A Little Good News For a Friday Before Christmas: Innocence Project Wins Again!!

I don't want this to be a blog that only criticizes. I think there are some good things happening in criminal law. One of those good things is The Innocence Project. Started by Barry Scheck and Peter Neufeld, the defense attorney DNA Gurus these guys work with lawyers and students to undue injustice in the criminal justice system.
This week, Barry did it again. He won the freedom of  Gerard Richardson, a NJ man who was wrongfully convicted of Murder 20 years ago and has been rotting in jail doing time for a crime he did not commit.
Please consider a donation to the Innocence Project. Merry Christmas Mr. Richardson, and congratulations Barry. Thank you for keeping the dream alive.

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

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.

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?

Let's Stop Lying to the Jury: The Case for Warning Jurors About Acquitted Conduct

Earlier this year US District Court Judge Jack Weinstein of the Eastern District of NY, one of the most reviled and respected judges on the US District Court Bench, issued a Magnum Opus of a decision. The 288 page tome has been roundly criticized by academics, politicians and prosecutors (as if there was really a difference) as a waste of judicial assets and paper. The case, United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008) held that Judge Weinstein erred when he failed to tell the jury of the potential effects of a guilty verdict in a case of possession of child pornography under the US Sentencing Guidelines. Weinstein reasoned that a jury in colonial times would have known what the potential sentences would have been, and an originalist view of the US Constitution would permit that jury to ignore the law and manipulated the verdict if it felt the law did not reflect the view of society as reflected by the jury. (Today we call that Jury Nullification See the John Peter Zanger verdict)

Many so called conservative (but I note not libertarian) bloggers were unhappy with the decision. Many think that the case will be overturned in the Second Circuit. Weinstein however makes a point however; juries do play with verdicts.

This "playfulness" comes in two forms, the aforementioned Jury Nullification (which is uncommon but works in favor of an accused) and the more common "Jury Compromise" (where the jury is otherwise deadlocked between guilt and not guilty so to appease one side or the other the jury "compromises" and convicts of something less than charged. This usually although doesn't always work against the accused), but it is still however a conviction on less than a reasonable doubt standard. An accused is owed the benefit of a doubt, not a compromise.


Now prosecutors and other "law and order" types hate Jury nullification. Yet somehow these clarions of justice find it just fine for the jury to act on less than proof beyond a reasonable doubt in convicting an accused.

On the other hand, it is wrong to mislead the jury as to facts. In other words, if a lawyer knows a fact to be untrue, he is forbidden to argue it to a jury. Hence recently a lawyer was sanctioned very severely for telling a jury that her client was "mild mannered" when in fact she had kept his actual violent behavior out of the case through a Motion in Limine.

Notwithstanding that, Judges in Federal cases mislead jurors all the time (see the Bazelton dissent) by not telling them about their power to nullify. Not telling a jury that their failure to acquit a defendant of all related conduct exposes the defendant to having the conduct for which he was acquitted used against him to enhance his sentence. In fact, the judge can use the acquitted conduct to enhance the sentence so much, that the resulting sentence can be high enough to render the acquittal a nullity. In other words, we are not telling jurors that their decision to acquit doesn't count for sh.... well you can rhyme it yourself.

We tell jurors that serving on a jury is an important and that their voice counts, but we yet through the use of acquitted conduct, we lie to them. Dress it up any way you want to, when jurors find out that defendants are sentenced to far more time in jail than they thought was appropriate for the crime the accused was actually convicted, they feel like their work didn't matter. To them it doesn't matter how we lawyer types word it, they were ignored.(My colleague and "blog as marketing" sparring partner Scott Greenfield has a great step by step explanation of how we lawyer types "explain" such nonsense)

Continued use of acquitted conduct hurts jurors even more when a jury works hard to come to a decision. If it is deadlocked, we demand it return to come to a decision. If it then decides to compromise, an activity we know they partake in, only to find that their compromise meant nothing and they were better off to just hang their verdict they feel cheated (almost as much as the accused does).

We have been at this charade for better than 20 years. Acquitted conduct is part of the USSG but the advent of the Internet makes this kind of behavior really well known. How long before jurors refuse to sit, or catch on and lose all respect for the criminal justice system altogether?

