Bad Cases Make Bad Laws: NYS Ct of Appeals Sustains the Martin Heigden Verdict

It was brought to my attention that one of my previous posts, where I predicted the Martin Heigden verdict convicting him of Murder (depraved indifference) would be overturned, in fact was NOT overturned. I was wrong about justice being done in the case. I am late acknowledging it but I did want to up date the information.

 The decision in my opinion is a poor one, that further muddies already murky waters. That it was a split decision and one in which the majority cautions should be limited to circumstances such as the ones here, further shows how bad this decision really is. Nonetheless, Nassau DA Rice prevailed.

The majority decision is, as the dissent points, out absolutely devoid of the facts as presented at trial. To say Heigden was able to discern where he was or that he was in effect playing chicken with oncoming autos, is just not in keeping with science or even the DA's theory of the case at trial (Heigden was extremely intoxicated, driving on the wrong side of the road and ultimately killed a flower girl [decapitated her] and a limo driver coming from a wedding. The case was gruesome). The DA usually argues that drunks drive toward light and that driving toward the light is in part proof of their intoxication. While that fact does not lead to a failure to have requisite intent in and of itself, and thus does not clear them of the charges of DWI, the way DA's argue the matter in court is that the "condition" of driving toward the lights is not a decision but is actual proof of intoxication. Here however the majority opinion is that in his drunken stupor Heigden was actually able to figure out who and which car he would take on. In other words, they ignore the fact that he would naturally drive toward a bright light and use the fact that Heigden did drive toward oncoming lights as proof of a voluntary act, as opposed to it being an involuntary response to being intoxicated. That was not the way the DA argued those facts at trial.

As I explained in the original piece, the best way to explain a depraved indifference intent as opposed to not competent to form the requisite intent based on intoxication is the following comparison: If a person throws a 16lbs. bowling ball out of a tenth floor window onto a crowded sidewalk and kills someone, but couldn't care who, that is depraved indifference. If that same guy purposely throws the ball out the same window, but thinks he is in a bowling alley and that the people below were pins, that person does not have the requisite intent to commit depraved indifference murder. The majority used supposition against obvious fact to reach a decision it liked, but one that is unsupported by the facts or the science of DWI.

Hat tip: @ericfphillips on Twitter.com

Opps She Did It Again!: Nassau County NY District Attorney Kathleen Rice Blows ANOTHER "Flush the Johns" Case

In a now fifth case decided by a different Judge, Nassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidenceNassau District Attorney Kathleen Rice has had another of her "Flush The Johns" cases dismissed for lack of evidence.
Last October, right before the election (of course) Rice used county money to run one of the dumbest sting operations in her history of dumb cases. It was called 'Flush the Johns". All it has done so far is flush good tax money down the toilet. Wasting literally hundreds of thousands of taxpayer dollars on what was basically a publicity stunt, Rice ran a sting by having police women pose as prostitutes on Craigslist and Backpage.com so that they could lure men into hotel rooms and arrest them. She then put their names and pictures into Newsday (which also should be ashamed of itself) and ruined marriages, professional careers and reputations.
Last week Judge Sharon Gianelli ( a fellow Democrat) dismissed two more cases and then there was one in November that went down the tubes. Now Judge Susan Kluewer (another fellow Democrat) dismissed this case for lack of evidence after a man was charged after entering a hotel room with his buddy (who claimed he had to stop and drop something off to the person in the room). The man neither called the alleged prostitute, nor did he negotiate a fee or pay said fee. In other words the case was the only thing in the room that sucked!! (Sorry I couldn't resist). The man's wife instituted divorce proceedings and the case has destroyed him. There was no probably cause to arrest this man, despite what Rice's overpaid PR guy says. Salvatore Marinello said his client is going to sue Rice and the Nassau County Police for False Arrest and Malicious Prosecution. Even if he loses it is going to tack more tax money onto this losing proposition to defend the county...
Rice just won re-election. Nevertheless she should step down. She and her crew of carpetbagging attorneys and nepotistic appointees have done nothing to protect Nassau and worse yet, she has wasted our dollars, inflated her budget all so she can run for higher office. Kathleen Rice is a disgrace. Shame on her, and Shame on Nassau Voters who supported her re-election.

