Why Caps on Attorney Fees Hurt Citizens: Fed Prosecutors say Cook County Jail (Chicago Il.) Systemically Violates Prisoners CONSTITUTIONAL RIGHTS

Russian novelist and philosopher Fyodor Dostoevsky once wrote that "The degree of civilization in a society can be judged by entering its prisons." If that is the case, then the jails of Cook County Illinois (Chicago) and I think those of Nassau County NY present an utter lack of civilization on their citizen's part.

Patrick Fitzgerald, bane to the Bush-(and more exactly) Cheney administration, and US Attorney of the Northern District of Illinois has issued a scathing report which bashes the nation's largest single sight jail for being violative of its prisoners basic civil rights under the 8th amendment.

The report gives the USA N.D.IL. The right to bring an action in about 1.5 months to force the city and state to fix the problems. These are very serious charges.

Now for specifics: the study found that the jail "Key findings of the investigation conclude that the jail has failed to adequately protect inmates from harm and serious risk of harm, including physical harm caused by inappropriate and excessive force used by staff and violence by other inmates; failed to provide adequate medical and mental health care, including suicide prevention; and failed to provide adequate environmental conditions, including fire safety and sanitation, all resulting in unconstitutional living conditions."

These violations have led to suicides, murders, amputations (by the jails own doctors) and beatings at the hands of the guards. The level of violations rises to that of a constitutional violation.
What's worse is, these folks are HAVE NOT BEEN CONVICTED OF ANY CRIME. They are awaiting trial and are too poor to make bail. In other words they are PRESUMED INNOCENT

Now things in Chicago are pretty bad, but are they any less so here in Nassau County? The Nassau County (NY)Jail in East Meadow is a miserable place. There is gang violence and regular violence against people who are different (think gay). Medical attention in the jail (as opposed to the NCUMC next door) is very poor and many inmates do not get any much less proper doses of their medicines. The Jail instituted programs that made it impossible to file complaints, made it so that prisoners had to file the complaints with the same people who they were complaining about, and came up with a scheme to make sure complainants never exhausted the administrative remedies they had to finish before they could sue. Oh yeah, lawyers were not permitted to help for those that did get to file a complaint.

Now why are things like this allowed to fester?

Because Congressmen do not understand the laws they pass. Because Prisoner's have no lobby. Because politicians pander to voters by being "tough" on Crime. Because Americans are stupid. No not in the imbecile kind of way, but in the "I don't want to think about or learn about this" or the "Government will take care of this stuff" or in my personal favorite "those people don't deserve better" kind of way. Because even though most of Congress is made up of lawyers, they hate lawyers.

What happened here is that under the original civil rights law, prisoner's could file suits "willy nilly" and were costing the local governments a ton of money in legal fees for "Frivolous litigation". (One inmate sued both the Devil and G-d in two very separate law suits.)

Normal solution: require that the litigation be filed by an attorney who has reviewed it and is open to Rule 11 sanctions.


Congressional solution: Close the court house door to most prisoner civil rights suits and while we are at it, make it impossible for a lawyer to make any living in representing someone who is in jail and has a legitimate civil rights suit by capping his legal fee at 150% of the recovery.

This is the gravamen of the Prison Litigation Reform Act of 1995. Now why cap the legal fee, well civil rights cases allow the court to switch the legal fee of the winning party to the losing party. That means a lawyer will get paid by the government. Now it was completely lost on the congressional geniuses that wrote this bill that most of America's best lawyers charge more than 350 per hour and that they were already taking less because they are paid at no more than 112.50 an hour under the civil rights act (See also the Lodestar case).

NOPE, if the lawyer succeeds in saving prisoner's lives, the jury can give the victim/prisoner a buck and the lawyer gets... $1.50. That's absurd right?? I mean a guy can work for 300 hours on a case, win it, save lives because he wins it and all he gets for all that work would be a half cent an hour?? That's got to be absurd right? Well the 10th Circuit court of Appeals thought so (See this decision) but then when they looked at the decision en banc (a fancy way of saying all of the judges on the Circuit Court of Appeals reheard the case) they agreed that absurdity wins out, Congress screwed up and they couldn't legally fix it. Hence the Court house doors are effectively shuttered because a lawyer has to feed his family and pay his staff and we can't do that on this type of fee. Big law firms don't take too many of these types of cases pro bono. Hence disturbing behavior begins, goes unchecked, increases, and people die.

There are a few proposed laws to reform the PLRA. You can learn more about those proposals here.

Lawyers and the threat of a law suit, while expensive and not without some downside, keep people safe without sacrificing the needs of these people. Our professions ability to find a wrong and right it without taking up arms makes our nation stronger and our people healthier and safer.

Do not give in to the platitudes of others. Ask questions. When a Congressman or lobbyist wants to limit the right of someone to use the capitalistic system to better themselves, usually it betters all of us. Putting artificial stops on the free market never succeeds in anything but waste and loss of life and limb.

It is the same with Medical Malpractice and Class action fees. Doctors still want to make money, and so do insurance companies. They will continue their services. Same with Pharma and other developers. It may make things a little expensive at times, but then again, would you rather pay more for a safe drug, or less...

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.

BREAKING NEWS: Deborah Jeanne Palfrey, The "D.C. Madame" Commits Suicide

Deborah Jeanne Palfrey "The D.C. Madame" kept her macabre promise. She killed herself rather than spend another day in jail. Her elderly mom found her hanging from a steel beam in the shed... That is two deaths now associated with an Escort Service/prostitution ring... I don't know, somehow I don't feel any safer knowing that the Feds are spending my tax money prosecuting people like Deborah Jeanne... amazing how important this prosecution was to the government.

Well we don't have to worry about the evils of the Pamela Martin Agency anymore... I wonder how were doing with that Osama bin Laden guy.

What a freaking waste!

Story here

Welcome to a Day in My Life

Radley Balko blogs at a Cato Institute inspired (?) blog called The Agitator. He has a very funny piece today on Strip Club legal etiquette. As a First Amendment/Civil Rights/Constitutional/Criminal Defense Lawyer in New York and on Long Island, I have to answer questions like these 100 times a week*

I also love my job Radley, but it can sometimes get tedious...

Enjoy the read.

Hillary Wants to Tax the Gasoline Industry... How about you just work to cut spending and stop taxing the gasoline???

Gosh it isn't hard to figure out why democrats rarely have a sound economic policy. They hate people who are successful...

Democrat Presidential Candidate Hillary Clinton wants to put a windfall profit tax on petroleum companies because they have figured out how to make a profit no matter what the price of gasoline is...

Well so much for being rewarded to do your job.

Look Hillary a few facts. Corporations exist to make money for the people who own them. They are not here to loose money or to make life easier on Americans or especially American Politicians. It is a good thing that these companies make money for their owners. As a result of them making money, people want to INVEST in them so they can make money too. The companies then take the investments and put them toward new ideas some of which may turn out to be pretty good.

Instead of stripping profits from the companies, charge them with using the money they are making on higher fuel prices to explore new and better ways to end our addiction to oil. See Hill darlin' if you take the profits away, people won't fund the companies, then these companies will not have the money to figure out new ways to break us off of foreign oil. IF there is no growth in an industry it dies. WE can't afford that. We need these companies to be here to do the things they do that help us keep the oil companies in check and not profiteer on our misfortune.

