Mr. Romney, Your Silence is Deafening: Where is the Real Republican Immigration Plan

Yesterday I was pretty critical of President Obama about what I consider to be a basically valueless change in Administrations policy on Immigration. Today I want to make it clear I am just as unhappy with the Republican Presidential Candidate Mitt Romney. You see, Obama hasn't really kept his campaign promises to pass comprehensive Immigration reform, however Mr. Romney has yet to even make a promise with any proposal. I am actually more inclined to be angry at Republicans for not trying to come to the table with a plan than at Obama who has at least put forth a plan that Republicans promise to filibuster. Look it is easy to say NO! It is hard to say, "this is what we need and we know what you are looking for and here is our proposal."

Five times yesterday, Bob Schieffer of CBS News asked Romney on "Face the Nation" if he would undo the Napalitano Order to not seek deportation of "Dream actors" for now. Five times he failed to say what he'd do. Thing is, I think Mitt doesn't really dislike the Presidents plan, he just can't say it without alienating every xenophobic wingnut who is supporting him on the right. Here is the thing, George W. Bush had a great plan, but the wingnuts took over and ruined any chance the Republicans had of passing the plan, fixing the problem and winning the day. That is the problem with "Pure" politics. You cannot get anything done with someone who is "my way or the highway."

The Majority of Americans favor a road to citizenship for people who are already here. The majority also seeks a plan that would make it counter productive for someone to come over here and be illegal. The people who vote in the cock-eyed primaries, aren't those people. Here is the thing, Bush was willing to fight his party, but he really couldn't fathom a way to do it. As a result he lost the Hispanic vote for McCain. McCain (who also shot himself in the foot by abandoning everything he ever stood for and with his Sarah Palin Fiasco)paid for it dearly. Romney has caved on EVERY THING for which he ever stood. Now no one, not the conservatives, not the libertarians, and not the American public will ever trust him. If I were an anti-immigration Republican, I wouldn't vote for this guy, I don't know what he will ultimately do. As a Pro-immigration Libertarian, I wouldn't vote for Romney because he is a living disaster for America and especially on this issue, even if I believe a President Romeny will flip (when the pollsters tell him to.)

I will probably cast a vote for Gary Johnson, who is better than either Romney or Obama. Then again, I may be so fed up by November I may not vote at all... (don't get excited, I will probably vote, I like doing it too much to give it up.)

Not In The Best Interest Of The Child: Why Should a Custodial Parent Not Be Charged With Kidnapping

Up front I want to thank Lenny Sienko (http://lennyesq.wordpress.com/) for putting me onto the case of People v. Leonard (http://newyorkcourtofappealsopinions.justia.com/2012/06/01/people-v-leonard) wherein the NY Court of Appeals twists and contorts the law so that it can permit the Government to intrude unnecessarily in the most important relationship in the world, that between a parent and a child. It is not enough that for whatever reason, the state refuses to acknowledge a privilege between child and parent so that one can be forced to testify against the other, but now a custodial parent can be charged with kidnapping. Thats right the custodial parent can be charged with taking his own child illegally. The facts of the Leonard case are simple and sad. Father and Mother conceive child out of wedlock. Mom stays with dad until child is born and then takes child from Brooklyn to Ulster County. She never seeks an order of custody or sole custody. Dad goes to Ulster and visits with mom and child and possibly engages in an act of domestic violence against mom. Dad now has child and wants to keep him (as is his legal right at that point). Cops arrive, dad has child and a knife, cops chase dad into a bedroom dad allegedly holds knife to child's throat and tells cops he wants to leave with his son. They refuse and are rightly in fear for the child's safety. Ultimately the child is taken back and the cops arrest the Father for??? Endangering the welfare of a child??? NO Of Course not, the DA and Cops want to shred the law and want to bring as high a charge as they can so, they charge KIDNAPPING!!!! Judge Smith in the Ct of Appeals and the majority (it was a 4-3 divided opinion) goes into a convoluted twisting of the meaning of words when the real issue is, did the legislature ever in its wildest dreams think a court would allow the Kidnapping statute to be used against a parent who had custodial rights?? NO! In fact the legislature would say we have a law... THE ENDANGERING THE WELFARE OF A CHILD law. Smith and the others in the majority know it is a bad decision. They know it because in their opinion they use dicta to explain that this outcome should only be precedent in cases with similar fact patterns. SURE! RIGHT JUDGE! Like that is going to happen. Look it is a bad case but we know that when courts do not have the backbone to stand up to the bad case, it makes bad law. Why is this bad law, because: 1. It was not predictable to the Father that this would be the outcome of trying to take his own custodial child. 2. It further damages the relationship between the parent and child. We have no privilege with our children, CPS can interfere in that relationship in the name of protecting the child and the family courts do not consider the needs of parents at all but only what the court decides is in the best interest of the child. 3. Criminal court is not the place to decide cases like this and they are better handled in Family court. 4. It over criminalizes activities and gives parents another sword in which they can hold over each other's heads. Here is an example. Mother and father at odds, child with father, mother comes to father's house takes child in a raid with 3 other of mom's family members mom is in such a hurry to outrun father that she leaves child's asthma meds in house. Well, did she kidnap kid?? I think so. Especially under this ruling. What is kid dies of an asthma attack? Is it Murder? Since Kidnapping is an intentional crime, is this intentional murder? Forgetting bad consequences, any law that keeps parents and child apart without actual physical damage being done to the child, is not a good law. Parents need room to discipline children, teach them their religion, and give them education. A parent nurtures a child in ways that a community can't (Apologies to Madame Secretary of State Clinton), and mostly the law needs to stay as far away from our homes as it possible can. We do not need a cop or a lawyer or an appellate judge (especially not an appellate judge :) ) determining what should pass for reasonable behavior and what doesn't pass in the lives of our children. What say you??

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

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

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

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

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

SPOUSES WHO LIVE ABROAD:

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

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

CHILDREN WHO LIVE ABROAD:

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

And now for the Good News:

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

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


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

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

Here is the story from the Associate Press:

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

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

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

She actually made no such comment..."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Happy Thanksgiving.

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

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

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

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

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

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

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

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

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

Happy Fourth of July 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

Happy Law Day!!

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

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

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

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

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

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

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

Registration code: XXXXXX 580695

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

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

Either way, wish me luck!!
TLD

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

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

Judge Scalia: The Constitution Permits Sexual Discrimination

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

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

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

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

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

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

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

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

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

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

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

Hattip: Huffington Post

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

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

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

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

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

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

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

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

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

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

Off Topic: Rain: A Beetles Tribute On Broadway

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hat Tip: The NY TImes

It's Election Day. Here Are My Endorsements

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

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

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

With that said here are my picks and some analysis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sorry guys you are wrong.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Worst. Prosecution. Ever.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Man a butter knife... OUCH!

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

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

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

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

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

Hat tip: ABA New Now

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

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

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

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

Why Are American's So Dumb?

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

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

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

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

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

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

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

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

I am just saying...