When Judges Punish For Exercising One's Right To Trial

Professor Podgor over at White Collar Crime Prof Blog has a post about what is quickly becoming a trend in sentencing issues sending a white collar criminal away for life.

Here is the rub. We often complain that the poor get screwed while the rich usually get a slap on the wrist. The Enron scandal got the attention of Washington, and as Washington is wont to do, it over-reacted. Now we have the spectacle of watching(usually)old men, who have worked gainfully for years, provided jobs and support to others, supported charities in their communities, and who are not well suited for long term imprisonment to begin with, be carted away for 20 or more years.

The proletariat in me says, "well they do it to twenty something minorities all the time, why not the fat cats? The realist/conservative in me says "It costs me a ton of money to care for these guys and the chance one of them will commit another crime is next to nothing so, what's the point?

I am sure that deterrence is one point, but deterrence only works when it punishment is used uniformly. You see, the government is giving the store away on sentencing on these cases...If you waive your right to a trial and plead guilty.

In the case Ellen Podgar is talking about above, the co-defendants who forwent trial received 28 months. According to the Miami Herald, the defendant in the above case faced a minimum of Thirty (30) years if convicted. His co-defendant's faced a maximum of Six(6)years, and received far less.

Professor Doug Berman makes some keen observations on the effect this has on the right to a trial here.
Berman's money quote is as follows:
" The government is, of course, eager to send the message to white-collar defendants that going to trial could cost you the rest of your life, but pleading guilty and cooperating will likely only lead to a slap on the wrist."

Now I am not arguing that the government "has a right" to try to save us the money and the time it takes to try a case. Plea bargaining makes the system work more smoothly and moves out cases that do not need a trial to resolve. However I would agree with Ellen Podgar when she says:
" With sentence differentials like these, it may start coming down to whether the accused is willing to take a risk, as opposed to whether the person believes they are innocent and have a constitutional right to a jury trial."

No one should have to face a choice of being able to walk away with a veritable slap on the wrist if he pleads but if he puts the government to the test he gets life. It is not only inherently unfair, (after all if the case is worth 28 months without a trial can it really be worth 30 years with one?)but it begs the question, are we in the business of doing justice or are we just here to process arrests. Saving money is great, but not at the expense of justice.

Let me be clear here. I am not suggesting jail for the banker here is certainly required. What I am afraid of is that someone who is not guilty will plead guilty to avoid a longer jail sentence if convicted than if he pleads guilty. I am not for the imprisonment of innocent people. Sentencing the guilty to life on a white collar case sends a message that even if you think your innocent, it is better to take the deal. That is wrong.

I often hear people say if someone pleads guilty then they must be guilty because "they would never say they did something they didn't do, even if it meant life in prison"... of course life in a federal prison is never facing them when they say that. Thirty years...That's a long time in prison, especially when no one got physically injured and the chance of recidivisim is nil.

I hope what sentence and plea bargaining in cases like this doesn't deter the wrong thing. It is meant to deter someone else from committing the same crime. I don't think that works. I just hope it doesn't deter an innocent person from seeking to explore that innocence at trial.

A Hellacious Trip Home: The Illegal Imprisonment Of The Weary Traveler

My son, Frank, was tired after almost 4 solid weeks of arduous work learning about the US Political System and Political Communications at the Jr. Statesman Foundation's Summer College Program at Northwestern University in Evanston IL. The kid left the day school here ended, and then started the 6 day a week, 12 hour a day program to learn about how our country runs, and how to debate. He and his fellow Jr. Statesmen worked very hard taking college courses conducted by college professors for 6 hours a day, then preparing and participating in Model Congress debates for 2-3 hours each night.

Frank had earned superlative grades at Northwestern in the classes and was selected as a "Powerhouse" debater (one of only 6 out of the 60+ students by the professional staff), and also selected one of 3 top Speakers by his classmates. He was the only student to win both designations. After graduation, we celebrated with a great meal at Chicago's Grill on the Alley and a tour of the city's sights. The next morning it was off to O'Hare.

Along with over 150 other passengers we left Chicago O'Hare Airport on United Airlines Flight 680 headed for LaGuardia Airport in NYC on Friday at 12pm. Normally it is a two hour flight. Unfortunately, Friday last was a terrible day for traveling to the NY area. Now it is never a good day to fly into LaGuardia (nor Kennedy or Freedom/Newark either.) They have one of the the worst on time schedules around. Friday however they were shut down for most of the day with blasts of wind and lightning that caused massive flooding.

Air Traffic Control entered our plane into a series of holding patterns over Pennsylvania. More than a few times passengers on the flight thought and spoke about the heroic Americans who were aboard United Flight 93 who died on 9-11-01 bringing their plane down in a farm field not too far from where we were holding rather than allow the Islamic terrorists who had hijacked her to crash her into a building. Talk then came around to the way the President was handling the war. There were a lot of Midwesterners on the plane who want to like the President and trust the government. There were a lot of New Yorkers who have grown inpatient with the government and especially the President. I liked the respect both sides of the debate showed the other. I liked that Frank was so up on the issues and spoke about them so well that other passengers commented on his knowledge and presentation.

After a couple of hours of hovering, we needed to refuel. We landed at Harrisburg (Pa.)International??? Airport. That's when Hell took over. After refueling we were denied permission to take off, as Queens NY was under the siege of Mother Nature. Ok, most of us could understand the prudence of not flying into a lightening storm with 80+ MPH wind gusts. However what we couldn't abide was the refusal of TSA to let us off the plane. For over 7 hours we were held captive on the flight.

We were told that the airport didn't have a gateway to get us off the flight. Then we were told they didn't have a staircase, then we were told there was no tow bar to get the plane out of the gate once we went in. Finally we were told the truth. There weren't enough TSA officers to check us back through the gate if we left to get food or take care of other bodily functions. The cafe on the "right" side of the security gate was too small to handle the whole plane so some of us would have to go to the McDonald's on the other side of the gate and TSA couldn't handle us.

Seven hours of being on a cramped dark plane. Seven hours of baby's crying and people bitching and heat. Little to drink, and no food except for a few oat bars that tasted and had the consistency of cardboard. Seven hours of nothing but cellphone calls to loved ones telling them what was happening as if we had any idea.

It occurred to me that this is a microcosm of how our government is dealing with the terror threat. Screw our citizens to protect them??? I am tired of the mishandling of the domestic terror threat. Spying. Torture. Constant fear of our own neighbors. Threats to our newspapers and their reporters for telling us what our country is up to in our names. Holding prisoners without charging them and refusing to let them talk to their lawyers. Forcing children and Moms and old people to stay on a plane for 7 hours because the government can't get their act together.

Call me un-American I guess, but I am just plain tired of the incompetence and arrogance of this administration. I am tired of a President who has no idea how to handle foreign affairs. I am tired of his Texas Mafia and how he runs the country by poll. I'm tired of hearing that everytime anyone criticizes this administration for the way it is handling things, they are un-American or a traitor. I can't wait for November. I have every intention of showing them just how tired I am, when I get to the ballot box and register my vote. I will be encouraging others to do the same.

Finally a little after 9 pm they let us out. An obnoxious 20something who was the customer service rep told us that he was only going to announce the flight once so if we missed his announcement we were spending the night in Harrisburg. What an obnoxious bastard. A number of folks rented cars and cabs to go to NY. Frank and I stuck it out and went to the Capital Cafe on the "right" side of Security. We were repaid for staying by finding out that we could finally get into LaGuardia by midnight.

I will spare you the fiasco that United created at baggage claim (for more on consumer's complaints with United go here) Suffice it to say I will do whatever I can to avoid United in the future.

Meanwhile a big That Lawyer Dude thanks to the staff of The Capital Cafe at Harrisburg Pa. airport for staying open for us, even though the food choices had dwindled to frankfurters, ham sandwiches and chips with salsa. (And that goes for the kids who worked at the airport McDonald's too.) The hot coffee was appreciated as were the smiles and the understanding.

The House of Representatives is Wrong on Immigration

The House of Representatives is Wrong on Immigration

The House and the Senate will be be taking on the immigration issue and trying to compromise the two very different versions they have passed. After listening to House Republican leaders, we have a better chance of compromising the Israeli-Palestinian conflict between the Menachem Begin and Yasser Arafat...and they are DEAD!!!

If I hear one more House member tell me, that they are not anti-immigration nor anti-immigrant one more time, I might throw up. The House will not talk about a guest worker program until we "succeed in securing the border". How about securing the nation first, then the border, then we can talk some more. We have 3 Million people for whom we cannot account. Why doesn't that bother these Bozos. Opposing any immigration is the one thing that will get them re-elected in their gerrymandered districts. It is not a position of leadership. The Senators are not going to agree to that, unless the President takes the heat. Problem is, the President is actually leading by not agreeing to the House's garbage. He understands that he governs a nation, not a sure thing district in West Podunk. He is a lame duck and can secure a positive place in history by not blowing this opportunity to stem the flow of illegal immigration, while securing the safety of our nation.