One way to handle this, is to explain to the jury, that compromise verdicts are not legal.Compromises that are based on less than every juror believing that every element of every charge was proven beyond a reasonable doubt is cheating the parties of a fair trial. Tell them that a conviction on any related count will result in the court being allowed to use the acquitted related behavior to enhance the sentence of an accused to what it would have been if the accused had been convicted of the higher charges in the first place. And let's add to the Allen charge the following: a compromise verdict is not what we seek. We would rather you return as a hung jury, than reach a compromise that left anyone unconvinced beyond a reasonable doubt that a charge was proven.

To do anything less than tell that to a jury, cheapens the work that they do, and frankly cheapens the verdict they render.

Victory for That Lawyer Dude's Client in Queens NY: Jury Acquits Clients of All Charges! They Too Believe NYPD Lied

I am very proud of our jury in Queens today. They were presented with a case where police lied and they stayed with the case till the very end, didn't form any opinions and watched as police officer and detectives lies unraveled before their very eyes. The pressure on our clients to plead guilty. I was not my client's first attorney. He switched because his old lawyer told him to plead guilty to something he didn't do. The lawyer told him "It will be your word against the word of an eyewitness police officer, who do you think a jury will believe?"

I blogged the facts of the case yesterday. I am so exhausted from the stress of waiting a verdict I don't have the strength to add a new blog tonight.

I just want to say to any young (or old) criminal defense lawyer, or to clients out there, next time you are about to say, "it is your word against the police, who do you think the jury will believe" ask yourself, are you doing this for the client, or are you just afraid you won't be able to do the job you need to do.

I am going to spend a little time in my next post talking about how a good cross-examiner, uses little lies and big lies to creat doubt or get out the truth.

For now, I want to thank my co counsel, John Scarpa, a brilliant cross-examiner, a ferocious advocate, and a brave fellow brother lawyer for his leadership, and friendship. I want to Thank Acting Supreme Court Justice Latella for giving my client and I a fair trial. Finally I want to thank my Clients for trusting John and me enough to take a chance with their lives on our work, and I want to thank the 12 Queens County NY Jurors for upholding the law, both its spirit and its letter. Thank you all.

Trial Techniques: Exposing Police Testilying

I am representing a nice kid charged with Burglary 2d degree in Queens County. I am trying this case with a good friend John Scarpa who is a former Queens County Assistant District Attorney and a really talented trial Defense Criminal Trial Lawyer.

The case is crazy. I understand DA Brown's office's interest in trying the case because on paper, it should be a slam dunk... Except the defendants are innocent and once a trial lawyer looked at this mess, they should have seen the problems with it.

Queens North Borough Blast unit is an elite burglary unit in Northern Queens. In investigating a bunch of burglaries against Chinese families, the Blast unit began to focus on one fellow, Mario, who was driving a rented car and tooling around Northern Queens. It was interesting to the Blast guys that 1. Mario lives in Staten Island and has no seeming connection to Northern Queens County, and 2. His car license plate was seen driving from the scene of a prior burglary, but no one saw who went in or who was in Mario's car. Mario by the way, walks with a cane and is disabled.

The police obtained a warrant to put a GPS on Mario's car. The BLAST unit started following Mario around and were assigning 10-25 detectives on him at any one time. You can imagine the money they spent. As things were growing more expensive, the unit was starting to worry that all the money spent was going for naught. Then they got what they thought was a break, the truck they put the GPS on was on the move and back in motion in northern Queens county. That's where things stop working out so well...

According to the indictment and paper work, the cops follow the car, one of their team members get out and follow the car passengers to a home and WATCH THEM ENTER IT AND AFTER 20 MINUTES LEAVE THROUGH A SIDE WINDOW. That's right, he allegedly watched 3 guys break into a home, did nothing to help the people inside and waited for the three to leave. I know it seems crazy but that was the testimony.

Now after watching the three leave, he loses sight of them, and another cop (the one whose ass is on the line for authorizing all the money) allegedly sees the three cross a 4 lane street and go to a car that is the one with the GPS on it. He and other cars follow the car and stop it 2 blocks from the burglary. When they stop the car, one guy jumps out and runs. The others are arrested and their are burglar's tools in the car including a radio that can pick up police signals from the local precinct. Oh yeah, it is on cause the cops can hear themselves on the radio receiver...