Look I know oil companies are low hanging fruit, and when it comes to low hanging fruit, you and Bill are the best. Economic policy needs people who understand the concepts of supply and demand as well as other economic theories. With this idea, you show you are not up to that task.

So if you really want to help the American consumer both in the store and in the future,
CUT THE FEDERAL and State sales taxes on Fuel, and keep encouraging the oil companies to use the profits they are getting to continue to research alternate fuel sources.

My two cents.

The "Mouse" in the House is a "Rat": Disney Flogs Cyrus and Lebowitz While Selling Sleaze Abroad

Disney jumped all over poor Miley Cyrus and celebrity photog Annie Leibowitz for taking pictures of Cyrus while her upper body was under a silk sheet and her back was exposed. Religious Righters who must make up a majority of Disney stockholders and allegedly the parents of Hannah Montana fans, completely forgetting their youth, freaked out over pictures that wouldn't steam up the windows of a hot house. All the while these Disney guys were selling underwear by laying a 12-13 year old model wearing nothing but a bra and panties on a BILLBOARD in China... Freaking hypocrites. As usual Disney was Shocked Shocked that a local distributor would do such a thing... but of course the Disney rep couldn't help but account for differences in cultures because China has a 14 year old age of consent as opposed to 16 here in the states... Check this out and read more in Slate. I think I smell a Rat...

Hannah Montana NUDE??? What Is The Big Deal with the Miley Cyrus Vanity Fair Photos??

The Today program is trying to tell parents how to "Deal" with the Photos of Hannah Montana star Miley Cyrus in Vanity Fair. GIVE ME A BREAK.

First off, give me a break. The photos do not rise to PG-13. If no one said anything about it most under the age of 15 would never have known she was in there.

Secondly, you gotta be kidding me. With the advent of Cellphones with cameras and webcams these photo's by one of America's top fashion photographers are both beautiful and benign. Seeing all the fuss about them, I was startled to find out that Miley, draped in a white sheet and showing her naked back would have any effect on a teen or pre-teen in Nassau or Suffolk County, much less New York City.

Then I was worried about my becoming too jaded. That was until my saint-like wife said that she too was amazed at the fuss and didn't see anything wrong with the pictures.

Now I am wondering if this wasn't a wonderful ploy by Cyrus or even Disney to bring some controversy to the show and to her career and prepare her for the next step in her becoming a star post her Hannah Montana gig.

After all with Spears, Aguillara, Lohan, and Hugedens among others, does anyone still believe the Disney ingenue is really all that chase?? In another 3 years, look for the new boyfriend to have cellphone pictures that will make people's hair stand on end. Maybe if we paid less attention to this stuff it would have no effect at all.

Am I that out of touch?

Scalia on 60 Minutes: The Rock Star Speaks

It was a great interview. Nino starred. His sense of humor and his actual humility came through. I am not going to go around and look for ways that he is either a hypocrite or even wrong. I think for the first time since Justice Douglas, we have an erudite well spoken and well read judicial hero. He may not be universally liked, but he stated his case for originalism well. I only wish Stahl had asked questions about federalism's reach and what if any limits there may be.

Originalism is not a dead constitution, it is for letting the constitution stand for what it says and for laws to stand for what they stand for. It is the reason that the constitution gets amended when the country believes there is a reason for it. It is the reason that it requires so many votes to amend it.

I like the way Scalia spoke about how he would do away with all abortion or have thrown the flag burner in jail if it were up to him. How his belief in the constitution does not allow for personal opinions to take the sway.

I did think he parsed words a bit too much when it came to using the cruel and unusual punishment language in the discussion about torture. I agreed with Stahl that the 8th amendment to the constitution would not allow for the use of torture and torture is just as easily a punishment for one's beliefs or race etc. as it can be viewed as an instrument of interrogation. The point is that I think Scalia asks the correct questions, in that the first question he must ask himself is, does the issue present a question that implicates the constitution as the forefather's wrote it. Where he and I may disagree comes down to understanding what is taken in by the meanings. He is broader than I in some places, and I broader than he in others. I also may take a more narrow view of how expansive a law is. In interpreting law, I am one who believes in looking at the actual words of a law and not giving meanings to them that either restricts or expands them beyond the words the legislature uses. I would also say that I would have to look hard at legislative history in interpreting many laws. I think he uses too little of that in his writings.

I also wish Stahl had asked him how he uses Presidential (or executive) signing statements and what if any effect he thinks they should be viewed by a judge when interpreting statutes.

Getting back to his originalist views, I am glad to hear him explain that if a case (like Roe) is found to be outside the constitution by the court, then go back to the public or their leaders and ask them to change it. Make a new law, or amend the constitution, either way, it is a republic and the majority's interests must often be upheld. Yes that view may hurt me a lot on a lot of cases, Yes it is the way a judge and a citizen should look at the Constitution.

A Sunday Jog Around the Blogosphere

Wow what a busy week. 8 posts in one week!! Pretty good especially for me. I doubt I will be quite so prolific this week as I am going to be back on a suppression hearing on Tuesday and maybe Wednesday in People v. Ronald "Shorty" Rodriguez, before the Hon. Meryl Berkowitz in Nassau County Court. Later in the week I will be in NYC for the 50th Anniversary of the NACDL. I may do a few blogs from there. I am excited because I am serving on the Nomination committee. Fellow Law Blogger and President-elect John Wesley Hall asked me to serve and I am very honored.

So as it is Sunday, I am going to again jog around the blogoshere with you. Here are a few things that caught my eye this week that I didn't get to write more about but you may want to look into yourself:

1. That Exotic Darlin' of the Neo-Con set Michelle Malkin asks the blog question, are US banks Knowingly Laundering Drug Money for Mexican Drug Cartels?? Michelle's take is that illegals, are here, sending money there (Mexico) through non-banks called "casas di cambio." American banks wanting some of the action offer these CdiC's a place to put large amounts of money and will look the other way if some of the money comes from the drug trade.

Michelle's neo-con answer is of course to prosecute the banks the illegals and the democrats. MY answer is better. Legalize the Drugs and tax same, put the money to use to help people beat their addictions, and open the borders correctly with a sane immigration policy that will not cripple US businesses.

Hmmm... Deport workers, cripple our economy, jail Americans for trying to make a living, jail more people for feeding their addictions, ruin foreign governments by making Criminal's rich and cost the American Taxpayer gazillion dollars for a drug war we could end with the stroke of a pen versus A sane immigration policy and drug policy... Ok she is sexy (especially compared to that shrieking idiot of the rightamortis, Ann Coulter ) but her views are silly.

2. I will never figure out the Federal Prosecutor's fascination with rebuttal witnesses. I guess they feel that it gives them a chance at primacy and finality two forensic speaking techniques. On the other hand, watching a case go in over seven (7) weeks and then blowing up on rebuttal just makes me question two things: to they think the defense isn't aware of their games and can not counter them? and Why do they think the jury needs to hear the same stuff over and over again? Anyway, the Pellicano case in L.A. Federal court is about to go to a mistrial... seems that the rebuttal witness they called to contradict the defendant's testimony on a minor issue, committed perjury and will have to take the 5th amendment on Monday. She was to be the final witness. Shame on the US Attorney's office in L.A. for doing a shabby job of investigating their own witness. Talkleft has some coverage here.