The House's position is pure hyperbole. We can in fact secure the borders, punish people who cheated on coming in and against those that hire them, increase our Homeland Security and still not destroy the economy of our biggest cities or the hopes and dreams of millions of our own citizens... the people who love these other people.

We do not have to just punish and throw out people who, though they cheated to get in here, have become part of the fabric of our community. They are coaching our kids in Soccer, forming relationships with citizens, cleaning our offices, running businesses. They are Parents, and bothers, and sisters, and grandparents, of Marines fighting for our country, and kids who are playing with ours husbands and wives to our children.

They hope against all hope that American politicians who have booted the Immigration issue for years, and who made it both necessary and possible for the present illegal immigration situation will rise to the occasion. They will be sadly disappointed, Leadership seems beyond most members of Congress. I made the case for the Senate bill here. The homeland security issue alone should be enough for the House to support it.

As long as these "futile" feudal House princes (That Lawyer Dude being "punny") insist it is "their way or the highway", there is not going to be a compromise that will fly in the Senate. They deserve to be punished at the ballot box, but they will not be. The Republican Senate however may be.

In states where the Republicans have candidates for the senate this year, the pro immigration lobby needs to have the same intensity they had as the Senate considered the bill back in the spring. Let people know, and remember, what it means if all the illegals go home at once. Who knows maybe it will effect some republican House memebers too.

Now lest you think I am advocating overthrow of the Republican Senate majority or the Republican House majority, I am not. I am saying that the Republican leadership in the House is not leading and they need to pay for that with a defiant Senate opposition and a smaller advantage in their house. I do not usually vote on one issue. Even I may make an exception this year. Not because the immigration bill is the most important issue to me, but because the House Republican Leadership needs to learn a lesson about being smug. For the sake of the Republican party and the nation, they better hope that people like me do not feel the same way in two years.

A Proud Father Returns To The Blog

Hi I am sorry I have been away for so long. It is just that for the last month I have been splitting my time between practicing law, raising money and awareness for Scleroderma and the Scleroderma Foundation, and being both a full time Dad and part-time Mom to my two son's.

As most of you who read this blog know, my beautiful wife MaryRose has been afflicted for the last nine years with Scleroderma. It has not been an easy fight for her or our family. I stroved to keep things together even when frankly I thought the world was falling apart. It has rarely been easy, but always been worth it. Over the years, MaryRose has slowly lost her ability to walk distances and her physical strength and stamina has been greatly reduced. She suffers from cataracts which render her blind in the sunlight due to the steroids she takes. She lives a half life and misses a lot of the good stuff. However it is better than missing all of the good stuff so we usually look at the glass as half full around here. Besides we are confident that a drug that will better her lot is right around the corner.

For almost Eighteen years now, I have also been a Father to two wonderful sons. Though very different in temperament and talent, they share certain values that make me proud to be their dad. They are both very honest. They are dependable. I can count on them to complete any task I give them. They are indispensable to me in the office and at home. They too have had to deal with a lot of things kids their ages shouldn't have to deal with, all things being even.

Probably in large part due to their mom's illness, they both share an empathy and sympathy for those less fortunate, although they may handle it differently. Sal my older son is very generous and will participate or donate his money or time to charity. He really doesn't talk a lot about it. He expresses his emotions about the disease and about suffering through the music he makes. Frank my younger son is more hands on. He will organize and run events, he will take more time out of his schedule to console and listen. He is my wife's main caregiver when I am away. Both entertain us. Sal with his tremendous musical talent, Frank with his ability to improvise funny stories and speak in various voices. Both are very fine students.

June was graduation and moving up month. I attended Four concerts and four separate awards nights. I took pictures at Pre-Prom and I watched both boys in their formal ceremonies: Sal's graduation and Frank's moving up program.

Sal's big award was the Louis Armstrong award for Jazz musicians. He has led his school's jazz band all year on Tenor sax but he anchored it for the previous three years on Baritone Sax. He was also a All-State Jazz alternate selection on "the Bari" and of course was again in the All county jazz band. Additionally Sal began teaching younger students how to play. His spirit of giving back to others and his patience with children and interest in teaching, awes me.

He also won a number of awards for his work on the High school speaks and debate team. His graduation was a tough one for me, in that I coached Sal for many years, and so not only is he leaving but so are so many kids that meant so much to me over the years. Sal has had an amazing gift for picking good friends. It is a tribute to his personality. Sal graduated with honors. He is heading off to study the Middle East and International Relations in Washington DC. I am sure this blog will be featuring some stories about him and his studies as the years wear on.

Frank has always been "the little brother". A tag along to Sal's many games, concerts, and other pursuits. This year Frank continued however to shine himself. Frank is interesting in so many ways. He is quiet much of the time. He is humble but not falsely so, and he has a confidence that belies a number of physical ailments that have been debilitating.

Frank was this year's student council president. He wanted this to be a meaningful year for his classmates and himself. His student council succeeded on many fronts. They raised a lot of money and awareness for Cystic Fibrosis and The Scleroderma Foundation. Throughout the year I saw Frank represent his classmates by taking their issues to administration and pushing for change. I also saw him become a sounding board for kids who were going through their own kind of Hell. Illness, divorce, bullying, death, suicide, Frank was often the first person they would go to. He would push them to Guidance counselors, teachers and sometimes he brought them to me to help. Othertimes. When those adults weren't getting through, they asked Frank to lead and befriend a suffering kid or speak to the bully.

I was amazed at his ability to get people to listen to him. Students, teachers, administrators and even other parents would come up all year and tell me stories about my "little boy." I would sit and wonder who they were talking about, because at home Frank is not the President, he is my comic relief. As the year has worn on he has done some amazing things for and with people. He has also kept up top grades.

At the time of the Moving up assembly, Frank recieved two big awards. He was first chosen by his teachers as the "Core student" the valedictorian of his section so to speak. Moreover, however, he was selected as the winner of this year's "Bartels" award (named for a former teacher and community leader) for the student that overcame great personal struggle and still succeeded showing courage and perseverance.

In giving the award, the Vice Principal made a point that taught me a lesson. I will use his words:

"Although facing difficult personal issues at home...Frank still came to school everyday ready to work and succeed. However it wasn't his academic success that so impressed his fellow students and teachers. Rather it was the way Frank dealt with (his peers and everyone else that he met.) It is said that his ears are bigger than his mouth, yet when he speaks, everyone listens..." Wow. Now there is a lesson for every lawyer if I ever heard one.

Right after the last ceremony, Frank, MaryRose and I flew off to set him up in a summer program at a college out west. He is spending the summer on a college campus, learning about one of his favorite subjects: US Government. It is a very rigorous program and I am sure Frank will do well in it. Sal is working in the law office with me this summer helping me on a book I am hoping to write and working on our civil rights cases. In all it has been an exhausting emotional time. I have not have much of a chance to put together these blogs. I also would not have traded the last 30 days for anything in the world. What a great month this was.

Thanks for letting me brag a bit. Tomorrow I will return with all the things I have been thinking about for the last 30 days. In the meantime visit our sister blog Long Island (Criminal)Trial Law

Only The Good Die Young

There is nothing much to add to this. It is tragedy on a Shakespearean level.

My heart goes out to Fireman Robert (Bobby) Getschel and his classmates in New Hyde Park NY. This seemed to be a very special boy and friend. That all our kids should know a soul like his, and be so honored as to call him their friend. I will pray for you.

A Proposal For Changing The Way We Select Candidates: That Lawyer Dude Gets Political in Washington D.C.

I will be in Washington D.C. for the rest of the week. This could mean I barely blog or it could mean I blog a lot. It depends on how tired I am after a day of learning how to be the parent of a "Colonial".

My eldest son (the one that gave me the nickname "That Lawyer Dude")has decided to spend the next four years of his education at The George Washington University in our nation's capitol. Though I was initially disappointed that he decided not to attend my alma mater, I have to admit, GW is a really good school and an excellent fit for him. Though not active in politics, "Jr. Lawyer Dude" has always been into current affairs and excelled in Extemporaneous speech events through out High school. He also loves Jazz and jam band music. Hence a city like D.C. will give him a lot of outlet for his playing and listening pleasure.

Orientation, or what George Washington U. calls Colonial Inauguration is taking place this week and I will be seeing how they will be spending my money. In the meantime coming out of Union Station and seeing the Capitol Building got me thinking about politics. I ran across this story which is making for some real buzz down here.

The issue is that Senator Joseph Lieberman is running into trouble in Conneticut in the Democrat primary because his opponent is trying to paint Joe into a corner. He and other liberal democrats are upset that Lieberman has close ties to the Bush Administration. As a result Lieberman (who runs really well with both Republicans and independents in his state) is considering whether he should launch an independent campaign should he lose the in the Democrat primary.

