Former Attorney Ethics Committee Member Suspended for Sexual Misconduct
The JDJournal - March 31, 2012
The focused client counseling methods of personal injury attorney Steven S. Greenberg, a former attorney ethics committee member of New York State received criticism and punishment from The Appellate Division, First Department, New York, on Tuesday. Greenberg received a nine-month suspension from the court though initially a hearing committee sought a three-month suspension, the court found the term to be too short for Greenberg to return to his senses. The incident occurred in March 2007 when Greenberg was a member of the character and fitness committee for admission to the bar. He continued to serve in the same capacity judging the moral fitness of candidates seeking admission to the bar until an aggrieved client gathered enough courage to bring criminal charges against the pillar of legal ethics. The court noted in writing that after closing the doors in his office, Greenberg had asked the aggrieved client, who had come to seek counsel from him over an accident, to reenact the accident. While she was demonstrating, the attorney ethics committee member put his hand underneath the client’s clothing and touched her breast. He also took her hand and moved it over his groin area on the outside of his clothing without her consent, and then warned her not to tell anyone. Greenberg was charged with misdemeanor in June 2007 but got away with a one-year conditional discharge. However, in June 2010, the Disciplinary Committee of the First Department asserted that Greenberg’s conduct adversely reflected on his honesty, trustworthiness or fitness as a lawyer. Though he admitted to the allegations, Greenberg argued that he suffered from periods of mental illness (during which his hands inspected various parts of clients’ anatomies of their own accord and without his control over the situation). Greenberg also argued that (until he had been discovered and brought before the court by the hateful woman) he had a long and honorable career as a lawyer and had paid damages to the client. The court wrote that the respondent “failed to act in accordance with the high standards imposed upon members of the bar and his misconduct reflects adversely on his fitness as a lawyer and upon the legal profession.” The case is Matter of Greenberg, No. 00278, Appellate Division, First Department, Supreme Court. Greenberg’s suspension would come into effect from April, 2012.
Saturday, March 31, 2012
Supreme Court Revisits Prosecutorial Misconduct
Supreme Court to take another look at prosecutorial misconduct
The Washington Post by Robert Barnes - October 30, 2011
Prosecutors, says Angela Davis, former head of the D.C. public defenders office, “are the most powerful officials in our criminal justice system.” Davis, a professor at American University’s Washington College of Law, explains: “They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.” That combination of power and discretion, she said, “can and has led to abuse.” It’s an issue of perpetual interest at the Supreme Court. Next week, the court will hear a case in which a Louisiana death row inmate alleges that prosecutors withheld information that would have cast doubt on the eyewitness account that led to his conviction. The case from New Orleans concerns prosecutors who worked for former district attorney Harry Connick Sr., who left office in 2003. If that sounds familiar, it is because Connick and his office were at the center of last term’s big decision about prosecutorial misconduct. In that controversial 5-to-4 decision, the court stripped a $14 million award from John Thompson, who spent 14 years on death row after prosecutors withheld evidence that showed his innocence.
The court has long agreed that individual prosecutors should be protected from civil liability so that they may freely pursue criminals. However, Thompson had convinced a jury that Connick’s office should be held accountable for not properly training staff about the duty prosecutors have to turn over evidence favorable to the defense. But Justice Clarence Thomas, joined by the court’s other conservatives, said Thompson did not meet the high standard of showing a pattern of “deliberate indifference” on Connick’s part. Justice Ruth Bader Ginsburg, on behalf of the court’s liberals, read her dissent from the bench, saying she would have upheld the award against Connick’s office for the “gross, deliberately indifferent and long-continuing violation of (Thompson’s) fair trial right.” Barry Scheck, co-director of the Innocence Project, said the court’s decision in Connick v. Thompson made it clear that civil remedies are not a viable option for those trying to stop prosecutorial misconduct. He, Thompson and others were part of a group of “innocence advocates” who last week proposed a national dialogue with prosecutors to try to find other ways to investigate and sanction prosecutors who break the rules. Santa Clara University law professor Kathleen Ridolfi said the group needs to find a way around “a system where the Supreme Court refuses to hold prosecutors accountable, even for repeated, deliberate misconduct.”
The new case, Smith v. Cain , is not about punishing prosecutors. It is about whether withholding evidence should mean a new trial for Juan Smith, who prosecutors said was involved in a gangland-style shooting that left five dead. Prosecutors have an obligation under a nearly 50-year-old Supreme Court precedent in Brady v. Maryland to turn over any evidence material to a defendant’s guilt or punishment. The case is expected to be determined by its specific facts rather than the potential for a new examination of Brady. It also seems not coincidental that it involves New Orleans prosecutors. Smith’s lawyers point out that courts have overturned four death sentences from Orleans Parish because of violations of the Brady rules, and they say eight other non-capital cases have met the same fate. The American Bar Association has asked the court to use the case to tell prosecutors that they have a greater obligation than simply meeting Brady requirements. The ABA says the court should mandate that prosecutors abide by ABA model rules that call for disclosure of any exculpatory evidence, whether it is determined to be material or not. The National District Attorneys Association replied that the ABA is nothing but a private association of lawyers that consistently takes the side of criminal defendants. The regulation of prosecutors, it says, “is appropriately left to the individual states.” Such sensitivity is why Scheck and others at a news conference last week took pains to say they believe only a small slice of prosecutors have committed misconduct. He said he was generally advised, “ ‘Don’t go around the country pillorying prosecutors and giving the impression that what happened in John Thompson’s case is happening across the board in an epidemic.’ ” He added: “ We’re not saying that.”