3. Pittsburgh Pa. has become an adoptive second home for us. We go there for some of my wife's medical treatments. The City is made up of many really nice people. Then of course there is their US Attorney, but she is a story for another post.

For now, here is a story about a guy who was arrested for complaining too much in a bad tone... A little subjective no?? Anyway he was convicted by a jury and it is on appeal... I can understand how one might want to be respected for working in public service. On the other hand I can also see how one might get fed up with the failure of certain public servants to do their jobs. What I cannot see is someone being convicted for complaining to a public servant about the job they do. Taking complaints is in the job description. As long as it is not abusive language tone shouldn't matter. (I am not sure abusive language should matter either but that too is another post.)

Hattip: to Radley Balko at The Agitator

In a related post over at the CrimProf Blog there is a story about a guy who got 15 years for sending governmental officials threatening letters.
4. "Romeo, Romeo, Where fore art thou Romeo..." Well both Romeo and Juliet are over at the Volokh Conspiracy this week where Professor Eugene Volokh, the head conspirator looks at the reason's behind Romeo and Juliet sex laws (laws that outlaw sex between adults and minors of a certain age but allows the sex if the lovers are born within a certain amount of time of each other. On first blush, it seems that Prof. Volokh is in favor of pedophiles, however when you look at his questions he does seem to put those laws under a light of logic and they do not come out all that well.

5. Some Good and Bad News about the Fourth Amendment in the news this week.
The blogosphere is abuzz with news out of California about the Ninth Circuit agreeing that laptops can be searched at screening at airport screening stations.

Meanwhile in NJ. the Supreme Court stunned prosecutors in ruling that people do have a fourth amendment protection in their ISP carriers information.

6. New and scary uses for DNA. Now it will be guilt by blood association. See this post for more information. Coming 0n the heels of Judge Weinstein's decision in , there may be a trend toward bringing Fourth Amendment law into the open and up to date with this century.

And that's our jog round the blogosphere. See you around. It should be an exciting week.
TLD.

The Sean Bell Verdict in the Words of Justice Arthur Cooperman

From Newsday.com:

Judge Arthur Cooperman's verdict

11:51 AM EDT, April 25, 2008

"Before dealing with the business at hand, I would like to remind everyone how important it is to honor the decorum of the court and remain quiet after the verdicts are rendered.

A trial is defined as a formal examination of the facts of a case by a court of law to decide the validity of a charge. It is also defined in the dictionary as a hardship. And, in many ways, this trial was a hardship.

But, it was not a competition. To overreact to the outcome while you are in this courtroom, whether you are satisfied or dissatisfied with the result, would detract from the great effort that was expended to assure a fair trial - by the court personnel and the attorneys who handled their responsibilities with the highest level of professionalism and skill.

Because establishments known as "strip clubs" often generate criminal activity including prostitution and narcotics, the police department Club Enforcement Unit was given the task of infiltrating such places and pursuing violations of law that would lead toward shutting them down.

So it was that the detectives charged in this case found themselves in the vicinity of Club Kalua in the early morning of November 25, 2006.

And as a result of the events of that morning, they are accused of the crimes alleged in the indictment.

Now, after eight weeks of trial, this court has the responsibility of making a determination of guilt or lack of guilt as to each of the charges set forth against each of the defendants.

As the trier of fact, this court must determine what the facts are, apply those facts to the applicable law, and render a verdict.

The court will do so. But before announcing a decision, a brief statement is in order.

In weighing the evidence, the court examined the testimony of the witnesses and the factors to be considered in determining credibility.

An objective consideration of the proof ruled out sympathy and prejudice and any other emotional response to the issues presented. The court did not view the victims or the NYPD as being on trial here.

The burden of proof was on the people to prove each defendant guilty of the crimes of which he was charged, beyond a reasonable doubt. And as with all criminal cases, each defendant was presumed to be innocent.

Because justification was raised as an issue, the people had the burden of proving as an element of each charged crime that each defendant was not justified.

It is important to note that in analyzing what happened here, it was necessary to consider the mind-set of each defendant at the time and place of occurrence, and not the mind-set of the victims. What the victims did was more pertinent to resolving the issues of fact than what may have been in their minds.

Also, carelessness and incompetence are not standards to be applied here, unless the conduct rises to the level of criminal acts, as defined by the law relating to each count charged.

What happened outside the Club Kalua on November 25, 2006, and the ensuing incident that occurred around the corner on Liverpool Street are the two significant events about which proof was elicited.

We instruct juries that it is expected that multiple witnesses to the same event may vary in their recounting of minor aspects of what had been observed. However, where there are significant inconsistencies related to important facts, they should be considered.

Reference was made earlier to the credibility of witnesses. The court has found that the people's ability to prove their case beyond a reasonable doubt was affected by a combination of the following factors: the prosecution witnesses' prior inconsistent statements, inconsistencies in testimony among prosecution witnesses, the renunciation of prior statements, criminal convictions, the interest of some witnesses in the outcome of the case, the demeanor on the witness stand of other witnesses and the motive witnesses may have had to lie and the effect it had on the truthfulness of a witness's testimony. These factors played a significant part in the people's ability to prove their case beyond a reasonable doubt and had the effect of eviscerating the credibility of those prosecution witnesses. And, at times, the testimony just didn't make sense.

Yet, it was apparent from the testimony of the participants that the confrontation that took place in front of the club was heated. The SUV owner, Fabio Coicou, gave the impression that he had a gun, causing at least one of the group to threaten to take it away from him.

And, the court finds, another threat was made by Joseph Guzman to retrieve a gun. At that point, nothing of a criminal nature had taken place. But, having witnessed that provocative confrontation between Mr. Coicou and the group, the undercover officers became concerned and followed the group around the corner to Liverpool Street.

Defendant Isnora approached the Nissan Altima into which Mr. Guzman and Sean Bell, two of the more active participants in the heated exchange, entered.

The Altima, which was driven by Mr. Bell, sped away from its parked position, struck defendant Isnora and collided head on with the police van that had entered Liverpool Street. The Altima then went into reverse, backed up onto the sidewalk, struck a gate and then went forward and to the right, striking the police van again. As this was happening, defendant Isnora -- who testified in the grand jury --observed Mr. Guzman, the front passenger, move his body as if he were reaching for a weapon.

Defendant Isnora yelled, "gun" and fired.

Other officers, indicted and unindicted, joined in from different locations on the street.

The court has found that the incident lasted just seconds. The officers responded to perceived criminal conduct; the unfortunate consequences of their conduct were tragic.

The police response with respect to each defendant was not proved to be criminal, i.e. beyond a reasonable doubt. Questions of carelessness and incompetence must be left to other forums.

Although there were aspects of defense testimony that were not necessarily credible, the focus must be on the people's proof to determine whether they have satisfied their burden of proving the defendants guilty beyond a reasonable doubt.

To the extent that the defense of justification was applicable to the charged crimes, counts 1, 2, 3, 4 in part, 5 in part, 6, 7, and 8, the people have not proved, beyond a reasonable doubt, that each defendant was not justified in the actions that each took.

With respect to counts 4 and 5, Trent Benefield, whose credibility was seriously impeached, testified that he was shot while running down liverpool street. Forensic evidence demonstrated otherwise. Thus, although the justification defense would not have applied to that aspect of counts 4 and 5, it was not proved beyond a reasonable doubt.