I don't have the time here to go into all of it, but I spent a lot of time in my youth helping moderate democrats win in a boss controlled and somewhat corrupt Nassau County in the 70's. I watched them shoot themselves in the foot too many times to count, just over this issue. The fact is that Lieberman would trounce both the Republican and his Democrat challenger in the general election. To assure a win in the Primary however he would have to abandon his principals and join the far left wing of his party. The modern Republican party is no better. For a moderate to win there he has to join the Far right. Hence the rest of us do not get a candidate to vote for if they do not run as an independent. I am not a fan of the old Boss system of naming candidates, but the primary process has marginalia the majority of the electorate and left them with no one to vote for, so they either vote against someone or do not vote.

I think that the way we go about nominating people for these offices is the problem. I would rather see each party put up 2 or 3 candidates from the various wing of that party, hold a run off "primary" and then let the top 2-3 run in the general election. The difference would be that everybody could vote for anyone in both the primary and the General Election. Hence the nominators would hold a meeting each would identify himself as a liberal moderate or conservative. They would hold a caucus and nominate a person from their party and their "wing" of said party. Then they would all run in a "runoff" style primary. Any candidate garnering 30% of the primary vote would run in the head to head, or the top two candidates would run off into the general election.

I am not sure if this "solution" will help bring the rest of us back into the election fold but as Bill Murray said in Groundhog Day "anything different is good.".

Is It Me Or Does The Duke Lacrosse Rape Case Just Keep Getting Worse And Worse

I am loath to discuss cases where the testimony hasn't come out yet. Unless you are a party to the case, there is no saying what the otherside may have in its trial bag. Nevertheless, the Duke University Lacrosse team rape case has more holes in it than a Swiss cheese.

For those that are unaware: a party was held by some of the students on the Duke Lacrosse team. The Team at the time was favored to win the NCAA National Men's Lacrosse championship. At the party the boys invited (hired) two strippers to perform. At the end of the night, one woman, a 27 year old mother and student at a local college, Ms. Crystal Gail Mangum claimed she was raped and sodomized. Ms. Mangum is also a former member of the US Navy reserve and a convicted criminal who stole a cab and tried to run down a sheriff's deputy. She has claimed to have been raped before. She also has charged her ex-husband with threatening to Murder her, a charge he denies.(I learned most of this by reading the Johnsonville News which has excellent coverage.)

Now why all this information in this post? Because it seems to me that before a District Attorney brings charges like these against a young person (let's remember these kids are in their early 20's)he ought to have a very good case. In this case he has more reasonable doubt than hard facts.

Forcible Rape: a legal definition

The forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus."(link).

So:
1.We must have force and 2.We must have penetration of the vagina or the anus. And 3. It must be by a penis or any other object.

In this case, all three elements are in dispute. First, lets deal with elements number two and three. There is proof that someone penetrated the accuser with his penis. However that someone's DNA matches the accusers boyfriend's. That doesn't mean that she wasn't raped. Nor does it come in to show the accuser has had out of wedlock sex. In fact, I don't think it matters a wit that she had semen in her vagina. What matters, is that not one of the three boys she has accused of violating her had his semen in her vagina... or seemingly anywhere else.

Then there is the issue that she alleged she was force to have anal and oral sex. Again no semen. Now I have read on a feminist blog that sometimes men do not ejaculate enough semen to test. Ok maybe that happened here... but three times with three different 20 year old boys?.

Then there is the statements of the women who was dancing with the accuser. She originally called the allegation of Rape "a "crock" and said she and the accuser were together for all but 5 minutes of the evening. The accuser said the rape happened over a half hour.

Even assuming that when one is being assaulted it feels like a lot longer than it might have been, and assuming that the rapes could have occurred within five minutes, how do you account for the fact that both the witness (who has since said the story may be true)and the first security person to see the accuser ( woman security guard at a local Wal-mart both said the accuser never mentioned being assaulted and that the first police officer on the scene said she didn't appear to have been a victim of assault but rather appeared to be drunk.? (See posts here, here and here for attribution of alleged facts herein.) All of these things seem to negate the truth and veracity of the accuser.

Not to mention that there may not have been any alcohol or drug testing of the victim and that according to hospital records given to the defense attorney's the only harm to the accuser seems to be a cut, a scratch, and some vaginal swelling that would be just as consistent with consensual sex as it would with rape.

Remember the Burden of Proof

The Prosecution, in this case Durham NC. District Attorney Mike Nifong has a heavy burden of proof. He must prove this accuser was raped by these three boys,Beyond a Reasonable Doubt. Even if he personally feels that the accused boys raped this woman, it seems to me that as a trial attorney he should be able to see that there is reasonable doubt all over this case. His obligation unlike the defense attorney is to do justice. Justice when used in a criminal justice system is not truth, justice means fairness.

It is beyond unfair that the three accused kids in this case should have to face a jury and the public for the rest of their lives as accused rapists. It is unfair that they have had there faces and lives shoved in front of America for a crime that this District Attorney's office should not be able to prove beyond a reasonable doubt. This case is a sad commentary on what has become of our criminal justice system. Maybe we should have complete press blackouts of names of accused until a court finds that there is at least proof of a clear and convincing case.

Nifong is not stupid and he is not to be underestimated. He is Phi Beta Kappa and has been a teacher and a social worker while he worked toward his law degree. He has tried over 300 felony trials many as serious as murder. Nevertheless he has a duty as the distict attorney an elected official to speak to the press and to the public before he costs his county anymore money on this case. He needs to show some kind of a smoking gun and to do it soon. He has spent hundreds of thousands of tax dollars in police time, testing, and court time. That is an unfair burden on taxpayers because one doesn't have the intestinal fortitude to tick off substantial parts of the electorate.

Worse it leaves him open to attacks of playing politics with a criminal case. It wouldn't be the first time a District Attorney was accused of that, nor would it be the first time it actually happened. It just shouldn't. And this time America is watching.

Gideon's Trumpet is Being Muted

Click the title of this post to link to an article in Slate the online e-zine, concerning what is passing for indigent criminal defense in many parts of the country.

The need for fairness in Criminal defense is running right into the frustration with higher defense costs and the unbearable cost of a systemic vision that wants to incarcerate rather than rehabilitate more and more people.

It seems that with the economy in relative good shape and crime down dramatically over the last 2 decades, now would be a good time to reduce incarceration and dockets and put more money (not all money) into rehabilitation programs which will further reduce Criminal Justice costs.

Moreover the need to fairly fund defense costs is a constitutional guarantee. As a nation we are not doing it. As a state we are barely doing it. Counties seeking to put a cap on defense costs are going to underfunded Public defense offices. Many (definitely not all) are no more than ministering to the plea bargain machine.

Meanwhile in giving people convictions they should not take we are destroying their job prospects. The cycle is going to catch up with us sooner than later and we are lacking a real national criminal justice dialogue because the powers that be are talking at each other not to each other.

Politicians, especially House Judiciary Committee chairmanF. James Sensenbrenner, Jr. need to stop the pandering and really focus on the long term issues.

Truth first. There is no need to fix the Federal Sentencing Guidelines. So far they do not seem to be broken. Booker was a good fix.
Second. We have got to have a way for people who make mistakes to fix their lives and to be fully restored to full citizenship. If we incarcerate we need to be sure these people can support themselves when they get out without committing new crimes. It is important we get bills that take away some of the post conviction penalties to employment or we are going to have a bigger and bigger permanent underclass.

Third. Most crime is best handled on the local level STOP FEDERALIZING CRIME. CONGRESS DOES NOT KNOW BEST. I do not want the mores of the Utah citizenry or the Wisconsin citizenry or even the New Jersey citizenry telling me what I should have as laws here in NY. I like living in NY and especially on Long Island. I do not feel the need to tell Arizona how to act. Why do they feel the need to tell me?
.08 may be the perfect breath reading to have in congested cities or states to determine intoxication. It may not be in a state that or area where .10 or even .15 works as well. .08 may be destroying the restaurant scene and costing the state and it's people a lot of money in taxes. Maybe people are safer at .08 but people in a certain state may want to live with the risk and pay less taxes associated with .10. They may not even want to have a breath test relying instead on common law proof of intoxication. It should be up to the state's citizenry as a whole.
Same thing with guns.
Drugs importation is a national issue as they are distributed all over and rather easily. However maybe we need to focus on the importers and not on the corner salesman. By the time it gets to the street pusher, it is already too late. We cannot afford to clog our jails with these small time users. It costs too much and in fact as they age out it costs way to much and we get nothing for it.

Defense attorneys need to be more than a rubber stamp for plea bargains. If too many cases are being plead out we have to begin to look at whether we are properly paying enough to the people who are defending the cases. They can't defend a case if they have caseloads in the 100's. It just isn't physically possible.