Related Post: Flush Nassau DA Kathleen Rice: Her Flush The Johns Sting Goes Down the Drain

Breaking News: Newsday Special Investigation Into Police Misconduct on Long Island!

Newsday has broken a major investigation into police misconduct and its failures to be properly investigated or punished.  Police misconduct puts good citizens at risk and worse makes it very hard for good cops to do their jobs well. It corrupts a system.
Nassau and Suffolk have had this problem for a number of years. Whether it be the band of thugs that run the land of NO on Fire Island, or the insanity of the Nassau cop who beat and shot a taxi driver for no reason in Suffolk, or the many instances of testalying and other misconduct, it has to end.
I have regularly called for the institution of a Civilian Review Board with teeth. Now is the time. We need it here.
What do you think? How do you feel about a Civilian Review Board?

Flush Nassau DA Kathleen Rice: Her Flush the John's Sting Goes Down the Drain!

• Flush the Nassau County District Attorney!! Flush the Johns a waste of money!! Acquittals and Evidence Suppressions open Nassau County up to Millions in Law suits.
  
  Hey everyone, Remember about 5 months ago when Kathleen Rice was running for re-election she had her gestapo I mean her investigators and the Nassau County Police Vice Squad set up a bunch of guys and she then plastered their faces all over the world on the Internet and accused them all of patronizing prostitutes? Yeah? Well Guess WHAT? That's right, the allegations don't hold water!!!!
  Newsday reported that yesterday Judge Sharon Gianelli Acquitted a guy last month and dismissed charges against another yesterday because the proof (if you can call it that) turned out to be HEARSAY!! Yeah Nassau Da Rice and her merry band of prosecutors used a detective that only heard one half a conversation to testify about what another cop told him about the other half of the conversation. NOT ONLY THAT: That cop allegedly spoke to over 30 men and couldn't remember one convo from another!!!! All that money spent and time, ruination of lives and RICE Can't prove her cases!!
  Now I don't want to get down on the young assistants DA's that are handling this mess. I mean they can only work with what they are given, but really the bosses who approved and implemented this investigation and posted the pictures of these men before they were convicted should lose their jobs. In fact, Rice should RESIGN. DA Rice continues to embarrass this county and has destroyed what was a reasonably good DA's office before she and her carpetbagging CRONIES from Brooklyn's DA's office took it over. Too bad these decisions didn't come to light BEFORE the last election.
  Hat Tip:http://www.newsday.com/long-island/nassau/flush-the-johns-prosecutions-suffer-setbacks-1.6598543

From the Headlines on Long Island

Busy day in the courts on Long Island.

Newsday reports that former NY Giant receiver and Superbowl hero Mark Ingram was sentenced to 7 years 8 months for trying to launder money for people he thought were drug dealers. They were in fact FBI undercover agents. The crimes took place in Florida and New York. EDNY Judge Hurley was not moved by Ingram's off or on field heroics (Ingram played a big part in the Giants Superbowl win in 1991 over the Buffalo Bills.

Ingram's life since retirement has been bizarre. He has been jailed for a number of crimes including breaking into a car to steal a pocketbook. I understand he went through three assigned attorneys and wrote a very bizarre motion. I wonder if he is not somehow mentally ill. Finally, he went through an awful lot of money. He has to be indigent to get a free lawyer. This is a sad and bizarre story.

Speaking of bizarre cases, Nassau County District Attorney Kathleen Rice continues to misuse the law to forward her crazy views of DWI cases. Getting a conviction for Murder in the Second Degree, the court (Peck J.) sentenced the defendant Franklin McPherson, to Twenty Five years to life. Interesting given the fact that while the behavior was considered very reckless by the jury (a decision that will be over turned in my humble opinion because it was given an incorrect jury charge and a charge that was changed after summations were completed a No NO) that is the maximum. If we sentence to the maximum for reckless conduct, what does that leave us for intentional conduct??
Anyway, you can catch more on this story here

By the way Judge, I think 25 years is too long for a 20 year old kid who did not act intentionally. We are giving up on a 20 year old is really not a conservative concept. Do we really think this person has no value to us as a community?? Hopefully this case gets overturned soon.