Accordingly, the court finds each defendant not guilty of each of the respective counts in the indictment of which they were charged.

Copyright © 2008, Newsday Inc.

Sharpton Reaction To The Bell Verdict: The Reverend Has The Right Idea, Just The Wrong Place ( Do Not Protest in Front of The Judge's House.)

Let me begin by saying, if one is not happy with a policy or action by there government, one of the best ways of expressing that dissent is through peaceful civil disobedience. Another good idea is to protest in places where your words will have an effect. Pressuring legislators and executives is a part of our liberty rights.

This type of pressure is inappropriate in front of the house of a Judge, even if you don't like him, trust him, or understand his rulings.

The Rev. Al Sharpton can be a polarizing force here in NY. Unlike the Rev. Dr. Martin Luther King, "The Reverand Al" as we sometimes refer to him, hasn't always sounded like someone who was seeking a peaceful protest. As he has gotten older, and as he has moved toward understanding the possibilities that he could actually be the leader that black America has sought since the Death of Dr. King, He has gotten far more studious of King's way. He is also taking advice from better advisers and lawyers (Michael Hardy who is Mrs. Palwtry Bell's lawyer for one) than he used to get.

One has to remember, Rev. Al is a Brooklyn boy who grew up on those mean streets. He is loud and occasionally obnoxious. He is like a mix between the Rev. Jesse Jackson and Muhammad Ali.

Sharpton has been at the side of some of NY and America's neediest families as they face the devastation of racial prejudice at the hands of Authority. He was there for the family of Amadou Diallo, the Jena six and now for Sean Bell's family.

After hearing Queens' Supreme Court Justice Arthur Cooperman's decision in the Bell manslaughter shooting case, He went back to his Harlem Headquarters and said he intended to close New York City down. He called for peaceful protest and peaceful disobedience in front of One Police Plaza in Manhattan, in front of the Supreme Court House in Queens and in front of the home of Justice Cooperman. Given the position he and his followers are taking in this case, one could argue he has the right medicine but in calling for protests in front of the home of Supreme Court Justice Arthur Cooperman, he has prescribed the wrong dose.

No matter how peaceful, a large protest in front of some one's home is threatening and scary. It is wrong. It is meant to send a message. I understand the messages being sent from the protest in front of One Police Plaza (we will not stand for police officers who risk the lives of innocent people to spare their own) and the one in front of the Courthouse (we do not believe we received a fair verdict in this case) but the only message I understand from protesting in front of Justice Cooperman's home is "if you are the next judge in a case like this, and you rule against what we want, we will be in front of your house and it may not be a peaceful protest we bring." Even if that is not the message Sharpton wants to send, it is the one that the legal community and the court system will get. He should not ring an attack on judicial independence and as lawyers and citizens we need to criticize his decision to do so. His decision is both short sighted and dangerous to the very people he claims he wants to help.

Judicial independence is important. It is especially important to the people who Sharpton says he speaks for, the poor, the minorities, the disaffected. Judicial independence means that judges are free to decide cases fairly and impartially, relying only on the facts and the law. It means that judges are protected from political pressure, legislative pressure, special interest pressure, media pressure, public pressure, financial pressure, or even personal

http://www.justiceatstake.org

It is very difficult for people charged with heinous crimes to get a fair trial. If Judges think they or their families face potential danger, what is the chance they will stick their neck out to help the accused. Far more poor, minorities, and disaffected people are charged with heinous crimes than Police officers.

Judges like juries experience the world through their own eyes. Much like many of us, judges believe what they hear based not only on the words but also the demeanor and background of the person giving the testimony. When there is a culture clash like in this case and such as in the of O. J. Simpson and Bernhardt Goetz, the view the finder of fact sees may be far different than what the supporters or detractors of the parties views. Sharpton is right to admonish the court that some one's prior criminal record does not mean he can never be believed on the stand or that he gives up his right not to be shot down by police. On the other hand, Judges have a right to be wrong. It is one of the ways they get the other branches of government to look at issues and think about them differently. In the area of criminal justice, Judges who make mistakes sometimes force change in the system which in the long run will favor Sharpton's supporters far more than if they fear to make those mistakes.

As the late Tennessee Supreme Court Justice Adolpho A. Birch, Jr., said: "Judicial independence is the judge's right to do the right thing or, believing it to be the right thing, to do the wrong thing."

The Reverend Sharpton is wrong to call for any protest at Justice Cooperman's home. Hopefully someone will remind him of this and he will call off any such protest there.

Reactions to the Sean Bell Shooting Verdict

I am listening to radio and to the reactions to the verdict in the Sean Bell shooting case.

For those of you who do not keep up on race relations in New York City, Bell was a young man who was shot up by police who thought he, or someone in his car had a gun and that they were shooting at them. Bell was at his bachelor party, and was to be married later that day. He was the father of two children.


There was an extensive investigation by the Queen's NY District Attorney's office and a grand jury heard the case. They decided that 3 of the officers should be indicted. The criminal defense attorneys in the case tried to move the case out of Queen's county. The State opposed the motion successfully. The case was put before the Hon. Arthur Cooperman and the defense decided to go forward to trial without a jury.

The reasons for the non-jury decision was multi-fold. One, the case needed a fact-finder that would hold the People to their burden. It is incumbent on the prosecution to prove the defendant's did not act in self defense. The defense also had a judge they felt was not only fair in his view of the police, but was favorably disposed to the police, the hard job they have and to the testimony they may give. Additionally they were aware that the judge would not have high tolerance for witnesses who had abused the system and who had lied in the past and may not be coming to court with "Clean Hands."

As I said last night, the possibility for a full acquittal was bright. Even I thought however the Judge wouldn't be able to get past the fact that one officer fired 41 shots of the 55 fired. My predictions are here.

My reaction to the verdict is mixed. I honestly believe that if the defendant was black and had shot an undercover out of fear of his attacking him, that the court would have ruled differently. Even if the prosecution had terrible witnesses who they had to give deals to, they would have been believed by the court. I believe that a white defendant would have been found guilty of something.

I guess I believe that race did play a part in the verdict, but less of one than the fact that cops just get treated better than the rest of us do in a courtroom. It isn't right, it just is.

I think that the Mayor struck just the right tone. Someone did lose a son, father and fiance. It is appropriate for the family of Shawn Bell to feel angry at the prosecution and the judge. ADA Testagrossa, who did a great job IMHO with a case that was complicated to say the least, honestly said he was disappointed.

The community feels abandoned. I have to agree with them. The message that this verdict sends is that short of an assassination by the police, black men need to be wary when they see white cops.

OTOH, if the black community wants to be taken seriously they need to continue to clean up their own community. This shooting took place because the area around Club Kahluha was a 24 hour working crime scene. With over 1/2 of the male black community having criminal records the leaders of the Queens NY Black community has got to be that they must help their young men not to be involved with any criminality.

As for more predictions, I think that the US attorney will file a civil rights action against these police officers. There will be a lot of civil rights law suites too. Over the next few days I think you will be seeing a few more posts on these and other related topics.

Breaking News: Cops Acquitted of ALL CHARGES in SEAN BELL MURDER CASE

This just in. I saw this as a possibility. Queens NY Supreme Court Justice Arthur Cooperman hands the Defense a full acquittal in the murder of Shawn Bell.