We have to be realisitic about what a criminal justice system can accomplish and who it accomplishes it for. It is there for society as a whole. More victims rights legislation is not needed. In fact less is appropriate. They have a sufficient say through proper use of the civil justice system. Strengthen that. Stop introducing legislation and guidelines that have nothing to do with the proper goals of a criminal justice system.

Mandatory Minimum Sentencing is quackery. There isn't a real theory of mandatory minimum that fits into a fair sentencing system. Proof is that it is more of a harm than a good even when individually considered. STOP THE MADNESS THAT IS MANDATORY MINIMUM SENTENCING.

Stop trying to control the whole thing. You are not powerful enough to control the conduct of everyone. We don't need you micromanaging courts.

Side note to the Supreme Court of the United States of America. Pay serious attention to the 5th and 6th amendment and the rights of the judiciary and stop cedeing so much power to the Legislature. They have a right to make laws, the court should be deciding how those law impact individuals. Stand up for that right.

There are some excellent blogs out there talking about these issues daily. If you want more information on federal sentencing and sentencing on a whole, Try Doug Berman's Sentencing Law and Policy Blog here and in the Second Circuit a newcomer the Second Circuit Sentencing Blog by clicking here.

UPDATE UPDATE UPDATE :Trial Attorney Kidnapped at Gun Point in Alabama IS FOUND

UPDATE UPDATE UPDATE UPDATE UPDATE UPDATE UPDATE UPDATE
A heroic rescue of Sandra Eubank Gregory by Birmingham (AL) Police today at 5:30pm. I have no details other than the man gave up peacefully and the lawyer is alive. Police tracked Ms. Gregory's ATM card and found it was used 3 times during the day in areas around Birmingham Alabama. That helped narrow the area they had to search. They then found the SUV and did a quick canvass. They found Sandra in a Comfort Inn "conscious and upset"


Sandra Eubank Gregory age 34, a family law lawyer from Birmingham Alabama was kidapped on camera from in front of her apartment.
The getaway car is a silver Lexus SUV with a license plate number IC4850G check out the video and if you see this woman or the man in the black pants and white or striped shirt and white tennis shoes who took Sandra please call 911 immediately.

Sandra was last scene wearing a red tank top with capri pants and silver earings. Now further details but CNN is tracking the story on their website and on the news.
Our prayers are with her and her family.

Even in Miami Beach, That Lawyer Dude is Haunted By The Bizzare: "The Case of the Man With a Dangerous Weapon Up His Bikini Skirt..."

I am in somewhat sunny South Beach in Miami. I have been here at least once a year in the past three years and I really love it. To bad my little Dudette is Florida phobic (she says being in hotels in Florida in summer is worse than winters in NY. Last night the thermostat read 58 in the room so she may be right. They fixed it this morning.)

I am attending the 15th Annual National Seminar on the Federal Sentencing Guidelines.(Click here to see the amazing brochure and check out the speakers.) I am always amazed at how hard Congress can make what otherwise should be an easy task. I will be blogging about the conference tommorrow and Friday (this time even though I am staying off site I will try not to not break any portion of my body) so look for updates over at our sister site Long Island (Criminal)Trial Law".

While down here I ran into this story. As many of you know I seem to handle a lot of bizarre cases and fact patterns back home. This guy seems made for my practice.

Without further ado, enjoy "The Case of the Man With a Dangerous Weapon Up His Bikini Skirt..."

Some Legal Toys for the "Non"-Lawyer Dude

Check out this review (by Al Nye the Lawyer Guy)of a new legal thriller written by retired lawyer Grover Alexander (writting under the nom de plume Jim De Fee)entitled Flawed Judgment. Al says it's a good read but very steamy... I didn't know things could get steamy in Maine.

The American Bar Association's Division on Public Education has a new website out to teach Americans about "How Courts Work" (now if we could only teach the NYS Office of Court Administration...Just a joke guys, ease up.) You can access the site here. It is filled with useful information, including how a trial proceeds and interviews with judges about their views of their jobs.

Be Spacific turns us onto Amnesty International's website against Internet Censorship. Titled "Irrepressible.org it will seek to use the power of the world's citizenry to make governments back off the net. Given the mainland Chinese response to the internet, and American companies complicity in the actions, this doesn't come a moment too soon.

Finally, I would be remiss not to mention DoSomething.org's announcement of the nine winners of their 2006 Brick Awards. These awards are for young people (under 25) who make a real difference in the lives of others by acting on a local level. Check out the winning projects and their leaders here.

Well that's it for this weekends edition of That Lawyer Dude. Don't forget to check out our sister blog Long Island (Criminal)Trial Law where we are discussing the new Nassau County NY DWI Court.

I will be spending the rest of this week in Miami Beach taking a seminar on the Federal Sentencing Guidelines given by the Tampa Federal Bar Association and the USSG Commission. I will try to blog from down there but the schedule looks pretty full. I will more than likely have a few posts over at Long Island (Criminal)Trial Law about the CLE and other items so check us out over there too.

Do You Believe in Miracles? Ernie the Attorney Does

In the aftermath of Katrina, I found the reports of fellow attorney Blogger Ernie Svenson to be heartfelt, accurate and soulful. He was giving a first hand account of what the people he observed were experiencing. Having spent the months after 9-11 going to a number of funerals and memorials, and moving about NYC and LI in the aftermath of the disaster I found in Ernie's reporting a feeling of truth as I understood it.

After the 9-11 disaster, NYC Mayor Rudy Guilani really stepped up and showed me a leadership that I had not seen in him before the planes had struck. Rudy had been a mayor who, though I often agreed with his goals if not his implementation, was not able to bring the city together. In 9-11 Rudy performed like never before and earned the title of America's Mayor.

In the aftermath of Katrina, from afar, I was not very impressed with the leadership of Ray Nagins the Mayor of New Orleans. Frankly like Ernie, I was hoping Mitch Landrieu would win the election. However, that was not to be. Instead of anger and disappointment, fear and desolation, Ernie still is looking hopeful for his city and his friends and neighbors. I commend his post today as an understanding of hope and what form miracles can take.

Strip Search of a High School Co-ed Ruled to be Unreasonable

Over at our sister blog Long Island (Criminal)Trial Law, I am blogging about the results of a civil rights case being reinstated against a Conneticut school district whose Principal ordered the strip search of an eighteen year old girl to find marijuana. The search yielded nothing but an hysterical High School Senior and a lawsuit which now is reinstated. It also is an opportunity to show how much less rights the Supreme Court of the United States has taken from school kids. At least the Second Circuit is aware that students have a right to some privacy even in school.

I do not think that the right to privacy, which SCOTUS has found in the Fourth amendment should be trumped by the right of the school to administrate, but according to the Rehnquist Court (and by extension the Roberts Court) it does. I am sure that probable cause is necessary in at least some circumstances. Especially when it comes to the strip search. It seems to me, that is the one place a kid most expects (and needs to have)privacy. The Second Circuit gets it right even though I am not entirely in accord with the legal reasoning. Go over to LI(C)TL and catch the analysis.

Update: For the original story click on this link.

New York Lawyer Uses DNA To Overturn Murder Conviction Based on False Confession. Renewed Calls For Mandatory Videotaping of Confessions in Homicides

Rochester, New York Criminal Defense Attorney Don Thompson and a team of lawyers working with the Innocence Project (funded by the Benjamin Cardozo Law School of Yeshiva University in NYC, has overturned the conviction and won the immediate release of Douglas Warney.

Warney, who confessed to the crime after being fed non public information about the crime scene by now deceased (in March 2006) Rochester Police Detective Sgt John Grop, suffered from dementia and aids. He was interviewed by Grop alone in an interrogation room and was suffering from pain and dementia when he was arrested. Warney has but an 8th grade education. He has spent more than a decade in NY prisons for the murder of Community activist William Beason. Warney originally faced the DEATH PENALTY for the crime which was committed by another man who is incarcerated on other charges.

Warney's other lawyer Peter Neufeld of the Innocence project called the behavior of Rochester Police and prosecutors "criminal". Warney's confession was filled with inaccuracies yet with little more than that and the word of Grop the District Attorney's office had Warney sentenced to 25 years to life. A sentence the AIDS ridden man was never expected to live out.

Thompson and Neufeld went to prosecutor Monroe County Prosecutor Michael Green with proof of the wrongful conviction over 2 years ago but Green refused to test the DNA with new stronger DNA Probes. His arbitrary and capricious decision cost the taxpayers of the State of NY over One Hundred Fifty Thousand (150,000.00) Dollars for unnecessary incarceration and health costs. Not to mention the wasted money trying to force Green to act.

Now wheelchair bound, Warney was rolled into the Monroe County Court to hear the words he has waited over 10 years to hear. The judge released him immediately. Upon the release, NY Criminal Defense Lawyers throughout the state have renewed their call on the Legislature to require mandatory videotaping of all confessions in homicides and other major crimes.