-----BACK GROUND STORY:
Supreme Court rules against exonerated death row inmate who sued prosecutors
The Washington Post by Robert Barnes - March 29, 2011
An ideologically divided Supreme Court on Tuesday stripped a $14 million award from a wrongfully convicted man who had spent 14 years on death row and successfully sued New Orleans prosecutors for misconduct. Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence. Justice Clarence Thomas said Thompson could not show a pattern of “deliberate indifference” on the part of former district attorney Harry Connick Sr. in training his staff to turn over evidence to the defense team. It was the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench. “I would uphold the jury’s verdict awarding damages to Thompson for the gross, deliberately indifferent and long-continuing violation of his fair trial right,” she said, adding that she was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. She said the actions of prosecutors under the control of Connick, who left office in 2003 and is the father of the famous singer of the same name, “dishonored” the obligation to turn over evidence favorable to the accused established in Brady v. Maryland nearly 50 years ago. But the court has protected prosecutors from civil liability when they take cases to court to allow them to go about their work without fear of being sued. The question for the justices was whether a chief prosecutor could be sued for not ensuring that those who worked for him were properly trained and followed the law. There is no dispute that one of Connick’s prosecutors did not turn over a blood test that would have shown Thompson innocent of one of the charges against him. But Thomas said that a single incident is not enough to prove liability for the district attorney’s office and that Thompson did not show a pattern of similar violations. Lawyers are trained and ethically bound to honor Brady, Thomas wrote, regardless of whether additional training is provided. “A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations,” Thomas said. The court’s decision marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence. Thompson was convicted of armed robbery in 1985, before he stood trial for the murder of Raymond Liuzza, the son of a prominent New Orleans hotel owner. Prosecutors used the armed robbery conviction as a way to coerce Thompson not to take the stand in his own defense, and, after conviction, to secure the death penalty. A pair of lawyers at a large Philadelphia law firm took up his case to spare him death; at one point, Thompson came within weeks of execution. But in 1999, an investigator discovered that a blood test conducted in the armed robbery case showed that Thompson was not the perpetrator. Prosecutors acknowledged that it was withheld from Thompson’s attorneys. The armed robbery charge was dismissed. A new trial in the murder case introduced new evidence and resulted in a verdict of not guilty. Thompson then sued the district attorney’s office, and a jury awarded him $14 million. In all, he was imprisoned for 18 years, 14 of them in isolation on death row. Thompson returned to New Orleans, where he runs an organization to help exonerated inmates and travels frequently to speak about wrongful convictions. Thomas was joined in his opinion by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. Scalia and Alito wrote separately to emphasize their position that additional instruction from the district attorney would not have changed Thompson’s case. It “was almost certainly caused not by a failure to give prosecutors specific training but by [a] miscreant prosecutor” determined to railroad Thompson, Scalia wrote. But Ginsburg said there were other instances of prosecutors withholding evidence, such as a police report’s description of the shooter in the Liuzza killing that did not match Thompson. “Ample evidence presented at the civil rights trial demonstrated that Connick’s deliberately indifferent attitude created a tinderbox in which Brady violations were nigh inevitable,” she wrote. Thompson attorneys J. Gordon Cooney Jr. and Michael Banks said in a statement that the evidence showed “multiple constitutional violations by multiple prosecutors.” “If prosecutors’ offices cannot be held accountable under the facts of this case, it is difficult to imagine when they would be accountable,” they said. The case is Connick v. Thompson.
The Washington Post by Robert Barnes - October 30, 2011
Prosecutors, says Angela Davis, former head of the D.C. public defenders office, “are the most powerful officials in our criminal justice system.” Davis, a professor at American University’s Washington College of Law, explains: “They decide whether a person’s going to be charged, what to charge them with, whether there’s going to be a plea bargain and what the plea bargain will be. As they make those decisions, they exercise almost boundless discretion.” That combination of power and discretion, she said, “can and has led to abuse.” It’s an issue of perpetual interest at the Supreme Court. Next week, the court will hear a case in which a Louisiana death row inmate alleges that prosecutors withheld information that would have cast doubt on the eyewitness account that led to his conviction. The case from New Orleans concerns prosecutors who worked for former district attorney Harry Connick Sr., who left office in 2003. If that sounds familiar, it is because Connick and his office were at the center of last term’s big decision about prosecutorial misconduct. In that controversial 5-to-4 decision, the court stripped a $14 million award from John Thompson, who spent 14 years on death row after prosecutors withheld evidence that showed his innocence.
The court has long agreed that individual prosecutors should be protected from civil liability so that they may freely pursue criminals. However, Thompson had convinced a jury that Connick’s office should be held accountable for not properly training staff about the duty prosecutors have to turn over evidence favorable to the defense. But Justice Clarence Thomas, joined by the court’s other conservatives, said Thompson did not meet the high standard of showing a pattern of “deliberate indifference” on Connick’s part. Justice Ruth Bader Ginsburg, on behalf of the court’s liberals, read her dissent from the bench, saying she would have upheld the award against Connick’s office for the “gross, deliberately indifferent and long-continuing violation of (Thompson’s) fair trial right.” Barry Scheck, co-director of the Innocence Project, said the court’s decision in Connick v. Thompson made it clear that civil remedies are not a viable option for those trying to stop prosecutorial misconduct. He, Thompson and others were part of a group of “innocence advocates” who last week proposed a national dialogue with prosecutors to try to find other ways to investigate and sanction prosecutors who break the rules. Santa Clara University law professor Kathleen Ridolfi said the group needs to find a way around “a system where the Supreme Court refuses to hold prosecutors accountable, even for repeated, deliberate misconduct.”
