long Island. I do not feel the need to tell Arizona how to act. Why do they feel the need to tell me?
.08 may be the perfect breath reading to have in congested cities or states to determine intoxication. It may not be in a state that or area where .10 or even .15 works as well. .08 may be destroying the restaurant scene and costing the state and it's people a lot of money in taxes. Maybe people are safer at .08 but people in a certain state may want to live with the risk and pay less taxes associated with .10. They may not even want to have a breath test relying instead on common law proof of intoxication. It should be up to the state's citizenry as a whole.
Same thing with guns.
Drugs importation is a national issue as they are distributed all over and rather easily. However maybe we need to focus on the importers and not on the corner salesman. By the time it gets to the street pusher, it is already too late. We cannot afford to clog our jails with these small time users. It costs too much and in fact as they age out it costs way to much and we get nothing for it.

Defense attorneys need to be more than a rubber stamp for plea bargains. If too many cases are being plead out we have to begin to look at whether we are properly paying enough to the people who are defending the cases. They can't defend a case if they have caseloads in the 100's. It just isn't physically possible.

We have to be realisitic about what a criminal justice system can accomplish and who it accomplishes it for. It is there for society as a whole. More victims rights legislation is not needed. In fact less is appropriate. They have a sufficient say through proper use of the civil justice system. Strengthen that. Stop introducing legislation and guidelines that have nothing to do with the proper goals of a criminal justice system.

Mandatory Minimum Sentencing is quackery. There isn't a real theory of mandatory minimum that fits into a fair sentencing system. Proof is that it is more of a harm than a good even when individually considered. STOP THE MADNESS THAT IS MANDATORY MINIMUM SENTENCING.

Stop trying to control the whole thing. You are not powerful enough to control the conduct of everyone. We don't need you micromanaging courts.

Side note to the Supreme Court of the United States of America. Pay serious attention to the 5th and 6th amendment and the rights of the judiciary and stop cedeing so much power to the Legislature. They have a right to make laws, the court should be deciding how those law impact individuals. Stand up for that right.

There are some excellent blogs out there talking about these issues daily. If you want more information on federal sentencing and sentencing on a whole, Try Doug Berman's Sentencing Law and Policy Blog here and in the Second Circuit a newcomer the Second Circuit Sentencing Blog by clicking here.