In a letter to his colleagues on the NYS Association of Criminal Defense Lawyers listserve(which I reprint here [in full] with the permission of Mr. Thompson) Don Thompson reveals eloquently the struggles of the everyday non-celebrity lawyer. He also graciously acknowledges the support of his friends in NYSACDL. I hope this victory is one Don can savor for a long time. His words express his emotions and feelings far better than I can. Here they are:

"I have eaten your bread and salt,
I have drunk your water and wine,
The deaths you died I have watched beside,
and the lives you led were mine. Rudyard Kipling

It's been quite a day. To you, who have lived my life, and whose lives I have lived, thank you for your kind words and support. How often I've said "This sucks, f--k it" then someone - Marty or Cappy or Bill or Gary or Greg or Jim or Ray or Dan or Janice or Howard or Dennis or Beth or some other of our merry band - my heroes - will say something intelligent, or inspirational, or just damn funny, on the phone, or in the hall, or on the listserv that leads to reconsideration and then "Oh what the hell, I'll give it one more day. Let's see what happens tomorrow." Your support made this victory possible. We share in it together.

I don't know what the other counsel involved in this case got from it, but I can tell you what I got - as we sat in court this morning and heard the DA admit that Douglas Warney was wrongfully convicted and imprisoned for a crime he didn't commit and as we heard the judge vacate his conviction and order him immediately released, in those few moments every shithole apartment, every can of tuna fish (dry), every night shift at the steel warehouse followed by an 8:00 a.m. class, every fight with a creditor, every broken relationship that it took to get here; they were all worth it.

"Whosoever destroys a single life is as guilty as though he had destroyed the whole world; and whosoever rescues a single life earns as much merit as though he had rescued the entire world." This may be as much as we can hope for.

Still not guilty,

Donald M. Thompson
16 West Main Street, Suite 243
Rochester, New York 14614
Phone: (585) 423-0060
Fax: (585) 423-0890"

Congratulations Don

I will update this story with links as soon as I can. I have Court in an hour and have to go. Till then take a minute and call your NY State Assemblyperson or State Senator and tell them you will not stand for the state wasting anymore taxpayers dollars on wrongfully convicted people. Tell them you support Mandatory Videotaping of Confessions and Mandatory DNA retesting.

Even For Iraq, This Is An Outrage

There is so much I want to say about this outrage that I am speechless.
I want to get this out, because it has barely been reported in the US MSM outlets.

Reporting however seems to be such a little gesture. I do not want to fall into the part of me that questions whether anyone raised in a culture that can believe that God approves of this cruelty can ever be part of a world community. Neither do I want to be an apologist or think that this is a minority of Muslims. It may be a minority, but it is a big minority. I will not agree with the guy from the London Times who in part lays this off as an atrocity resulting from three years of war, because this garbage has been going on in the middle east for years.

I am not only shocked because they treated a woman this way, because the treatment of a man would be just as inhumanely sick. I am not judging this by Western standards. I believe there is one God. I am told by my Muslim friends, that it is the same God for them as for me. It cannot be. My God does not countenance this from anyone. There is no way that Mohammad could claim to be from the same line of prophets as Moses, John and Jesus. Not if He preached this type of terror, not if He said words that could lead anyone to this naturally.

The next question is: what do we do about it? How does it effect our foreign and war policy. Should it? Do we have the backbone to stick this out much longer? Do we have any ability to change this way of thinking in 5 10 or 25 years? This concept of murder as a Godly thing is ingrained in over 1000 years of teaching. On the other hand, can we live in an ever increasingly tight knit world where this is allowed and even fostered, hoping that they will just kill themselves out?

Is it possible to isolate these people, with the proliferation of nuclear arms and WMD? Do we encourage a change in our whole concept of thinking about freedom and the nature of man because of a rouge interpretation of a religious document?

Are we doing better in Afghanistan than we are in Iraq? It seems so, but why?

Questions abound. Answers are few. Reporting is all I can do today. I feel very inadequate.

Those Are The Breaks: That Lawyer Dude Learns The Surprise Is On Him

I now understand in a most painful way, two things:
A. Why W.C. Fields always made fun of Philadelphia Pa. and
B. Why it's called "The City of Brotherly Love."

I came to Philly to attend the NACDL Conference on Jury Communications and White Collar Crime. I was hoping to see old friends and to learn a few new things, not to mention to get a few interviews on tape for the "Surprise" I had promised you all two days ago. (If you haven't figured it out, I am really up and ready to start a weekly podcast.)

I have been on something of a health kick as of late, so I decided to stay a few blocks away from the convention site at The Morris House Hotel. The Morris House is a lovely little Bed and Breakfast, housed in a group of post revolutionary war colonial historic landmark buildings near Washington Square on the outer edge of the Society Hill section of the city. I figured I would walk over to the convention site everyday to get some exercise in. I have been exercising a lot more seriously as of late and I wanted to get some extra walking in on a daily basis. What better way to do it? WRONG.

Walking home to the Morris House, just as I passed the Pennsylvania Hospital (I am told it is the first hospital in the USA)my right foot twisted in a curb where the concrete had cracked and fallen apart. My shoe caught the end of the small divot and stayed there with my foot, the rest of me kept going. Result? Broken bone in the ankle. Unbearable pain. End of conference. (I am still working on getting the podcast done though. More on that later.) OK so I am a little ticked at the City of Philadelphia...but...

Then there are the people I have met here. The Pennsylvania Hospital (on 8th and Spruce streets) emergency room staff could not have been better. I have been in Hospital emergency rooms in big cities. I hate how people look right through you when you are standing there. How you can wait forever while coffee breaks are taken or personal phone calls are made.

That was not my experience in the Penn Hospital ER. I want to single out the people who helped me. My RN's Carlene and LeeAnn, and my orderly Stan (you are the Man even though you abandonded me for the really sick chick the cops brought in)and the two ER Docs who couldn't do more for an out of towner clearly down on his luck Dr. Connolly(really nice guy very competent, was kinda quite but I think he has a wild side) and Dr. McCormack (I especially love this lady, smart, down to earth, a sense of humor and bedside manner, beautiful and in addition to being an ER Doc in a very busy hospital, is the mother of 5 with one on the way!! Gotta watch out for those Irish red heads. Good luck Doc. Your husband is a lucky fellow.)My friend and collegue Ted Simon who was chairing the meeting here, was really helpful and picked me up and brought me back to the Morris House that night. A great lawyer and a good friend, not in that order.

Then there were the people at the Morris House Hotel. Now the first thing you need to know about the Morris House is, it is a modern facility housed in an historic landmark. The 15 rooms (suites actually) are spacious. Being a B & B there are beautiful common rooms a library and conference room. The price per room is unbelievably reasonable for a big city. I paid the same rate as my convention friends did and got twice the room. The second thing you need to know about the Morris house is... it has no elevator. So of course my room is on the third floor.
That's where the people come in.

Before I had even arrived back from the Hospital, Anthony had moved me to a first floor suite. Not as spacious as the original one I had planned on being in, but now I couldn't walk anyway and this was far more convenient. He moved all my stuff and bought me dinner from a local Chinese place. (Note... as my luck would have it on Tuesday May 9th, Morris House is opening up a gourmet resturaunt so you can get lunch and dinner, I hope they keep the B & B feel though.)Anthony checked on me a bunch of times (it seems we had something in common, he manages a busy criminal practice for a talented young attorney here in Philly) and let my family know I was alright.

The next day Brandon was on duty. In addition to his regular work checking people in and other duties, he found time to bring me breakfast; he ran out to Quiznos and brought back lunch (excellent recommendation of the steak sandwich, kid)and made a special stop for me to Starbucks. At night he came by with a superb dinner prepared by Edward the chef at the new restraint. Great meal. A perfectly prepared white fish (I think it was Grouper very tasty) with a southwestern inspired rice dish and green beans. Dinner was finished off with a delicious piece of chocolate cake (of which I only had two bites, I am not letting this injury throw me off that health kick.)Best of all when his shift was completed, Brandon came in to check on me one more time and spent some time talking with me. He is a tremendous young man who is working hard at two jobs. He truly inspired me with his humor, and his story.

Today I am leaving Philadelphia. My son Salvatore is taking a train down with my Associate Amy Hsu to pick me up and drive me home. (Seems like only yesterday I was driving around to pick him up and take him home...)Morris House has sent Angel to work with me. I am sorry I will not have the time to get to know him better. He to has a wonderful way about him.

Anyway, I am very grateful to the people I meet at Pennsylvania Hospital ER and to the beautiful people I met and who helped me at the Morris House Hotel. I hope I get to come back to Philly in the near future and stay here again. I want to walk around the neighborhood and get to know this beautiful city. But even if I never get here again I will remember what kind and thoughtful citizens live here, and how much they helped me while I was in need. I am very, very thankful.