The new case, Smith v. Cain , is not about punishing prosecutors. It is about whether withholding evidence should mean a new trial for Juan Smith, who prosecutors said was involved in a gangland-style shooting that left five dead. Prosecutors have an obligation under a nearly 50-year-old Supreme Court precedent in Brady v. Maryland to turn over any evidence material to a defendant’s guilt or punishment. The case is expected to be determined by its specific facts rather than the potential for a new examination of Brady. It also seems not coincidental that it involves New Orleans prosecutors. Smith’s lawyers point out that courts have overturned four death sentences from Orleans Parish because of violations of the Brady rules, and they say eight other non-capital cases have met the same fate. The American Bar Association has asked the court to use the case to tell prosecutors that they have a greater obligation than simply meeting Brady requirements. The ABA says the court should mandate that prosecutors abide by ABA model rules that call for disclosure of any exculpatory evidence, whether it is determined to be material or not. The National District Attorneys Association replied that the ABA is nothing but a private association of lawyers that consistently takes the side of criminal defendants. The regulation of prosecutors, it says, “is appropriately left to the individual states.” Such sensitivity is why Scheck and others at a news conference last week took pains to say they believe only a small slice of prosecutors have committed misconduct. He said he was generally advised, “ ‘Don’t go around the country pillorying prosecutors and giving the impression that what happened in John Thompson’s case is happening across the board in an epidemic.’ ” He added: “ We’re not saying that.”
-----BACK GROUND STORY:
Supreme Court rules against exonerated death row inmate who sued prosecutors
The Washington Post by Robert Barnes - March 29, 2011
An ideologically divided Supreme Court on Tuesday stripped a $14 million award from a wrongfully convicted man who had spent 14 years on death row and successfully sued New Orleans prosecutors for misconduct. Conservative justices prevailed in the 5 to 4 ruling, which shielded the district attorney’s office from liability for not turning over evidence that showed John Thompson’s innocence. Justice Clarence Thomas said Thompson could not show a pattern of “deliberate indifference” on the part of former district attorney Harry Connick Sr. in training his staff to turn over evidence to the defense team. It was the first decision of the court term that split the justices into ideological camps, and Justice Ruth Bader Ginsburg emphasized her disagreement by reading a summary of her dissent from the bench. “I would uphold the jury’s verdict awarding damages to Thompson for the gross, deliberately indifferent and long-continuing violation of his fair trial right,” she said, adding that she was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. She said the actions of prosecutors under the control of Connick, who left office in 2003 and is the father of the famous singer of the same name, “dishonored” the obligation to turn over evidence favorable to the accused established in Brady v. Maryland nearly 50 years ago. But the court has protected prosecutors from civil liability when they take cases to court to allow them to go about their work without fear of being sued. The question for the justices was whether a chief prosecutor could be sued for not ensuring that those who worked for him were properly trained and followed the law. There is no dispute that one of Connick’s prosecutors did not turn over a blood test that would have shown Thompson innocent of one of the charges against him. But Thomas said that a single incident is not enough to prove liability for the district attorney’s office and that Thompson did not show a pattern of similar violations. Lawyers are trained and ethically bound to honor Brady, Thomas wrote, regardless of whether additional training is provided. “A district attorney is entitled to rely on prosecutors’ professional training and ethical obligations,” Thomas said. The court’s decision marks the apparent end of a decades-long trip through the legal process for Thompson, whose experience has produced a book, a potential movie deal and a dying confession from the prosecutor who withheld the evidence. Thompson was convicted of armed robbery in 1985, before he stood trial for the murder of Raymond Liuzza, the son of a prominent New Orleans hotel owner. Prosecutors used the armed robbery conviction as a way to coerce Thompson not to take the stand in his own defense, and, after conviction, to secure the death penalty. A pair of lawyers at a large Philadelphia law firm took up his case to spare him death; at one point, Thompson came within weeks of execution. But in 1999, an investigator discovered that a blood test conducted in the armed robbery case showed that Thompson was not the perpetrator. Prosecutors acknowledged that it was withheld from Thompson’s attorneys. The armed robbery charge was dismissed. A new trial in the murder case introduced new evidence and resulted in a verdict of not guilty. Thompson then sued the district attorney’s office, and a jury awarded him $14 million. In all, he was imprisoned for 18 years, 14 of them in isolation on death row. Thompson returned to New Orleans, where he runs an organization to help exonerated inmates and travels frequently to speak about wrongful convictions. Thomas was joined in his opinion by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Samuel A. Alito Jr. Scalia and Alito wrote separately to emphasize their position that additional instruction from the district attorney would not have changed Thompson’s case. It “was almost certainly caused not by a failure to give prosecutors specific training but by [a] miscreant prosecutor” determined to railroad Thompson, Scalia wrote. But Ginsburg said there were other instances of prosecutors withholding evidence, such as a police report’s description of the shooter in the Liuzza killing that did not match Thompson. “Ample evidence presented at the civil rights trial demonstrated that Connick’s deliberately indifferent attitude created a tinderbox in which Brady violations were nigh inevitable,” she wrote. Thompson attorneys J. Gordon Cooney Jr. and Michael Banks said in a statement that the evidence showed “multiple constitutional violations by multiple prosecutors.” “If prosecutors’ offices cannot be held accountable under the facts of this case, it is difficult to imagine when they would be accountable,” they said. The case is Connick v. Thompson.