Cooperman has always been considered a law-enforcement judge but the defense did a wonderful job in attacking the witnesses.

The verdict doesn't put an end to the legal suit which is filed against the officers.

More later.


Addendum:

The Court asked for dignity and decorum. The courtroom was ringed with almost 40 court Officeers. The Bell family was said to be stunned and Nicole Paultry-Bell was most upset. As Cooperman gave the verdict she allegedly stood and said I'm out of here.

Cooperman said he took into account the witnesses criminal background and the differing accounts of the witnesses and decided the state just did not make their case beyond a reasonable doubt. Cooperman just did not credit the testimony of Bell's friends because in large part they had criminal records.

He also credited the officers who testified who had clean records and no allegations of abuse.

Pretty interesting but not unexpected decision... see my prediction here. I said this was a strong possibility but I thought he would find the main shooter guilty of a crime that he could get probation on...

Court said this was a careless act and not reckless... carelessness is not a crime...

I better stick to law, I am not that good a prognosticator.

Mothers Against Drunk Drivers New Tactic : First Thing We Do Is Gag All The Lawyers

Our friends at DUIBLOG alert us to a new idea being tried out in Tennessee. A State Senator (a former nurse) has introduced an amendment to a Homeland Security bill to forbid Criminal Defense Lawyers from advertising their expertise in handling DWI cases. Here is the AP Article:

Senate measure would ban lawyers from DUI advertising
By ERIK SCHELZIG • Associated Press Writer • April 22, 2008

Defense attorneys would be banned from advertising their expertise with drunken driving cases under a bill advancing in the Senate.
Sen. Rosalind Kurita, a Clarksville Democrat, successfully added the provision to a bill that would create an online registry of repeat DUI offenders in Tennessee.
Kurita says officials have a hard enough time convicting drunken drivers without lawyers advertising their expertise in the field and offering discounts to DUI defendants.
Senate Democratic Leader Jim Kyle, a Memphis attorney, argued that Kurita's proposal would violate commercial free speech rights.
Kyle says that as long as lawyers are meeting ethical standards set by the state bar association they should be allowed to advertise their legal qualifications.

Interestingly Kurita is not beloved by her fellow Democrats because she jumped ship and voted a Republican into the Lt. Governors seat after promising to support a Democrat last year. She was rewarded with the Presidency Pro Tem of the legislature.

Hence it came as no surprise that the Democrats launched a primary Campaign against her.

Guess what her Primary Opponent does for a living...
Right! He handles Criminal Defense cases including DWI.

Given that this stands no chance of ever remaining law (Lawyers have a right to advertise Bates v. State Bar of Arizona 97 S.Ct. 2691 [1977]) this becomes just one more waste of taxpayers money. (On the other hand, Nassau County (NY) District Attorney Kathleen Rice would have a blast with this kind of legislation.

What is most worrisome however is the reason she gave for supporting the ban.

They have a hard enough time convicting without lawyers advertising their expertise and giving discounts to suspected drunk drivers. Imagine how hard it would be if they had to use real science and not the junk science that backs up today's breath testing equipment?

Who advises this Senator anyway?

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.

Deed Piracy: A Particularly Cruel Type of Mortgage Fraud

With the advent of the "Depression of 2008", there are a lot of desperate homeowners in Suffolk (NY) and Nassau (NY) counties who are facing foreclosure. It is one thing to lose your money or your friends. It is quite another to lose the home and memories you've grown to love. In the poorer neighborhoods of Long Island and in places like Brooklyn and Richmond Hills in Queens there is a new monster crawling around. The Deed Pirate. Pretending to be an a rescuer for troubled homeowners, this monster is really a wolf in lambs clothing. These people are pirates of a new type. These deed pirates can steal your home out from underneath you.

According to a recent FBI Study (see here) New York is one the ten hottest Mortgage Fraud venues.

Deed Piracy aka Foreclosure Rescue is an emerging real-estate scam that strips desperate homeowners of title to their houses and any equity they may have in it. Here's an example of how it's done.

1. Homeowner falls behind in mortgage payments and the house goes into foreclosure. The foreclosure becomes a matter of public record.

2. Homeowner is approached by a scammer who identifies himself as a "mortgage broker." The scammer offers to refinance the house, pay off the loan and rescue the house from foreclosure. He comes in like an angel. Watch out, he is the devil in disguise.

3. At the closing of the new loan, the scammer tricks the homeowner into signing a "quit claim" that transfers ownership to the scammer. That is done in a number of ways:

a. Scammer will falsely convince homeowners that they will reclaim title as their credit improves.

b. Quit claim can be stashed among a number of other papers to sign.

c. Scammer forges owner's signature on quit claim.

4. Once title is held in another name, the proceeds from the new mortgage are easily diverted to the scammer.

5. Scammer begins eviction proceedings against the duped homeowner.


The protection against this type of predatory lending scam artist is simple.

I. First only work with a lawyer who is knowledgable about real estate. Stay away from Realty Agents who try to steer you to a specific Mortgage Broker or Lawyer. (You can find excellent lawyers and see how they rate at this site)

II. Only sign documents that clearly state that your signature is dependent on a co-signature by your lawyer. The Document should also say that it is self expiring within 3 days if it is not also signed by or replaced by a legal document approved by you lawyer.

III. Review and get a copy of every document at any closing you attend. It is popular for Mortgage brokers and even some banks to tell borrowers that they do not need their own attorneys for re-fi closings. WROOOOONG!!!!! Your failure to get a lawyer of your own marks you as an easy fraud victim. Get a GOOD LAWYER.

IV. Tape record all meetings and phone calls with the Mortgage Broker or representative.

V. Be very wary of straw buyers. These are people who the Broker pays some money from your re-fi to for their willingness to lend their credit score to get the loan. If a bank will not give you a mortgage on your score, you do not substitute another mortgagor, you get a guarantor to sign on to the loan. You will be told it is more expensive. It is. It is also the only legal way to do this. Straw buyers are illegal and if you agree to them, you are part of the Mortgage Fraud. You can be prosecuted by a New York City or Long Island District Attorney's Office or by the New York State Attorney General or even by the United State's Attorney's Office in Central Islip, Brooklyn, New York City (Manhattan) or White Plains. Do not deal with Straw buyers.


I will have more to say about Mortgage Fraud in Nassau and Suffolk Counties as well as Mortgage frauds in Manhattan Queens Brooklyn and the Bronx in the coming days. (It is a big part of our practice and we want to make sure that both those who are victims and those who are wrongly or innocently accused get a fair shake.

For Our previous blog postings on this issue see this



For more on the Long Island Foreclosures and on the Real Estate Market in Nassau and Suffolk in general take a look at a Newsday Blog called Real LI

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.

Sub-Prime Mess Leads to Mortgage Fraud Prosecutions: The Millionaires Play While the Homeowners Will Pay With Their Freedom

On Friday the FBI announced that the sub prime mortgage mess is going to lead to an uptick in mortgage fraud prosecutions.

Now what that translates to is that everyone who did something to help homeowners buy houses that they could not afford will be prosecuted, while the banks that profited all those years will pretend that they were unaware of the rampant fraud in the marketing of mortgages so that they can get as much of their money back while little players go to Federal prison.