Announcement: A Suprise Is Coming Next Week.

That's right. I have a suprise for those of you who like to read this blog. Keep your eyes pealed for it. I will send you a link for it soon. It will be new and hopefully fun and educational too. Stay tuned and keep on reading.

John Kenneth Galbraith and William F. Buckley: How A Literate Lion Say Goodbye

John Kenneth Galbraith is dead. A seminal figure in American economic thought throughout most of the second half of the 20th century, Galbraith was best known by most Americans as a top advisor to President John F. Kennedy and later served as his Ambassador to India. A rabid Keynesian, Galbraith would come to be largely criticized by the "Chicago School of Economics" theorist in the 80's and 90's. His liberal, big spending, social welfare laden vision of America would be discredited by the works of Milton Friedman, George Stigler, and Richard Posner among others. Nevertheless, his work and teachings inspired John F. Kennedy, his brother Robert and Eugene McCarthy, as well as countless other post New Deal Democrat thinkers (and sadly still ladens that political party's thought process.)

I met Galbraith twice during my time at Tufts University in the mid 70's and early 80's. Both times, he was a well spoken professor and I was an undergraduate. The first meeting was when he attended a party in Cambridge that I too was invited to. I was introduced by my host, and we engaged in a bit of small talk, mostly his asking about friends of his at Tufts. Our second meeting was in a small restaurant in the North End of Boston. Our tables adjoined one and other. I reintroduced myself, and we again spoke of mutual acquaintances. Our conversation then turned toward other plans I had for my education and then toward politics. Galbraith was a liberal. I was strongly supporting the soon to be President Ronald Reagan, seeming anathema to Galbraith. Our conversation however was among the most fascinating and stimulating of my life. Galbraith was as truly engaged with me, a lowly undergrad, as he was if he were speaking with a president. Moreover, he treated me with respect and dignity, though I have no doubt he could have ravaged my economic theories had he wanted to. The point was had he done so, it would have ended the debate, quite clearly the opposite of what he wanted. He was neither pompass or condesending. Respect for others ideas in the marketplace was a practice of John Kenneth Galbraith.

I was reminded of these times so long ago, when I read the obituary written by Galbriath adversary and friend William F. Buckley. Buckley was another of my heroes in the 70's and he remains someone I greatly admire even today (although I wish he would take a much harder look at the neo-cons he supports, and return more toward his libertarian roots.) In reading the obituary, one learns both the concept of academic and adversarial friendship, and respect for another great mind. The obituary is not maudlin. It certainly takes on the late professor and does not mince words. It is neither however a personal attack nor is it a piece filled with platitudes driven by the old saw that it is bad form to speak ill of the dead.

Instead, it is erudite prose. It both sums up Buckley's negative opinion of the theories of the late Galbraith and yet mourns the loss of a friend, an adversary, and a colleague. I can't help but think it also is a bit of a cry for a lion gone to rest, by another equally powerful lion of a bygone era.

There once was a genteel passion in politics. Politics and it's close sister rhetoric was practiced by people who engaged in it with an understanding that decisions and opinions defined philosophies not individuals. A political position in opposite of yours did not require a personal vendetta. It rarely, if ever became an appeal to base instinct. In fact name-calling and foul language were looked upon as beneath the writer. To engage in such "garbage argument" told the listener/reader that the speaker's position held little weight.

I could learn more about the mysteries of the English language by reading one of Buckley's columns than I could in a year of English courses taught by most college professors today. But that I could say the same of a column by Ann Coulter,or Al Frankin...

I commend William F. Buckley's obituary of John Kenneth Galbraith to you. I recommend you read it with a dictionary at hand. I ask that you remember its quality, for I fear writing like that of Buckley's, or for that matter Galbraith, is a fading art form.

A Sunday Trip Around The Blogoshpere

I have been away for a week visiting The George Washington University and getting steeped in "Colonial" culture. My eldest son has decided to study there for the next four years. Hence I haven't been to active here. I am back however,and what better way to start than with a fast spin around this weekend's Blogosphere:

For those of you who want to know why always throwing the book at crime can be a bad thing, check out this post. Here is your money quote:

""There's not much of an advantage to pleading guilty these days because the (sentencing) guidelines are so high," said Albany-based Assistant U.S. Attorney Thomas Spina. He said he has prosecuted federal child pornography cases for 15 years and has never had one go to trial."

Professor Berman also had this post about sentencing disparity run amok. Two defendants, one judge. Poor defendant robs a guy at gun point of two dollars when he is 17, gets probation for 10 years, smokes some pot, gets life for the probation violation. The other defendant (rich connected defendant) kills a guy gets 10 years probation, (that really rarely happens either)smokes crack 5 times gets off and doesn't have to take urine tests to test for drug use anymore.(Musta been too inconvenient to avoid crack.)Where is 60 Minutes when you need it?

I have been toying with writing a post about why I think that sentencing disparity in federal court is not such a bad thing. I am interested in doing research in the area if I can find the time (or a sponsor hint, hint...) but stories like this one just really turn the stomach of anyone who is interested in justice, and sees justice as our way of evening the playing field between rich and poor. The judge in question has refused to give any interviews on the subject. He ought to at least have to speak to an investigator from the courts or the legislature about this.
Money quote:
" 'This certainly undermines one's confidence in the judicial system around here,' said Rick Jordan." Ya think?

Vohlok Conspiracy is right on top of our latest Public supported teacher (this one a University dept. Chair no less) who cannot figure out the First Amendment. Worse yet, this hypocrite has written warning others not to do what he just did. It gets worse yet!! The Penn State mouthpiece then gets caught lying about why the censorship occurs by an e-mail exchange. Read all about it and weep for our forgotten First Amendment here.

Here is you're moment of Zen:
"So we have two possibilities here: (1) Penn State's art faculty has a rule against displaying any student work that has any sponsorship, including sponsorship of a student organization such as Hillel [near as I can tell, Penn State Hillel is an official PSU club, though I'm not 100% sure]. However, this rule is only applied when the faculty doesn't like the message the art is sending or (2) there is no such rule, or at least it wouldn't apply to a noncommercial, student organization such as Hillel, but pretending there is such a rule is a convenient excuse for what would otherwise look like pure heavy-handed enforcement of political correctness.

Needless to say, neither option reflects well on Penn State" Ya Think?

Our favorite Matrimonial lawyer/blogger has this to say about do it yourself divorce over at Divorce Hotline blog.
Here is the Money Quote:

" Personally, I have handled one too many cases where a novice successfully drafted a divorce settlement only to cause the parties to re visit concepts which should have been addressed in the settlement papers but where either overlooked or intentionally left vague so the parties could "mutually agree on their terms." The problem inevitably arises however, where the parties cannot agree and some judicial intervention is needed to resolve these issues. Now the parties have to fight the good fight once again and the cost is usually greater than it would have been if they had hired an attorney to draft the documents to begin with."

Remember, Abe Lincoln warned that the person who had himself as a lawyer, had a fool for a client.

Finally under the heading "You just knew this was coming" we have this "startling" new revelation from the Duke Lacrosse team debacle prosecution.

How come when they have next to no decent actual factual evidence, every prosecutor becomes a pharmacologist? I don't know if a rape happened at this party or if there is just a Tawana Brawley encore occurring here. What I do know, is that this investigation and prosecution has the words "unmitigated disaster" written all over it. Scientific evidence is non-existent, Physical evidence is weak, there is allegedly photographic alibi evidence, and Testimonial evidence has more flip-flopping than a retrospective of John Kerouac career.

One more thing on the Duke case. I get sick and tired of apologists on both sides trying to play the race card here. Let's get right down to it. Those boys (read that to be every kid at that party) should have been setting an example for their schoolmates. There is no excuse...NO EXCUSE for the type of behavior exhibited there. On their best day everyone of those boys present at the "show" is a cad. At the very least, every kid involved there at the time of the "performance" should serve a suspension of at least 1 semester, and loss of their athletic scholarship. This was a serious lack of judgment.

As for the dancer, find a strip club. I have yet to see, deal with or have to represent someone at a private party strip show at a frat house or college eating society where sex (usually paid for) didn't happen. Allegations of "rape" often follow same. She shouldn't have been there either, and she should never have accepted a drink she didn't supervise the making of. She shouldn't have been there without an escort body guard and her co-performer should have had more sense than to leave her partner behind. If she is a dancer with any experience she should have known all of that.

In fact that is good advice for every kid and young adult. The chances of someone drugging you go up exponentially when you accept a drink from someone else, or when you go back to a drink you left unattended. Watch them make your drink, and drink it. Do not let someone else carry it back to your table, do not leave it or turn your back on it, even for a moment. If you do, go get another. It is the safest way to go.

Ok that's it for now. I hope to get another one of these out to you soon.