Lawyer, Heal Thyself
Lawyer, heal thyself
The New York Post - EDITORIAL - March 29, 2012
‘When you get as old as I am, and you’ve done as much stuff as I have, you start to think you know as much as anybody,” says Lloyd Constantine, mentor and onetime top adviser to disgraced ex-Gov. Eliot Spitzer. But what New York just learned about Constantine, an accomplished lawyer, is that he actually knows very little — not about his responsibilities as a trial juror, and most especially not about his obligations as an officer of the court. Constantine sat on the jury that tried the case of now-former NYPD Officer Michael Pena — and by all accounts was one of those who refused to find him guilty of rape charges. But it wasn’t until deliberations were well under way that the court learned — from another juror — about Constantine’s numerous conflicts concerning jury service in New York County. Namely, Constantine is a social friend of Manhattan DA Cy Vance Jr., whose office prosecuted the case; a Vance campaign contributor — and the law partner of Richard Aborn, who ran against Vance in 2009. All that adds up to a cast-in-brass conflict of interest — yet Constantine stayed mum through the jury-selection process. Why? Well, he said, no one asked me. And why didn’t he volunteer the information himself? Said Constantine: He was afraid people would think it “a blatant attempt on my part to get out of” jury duty. Besides, he added, he gave himself his “own subjective test” — and decided that he could be impartial and didn’t have to tell anyone else about his conflicts. That’s outrageous. Constantine — again, a 40-year veteran of the legal system — risked a total mistrial, entailing months of wasted effort and thousands of dollars in taxpayer expense. All because he didn’t want anyone to think he was shirking his duty — or so he claims. Fortunately, all sides agreed to let him continue on the jury. But he apparently had no problem opening his mouth once deliberations began: He reportedly was outspoken behind closed doors and trashed the prosecution’s case. As a result, the jury deadlocked on the rape charges — despite pretty solid evidence that a rape had taken place. Pena was convicted of predatory sexual assault — meaning that he faces the same 25-to-life prison term a rape conviction would’ve brought. And Vance, to his credit, says he’ll ask for precisely that sentence. But the larger issue here is how Lloyd Constantine and his secret personal smell test might have endangered the entire case. All of which should leave New Yorkers breathing a sigh of relief that he’s no longer calling shots in Albany.
The New York Post - EDITORIAL - March 29, 2012
‘When you get as old as I am, and you’ve done as much stuff as I have, you start to think you know as much as anybody,” says Lloyd Constantine, mentor and onetime top adviser to disgraced ex-Gov. Eliot Spitzer. But what New York just learned about Constantine, an accomplished lawyer, is that he actually knows very little — not about his responsibilities as a trial juror, and most especially not about his obligations as an officer of the court. Constantine sat on the jury that tried the case of now-former NYPD Officer Michael Pena — and by all accounts was one of those who refused to find him guilty of rape charges. But it wasn’t until deliberations were well under way that the court learned — from another juror — about Constantine’s numerous conflicts concerning jury service in New York County. Namely, Constantine is a social friend of Manhattan DA Cy Vance Jr., whose office prosecuted the case; a Vance campaign contributor — and the law partner of Richard Aborn, who ran against Vance in 2009. All that adds up to a cast-in-brass conflict of interest — yet Constantine stayed mum through the jury-selection process. Why? Well, he said, no one asked me. And why didn’t he volunteer the information himself? Said Constantine: He was afraid people would think it “a blatant attempt on my part to get out of” jury duty. Besides, he added, he gave himself his “own subjective test” — and decided that he could be impartial and didn’t have to tell anyone else about his conflicts. That’s outrageous. Constantine — again, a 40-year veteran of the legal system — risked a total mistrial, entailing months of wasted effort and thousands of dollars in taxpayer expense. All because he didn’t want anyone to think he was shirking his duty — or so he claims. Fortunately, all sides agreed to let him continue on the jury. But he apparently had no problem opening his mouth once deliberations began: He reportedly was outspoken behind closed doors and trashed the prosecution’s case. As a result, the jury deadlocked on the rape charges — despite pretty solid evidence that a rape had taken place. Pena was convicted of predatory sexual assault — meaning that he faces the same 25-to-life prison term a rape conviction would’ve brought. And Vance, to his credit, says he’ll ask for precisely that sentence. But the larger issue here is how Lloyd Constantine and his secret personal smell test might have endangered the entire case. All of which should leave New Yorkers breathing a sigh of relief that he’s no longer calling shots in Albany.
Attorney Is Suspended for Failure to Honor Fee-Sharing Agreement
Attorney Is Suspended for Failure to Honor Fee-Sharing Agreement
The New York Law Journal by Brendan Pierson - March 14, 2012
The Appellate Division, First Department, has suspended attorney David M. Shearer of Shearer & Essner for 2 1/2 years for refusing to honor a fee-sharing agreement in a medical malpractice case with an attorney in Maryland, a lighter punishment than the five-year suspension requested by the Departmental Disciplinary Committee. The panel in Matter of Shearer, 5824 -307, which consisted of Justices Angela M. Mazzarelli, Richard T. Andrias, Karla Moskowitz, Rosalyn H. Richter and Sallie Manzanet-Daniels, found in a March 13 order that the reduction was warranted because of Mr. Shearer's "unblemished" career, cooperation with the committee and evidence of good character. The disciplinary proceeding involves a 1998 medical malpractice case. The plaintiff, Margaret Leskinen, had retained Dov Apfel, a Maryland attorney, to represent her in a lawsuit in Bronx Supreme Court over brain damage allegedly suffered by her son Michael during his delivery in 1988. According to the First Department decision, Mr. Shearer entered into an agreement with Mr. Apfel to act as local counsel. Under the agreement, Mr. Shearer was to file documents to get Mr. Apfel admitted pro hac vice in the Bronx, and the two attorneys would evenly split the legal fees. Instead, Mr. Shearer filed the case and handled it himself, making no effort to get Mr. Apfel admitted.