I know that many of you are confused by the sub-prime mortgage mess. In a nutshell, the banks lent money to homeowners and buyers without requiring that they have any equity in the house. Now the mortgagor (the owner) can no longer afford the mortgage and has no equity (a reason to keep the house as an investment) in the home so he walks away from the debt leaving the bank holding the mortgage and the house.

Now why can't the bank just sell the house? Because it is worth less than the amount owed on it and so the bank will take a loss. Do that over and over again, and voile you got a mess of banks going belly up. The most recent failure was at Bear Sterns (hereinafter BS, for so many reasons).

Well, you may say, "sounds like they made bad investments. They should have to pay for using bad judgment." Yeah Right. They completely screwed up and yet you should see how they were rewarded before they went under. Lets look at some of the principal players at BS:

Alan Schwartz: is the CEO, President and basically the chief honcho.

Sam Molinaro Jr.: is the COO and the CFO and is basically the number 2 guy

Mike Minikes: is the treasurer of B/S

Mr. Michael S. Solender: is the attorney.

A fast review of their recent (last 6 months) trading of their options (which they received gratis as part of their "salaries") goes like this:

Schwartz made Six Million Dollars on the sale of his options of stock on Dec. 21 2007.

Molinaro made 2.5 Million Dollars on his sale the same day (he sold less).

Minikes made 2.3 Million Dollars on his sale.

Solender made 185 Thousand Dollars on his sale of options.

This is all in addition to multi Million Dollars salary and benefit packages they get!!

So the government is going to get these guys to give back the money right?? WRONG. They are going to get to keep the spoils of being horrible business people who cost their little shareholders millions.


So who is the government looking for? The favorite scapegoat... the little guys.

You see, BS is pretending that they never heard of inflating an income or an appraisal in their lives. ("I'm shocked, shocked to find that gambling is going on in (Casablanca)!)

For years BS (and others, I am not just picking on Bear Sterns they are just one example) made a fortune on the lies of brokers and homeowners. They knew of them, and allowed them to continue to lie about income and equity, until the bottom of the market hit like the end of a Ponzi scheme. Only difference is that the company was left holding the bag along with a lot of people who are or are going to be homeless.

You may be asking how this means homeowners are going to jail. Here is the answer:

Many (if not most) homeowners over the last 10-15 years have been playing a game that allows them to get the equity out of their homes and use the homes like an asset. By refinancing they recieved 100% equity and sometimes more. They used phony appraisals (which would "convince" the banks that the home was worth more than it was) and over estimated their incomes (to "convince" the bank they could pay the monthly payment.)

In other words, they lied on application documents. These banks have federal funding and insurance... Hence you have a federal case. Thanks to the advent of the US Sentencing Guidelines, prison is always an option. Now the government doesn't really want to put all that many people in prison. Just enough to scare the bejesus out of everyone so that they begin to tell on their partners in this venture, the appraisers and the mortgage brokers.

Now let's face it. When a homeowner went to the broker, he wanted more money than he had equity. The broker who could get the loan for him was going to get the business and make a commission. Now the broker didn't want the mortgagor to go bankrupt. He usually thought the homeowner could afford the mortgage. Why did he think that? Beause the Mortgagor was lying about his income. Usually not a big lie, often under 50 thousand dollars, just to make sure that they could qualify for the loan. After all a person can over-estimate a little, no?

So the Broker needs to find an appraiser who will fudge the numbers a little. It isn't hard. The appraiser wasn't making much for his work. So the Mortgage broker found a few who needed extra money and offered them a piece of any deal they helped get for the broker. Often the homeowner "tipped" the guy as well. After all a person can over estimate a little, no?


Then the broker goes to the hungry loan officer with a bunch of these loans and the loan officer sees a big commission check coming and he takes on a bunch of seemingly good loans and a few bad ones cause after all a person can be off a little, no?

Now to "get" the people who made money here, the government needs to make the case against them from the bottom up. First they will go to anybody who over-estimated their income and look to turn him against the broker and the appraiser.

It will work like this:

They will send an investigator to the door of some home in say Queens, Nassau or Suffolk County. He/she will ask if you are the homeowner and they will then question you without giving you Miranda rights. This is legal. You only get Miranda card readings when you are under arrest and questioned.

They won't tell you you need a lawyer, they will only tell you how much trouble you're in. They may even threaten to arrest you if you do not speak to them. DON'T DO IT. They are going to arrest you anyway.

Then they will offer to let you off easy if you will implicate the broker. After all you're not smart enough to over-estimate your income. The Broker told you what to write down RIGHT??

The Broker got the Appraiser right? The appraiser told you he could make the appraisal look good for you for a little "tip" right?

Now "tell them what they get for trying to own a home on Long Island Johnny." "Well Bob they get to hire a Criminal Defense Lawyer who is going to cost them 25 thousand dollars or more, AND they get to implicate the people who helped them afford a home in Queens, Nassau or Suffolk County, maybe even a relative or friend who was a mortgage broker or appraiser, and face a criminal fraud conviction and the possibility of Three year vacation in a Federal Prison!!!"

"Hold it! Hold it! Hold it" you say. "I am paying my mortgage. I have nothing to worry about."

WRONG. When the FBI gets the names of the brokers from the lenders, they will look to see what loans were generated by those guys. Did they use the same appraiser each time (usually they do)? Then they will look at those applications. Check the information in the apps against what they have on file for you (you know, your IRS Form where you tried to limit your income) IF (When) they find discrepancies, they will come for you too, to get the people who sold loans.

In fact, if you are still in your beautiful Long Island residence and haven't defaulted, you are easier to get. You don't already have a lawyer (so now there is none of that ugly "statement suppression" issue) and they know where to look for you (your not homeless yet.)

So you testify against your friend or loved one and then one of them turns on the others and in the end of the game you all have to pay "restitution" to the "defrauded" banks and the guys who knew all of this, and who profited from it the most, keep their millions. You on the other hand have a criminal record, have to hire a lawyer and lost your house and maybe met some new friend in prison named Bubba.


Don't let this happen to you. If you are a Mortgage Broker, Appraiser, or Homeowner/mortgagor, get to a Criminal Defense Lawyer now. Even if you are sure you will not be a target of an investigation, it is smart to get a lawyer and let him speak to whomever he thinks will help you to win the day. Let whoever comes knocking on your door from the federal government know that you have a lawyer on retainer. CALL YOUR LAWYER as soon as the investigators come to the door. Do not say anything to them without your lawyer being with you.

If you follow these simple steps you will be able to sleep through much of this crisis, and you will continue to enjoy the simple life of a homeowner on Long Island.

Although I focused on Long Island and specifically the counties of Queens NY, Nassau NY, and Suffolk NY, the scenerio and advice is good throughout the country.

You have been warned, heed the warning.

Hattip: ABA JOURNAL NEWS

For more information on Mortgage Fraud, see the FBI's Mortgage Fraud Page

To Err is Human, To Forgive Is Divine, To Forget Is Wrong

Bernardine Dohrn,William Ayers. I remember those names. I don't know why. Bernardine was the face and leader of the Students for a Democratic Society(SDS)splinter group the "Weather Underground." Ayers was one of it's founders.