This Is Why I Belong To The ACLU: 1.2 Million Dollar Settlement in Goose Creek Police Drug Raid On High School

My friends and family give me a lot of grief over my decision to join and participate in the ACLU and its local NYCLU Chapter. I don't always agree with their case choice decisions and I am not sure that their agenda is a little more political than I would like it to be. However, the above story however is why I do it. If you don't remember the disgusting facts about this gun drawn/drug dog sniffing drug raid at a local High School, go here for the pictures and videos, and here for the original story.
I think kids going to school in the morning need to be free of people selling drugs in their school. However I think a stormtrooper style raid is probably worse. More importantly, they didn't find any drugs!

If the ACLU doesn't get involved, it is hard to find a lawyer in those parts with the wear-withal to sustain the case, deal with all the plaintiffs and fund the suit. Not to mention I get the feeling Goose Creek SC, doesn't have a large legal community.

Hopefully the settlement will give other police forces pause before they act on tips by staging storm-trooper style raids on High Schools. Sorry but I have no problem with this result. One should not be drawing guns and have a dog rip at a child's school bag in a high school unless one's life is in danger. That does not seem to be the situation here.

I will be sending in my ACLU renewal fee shortly.
Hat tip to CC Happens. for the information and a lot of the links.(Watch out this group blog is definitely rated PG-15.)
By the way you can access the Police department website by following this link.

HOW COOL IS THIS... For me at least

I don't get a whole lot of links or comments which sometimes leads me to believe noone but my mom and wife are reading this blog. I know some of you tell me you see it now and again and I seem to have a few really loyal readers (and I really appreciate you guys!!) But every so often I get really ranting on a topic and sometimes people take notice. Bloggers live for trackbacks and links and I got a really big one today from David Hull over at "What about Clients".

David's blog is more oriented toward business lawyers but there is a lot of things that focus on client service for individual and small business clients and I have been reading it often over the past 2 weeks. He had a few posts about the billable hour and how it doesn't serve clients and how general counsel don't really like it. He talked about how it drives a wedge between lawyer and client. I guess running my own firm and realizing how flat fees and "bonus pay" really screws over the individual client (even though they often do not know it)I had a few ideas on how General Counsel can if they show some initiative can really score good results for reasonable rates even using a billable hour system.

If all this leaves you in the dust don't sweat it (really mom it's no big deal)but the end shot was a big time link to That Lawyer Dude which tickles me (and my wife AND my mom) to no end. So thanks to David Hull and "What about Clients" and to all the other blawgers that link to us here and at Long Island (Criminal) Trial Law.

Are Burnt Out Lawyers Ruining The Profession

Later today, I hope to do some blogosphere posting of interesting things I have seen since Wednesday. Right now however I am intrigued by the above post which questions whether lawyers who are burnt out ruin the profession.

I always felt like the burn outs were dangerous for many of the reasons mentioned in the article. The main reason they hurt us is that their"Give a Damn's busted. It is hard to give a client good service when you just don't care, or believe, in the client, the matter, or the legal system as a whole.

I can't really figure out what the reason for such a high degree of burn out is. I used to think it was about the money and the hours. I now think however, it is more systemic than that. I think it has to do with the difference between what the study of law promises, and what the practice of law delivers.

Too many lawyers thought this was about going into court and fighting for the rights of others, where a team would get together and prove the government had the wrong person. They thought clients would appear out of nowhere, with money, hire them at great rates, pay for the team, and that they could prepare the case and present it all in an hour. Call it the Perry Mason or Ben Matlock syndrome. There is almost no motion practice, discovery fights or even judicial ill temperament. Perry Mason doesn't even face a jury. Even our patron Saint Atticus Finch in "To Kill a Mockingbird" doesn't do much to prepare for trial (on screen at least.) (That is not why he loses however).

Legal work is more than asking tough questions and working on issues of constitutional import. It is filing motions, even in the most mundane petty larceny case. It is giving your client the respect, and courtesy, to believe his story as long as it remains plausible. It is dealing with frustrated judges who are jealous of how much we private counsel earn and who go out of their way to make our lives more difficult. Not to mention stubborn prosecutors who care more about their next elected office than the cases or people they are supposed to serve now. It is dealing with clients who don't pay, or do so grudingly, because they "weren't guilty in the first place" so they shouldn't have to pay to be proven correct. These are not things you usually hear about when lawyers talk about why they became lawyers, but they are among the first things they tell you about when they say why they want to quit. (For a clever joke that might lighten your mood, and make my point, check out Sui Generis, here.)

I have been saying for a long time now, Law is a very difficult and draining profession. You should only enter into it, if you can find the intrinsic beauty of it, its traditions, and its symmetry. You need to understand the Zen of it. Truth is not a goal so much as an occasional byproduct. Equality is the goal. Compromise is inevitable. Black and white turns to shades of gray.

Money should not be one's main motivation for entering any profession. This is especially true of law. The money is rarely guaranteed. I think helping the client who needs you, should be the motivation.

That is not to suggest that feeding, clothing, and housing your family is not very important. It is not even to say that the accoutrement of wealth should be shunned. It is just that ignoring compelling cases because you won't make money on them shatters your belief in the system and in yourself as a player in that system. Yet many attorneys will not follow their hearts. They will turn down that case and other non-lucrative cases in order to chase money. Letting a dream die cannot turn one into a pleasant human being. This in turn fuels burn out and disenfranchisement leading to comments like " Be a Lawyer? Why would you want to do that?" Or the very popular "Don't apply for law school... Go to "B" school, that's where the money is."
These speakers have lost their compass. I am intrigued everyday by what I can do to make the system preform better. I come to work everyday in the hope that my efforts will improve the profession, the world, and the client I am serving (not often in that order of course.)

The "not caring anymore" lawyer leads to sloppy habits: Not filing motions; Racing to turn a client ""state's evidence" before learning he has a defense; Not challenging rulings or witnesses because it might make one unpopular. Systemically that leads to sloppy police work, and lazy prosecutor habits. It results in judicial misconduct as well. In all, not only does our profession suffer, but so does the state of all of our legal lives. They say hurricanes can be effected by the wing flapping of a single butterfly thousands of miles away (it's called the butterfly effect). Imagine what damage one burnt out lawyer does to a justice system.

In a column to come, I will discuss my solutions to lawyer burnout. I would, in the meantime, love to hear from others who face the issue, and hear about their solutions, or even just their problems with burnout. As my friend Blondie's tort professor used to say,"Discuss."

"Give Me Your Tired Your Poor"... Support American Immigration

I have linked to an article in today's "USA Today" about the immigration debate on Capital Hill. In reality I am writing to you, my readers, in the hope you will join with me and support both a guest workers' program and a "patriation" program for undocumented immigrants who have been in this country since 2004.

Why a guest workers program?:
Simple. There are an estimated 10 million undocumented immigrants in this country. We do not know who they are, or where they are at any given moment. They have no interest, nor do they have any incentive, to report where they are to us. In a country of 225 million or so, that about 5% of its population is unaccounted for in any way is a big problem. Post 9/11 it is just plain insane.

If most of America's undocumented aliens were to come out and let us know where they were, it would increase the ability to hunt out those who are here to do us harm. A guest workers program would give an incentive to both the alien and the employer to register. It would guarantee that the alien could report without fearing deportation and it would punish more severely those employers who would skirt the law. Moreover, the alien would get protection in the form of work and payroll support that are unavailable to him now because he fears deportation if he comes out of the shadows.
It would also favor fair and honest employers, as it would nearly wipe out the incentive for cutthroat business owners to cut costs using undocumented immigrants. It would dry up the pool of talented unreported workers and add a disincentive of stiff financial and criminal penalties. A guest worker program would thus protect law abiding business owners while punishing the unscrupulous. It would also add an incentive to report these unscrupulous employers because it would not hurt the alien.

Why patriate those that have been here since 2004?:

If we fail to patriate people who have been here since 2004 we will not get full compliance with the registration requirement. So many immigrants have built lives here and have families and people they love here. So many are integral to the businesses they are employed in. Their children know no other home. These kids have no future even if they have lead a life of achievement and hard work.

Failure to have a fair patriation program will subject these people to continued hardship. It makes them prey for extortionist and those that would take unfair advantage of them. It also would cut down on immigration fraud immensely. It would lessen the burden on our Immigration courts homeland security and the Matrimonial courts. It would be fair and just.

For example take a young woman I know who has been here since 2000. She was brought in to work in the sex industry by unscrupulous black marketers from Eastern Europe. She managed to get away from them and has taken up with a very nice American born kid her age. They would like to be married and have children. Although very smart, she is stuck working in strip clubs because she cannot get a day job that earns her any real money. Why? Because she cannot safely come up out of the shadows. Her lover cannot marry her. If he does, and applies for citizenship, she is deportable for being in country without papers. She cannot go home, because if she leaves the country, she cannot get back in (unless she does so illegally.)Further, in leaving, Homeland Security will find out she was here, again opening her up to a 10 year waiting period to get back in (and they will never let her back in.) Her lover and she fear starting a family, because she can be put out at any time.
She hasn't seen her own family in over 5 years. Loved ones abroad have had children, married, and died. She has not been able to go to them. She came here as a young girl not 20 years old. She is a woman now but she is in limbo. Her heart breaks as her mother was diagnosed with cancer and she cannot be with her, but if she leaves, she leaves her Fiance forever on our shores.