In July 2003, the case settled for $4.25 million. Mr. Shearer then told Mr. Apfel he would not pay half of the $574,000 legal fee because Mr. Apfel had not done any work on the case. In September 2003, Mr. Shearer's firm filed a retainer agreement between the firm and Ms. Leskinen with the Office of Court Administration, claiming it had not been filed earlier because of an administrative error; Ms. Leskinen later testified she never entered into this agreement. Mr. Apfel petitioned Bronx Supreme Court Justice Bertram Katz for an order compelling payment of the fee, setting off a protracted dispute that eventually reached the Appellate Division, First Department. In 2005, the First Department ruled that Mr. Apfel was entitled to half of the fee, and remanded the case to Supreme Court for further proceedings on whether Mr. Shearer should be sanctioned for his conduct. In October 2006, Bronx Supreme Court Justice Betty O. Stinson imposed a $5,000 sanction against Mr. Shearer payable to the Lawyers' Fund for Client Protection and a $10,000 sanction payable to Mr. Apfel (NYLJ, Oct. 20, 2006). In July 2009, the Departmental Disciplinary Committee filed 14 charges against Mr. Shearer, alleging he submitted documents to the OCA falsely claiming that his firm entered into a retainer agreement directly with Ms. Leskinen, failed to disclose the fee dispute when he sought approval of the settlement in the malpractice case and testified falsely in court, among other charges. Following a January 2010 hearing, a referee upheld 12 of the 14 charges and recommended that Mr. Shearer be disbarred. A hearing panel upheld the referee's findings, holding that Mr. Shearer had "embarked upon an acrimonious, scorched earth litigation disproportionate to the fee dispute" and made false statements under oath. However, it asked only for a five-year suspension, noting Mr. Shearer's lack of a disciplinary record, the fact that the case was a single incident and the lack of a precedent for disbarment.
The First Department affirmed all 12 charges but one, which alleged improper ex parte communication with the court without notice to "opposing counsel," identified as Mr. Apfel. "While Apfel's interest in the fee dispute was adverse to respondent's, Apfel was, as found by Justice Stinson and this Court, his 'co-counsel' and thus, cannot also be said to have been an 'opposing party,'" the panel said. The panel said it was further reducing the punishment in light of various mitigating factors noted by the hearing panel. "[W]hen balanced against the mitigating factors, respondent's misconduct of testifying falsely before the court, the Committee and the Referee as to the existence of a retainer agreement and making such a claim in documents filed with the court and OCA, improperly notarizing signatures, and seeking an infant's compromise order without informing the court of the fee dispute or giving Apfel or his counsel notice, aggravated by respondent's failure to accept responsibility, warrants the imposition of a two-and-a-half year suspension," the panel wrote. "In reducing the sanction, we note that despite the number of sustained charges, they arise from a course of conduct in the pursuit of legal fees in one matter in an otherwise unblemished career of an attorney with a good reputation. As conceded by the Committee in urging a five-year suspension rather than the disbarment recommended by the Referee, respondent's misconduct was not directed at his client and did not extend to other matters. His cooperation with the Committee, in the area of document production and admissibility, was 'exemplary' and respondent submitted evidence attesting to his good character." Mr. Shearer is represented by Michael S. Ross. Neither could be reached for comment. Brendan Pierson can be contacted at bpierson@alm.com.
The New York Law Journal by Brendan Pierson - March 14, 2012
The Appellate Division, First Department, has suspended attorney David M. Shearer of Shearer & Essner for 2 1/2 years for refusing to honor a fee-sharing agreement in a medical malpractice case with an attorney in Maryland, a lighter punishment than the five-year suspension requested by the Departmental Disciplinary Committee. The panel in Matter of Shearer, 5824 -307, which consisted of Justices Angela M. Mazzarelli, Richard T. Andrias, Karla Moskowitz, Rosalyn H. Richter and Sallie Manzanet-Daniels, found in a March 13 order that the reduction was warranted because of Mr. Shearer's "unblemished" career, cooperation with the committee and evidence of good character. The disciplinary proceeding involves a 1998 medical malpractice case. The plaintiff, Margaret Leskinen, had retained Dov Apfel, a Maryland attorney, to represent her in a lawsuit in Bronx Supreme Court over brain damage allegedly suffered by her son Michael during his delivery in 1988. According to the First Department decision, Mr. Shearer entered into an agreement with Mr. Apfel to act as local counsel. Under the agreement, Mr. Shearer was to file documents to get Mr. Apfel admitted pro hac vice in the Bronx, and the two attorneys would evenly split the legal fees. Instead, Mr. Shearer filed the case and handled it himself, making no effort to get Mr. Apfel admitted.
In July 2003, the case settled for $4.25 million. Mr. Shearer then told Mr. Apfel he would not pay half of the $574,000 legal fee because Mr. Apfel had not done any work on the case. In September 2003, Mr. Shearer's firm filed a retainer agreement between the firm and Ms. Leskinen with the Office of Court Administration, claiming it had not been filed earlier because of an administrative error; Ms. Leskinen later testified she never entered into this agreement. Mr. Apfel petitioned Bronx Supreme Court Justice Bertram Katz for an order compelling payment of the fee, setting off a protracted dispute that eventually reached the Appellate Division, First Department. In 2005, the First Department ruled that Mr. Apfel was entitled to half of the fee, and remanded the case to Supreme Court for further proceedings on whether Mr. Shearer should be sanctioned for his conduct. In October 2006, Bronx Supreme Court Justice Betty O. Stinson imposed a $5,000 sanction against Mr. Shearer payable to the Lawyers' Fund for Client Protection and a $10,000 sanction payable to Mr. Apfel (NYLJ, Oct. 20, 2006). In July 2009, the Departmental Disciplinary Committee filed 14 charges against Mr. Shearer, alleging he submitted documents to the OCA falsely claiming that his firm entered into a retainer agreement directly with Ms. Leskinen, failed to disclose the fee dispute when he sought approval of the settlement in the malpractice case and testified falsely in court, among other charges. Following a January 2010 hearing, a referee upheld 12 of the 14 charges and recommended that Mr. Shearer be disbarred. A hearing panel upheld the referee's findings, holding that Mr. Shearer had "embarked upon an acrimonious, scorched earth litigation disproportionate to the fee dispute" and made false statements under oath. However, it asked only for a five-year suspension, noting Mr. Shearer's lack of a disciplinary record, the fact that the case was a single incident and the lack of a precedent for disbarment.