Now it would normally seem open and shut, except our clients tell us, they never burgled a home, weren't ever in the car, and were there to meet Mario and obtain Marijuana they left in his vehicle the night before when they celebrated his and my client's birthday.

Also of interest to me, was that Mario and the guy who ran, both pled guilty but our clients didn't even think about it. Not even after the judge promised to sentence them to the minimum time. Another thing that bothered me. There was NO physical evidence...None!!

No fingerprints, no DNA matches, No proceeds from the burglary. During the trial of the case, we even learned that not one of the people who testified to stopping the car even saw my client or Scarpa's client in the car!!

Now here is a lesson for young attorneys. If the case seems to strong to be possible, it is not possible... I cannot believe the level of Police testlying that I have witnessed in this trial.

Here is the thing. In order to bring this thing off, the whole Blast team needed to support one and other. At first it seemed impossible to me that the whole team would be able to lie. In fact, they couldn't do it convincingly (well the jury is still out so at least they didn't lie convincingly enough to get the jury to convict quickly)The thing that they did do is they all told the only lie they could all remember.

Lesson to the new trial lawyer: When confronted with a case with a number of people telling the "same story" the devil is in the details. If the discovery is devoid of details, you know they are lying. All you have to do, is break the big lie down to the details and the inconsistencies will jump out like a catfish out of a river on a warm Louisiana day.

In our case, the lie it turns out, is that we saw a burglary and these guys did it. At first it seemed really open and shut, but when we started to look at facts to support that scenario, they were non-existent.

For example, We asked the alleged eyewitness what he saw, he claimed to have seen all three of these guys get out of the car, and then he raced his car around the block got out of his car, race through backyards and set himself up in a dark driveway some 60 feet away, and see through a thicket of bushes and big pine trees the three guys still outside. He saw them take a security grate down and proceed to step up on the grate and go through a side window that was not visible through the trees. He describes 4 Pine trees that failed to grow symetrically so they were less dense on the side on which he had to look. He also testified that he saw the car stay on the same side of the street and that the car never crossed a thoroughfare and that he couldn't see who got in the car or where they sat. Hmmm.

The Lead cop, the guy who was running this shindig testified he too was 60 feet away. It was his job to watch the truck and that the truck not only was across the 4 lane thoroughfare, but that the driver turned it around and was facing the opposite direction from where the house that was burgled was so that the alleged burglars had to cross two streets and he saw them do that... Except he too didn't see who got in the car, nor did he see where they sat or did he see their faces, or if they were carrying anything.

Now there were Photos. Pretty damning photos. All the police testified that the crime scene investigation team took the photos. All the police except the crime scene investigator. He said he didn't take any pictures at the scene, and that the pictures he did take he had staged to represent the items he was photographing in a better light. Hmmm. He didn't preserve the crime scene? Not even with a preliminary photo? That is very strange.

Our intrepid crime scene investigator also testified that none of the officers involved in the arrest ordered fingerprints of the crime scene nor did they they order hats and gloves found in the alleged getaway car checked for DNA that might link the items to people in the SUV.

Finally, if the officer who says he saw everything and everybody, did in fact see everything and everybody, why was it that after stopping the car, and capturing the alleged four occupants inside of it, did the police bring in helicopters with search lights and dogs to search and stop 3 other Hispanic men and why did the police not produce the stop and frisk reports for these men? Could it be that they may have fit the description of the men who burgled the house more closely than the men I represent?? Oh one other thing, if I were watching the burglars, I would broadcast a description of them to the other cops on the case... The eyewitness officer says he did. No one on the backup team said they heard it. NO ONE.

If these were the only inconsistencies they would be enough to raise a doubt in my mind, but there were more!!! For example, forget not going into the house to see if anyone was harmed in there. The police couldn't find the house for 45 minutes after the alleged burglary. How do you lose a crime scene???
Also the Prosecutor never brought a witness in who could give an exact description of what was stolen. One witness on the night of the alleged burglary said fifteen hundred ($1500)Dollars was taken. She was available but not called to the stand. Her mother-in-law was however called and she could not state how much was taken in toto. She said she thought she was missing Three Hundred ($300)Dollars, but she never in three years asked her daughter-in-law how much she and her husband were missing. NEVER.