Finally a case that does make some sense. Suffolk County Court Judge James Hudson, properly sentenced a man to probation in a devastating accident caused by his intoxication. His wife who was severely injured begged Judge Hudson and the Suffolk county District Attorney Thomas Spota for leniency for her husband and father of her two children. She told them she needs him home to care for her. The court and District Attorney agreed.

What I find interesting here is that DA Spota only charged the appropriate charge of vehicular assault and not the higher but legally unwarranted and vindictive Assault 2d degree. I am in a case right now with DA Kathleen Rice and just as she did in the McPearson case above, she has illegally over-charged the case. I am hoping the court agrees that we should have a vehicular assault charge only for accidents that happen while one is intoxicated. If Assault 2d degree were the appropriate charge why would we have a second separate charge? Well I guess while we pay more in taxes, Ms. Rice will continue to waste our taxpayers money to fight her insane,politically motivated and legally irrational march against the citizenry.
TLD.

Edited to make a few sentences make more sense.

Wow What a Summer, (And It Is Not Even Half Over)

When I last left you, I was sad that Debra Jean Paltrow decided to end her life. I think it was a permanent solution to what was a temporary problem. I also thought her prosecution (not to mention her conviction) was a monumental waste of taxpayers time and money not to mention personnel resources.

So then what happened?? All hell broke loose That is what happened.

In chronological order:
1. I became involved to represent the driver in this very sad case. (The Griffin Case)
2. I was a judge at the National Catholic Forensic League Grand Championships in The Fox Cities area of Wisconsin.
3. The Nassau County DWI Wall of Shame went up.
4. I started representing Rabbi Morris Talansky, who is a really nice guy getting slammed unfairly in the foreign press (and by the NY Tabloids too but what else is new.)
5. I started the Murder Trial of Ronald "Shorts" Rodriguez.
6. The District Attorney of Nassau decided that I might beat her in the aforementioned Griffin case so she began "Poisoning the Jury Pool" with outrageous remarks that show her lack of maturity and her lack of fitness for the office she holds.
7. A nut job in the gallery of the courtroom during the Rodriguez trial, jumped up and attacked Shorty and me (he was aiming for Shorty, I was just collateral damage) which caused a 2.5 day break in the trial, and pointed out to all of us in Nassau County that we need to take more precautions to safeguard our trial courts (Hint Hint, it is time to build a new and safer annex to the county court.)
8. After one of the toughest trials I have ever been involved with, Ronald "Shorts" Rodriguez was ACQUITTED of Murder in the second degree (Intentional Murder) Manslaughter in the 1st degree (Intentionally causing injury that results in death through the use of Deadly Physical Force) and was convicted of the non-violent crime of Manslaughter in the 2d degree (recklessly causing the death of another) and possession of a weapon 3rd degree. (Sentencing is scheduled for September.)

9. In addition, the economy tanked, you can no longer afford to fill a gas tank without a loan, and it is Obama v. McCain but look out for BARR to play a spoiler unless McCain starts to comeback to his roots.

AND

10. I was cited as a blogging lawyer in an article at Get LEGAL.COM

11. I am building a new website (the old one is down and I have a static place holder there right now but wait until) NEXT month.



I will be posting on these topics and a few other things too over the next few weeks. Sorry for being away too long, but I just can't seem to write when I am in trial.

Corrections: Spell checked and links added.

Nassau District Attorney Rice Announces An Early Assessment Bureau: Justice Delivered Or Fiscal Boondoggle?

Nassau's New District Attorney has announced a new initiative which both increases her office size, and seeks to restore her image with Women and Family first voters. The question is: Will it result in better justice at less cost?