The First Department affirmed all 12 charges but one, which alleged improper ex parte communication with the court without notice to "opposing counsel," identified as Mr. Apfel. "While Apfel's interest in the fee dispute was adverse to respondent's, Apfel was, as found by Justice Stinson and this Court, his 'co-counsel' and thus, cannot also be said to have been an 'opposing party,'" the panel said. The panel said it was further reducing the punishment in light of various mitigating factors noted by the hearing panel. "[W]hen balanced against the mitigating factors, respondent's misconduct of testifying falsely before the court, the Committee and the Referee as to the existence of a retainer agreement and making such a claim in documents filed with the court and OCA, improperly notarizing signatures, and seeking an infant's compromise order without informing the court of the fee dispute or giving Apfel or his counsel notice, aggravated by respondent's failure to accept responsibility, warrants the imposition of a two-and-a-half year suspension," the panel wrote. "In reducing the sanction, we note that despite the number of sustained charges, they arise from a course of conduct in the pursuit of legal fees in one matter in an otherwise unblemished career of an attorney with a good reputation. As conceded by the Committee in urging a five-year suspension rather than the disbarment recommended by the Referee, respondent's misconduct was not directed at his client and did not extend to other matters. His cooperation with the Committee, in the area of document production and admissibility, was 'exemplary' and respondent submitted evidence attesting to his good character." Mr. Shearer is represented by Michael S. Ross. Neither could be reached for comment. Brendan Pierson can be contacted at bpierson@alm.com.
Friday, March 30, 2012
Many Judges Say Pay Hike is 'Too Little, Too Late'
On Eve of Pay raise, Many Judges Say 17 Percent Hike is 'Too Little, Too Late'The New York Law Journal by John Caher and Joel Stashenko - March 30, 2012 After 13 years of frustration, false hope and broken promises, the arrival on April 1 of a pay raise is a relief, but not necessarily a salve, for deep wounds inflicted financially and personally on the state's Judiciary. That seems to be the consensus of judges around the state as they anticipate a 17 percent pay bump, set by a special commission on judicial compensation, with the start of the new state fiscal year. By 2014, the raise will grow to 27 percent. Several judges remain bitter, some say it's too little and too late, and many are relieved that the new commission process should prevent the Third Branch from ever again being held hostage to legislative politics in Albany. But no one seems especially pleased. "It will get better every day," Chief Judge Jonathan Lippman said in an interview this week. "What is helpful is that judges will actually start to get the salary increases in their checks, and then the next one and the next one after that. I think that will be the magic elixir." But Judge Lippman acknowledged that judges have been put into a "terrible situation" since 1999 and that it will take some time for many of them to realize that they have what he calls the "best job in the world." "I think that this will shortly be in the rear-view mirror," the chief judge said. "For many of our judges, it already is. Some are very embittered about what happened. But I think the vast majority of the judges believe that the future is indeed bright and that the [salary] nightmare is over." Others are not so sure. Justice David B. Saxe of the Appellate Division, First Department, said judges are not satisfied with the size of the raise or the fact that they will have to wait three years to get the entire pay boost. "I guess there is a feeling of resignation," Justice Saxe said. "No one is doing a jig. No one is feeling we got adequate recompense. But it is what it is and we know the chief judge worked tirelessly for us." Brooklyn Supreme Court Justice Martin Solomon, a former Democratic state senator, said the pay raise approved by the judicial compensation commission was being regarded as the "first step" to bringing the pay levels of Supreme Court justices in line with federal district court judges. "There are a lot of hard feelings. Some of it has subsided," Justice Solomon said in an interview. "Some of it is still there. Many people thought we should have gone immediately to what the federal judges are earning. What we have lost, we will never make up." Judges and judicial organizations argue that the Judiciary has lost 41 percent to inflation since last getting a raise in January 1999 and that a 27 percent increase over the next three years will not fully recoup that setback. Justice Saxe said there is a strong sentiment among the judges that a $10,000 stipend granted to the judges for office expenses should continue, and if it does not, then the 17 percent raise that kicks in April 1 is actually much less. But Justice Saxe said he is hopeful that with the new commission process, the judges' pay will never again be hostage to state Capitol politics. Judge Lippman said he would make no guarantees about the stipends. "After the salary increases are in place, we said we will review it and take a look at that," he said. "This was an extraordinary solution to an extraordinary problem. We don't look at things with tunnel vision as to what makes sense to the court system at that particular time." Senator John A. DeFrancisco, a Syracuse Republican who formerly chaired the Judiciary Committee and is now head of the powerful Finance Committee, said that retaining the stipend in addition to the salary increase would not go over well in Albany. "The only reason the stipends were given was because there were no pay raises," Mr. DeFrancisco said. "It would be over-reaching after a substantial pay raise to also retain what was a stop-gap. I don't think it would be a wise decision to insist on that." 'We Feel Powerless' Justice John M. Leventhal of the Appellate Division, Second Department, said the judges are thankful for a raise and "thankful that it has been taken out of the political process, to some extent." But he said the experience has left the judges feeling defenseless. "We feel as a Third Branch of government that we don't have an equal voice because we are not at the bargaining table, but we also respect the rule of law," Justice Leventhal said. "We felt powerless to do anything, and it seemed no one really cared. There was a feeling of helplessness, and if there is frustration, that is the source of it. We are happy we have a commission, and hopeful that this won't happen again."  