I have all kinds of trouble with DWI laws. For starters they are based on bad science. Secondly they are arbitrary. I have driven behind someone who blew a .24 on a breath test and then drove for an hour better than the so called sober people in Nassau and Queens County. I have a problem with any numeric crime based on faulty science determining if someone ought to be arrested without that person doing something wrong. (We are talking about checkpoint arrests where the only "crime" is the the breath test reading). I get tired of the "bleed em and plead em" mentality of much of the bar and the entire DA's office. I hate how DWIs have destroyed the Fourth Amendment and the laws of Evidence. Mostly I hate how it destroys people who are convicted of the crime. It is what I call "stupid crime" as there is absolutely no upside to it.
Nevertheless, it is New Year Eve. Every cop on Long Island is looking to make DWI arrests. By now you ought to know that if you are one hundred and fifty (150lbs.) pounds, you are impaired by alcohol after 2.5 drinks in 2 hours. Please tell me how you get arrested for DWI? You really have to be clueless.
In a number of these cases, people were killed or badly maimed. How hard is this really? If you are drinking, Don't Drive!! Find a designated driver, take a cab or a limo. Take Mass Transit. Stay HOME!!
Amateurs. Really.
Hattip: Newsday (subscription may be required)
Showing posts with label Legal Ethics. Show all posts
Showing posts with label Legal Ethics. Show all posts
Thursday, January 02, 2014
Tuesday, November 08, 2011
A Strong Defense of Joe Paterno: Why Paterno Was Morally & Ethically Right Not To Go Further in The Sandusky Sex Abuse Case
In the comments section of an article in an SI online blog post by Joe Posnanski, Columbia Univ. Adjunct Professor Scott Semer assails Joe Paterno for not taking greater actions in the Jerry Sandusky case (Link is to the actual Grand Jury Report. It is not for the squeamish.)
Semer rests his opinions as a lawyer and an Adjunct Professor of Transactional Law at Columbia Univ. in NYC. He takes what I believe is the majority opinion as to Coach Paterno's decisions which is that he did the least he could do to cover himself but owed a moral duty to do more.
I too am an attorney, a criminal defense lawyer, a former special prosecutor, and an adjunct professor of Trial Advocacy, and as to his judgment of Paterno I completely disagree with Professor Semer. I think Paterno did what was both morally and legally correct.
After contacting his chain of command superiors, he let them do their jobs. He knew there was a campus police force that investigates ( and prosecutes ) crimes on campus. He took whatever information he had to the head of his department. He took it to the person who is, for all intents and purposes, the police commissioner of a 256 person police force which according to the Campus website says: "(The University Police are) governed by a state statute that gives our officers the same authority as municipal police officers."
Paterno didn't just give his information to a superior, he turned it over to the highest ranking official in that police department. That man, PSU's VP of Business called in the ACTUAL WITNESS and spoke to him. In other words Paterno could see an investigation.
Suggesting Paterno should have then done more is both ridiculous and dangerous. Paterno should not have approached Sandusky,for fear he tip him off to the investigation; he should not have called University police after nothing happened because 1. A police department has a right to set its policing priorities. The Courts have consistently held that: it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
2. Once he reported the incident (and not having any information as to the progress of any investigation or the results thereof) Paterno had no other action he could reasonably take. If he pressed further or went public he risked opening himself and the University up to a law suit from Sandusky for libel , and that is assuming Paterno thought the grad assistant was both reliable and accurate. By that person's own admission he was distraught. He would be accused of trying to eliminate a potential competitor for his job. He would also call into question the safety of the campus and without any proof of his own on the allegations of another. Pattern is not a witness and arguably isn't even an "outcry witness." ( an outcry witness is one who verifies that another witness was so distraught that what they are saying must be true. To be an outcry witness the original witness must make his statement to you first and within a few minutes top hours after witnessing the incident. More than a couple of hours usually spoils the outcry's reliability. It gives the maker too much time to make up the testimony)
3. Assuming Paterno did go to the Chief of Police for the Penn State police department, the person under Gary Schultz, would that not be an act of insubordination? What if he were wrong? He would lose a long time friend and PSU family member. He would hurt alums, recruits and his teams. His fellow coaches could not trust him, all of this without being an actual witness to anything. Taking one man's word against anothers.