The "Weathermen" as they were called were militant and violent. Although their bombs killed no one but themselves, that was due only to their incompetence. They were meant to kill others, many others, innocent others. They eschewed the non violent protests that were so powerful in the 1960's and turned to bombing people and things. They were despicable. That they thought their views were so right and so justified, is just the hubris of their privilege. For all their protests and their call for violent overthrow of our government they were, in fact, cowards. When their hideout was blown up (they screwed up in building a bomb and it detonated and destroyed the hideout and killed three of the members including Ayers lover Diane Oughten), they ran "underground." Many of them lived phony lives for many years. In those years they married one another and slowly found ways to fit in. They still held many of their views, but they had found different ways to express them. They were for all intents and purposes "rehabilitated," in the most loosely defined way. To my knowledge both still think their actions in being involved with trying to kill others was justified because they wanted to kill a few conservatives to save the lives of the thousands who were being killed overseas (Vietnam.)

The reason their names come up today, is that it turns out Ayers and Dorhn are neighbors, and in some instances colleagues and even advisers to Barack Obama. Hillary Clinton, has suggested that Obama's relation with these people is at the very least poor judgment. His acceptance of campaign money from them a major sin. I think it is no worse than her husband's decision to accept money from Mark Rich's wife and then granting the SOB a pardon.

I am writing here today though because the lesson of this is important to both me as an individual, and a lawyer, and my message to others as to how and what we offer to those who have created great havoc in our society and what we do with them after they are "rehabilitated."

Dorhn and Ayers are now "educators." Both are tenured Professors. Dorhn is a lawyer by training and a Professor of Law at Northwestern Univ School of Law. She has been denied the privilege of becoming an attorney at the bar. She cannot practice Law. I am told by others she has done a wonderful job in teaching others how to best protect children and families. I am also told she is no longer a threat and is really a good suburban mom who fits into the fabric of her tony community. I am glad that she has found a way to contribute, I am just as glad she is not allow to practice law, even though it probably a loss to the profession in some ways if her colleagues are to be believed.

Now I can see many of my friends shaking their heads and wondering why I am being so "vindictive" toward a rehabilitated person. I even asked that of myself. I mean after all, I am in favor of not holding someone's past against them in employment opportunities and in living situations. On the other hand, I am completely comfortable with Dorhn never getting to practice law. It appears on its face to be a hypocrisy. It is not, although until I thought it through for this blog I thought it might be.

You see, at first I thought my view was borne out by the fact that I found the Weathermen completely detestable as a youngster. (Oh yeah Barack I was only 10 when they blew themselves up. I still remember them.) As a teenager at Tufts their were still remnants of the SDS chapter at the college trying to avoid ever entering the "real" world of employment or finishing Master or Phd's on the 20 year plan.

In reality, while I find everything they did a juvenile response to political questions which explains why the "establishment" did not take their views seriously, I do not think them any worse than any other criminal. Except for Dorhn...

You see she was a lawyer already when she started the Weathermen. She wrote their manifesto. She was their face and spokesperson. She was older. In her late 20's. She was from a prominent family and had opportunities denied most criminals. Nonetheless she completely ignored the realities of what she was advocating. She forgot that the bombs her group was throwing into the homes of Judges and into the Pentagon, would kill people. The last bomb, the one that killed three of her cohorts on March 6 1969 was meant to be detonated in a crowded room filled with servicemen and their dates at an NCO Dance at Fort Dix. Many of those guys did not want to be in the service. They were draftees. Many were against the war they were going to fight in. They signed up anyway, because they understood that you didn't fight injustice by being unjust.

After Dohrn came out of hiding, she plead guilty to her crimes and then refused to testify against one of her colleagues in crime. Not being a snitch is one thing, repudiating a life is another. Finally she refused to supply a handwriting sample to the FBI for comparison. This is not in keeping with the concepts that I have of being rehabilitated. This appears to be further defiance of government.

Now I am not one to quibble with a lack of respect for authority. I think it is our responsibility to question Authority. I believe that a healthy distrust (if not disrespect) of government is not only in the American spirit, but is also a very good thing. I do agree with Ronald Reagan, one of the biggest lies ever told is "I'm from the government I'm here to help." Nevertheless, the Constitution and the law, especially in 1969 provided ample ways to do the things Dohrn and her cronies wanted to achieve without their petulance violence or avarice. That she could be an attorney and still argue that the ends justified the means bewilders me and makes me wonder about her judgment. That she is of the same opinion still makes me sure she should not be allowed to practice law now.

So how do we deal with someone who has been a felon in the past but has served their time? Well I guess young people do make errors. Sometimes those errors are horrendous. I believe that we need to mete out punishments that fit both the severity of the behavior and which provide an opportunity to correct the behavior in the future. When that has occurred I believe we do forgive. We do not ostracize, we do not shame, we do not deny rights to those that have paid their penalty. On the other hand, we do not forget that there was once a severe lack of judgment on their part. We stand watch over them and the things they do a little more. We also test to see if the rehabilitation has become full, partial or not at all apparent. We act accordingly. In the case of Bernardine Dohrn, based on what I have read and been told, her rehabilitation is partial. As long as she truly believes what she did and what she advocated was justified, I give her all of her rights, including the one to have any opinion she wants. I just wouldn't feel comfortable granting her the privilege to practice law.

Does that make sense, or does it make me a hypocrite?


Hattip: The ABA LAW JOURNAL NEWS NOW

Jayci Yeager Has Died. She Was Ten Years Old.

You can find the story here. My prayers go with her, and her family. She appears to have been a very special person.

Yeager Is Allowed to See His Daughter : Half a Loaf is Better Than None I Guess

Well, I guess the pressure worked...to a point. I am told that Yacie Yaeger got to see her father one last time for a half hour yesterday. He was briefly given a visit...a half hour to visit with her. Seems that the Warden was deluged with calls.

As for me, I'm sorry, but really is it so hard to be compassionate? Furlough the guy so he can stay at the bed round the clock. Let him come back when she is buried. If she somehow goes into remission then send him back. It is a federal prison camp, he is a low level drug addict who has a good prison record and is due for a halfway house near the family in less than 5 months. While he is out, he can wear an ankle bracelet he can go to and from home to the hospital.

This is not a big deal to the criminal justice system other than the black eye it takes for looking petty. Why do the people in BOP have to be so hard hearted that it makes average Americans wonder how they got to be wardens???

This has been the problem with Bush and his concept of Compassionate Conservatism. He is rarely compassionate, and when he is, it always seems like he can't make the commitment. He gives us a half of a loaf. Just once I would like to feel like they gave away the store.

Time to Let Her Daddy Come Home: Dying Child's Last Wish Is To See Her Imprisoned Father Before She Dies

There is a child dying in Lincoln Nebraska tonight. She is a very brave child. Her father was a very stupid man. You see, little Jayci Yaeger's father Jason, possessed and sold Crystal Meth. As a result he got a five year sentence in federal court. He would be going to a half way house in August 2008. Jayci doesn't have until August. She may not have until April. She has cancer, and she is dying. She and her family have asked that her dad be furloughed until she has passed away. This means he goes to the half way house now. He visits with her, holds her hand, helps her to be brave, walks with her into the valley of death. He does the job he should be doing. Then, after she passes to the place where angels go, he returns to jail, to figure out how he could have let drugs destroy the little time he had left with his daughter.

Unfortunately the compassionate furlough was denied by the Warden of the Federal Prison in Yankton SD. Why? We aren't provided with a reason. It appears that the Warden doesn't think the request is sufficient to warrant an extraordinary circumstance!!!! Oh yeah, FPC Yankton is a MINIMUM SECURITY PRISON. In other words, if Jason Yaeger was a real bad ass he wouldn't be there. THERE IS NO REASON IN THE WORLD NOT TO LET THIS LITTLE DYING GIRL GET HER LAST WISH.