Manhattan Supreme Court Justice Eileen E. Bransten, president of the Supreme Court Justices Association of the State of New York, expressed similar sentiments. "None of us were happy with the actual recommendation of the salary commission," she said. "We were hoping for a great deal more because we feel that the increased cost of living was not taken into account. Nevertheless, we are very happy with the process. The commission was a wonderful idea and we will live by what the commission recommended." Supreme Court Justice Richard T. Aulisi of Fulton County said a raise is always welcome, but suggested the Judiciary had to settle for less than would have been appropriate after so long a wait. "Yes, it is gratifying that they have seen fit to give us an increase in our salary after 13 years," he said. "I certainly think we deserve some bump in our raises. Considering the economic climate this is probably as good as could be expected." In Queens, Rudolph Greco Jr., a former Civil Court judge elected to Supreme Court last year, said that while he welcomes the pay raise, if the salary had not been enough, "I wouldn't have taken the job to begin with." Justice Greco said that despite the lack of a raise, the judges have continued to pull their weight. "The judges are wonderful," he said. "I have never heard of a judge doing less because of the money situation. I am very proud of the judges. They are doing more and more and more with less." Justice Greco said that while there have been few judges who left the bench over the salary issue, he suspects many attorneys have not pursued judicial posts because of the pay. "There are people who can't afford to become judges," Justice Greco said. Supreme Court Justice Herbert Kramer of Brooklyn said it will never be known how many lawyers, especially those in successful private practices, stopped finding the Judiciary a viable employment option during the salary drought. "There is no question in my mind that we have lost probably a generation of lawyers coming from private practice," Justice Kramer said. Manhattan Supreme Court Justice Alice Schlesinger said she is ready to let bygones be bygones. "I am certainly relieved," Justice Schlesinger said. "Should it have been higher? Should it have happened years before? Of course. But why look to the past? My feeling is we are finally getting a raise. It is long overdue, but I am choosing to feel pleased about the whole thing. Finally, finally, finally there was a recognition of this really outrageous situation." The lack of retroactivity is "obviously a disappointment, but I really prefer to concentrate on the positive aspects," Justice Schlesinger said. "It has been a long dry spell, I must say that, but I prefer to just be happy and relieved, no bitterness." Retired Judges Justice Solomon said he felt particularly badly for the aging judges who have served out the final years of their careers amid the salary freeze. If their retirement is imminent, they will see little benefit in their pensions from raises that finally take effect April 1, Justice Solomon said. Judges' pensions are based, in part, on the 36 consecutive months on the bench in which they made the most money. Justice Kramer, who is facing mandatory retirement at the end of this year after 32 years on the bench, said he will receive only the benefit of eight months of higher salary to apply toward his pension. Pensions are also dependent on how many years of service judges have in the court system overall and on certain pension options they have opted to take. "The pay raise itself for me will be at best bittersweet," Justice Kramer said. "It is not meaningful in terms of the economic impact on me." Judges who have retired before April 1 will see no benefit from the raise in terms of bolstering their salaries for pension purposes. Several former or retiring judges are hopeful that a lawsuit filed by judges seeking higher pay,Pines v. State of New York, could provide them with some relief. The suit, now before the Appellate Division, would make a pay raise for judges retroactive to April 1, 2009, on the grounds that the Legislature and governor that year properly allocated the money for a raise, albeit unintentionally. Other suits filed by judges to compel the governor and Legislature to grant a raise have either been ineffectual at forcing an increase or have been deemed unwinnable and have been abandoned or placed on hold. Among the recent retirees who feel shortchanged is Samuel L. Green, who was forced to retire last year from the Appellate Division, Fourth Department. Mr. Green, who spent 32 years as a Supreme Court justice, nearly all of them on the appellate panel, served until he turned 70 and then continued for all three of the allowable two-year stints as a certificated jurist. But since the raise is not retroactive, Mr. Green's pension will not reflect what he believes should have been regular cost-of-living increments during his last dozen years on the bench. "For 13 years, I was denied a raise and they did nothing to make it up to us, no retroactivity," Mr. Green said. "We were just thrown out the door with nothing. I have talked to others who retired and they are upset as well." Another judge said that if the raise had not come through this year, he would have retired. But with a chance to boost his pension benefits, and a few years remaining before he reaches the mandatory retirement age of 70, the judge said he will stick around for a while. He is particularly sympathetic, though, to judges who were mandatorily retired in recent years and had no opportunity to make up in their pension what they lost in regular income. "There are a lot of judges who are hostile, resentful and feel that the issue has not been addressed," the judge said. "We have been treated very unfairly." Supreme Court Justice Lucy A. Billings of Manhattan said the pay raise is "too little, too late," but she said that what she finds "most distressing" is the lingering bitterness of the judges "and how upset all my colleagues have been." Interviews with several other judges suggest an undercurrent of anger and resentment. "The pay raise is a slap in the face of every hardworking, dedicated judge in the state of New York," said Sullivan County Judge Frank J. LaBuda. "After 13 years of no pay raise, we get basically less than cost of living with no retroactivity. I don't know of any other state worker, public servant or teacher that has received such one-sided treatment by the employer. It didn't do a whole lot for my morale." Judge LaBuda said the only difference the raise will make in his standard of living is to "help me from sinking further into debt." He said it would be an insult if the $10,000 stipend is eliminated. "I have spent my whole life providing fair and equal treatment to tens of thousands of litigants and I don't believe I have been treated fairly or honestly," Judge LaBuda said. "The bottom line is I am disappointed and suspect it affects morale. What it doesn't affect is the performance and dedication of the working judges in the judiciary. They continue to work, as I see it, certainly at full pace." Mr. Green said the sentiment among sitting judges he keeps in contact with seems to be that "they are not overjoyed about it, but glad they got something. They all think it was too little, too late." Howard Levine, who retired from the Court of Appeals in 2003 after nine years on the high court, said that the phase-in of the raise was "unfortunate," but the commission system holds out the