Noone wants to see kids hurt, and I believe Coach Paterno heads that list. People suggesting he needed to do more either don't understand the law of criminal investigation, or have a different ax to grind ( like the head of the PA State Police who is grand standing in saying people have a greater responsibility than to report crime to the local Authority. He would be the first guy to defend a civil rights suit against his agency, (brought by a crime victim claiming that the failure to arrest caused her injuries) by invoking the Warren case.)
Paterno handled this exactly as he should have and to suggest otherwise is to use 20/20 hindsight to judge what was a fluid real time situation. I guess the path is always clear for the Monday Morning Quarterback.
Semer rests his opinions as a lawyer and an Adjunct Professor of Transactional Law at Columbia Univ. in NYC. He takes what I believe is the majority opinion as to Coach Paterno's decisions which is that he did the least he could do to cover himself but owed a moral duty to do more.
I too am an attorney, a criminal defense lawyer, a former special prosecutor, and an adjunct professor of Trial Advocacy, and as to his judgment of Paterno I completely disagree with Professor Semer. I think Paterno did what was both morally and legally correct.
After contacting his chain of command superiors, he let them do their jobs. He knew there was a campus police force that investigates ( and prosecutes ) crimes on campus. He took whatever information he had to the head of his department. He took it to the person who is, for all intents and purposes, the police commissioner of a 256 person police force which according to the Campus website says: "(The University Police are) governed by a state statute that gives our officers the same authority as municipal police officers."
Paterno didn't just give his information to a superior, he turned it over to the highest ranking official in that police department. That man, PSU's VP of Business called in the ACTUAL WITNESS and spoke to him. In other words Paterno could see an investigation.
Suggesting Paterno should have then done more is both ridiculous and dangerous. Paterno should not have approached Sandusky,for fear he tip him off to the investigation; he should not have called University police after nothing happened because 1. A police department has a right to set its policing priorities. The Courts have consistently held that: it is a "fundamental principle of American law that a government and its agents are under no general duty to provide public services, such as police protection, to any individual citizen." Warren v. District of Columbia, 444 A.2d 1 (D.C. Ct. of Ap., 1981).
2. Once he reported the incident (and not having any information as to the progress of any investigation or the results thereof) Paterno had no other action he could reasonably take. If he pressed further or went public he risked opening himself and the University up to a law suit from Sandusky for libel , and that is assuming Paterno thought the grad assistant was both reliable and accurate. By that person's own admission he was distraught. He would be accused of trying to eliminate a potential competitor for his job. He would also call into question the safety of the campus and without any proof of his own on the allegations of another. Pattern is not a witness and arguably isn't even an "outcry witness." ( an outcry witness is one who verifies that another witness was so distraught that what they are saying must be true. To be an outcry witness the original witness must make his statement to you first and within a few minutes top hours after witnessing the incident. More than a couple of hours usually spoils the outcry's reliability. It gives the maker too much time to make up the testimony)
3. Assuming Paterno did go to the Chief of Police for the Penn State police department, the person under Gary Schultz, would that not be an act of insubordination? What if he were wrong? He would lose a long time friend and PSU family member. He would hurt alums, recruits and his teams. His fellow coaches could not trust him, all of this without being an actual witness to anything. Taking one man's word against anothers.
Noone wants to see kids hurt, and I believe Coach Paterno heads that list. People suggesting he needed to do more either don't understand the law of criminal investigation, or have a different ax to grind ( like the head of the PA State Police who is grand standing in saying people have a greater responsibility than to report crime to the local Authority. He would be the first guy to defend a civil rights suit against his agency, (brought by a crime victim claiming that the failure to arrest caused her injuries) by invoking the Warren case.)
Paterno handled this exactly as he should have and to suggest otherwise is to use 20/20 hindsight to judge what was a fluid real time situation. I guess the path is always clear for the Monday Morning Quarterback.
Monday, November 01, 2010
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
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
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