DA Kathleen Rice has come under fire here before (see here, here, and here.) As a result of my criticism some have wondered whether I intend to run against her. Let's handle that first. While one never says never, it is highly unlikely for so many reasons. Those reasons can be saved for another day, suffice it to say, I am critical of Rice because I want to see results without an unnecessary increase in costs.

Ok now lets deal with the new proposal. Rice's New Early Case Assessment Unit is not an unwelcome addition. The ECAB bureau is now going to take police arrest paperwork and decide what the charges should be and how those charges should be drafted. Up until now that job was the police department's job alone.

In order for ECAB to be a success, it has to be less expensive than the police doing it and it has to result in fewer felony and serious misdemeanor charges from being filed.

I realize that lower charging seems counter-intuitive but it has been an open secret that Nassau Police over-charge cases. Hence a lot of the plea bargaining that goes on in Nassau courts is to just get the right charge to begin with because the police over-charge. The causes of over-charging can be many. One reason might be that the police do not have the legal experience to make nuanced decisions about charges. A more nefarious reason is that charging a burglary instead of a trespass looks good on a police officers resume. Charging an Assault 2rd degree is better than an Assault 3rd degree.

Now fairer charging will result in what appears to be a drop in the crime rate. That is illusory. That aside, it will result in a clearer picture of the real crime rate in Nassau County. An ECAB unit also takes away from the District Attorney the right to hide behind the police actions as in "I didn't bring the charge I only prosecute what the Police charge" which is how Nassau District Attorneys have defended themselves against the defense charge of "over-charging.

The PBA and other Police labor Unions fear that ECAB will both decrease overtime and take away the Police perogative in charging crime thus making it harder to control the streets. Criminals will have less to fear of a cop overcharging the case.

A reduction in police overtime would be welcome from taxpayers point of view. Part-time assistant district attorney's cost a lot less than overtime paid police (Police tend to out earn their ADA counterparts anyway.) However I have worked in an ECAB type unit in Mount Vernon (NY)in the early 80's and I would doubt that the unit will cut overtime substantially. Instead of drafting from a form charge, police will now sit with an ADA and they will type out the charge instead. I do not see a savings unless the police can teletype or email the paperwork to the ECAB and then they just redraft. Moreover since Police have to bring suspects to Police HQ anyway there is no savings in time driving from the Precinct to Mineola. Hence it seems like all we have done is added a layer of bureaucracy to the process. It may be, however, that the new project reduces over-all prosecution costs.

The new unit is going to cost 1.2 Million Dollars ($1,200,000.00). That's a lot of money. In order to adjudge this expense a success, Rice is going to have to prove a significant drop in over-charging and in Over-time or at least in general prosecution costs.

One final point, DA Rice is using the unit to place part-time employees. It is meant to undue the harm done when she eliminated part-time jobs for prosecutors this past summer. The ECAB unit is a failure if it is to be measured as a solution to the part-time lawyer fiasco. That however is fodder for a different post.

As for now, for ECAB, the jury is out.

A Victory For That Lawyer Dude

Last Tuesday, a Nassau Grand Jury voted not to indict my client Jillian Greico for Assault in the Second or Third Degree or for Harassment. In other words they acquitted her of all charges. In fact they didn't just find her not guilty, they found her to be INNOCENT!!
Too little, too late.

On Halloween, Jill went out with a few friends and participated in the age old "tradition" of egging each other. One kid's egg(not Jill's) accidentally struck a younger kid under the eye. When the egg cracked part of the shell cut his cornea. He is allegedly partially blinded. I say allegedly because I have heard all kinds of reports from full blindness to no issue. The truth probably lies somewhere in between.

At the time of the incident, no one knew the boy had been injured. The next day, the injury was reported on the front page of Long Island's daily newspaper of record Newsday, and in all of the major area media on Long Island and in NYC. When Jill learned of the injury, she immediately went to the police. They thanked her for her information and honesty by arresting her and all but one boy, who took part in the prank. That boy's parents lawyered him up, so he went to the police with a lawyer and he got immunity for ratting out his friends. Of course it turns out that he was the kid who supplied the eggs. Seems that ,but for that kid, nobody would have gotten hurt. Thus it makes sense that the guy who is most responsible walks away and isn't even charged.