Yeah, I guess kids die everyday. I guess not all kids have their father with them when they go. I guess that the fact that this guy didn't do anything violent and would be able to go to the hospital (or now I guess the grave site) in August doesn't constitute enough of a reason for a hard-boiled law enforcement agent like Warden J.D. Whitehead to let him out now. No this is not extraordinary. And I thought Lawyers were the only LIVING HEART DONORS!!!!

Now if you are reading this, and you have a half of a beating heart, you can help.

Here is how:

Call your Congressman and Senator. Have everyone in the Family call them and ask your friends and Neighbors to do it too. If you need numbers, look here and here.

Then put a call into the White House. Leave a message for that ole compassionate conservative George W. "I pardoned Scooter, I can give Yeager clemency" Bush to use his muscle and finally keep a promise to the rest of us who are not on Dick Cheney's staff and show us he really has some compassion. If you can, leave a message for Laura Bush too. Maybe she can get his attention.

Then, Contact the Justice (or as I like to call them the "JustUs") Department and leave a message for US Attorney General Mukasky 202-353-1555. You see, the Bureau of Prisons is a Division of the Justice Department. Mukasky could Order Whitehead to do whatever he wants. He is the man in charge. I remember him on the Bench. He ordered people to do stuff all the time. He is good at it. Let him know what you think. After all he works for you. You pay him.

Don't forget about Warden JD.Whitehead, be polite... reach him at Phone: 605-665-3262 Fax: 605-668-1113 if they haven't changed the number yet.

Now go here to sign a on line petition.

Finally, tell everyone you know to do the same thing, then go and say a prayer for little Jayci, with or without her dad, she needs those prayers.

Hattip to Doug Berman at Sentencing law and Policy blog

Updated at 2:19AM to fix a broken link for the on-line petition.

Learning To Persuade From Barack Obama

Learning to speak effectively is the number one need of the trial lawyer. Let's face it, what makes most of us want to become trial lawyers is the opportunity to convince others of our positions. As we travel through college and law school, we realize public speaking may not be our forte or even something we like. Many of us go to other areas of the law that assures that the will never have to appear in a courtroom much less before a jury.

There are however easy to learn traits of good speakers that can turn even the worst of us into at least capable trial lawyers. In his article "Speech Lessons From Obama" in The Daily Report, Joey Archer president of Speechworks talks about three things that make Presidential candidate Barack Obama a successful speaker.

I am not endorsing Barack for POTUS, but I have to admit his speeches move me. While it is really unlikely I will support him, I can understand his appeal. In many ways a team of Obama and John Edwards would be a speech making cannon hard for Sen. McCain to beat back no matter who he choses as a running mate.

For those of you too lazy to click on the links, Archer focuses on Obama's ability to passionately deliver simple messages, interdispersed with personal stories which make him more "real" to average people.

I would add that Obama speaks very diliberately and his pace is very important. His use of emphasis is particularly important. While it is harder to use this technique on the fly, most of us can hold onto key words and phrases which bring home our message in a memorable way.

Take a look at the article, What techniques have you found to be helpful in becoming a more effective speaker?

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.

What's Happening

At the present time, I have not been posting as I am working on launching a new blog same name. This may take a while. Meanwhile, Blogger's hatred of Opera (which I love) is cramping my style. It won't let me access my blog anymore unless I give in to Explorer or FireFox. The frustration is mounting. Nonetheless, I will be trying to add to the blog as I can over the next few weeks as we try to work out glitches and figure out the feel and look of our new blog.
And that is what is happening.

Hey Judge SHUT UP!!!!!!!!!

People v Thorpe
2007 NY Slip Op 06731
Decided on September 13, 2007
Appellate Division, First Department

In the above cited case, after denying the defendant an opportunity to even present a defense, we learn the the judge felt the need to "participate" in the case a little differently than allowed by law. She joined in the questioning interrupting defense counsel's crossexamination of the police witnesses.

Here is the First Dept's excerpted decision on the issue of the court's interference.:

We also find reversible error in the trial court's almost continuous interference, during cross examination of the People's witnesses, in defense counsel's exploration of issues relevant to defendant's intent to sell (see People v Canto, 31 AD3d 312 [2006], lv denied 7 NY3d 900 [2006]; People v Melendez, 31 AD3d 186 [2006], lv denied 7 NY3d 927 [2006]; People v Retamozzo, 25 AD3d 73 [2005]; People v Garriga, 189 AD2d 236 [1993], lv denied 82 NY2d 718 [1993]). While we recognize that the dynamics of a criminal trial may result in some intervention by the trial judge in the examination of witnesses, the cumulative effect of the court's extraordinarily incessant interference in this case was to obstruct counsel's effort to present a defense for his client. This is simply unacceptable.

Hattip: ABA Journal on line found here

NEWSFLASH: Luciano Pavarotti, Italian Tenor, Is Dead at 71

The New York Times Reports that Maestro Luciano Pavarotti has died. With it, the heart of the opera world is broken and bereaved. As an American of Italian descent, an Opera lover and singer, and as a fan of Italian culture, I am more than sad. Another part of my history is gone.

I began hearing Maestro Pavarotti at a tender age. As he began to come of age as the world's pre-eminent post-World War tenor in the late 1960's and early 1970's his special brand of opera appeared on the Sunday Morning Italian American radio broadcasts and Shell Oil company sponsored Metropolitan Opera House Radio Performances that could be heard throughout my home. My mom and Dad would have breakfast to his and other great Italian-American singers, then dad would work around the house listening to the music these talented men and women made. Sunday was often the only day of the week we would even see my dad. If we wanted to be with him, and we always did, we learned to love Italian music.

Pavarotti, Roselli, Sinatra, Como, Prima, Butti, Connie Francis, all brought the different sounds of Italian music to my ears and home. Mind you I do not speak a word of real Italian. I understand some, and the more bastardized it is, the better I understand it. I know some of the Neapolitan dialect. But I can sing in the language. I can understand the great emotions that the music conjures up.

(If you never heard Luciano Pavarotti sing, click on this

In college, I had the opportunity to study opera. To sing with my first formal coach, and for a brief moment even pretend that I had sufficient talent to sing on the same stage as the Great Pavarotti. Alas, that was never to be. I was good, but he was great. I had a high B but my C was iffy and my D was usually bludgeoned into submission. I would never make it to the Met to perform. I did however go to see them work.

I new I could try cases someday. Maybe even argue in the SCOTUS or Der Hauge, but I would never know a 15 minute ovation in the Met, or La Scala. That is how NY said good by to Luciano Pavarotti. In his last performance, missing notes and in failing health, NY'ers didn't care. They had spent hundreds of dollars to hear what by would have been by all accounts a bad concert. Instead, we heard no errors, we heard the man of our opera youths, the man who made the art form real again. We loved him. And in his very human way, he loved us too.

Luciano Pavarotti, age 71, leading tenor for the NY Metropolitan Opera company has died, from pancreatic cancer complications. In my memory of my dad cutting wood and building homes and doing projects around my house, Pavarotti, just like my dad, will live forever.

Buona Notte Maestro.

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.