If these guys took something, where was it. They didn't find it on them and they didn't find it in the house or in the truck or around the truck. Hmmmm.

I could go on, to the next witness, a police Sargent who swore that the whole thing took place in the light of day, and that the only person he saw exit the vehicle came from the back seat of the vehicle (which makes more sense than the other testimony which says the guy got out of the front seat but ran toward the back of the SUV toward the cops.) He also testified that the police involved only used radio transmissions and never used their private cellphones to transmit information as that would be a violation of the patrol guide (the others all said that cell calls were the way they communicated.)

Well planned cross, focused on the little facts that would make the big lie true, have left this jury with a lot to think about. In prep John Scarpa and I thought through each and everything a person would have to observe to make the main theory of the governments case true. We then dismantled the case missing observation by missing observation. We also caught a few breaks along the way, but for the most part, we made those happen with well timed and well planned questions which we usually wouldn't ask (because we didn't know the answer) but did ask because the potential risk of a "bad answer" was little in exchange for the shot that the police officer would have to agree with our proposition expressed in our question.

In all, again when you see a case that is supposed to be open and shut, it rarely is. Look at it from all sides and see what is missing and what could be fabricated. Look for facts that would have to be true to support the main story, but could not possibly be true or at least could not be perceived. Then plan plan plan a cross-examination that rattles and gets the witness off guard, and do not give the witness wiggle room nor should you ask the "one question too many" that will allow a dying witness a new life.

I will let you know what the jury thought.

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.

Helen Mirren Catches Flack on Her Opinion on Prosecuting Date Rape.

Fellow crime blogger Corey Rayburn Yung of the blog Sex Crimes is blogging about the comments British actress Helen Mirren made concerning her victimization as a young actress on what used to be called "the Casting Couch". In fact she was the victim of a number of Date Rapes.

It seems Ms Mirren makes the following comment:

Dame Helen, who picked up an Academy Award last year for her portrayal of The Queen, said she was date-raped "a couple of times" when she was young but did not report the attacks because "you couldn't do that in those days."

Despite her experiences, the British-born actress said date-rape was a "tricky area" and something men and women had to work out between themselves.

She said it was rape if a couple engaged in sexual activity but the woman said "no" at the last second.

However, in comments likely to anger anti-rape campaigners, she added: "I don't think she can have that man into court under those circumstances. I guess it is one of the subtle parts of the men/women relationship that has to be negotiated and worked out between them."

Cory strongly disagrees and cites this well written thoughtful post

Abyss 2 Hope is a blog written not by a lawyer but by a novelist who was date raped at 15. She is speaking of the fact that a women (girl) could be naked in a bedroom alone with a boy and still be unwilling to have sex with him and that she would if otherwise forced to have sex be raped.

I have no quarrel with her on that point. I do in her comment section wonder however if it is right to expect a fair jury, one that would credit both sides otherwise unbroken testimony, to return a verdict in a case like the one abyss and Mirren describe of Guilt beyond a reasonable doubt.

In other words, is there a time when it is too late (speaking in terms of trial) for a woman to say no?

I think that as a trial lawyer, that there is, all things being equal. I also question whether it is a good policy to teach young women that they can go so far as to be in a boyfriends room, be naked and expect a jury to believe beyond a reasonable doubt that a rape took place (assuming no other indicia of a rape exists).

I am not doubting the fact that a rape took place nor am I willing to assume based on nothing more than a woman's word, that under these circumstances it did (without at least a confession from the accused or some other physical indicia of a rape). I am saying that as a prosecutor I would not be surprised to find a jury unable to convict.

I even wonder if the jury could do so in a civil trial with a lower burden of proof without engaging in speculation?

This then begs the question, is there a point where the situation has gone too far to expect that a jury will convict someone for Rape? Was Mirren wrong to say that given these facts one should not be able to arrest a man for Rape without a greater case?

I would love to hear your opinions.

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.