Present American policy on immigration is unfair and inhumane. It sentences people who seek a better life to a life of running and looking over their shoulders. It renders our nation unsafe, and it thus endangers all of us. It allows the undocumented to be taken advantage of, and be unable to report crime and criminal activity without fear of reprisal from those they would protect. It threatens our economy and fosters unfair business practices which hurt honest businessmen. It stresses our city's budgets for services without letting those governments collect taxes for the services they provide. It splits up families and it coursens the fabric of our nation.

I read with great displeasure a post by a "Neo-conservative" blogger a child of immigrants herself who took issue with the concept that America is a nation of immigrants. She wrote that 86% of us were born in America. She thinks us idiots. Anytime after 1825 American born people outnumbered immigrants by a great majority. We haven't been a nation of immigrants since before we were a nation by her definition.

The fact is almost all of us no matter how long our families have been in America are identified in part by the ethnic groups our forefathers hailed from. I will proudly always be an Italo-American though the only Italian words I know would get me kicked out of any decent establishment. (I can say the names of food I like however.) My sons are imbued with my sense of family history and pride. I do not think much about Italy. Instead I focus on the brave men and women who came here before me, raised my parents and aunts and uncles. I think of their struggles and the hardships they faced. I think of a family of young men who marched off to war and fought in their parent's homeland to free it from fascism and the Nazis. I think of a family that built construction companies. Those companies worked to help build a city and Island that I love. New York and Long Island were built by the hands and sweat of immigrants and their children. I have taught that history to my boys and I hope I will teach it to my grandchildren when that day comes. This immigrant experience is from where we draw our strength. It is how we measure our successes too.

I was the first Grandchild of these immigrants to get an advanced degree. My son Frank wants to be the first to go to an Ivy League college. We carry the traditions of our immigrant grand (and great grand)parents. We teach these traditions to our young.

America will continue to be great the great nation it has become, if it can remember that it is, in fact, a nation of immigrants. America is not just the greatest nation of our time, it is the greatest nation of all time. It is as great as it is, because we have taken the bravest and toughest and smartest of all nations and given them a chance to reach the pinnacle of their abilities. Yes we had great resources, but it takes great people to harness those resources. Those that oppose the President and Senator McCain's immigration initiative, have no vision. They look out only for themselves and only for today. They are short of sight and of charity. They are not Americans for they know not the American spirit.

For those not aware of the words inscribed upon the Statute of Liberty they are the words of poet Emma Lazarus. They describe the promise of the America I love. They inspire me daily. I commend them to those who agree with me on this issue. I pray that those who do not, read them and take them to heart, and that they too will be filled with the excitement and promise The Lady of the Harbor, Lady Liberty inspires.

The New Colossus:
"With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

"Keep ancient lands, your storied pomp!" cries she

With silent lips. "Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!"


Keep the door open. Support the McCain-Kennedy Secure America and Orderly Immigration Reform Act. Call your Congressman, and Senator. Tell them you care about this issue, and tell them you vote. Remember their vote on this issue of national import when you vote in November.

UPDATE: Check out this wonderful blog on the importance of immigration to America's history.

Go Take Our First Amendment Quiz For High School Administrators At Our Sister Blog Long Island (Criminal) Lawyer.

I just put up another post about High School Administrators who don't understand student Free Speech. Now I will admit running an American Public High School is difficult work. However, if your not up to the job move over and let someone else do it. Understanding and teaching respect for law includes your knowing some law. Hence go take our quiz and come back here and record your score.

His "You're Guilty! Guilty! Guilty!" Tie Should'a Been The First Clue.

A terror suspect has been trying to get his admissions thrown out because he thought he was talking to his defense attorney when being debriefed by federal agents and Assistant US Attorneys. In US v. Shahawar Matin Siraj 05-CR-104, the Defendant was told by his immigration lawyer to go to the local police station to get proof that a previous misdemeanor was dismissed.
While on his way into the precinct he was arrested and questioned by agents and US Attorney's as to his role in a plot to blow up the 34th Street Subway station. He confessed on video tape (which evidentially did not include a part where the AUSA told him he was an AUSA.)The court ruled that the defendant (who testified) knew the AUSAs were not his attorney's because he testified he wanted to call his mother so she could call the immigration attorney and tell her he needed her.

Question for Judge Gerson. (Link is to a picture. Her Honor is in the center) : Shouldn't that request be seen as a request for a lawyer?
Anyway Her Honor ruled that the defendant's behavior belied his testimony and that he knew he was talking to prosecutors. So much for the arguing against that big two level "obstruction of Justice" upward sentencing enhancement under USSG sec. 3C1.1.

Give A Drunk Some caffeine, And You Have A Wide Awake Drunk...

I am not sure where to post this one. It is appropriate for both blogs;this one and the our sister site (Long Island (Criminal) Trial Law. I decided to put it here because the lesson it teaches High School students and their families. I will provide a link to this post or just summarize its contents over there.

Newsday is saying that Red Bull energy drink mixed with alcohol, gives users a false sense of security. In fact it makes it more dangerous because it takes away the feeling of being drunk without restoring any of the muscular or psycho-motor skills that make driving safe. You get less of a hangover but just as much slurred speech difficulty walking and dizziness. In other words you're still a menace on the road.

In reality this makes the drunk driver on Red Bull even more dangerous. The young driver who does not feel drunk takes the greatest risks and poses the greatest danger. Worse yet, because they don't feel drunk, people wanting to get drunk increase their risk for alcohol poisoning as they try to get the full buzz effect.

If you are going to drink and drive, know your limit... Oh, and don't mix your alcohol with an energy drink either.

The "Divorce Hotline"Blog: It's A Good Read.

My friend and fellow blogger Janine Barbera is blogging over at the Divorce Hotline. She has a really well written blog. It isn't just about divorce. It's about adoption and Long Island and good resturants and just life in general. Janine started writing her blog to drum up business. I believe in time that will happen, but in breaking the rules about a business blog, (Thou shall not write about personal feelings [as opposed to opinions]in your business blog) Janine has really found an interesting voice. She is a career attorney, balancing life and law, business building and home building, Divorce and Family law, and telling us all about it.

I find her posts wonderfully done and strongly urge you to stop off at her blog and take a minute or two out to enjoy a special new voice in the legal blogging community. Like my friend Scheherazade I think there is a real story in what Janine is writing. I recommend you to her.

And while I am at it, check out Stay of Execution too, I think you'll really enjoy it. I know I do.

Major League Baseball Does Not Own Its Stats: Or How To Make The National Pastime As Inconsequential As Cricket*

The Robber Barons that run Major League Baseball (a name they have turned into an oxymoron) think that they own the statistics (stats), and that only they have the power to license these stats. These guys must really be hard up. Maybe they ought to sell Major League Baseball to the NFL and let those guys run things.

First, I am not going to spend a lot of time doing the research, but it seems to me that stats are historical fact. Moreover, who "owns" the stat (meaning here who set what record) is part of the history. (ie. That some one hit 714 homeruns is not as important as Babe Ruth hit 714 homeruns. That he hit most of them for the NY Yankees and that he mostly played Rightfield and that he wore number 3 and hit lefty are also facts.) This history is not, in my opinion, "copyrightable."

Baseball's millionaires want to sell the rights to the stats and personalities to fantasy baseball leagues. If you don't buy them you can't use them and are in vioation of their copyright. (Are you listening Blondie.)I guess they figure "Why should someone else get rich off our monopoly."

With these guys at the helm, it will be no time before the game is completly trivialized. I mean come on! With all the steroid garbage, the stats barely mean anything anymore anyway. A game on TV is about a interesting to kids today as watching grass grow. The adults are killing the love of the sport on the Little League level, and the behavior of many of the star players doesn't give a kid much to look up to. Take away the fantasy leagues and what's left?

What really kills me is that these Bozo's made the same argument that the fantasy leagues are making in a case some years ago in a case in California...AND WON!!! What hypocrites.

There are two money quotes from the article:

"I think they quite rightly perceive that it is not a particularly popular position they're taking. A lot of people play fantasy baseball."

and:

"It sure sounds like a short-sighted move by MLB," Eilbott said. "These fantasy leagues, if anything, are great for baseball."

What understatments. What buffoons. What a shame.

*...is in America today. Don't write to me just because you love cricket. I like the little insects too but a whole day watching them try to hit a ball and chirp... COME ON