Now this was, as I said, an accident. Even the police admitted that no one meant for anyone to get hurt. Nevertheless, police and prosecutors at the victim's family's insistence made arrests and tried to upgrade the original charges to a felony. That seemed to me to be absolutely ridiculous. What bothered me more however was the reaction of the other boys charged. Instead of fighting this indictment the way Jill did, they caved in and entered guilty pleas to the original misdemeanor charges. Whatever they were thinking, it is sad someone didn't tell them that accidents happen. Now those guys who all took guilty pleas must do 3 years probation. What a waste of taxpayers money.

When I juxtapose this incident to the accident Vice President Dick Cheney just had, it is clear that the best intentions can still put one at risk of hurting another. In our ever litigious country every childhood act calls out for not only a negligence action but a criminal prosecution to boot. Somebody please tell me how this was a criminal act. I am wondering how many children are going to be deterred next year from throwing eggs on Halloween because of this accident and prosecution. If the answer is none I would not be surprised. Eggs crack just like water balloons explode and snowballs disintigrate on contact. No one in their right minds (except for comedian Kevin Meaney's mother) thinks tossing one on Halloween is going to put someone's eye out. It just isn't a crime even if you live in Oyster Bay Cove and the people throwing eggs at you live in Woodbury, two of the richest neighborhoods on Long Island (or in America.)

Another thing, does anybody here think the Nassau District Attorney's office and the Police would have made an arrest if this had happened in Hempstead or Roosevelt? Would the TV cameras covered it? I strongly doubt it.

Of course the damage is done to Jill already too. Her name and address as well as her picture have been placed all over the NY Televison and Newspaper scene. She has received hate mail and threats on the phone and through the internet. She has had her innocence stolen. Although she is an honor student and a real good person, people now think her irresponsible and sophomoric, and for what? In her case, her egg didn't even hit anyone, it just landed harmlessly on the ground.

Maybe we are spending too much money here on Long Island for prosecutors and Police. Maybe they need more real crime to prosecute or maybe we just need less of them. I didn't think so until this case came along. Two detectives, two days or more of Grand Jury time, a top prosecutor (nope they didn't use a newbie out of the District Court bureau for this case)the time of four well known and expensive attorneys (yes That Lawyer Dude is expensive when he charges for his time)numerous court appearances (which entailed the use of judge's time, court personnel, and courtroom facilities.) All this waste over a childhood prank and a terrible accident. I estimate that the total cost of this fiasco to the kids, families, and our county, equaled over One Hundred Fifty Thousand($150000.00) Dollars. Imagine the impact half that amount could have if we donated it to a charity that provides sight to the needy, or to a Lions club that provides glasses to those who cannot afford them.

A year ago or more an Eighteen year old kid took a twenty six pound frozen turkey and hurled it from a moving car into the windshield of an on coming car and almost killed the driver of that oncoming car. That was an act of stupidity that called for prosecution. Hurling twenty six pounds of any frozen material can only have one end, damage. That is different than tossing a Three ounce egg five to ten feet. Eggs are supposed to crack and this one did. Frozen turkeys don't crack, they are hard as rock. There is a difference and legal professionals are supposed to comprehend that difference and explain it to angry parents or victims. I guess the combination of rich victims and flashbulbs was too much for the powers that be to deal with. They needed that 1.5 minutes of fame. Too bad they had to ruin a girls life to get it.


EDITED 7/16/08: To exclude the name of the kid that received immunity from prosecution. I still think what he did (seeking to minimize his role and taking immunity from prosecution while still being morally responsible for the actions thus allowing his friends to "take the weight") is dispicable, but he is about to enter adulthood and I suppose that he should no longer bear the scares of this case nor of his actions taken while a scared kid. A dear friend of mine asked that I remove it, on behalf of the boy, so Rick, this is the ONLY time I will do this, but this one is for you.