Predictions In The Sean Bell Manslaughter Case

Tomorrow Queens Supreme Court Justice Arthur Cooperman will announce his verdict in the Sean Bell Police Manslaughter case. You will remember Bell is the Queens (NY) man who was killed in a hail of police bullets the night before his wedding. He was unarmed. The case is the latest in a number of police brutality/misconduct cases in New York City. It was well prosecuted and well defended. The issues came out better for the defense than people thought they would. It doesn't matter however, because the case is still one that is more or less a subjective issue. Did the police act recklessly or was their behavior reasonable in light of what they saw and what they knew at the time that they acted.

Justice Cooperman is irascible and sometimes unpredictable. He is pro law enforcement yet can get angry when they overstep the fine line between good police work and criminality. He is considered a harsh sentencing judge by most defense counsel. I tried a Criminal Possession of a Weapon/Assault 1* case before him and he was "difficult" at best. He yelled at me and on one occasion threatened me with sanctions. I was, in my opinion, doing my job. It was a case where I had a Perry Mason Moment too. That was exciting. I prevailed in that case and the jury felt the judge had been unkind and tried to bully me. It hurt the prosecution more than it ever hurt my case.

On the other hand, I could see the judge trying to be fair even though I thought he had decided that my client was guilty. Truth be told, I may not be the easiest defense attorney in Queens or Long Island to deal with either. All in all it was a positive experience.


I have also had a hearing before him. In that case (a SORA review) he quickly grasped the issues and allowed me room to develop my case and ultimately ruled in my favor. It was a few years after the original trial I had before him and I was surprised to learn he remembered me. He appeared happy to see me again which tells me he did not hold a grudge.

Tomorrow, Cooperman will make the biggest decision of his judicial life. He is Seventy Four (74) years and he cannot stand for re-election. Popularity is not going to be a part of his decision. I think his belief in law enforcement and his disdain for those who are disrespectful to the law may in fact bring his verdict in for the police officers in this case. I think he is going to think the people's witnesses to be dangerous and be underplaying their role in the case. He will find the police in an untenable position and that they could consider their lives in danger. For what a prediction is worth, I think that the verdict will be:

Manslaughter 2 for Officer Michael Oliver who fired 31 shots;

Reckless endangerment for Gescard Isnora (although I wouldn't be surprised by a not guilty verdict here;)

Not guilty for Detective Marc Cooper.

Either way, I also predict great gnashing of teeth.

Number 201: A Jog Around The Blogosphere

I am starting an exercise program. (Yes smart guy another one.) So I figured I would start exercising here too. Hence we will jog around the Internet. Let's see how we do.


I. Volokh Conspiracy is talking about a lot of things (hell 5685 law profs blog there... ok less but it feels like that many) I like this one. It is about legislators with too much time on their hands. They are arguing about whether it should be illegal to hang fake bull testicles off of your back bumper.
Really, lets limit their salaries and time in legislature. Pay them about 25% of what they now make. Have them serve Monday to Wednesday from January till June, and make them GO HOME!! Anything they didn't reach we don't need.

II. A blog near and dear to my heart blogs about an issue near and close to my heart. Prof. Berman over at Sentencing Law and Policy blog posts about lawsuits against "civil" penalties that plague sex offenders after they have served their time in jail. I am looking for a plaintiff to attack some of these stupid residency laws and other penalties.

III. As the Law Offices of Anthony J. Colleluori & Associates PLLC changes so do my duties as Principal counsel. I spend a lot of time working on systems and ideas. Allison Shields is a management expert who gives me a lot to think about. Her blog Legal Ease is a great place to figure out how to run a law firm, a skill not taught in law school. This post is about the need for and the building of a follow up system. Work work work...

IV. My Friend Ernie Svenson is blogging about a new book he has read. The book, The Nine by Jeffrey Tobin, is about the changes in the court since 1980 and the Reagan revolution. Ernie's blog is aptly named Ernie the Attorney.


V. Jerri Merritt over at Talkleft has this story about another bad conviction, where the prosecution completely distorted the scientific evidence to get a conviction. The widow enjoyed the death and the money too much. Hence the jury convicted not on the evidence but on the publicity.

Another reason there should be a gag on prosecutors and police. Announce you have a suspect under arrest for the crime, then shut up until the trial and stop trying to sway the jury. I swear if I were a judge and a prosecutor pulled the crap they did here I would disqualify the bastard and move the trial. I would be tempted to let the defendant out on bail while she awaited trial to boot. This argument that they have a duty to keep the public informed is hogwash. All they want to do it kill off any chance a defendant can get a fair trial. Wake Up Judges, WAKE UP!!

Finally,

LII Announce , Cornell Law's blog that accompanies its wonderful website has the following important quote from the late Robert F. Kennedy. I will reprint it here:

"It is from numberless diverse acts of courage and belief that human history is shaped. Each time a man stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope."
Robert F. Kennedy, Speech, South Africa, 1966.

Well, that was a refreshing jog.

Well I think we finally have a plan

Well I think I finally have a plan for this blog. I have wanted to mesh both blogs for a while. (Long Island (Criminal) Trial Law and That Lawyer Dude.) I also wanted to kind of start over for a bunch of reasons. I was trying to get the thing redesigned but my time for this is kind of limited. SOOOOO:

I have decided that I will be moving "That Lawyer Dude" to a new site (sorry blogger but this isn't working anymore)then I've decided that the new "That Lawyer Dude" will continue to be an amalgam of thought pieces and law combined. I will continue to write the blog alone for now, though I am still interested in a group blog.

Since the time table for the move is not set, and since I feel like writing, I am going to start blogging here again. If people start reading me again, great. If not, well at least my thoughts won't keep getting bottled up inside of me.

Now for the few of you who wonder what I have been up to. Well, I have been answering questions galore over at both Lawguru.com and AVVO.com I also occasionally take questions on at Linkedin.com I have also been more active on Solosez and the NYSACDL Listserves. So I have been writing but just not here.

On the office front, I have expanded our Lawfirm to include 2 new lawyers and I am hoping to add one of our "Of Counsels" as a partner.

I have tried a couple of cases and have expanded our practice areas. We now have an active Appellate Practice Group and a fledgling Catastrophic/Medical Malpractice Group. Our Qui Tam (False Claims Act Whistle blower) practice has also picked up substantially, as employees of Iraq-war contractors begin to report employers who cheat our Government and our taxpayers. There appears to be some favorable federal legislation pending on this area and I am hoping that if it passes, our Qui Tam/False Claims Act Practice Group will continue to grow. It is one of the most interesting areas of our practice and frankly very important. After all, anything that cheats our soldiers is abhorrent to me so I feel really good about going after these companies.

Our White Collar Criminal Practice Group is also booming. We have been doing a lot of work in the area of Criminal Trademark Infringement and Counterfeiting. These cases prosecute (mostly in federal court) the alleged illegal theft, retention, and sale of trademarked, patented, and copywritten material. They also usually include conspiracy, money laundering, RICO, and a myriad of other charges. The prosecution can be large or of a small group. The Federal Sentencing guidelines make these crimes much different from other White Collar Crimes.

Because many of these crimes cross international boundries, we have had to add a number of people on the staff who speak other languages. At this time our employees speak Chinese(Mandarin, Cantonese, and Taiwanese), Japanese, Italian, French and French Creole,German,Hindi,Tagalog (Philippines)Erdu & Arabic. We may not all be fluent in all of these languages but I am proud of my colleagues for their efforts

For example we are working on a case which alleges a syndicated was bringing in over 20 million dollars in trademarked NIKE and ADDIDAS clothing; another where a group was illegally obtaining credit card numbers and embossing them on purloined AMEX and VISA cards; a third case where the accused is accused of obtaining and selling first run movies on DVD as they come out and even BEFORE they come out in theaters.

It seems that the federal government is cracking down on these crimes as in part because of greater security at ports a direct result of the changes in prosecution initiatives in the wake of 9-11.

Finally we continue to try cases of the more "traditional" criminal kind. I will be starting hearings on a Murder 2 case (America's Most Wanted highlighted the case here)and I have a Burglary case scheduled for trial in two weeks, following a very interesting assault case.

So, while I will be posting here more regularly until the big MOVE, don't plan on seeing too much too soon. On the other hand, you never know what could happen. Maybe a Governor of a big eastern state will be caught patronizing prostitutes...

I want to keep up with the Q & A posts at LawGuru and Avvo, but I need a place to rant too. Hence I am returning.

NEWS FLASH CRAIG MAY NOT RESIGN!! Is This The Making of a Libertarian???

NEWS FLASH: IDAHO SENATOR LARRY CRAIG IS RECONSIDERING HIS DECISION TO STEP DOWN

The NY TIMES and the Associated Press (here)report Senator Larry Craig who said he was resigning from the US Senate after it was reported he was convicted of Disorderly conduct after being accused of soliciting gay sex in a public toilet, has let it be known he is reconsidering his decision... yet again.

By the time I had a chance to look into this matter and post about it originally, it was over. Sen. Larry Craig of Idaho was already resigning.
I remember thinking how sad it was that this fellow didn't trust the systems of justice that he had been part of for so long that he hastily entered a guilty plea.

Then I read about his family, and where he was from. Then I realized the shame he would have felt by putting them through what they are now going through. THEN I HEARD THE TAPE...

Pardon me, but I really do not believe... THE COP!!

Evidentially neither does former prosecutor and fellow US Senator Arlen Spector from PA. He has urged Craig to stay on and fight for his seat in the US Senate.

That I find the cop to be somewhat sureal and to be lying should come as no suprise to most of my readers I guess, but when I heard the tape, I realized that there was no case and the cop was desperately trying to get Sen. Craig to incriminate himself so he wouldn't look like the buffoon he was, sitting in a toilet all day waiting for someone to do something he could say was solicitation.

Maybe my mind was colored by all the hogwash I hear NY and Long Island vice say about solicitation...

Prosecutor:"What did you say to her?"
Undercover:" I asked her if she liked to listen to oldies music."
Prosecutor:" What did she say."
UC:" She likes Frank Sinatra and Billy Joel. So I arrested her."
ADA": What was the significance of that answer?"
UC:" In my 5 months as a vice squad cop (the judge is now ruling he is a vice expert) I have learned that the names Frank Sinatra and Billy Joel are euphamisms for Full service or vaginal sex and a blow job the venacular term for oral sex..."

It's hogwash. Everyday people get cowed into pleading guilty to a violation or crime they didn't really commit because these guys are to lazy or stupid to put together a real case.

Now I will pass on the whole issue of why it is a crime to ask a guy if he wants to have gay sex with you and it is considered a badge of honor to go up to a girl and ask her if she will have straight sex with you, as long as there is no discussion of payment. But come on. He LOOKED,TAPPED & WAVED??? So obviously, not only does he want to have sex with me, but he wants to do it in a public bathroom stall... IN MINNEAPOLIS???? Yet all the scarry cat Republicans who never met a cop they didn't want to believe blindly just cast Senator Craig aside. Gosh they fought harder for Congressman Jefferson and the cold cash in his frezzer!!!

Sen. Craig. You are a Neo-con Christian Right conservative. More anethma politically to me than anything to the right of Clinton and Kennedy. ( I save a special place for those two senators and the rest of the ADA clan)

I don't think you have voted for anything I believe in in all your time in DC... With that said, I would like nothing more than for you not to continue to serve in the US Senate, though I admire your willingness to do so.

My advice to you Sir is " DO NOT RESIGN. DO NOT GO QUIETLY INTO THE NIGHT. TRUST OUR SYSTEM OF JUSTICE. In the end you will prevail."

Yes, I want you out, but not like this, not for these reasons. The people of Idaho elected you. It is not for a bathroom cop in Minnesota to say who may represent them. If you are as innocent as you sound on the tape, and as you say you are, DO NOT GO. DO NOT RESIGN.

Who knows what will happen now that you have learned about police testilying??? Maybe you will start looking at the executive branch with the same distrust the founding fathers did when they proposed those first 10 amendments...

( I reserve the right to clean this up later and maybe add a few links.) I wanted to get this out. By staying up this late, I actually may have a blog scoop and I want it up ASAP.) TLD.

Fox News Cites That Lawyer Dude On The Heidgen Case

I want to welcome all of the visitors from Fox News. I hope you will visit often.
The hits on this blog more than doubled yesterday and I had no idea why. Now I know. This story on Fox News' website cites my post on the Martin Heidgen verdict. I am cited for differing with the prosecution and saying that the verdict will be overturned. I guess we will see. Coincidentally I just had another post on DWI's right below this one. I guess that's proof that "great" minds think alike.

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.