possibility of avoiding another prolonged pay freeze. "I think there will be lingering resentment among judges, and with some justification," said Mr. Levine, who is now with Whiteman Osterman & Hanna. One upstate Supreme Court justice said his resentment is rooted more in what he views as a lack of respect than the lack of a raise. "We have been looked down upon and our own judicial administration has not carried the ball for us," the judge said. "Everybody I talk to is madder than hell. We all expected at least a raise to the federal district court level. I think everyone thought it would be at least that." A trial judge from another part of the state said court administrators did not push hard enough for a raise over the past several years, and then sold the judges short just to get a token bump in salary. "Everybody is very upset about the size of the pay raise, and a lot of people think [Chief Judge Lippman] let them down," the judge said. But Supreme Court Justice Sharon Townsend of Buffalo just wants to put the past in the past. "I am just so happy that we are finally getting positive news," she said. "I am very pleased and optimistic." William F. Kocher, a Family Court judge in Ontario County, said that if nothing else, the "chatter" which was previously endless on the internal judicial communications system "has stopped," suggesting that judges, as discontented as they may be, are eager to move on and stop fighting. "Nobody is inclined to turn down the pay raise," Judge Kocher said. John Caher can be reached at jcaher@alm.com. Joel Stashenko can be reached at jstashenko@alm.com. |
Insight Into Judicial Pay Panel Fiasco
Panel Agreed on Raise; Debated Timing, Amount
The New York Law Journal by John Caher and Joel Stashenko - March 30, 2012
With the power to finally break the 13-year salary logjam—or make it infinitely worse—a judicial pay compensation commission approached its task with the pragmatic goal of fashioning a package that was not only fair to judges, but politically doable, members of the panel said. "We wanted to come up with something that the Legislature wouldn't overturn," said William Thompson Jr., chairman of the commission and former New York City comptroller. "The Legislature had the opportunity to overturn what we did, and the judges would not have gotten raises. So we were trying to strike a balance. We wanted to make sure the judges got raises. They had gone so long and we thought, no matter what, that is what we wanted to do. And they got substantial raises." Several members of the Special Commission on Judicial Compensation said all seven favored increasing judges' salaries, and the debate over the amount and timing was heated. Some wanted a larger increase. Others wanted a pay hike that raised judicial salaries to immediate parity with federal judges, instead of the three-year phase-in that will increase salaries 27.3 percent by April 1, 2014. The final vote was 4-3. But commission members were uniformly intent on vindicating the process, proving that this new and untested means of compensating judges would work. To that end they sought to avoid a worst-case scenario in which the Legislature rejected the commission's proposal, leaving the pay increase again in limbo and the process in doubt. "Certainly, it would have been a complete breakdown if the commission produced a report that was rejected because it was unreasonable or unsound," said Mark Mulholland of Ruskin Moscou Faltischek in Uniondale, who was appointed to the panel by Senate Majority Leader Dean Skelos, R-Rockville Centre. "The path has been proven as one that does work and can succeed, so we should be able to avoid another long stretch of stagnation." Commission member Kathryn Wylde, president of the Partnership for New York City, said the panel was cognizant of the state's precarious financial situation. "The issue in terms of credibility was balancing the state's fiscal situation against the expectations of the judges," she said. "The big questions in my mind as a lay person were whether to adjust for cost of living in different geographic regions or for responsibilities in the different courts, but those with more experience with the judiciary said it was a non-starter." Ms. Wylde said the commission was also mindful that legislators had gone without a raise as long as judges. "Obviously, having the Legislature hanging out there without a salary increase was also an issue politically," she said. The commission, comprised of unpaid appointees of the governor, chief judge and legislative leaders, was established to ensure that judges' salaries are reviewed regularly and appropriately adjusted. Under the legislation, a special panel is created every four years to "examine, evaluate and make recommendations" on judicial salaries for the next four years. Its recommendations are binding and take effect automatically—unless the Legislature affirmatively rejects the plan. Though untested in practical terms until 2011, the idea of a commission to handle the politically sensitive task of recommending new salaries for judges, legislators and state government agency heads was hardly new. Assemblyman Joseph Lentol, D-Brooklyn, said his father advocated for such a commission as far back as 1966, when Edward Lentol was in the state Senate. In addition, commissions or task forces appointed by either the Legislature or the Judiciary reached the same conclusion in separate reports in 1972, 1979, 1982, 1988, 1993 and 1998 that in addition to immediate pay increases, judicial salary boosts in the future should be decided by commissions that were not subject to the whims of politics between the governor and the Legislature. Former Chief Judge Judith Kaye began promoting the formation of a commission in the mid-2000s, as the salary drought for judges stretched to five and six years and beyond. As several suits filed by judges failed to break the impasse, including one filed by Ms. Kaye herself, her successor as chief judge, Jonathan Lippman, became more insistent that a commission had to be formed to take a judicial pay raise out of the realm of the political horse-trading that had caused pay increases to be linked to non-judicial ethics reform, pay increases for state legislators and other non-judicial issues. Judge Lippman said the Legislature and governor reached a point in late 2010 where they realized "we couldn't continue on like this," that the "agonizingly long period" without giving raises to judges had become so extreme that the judiciary needed both a pay raise, and, just as importantly, a way to guarantee regular increases in the future. "We all realized that every judge felt the necessity to have a pay increase, but that we all felt that the future of the judiciary rested with a systematic, permanent solution to this problem and that we could not be satisfied with a one-time increase," said Judge Lippman, who was credited by Mr. Lentol and other legislators with doggedly lobbying the Legislature and then-Governor David Paterson for the pay commission bill. Mr. Paterson's former counsel, Peter Kiernan of Schiff Hardin, referred in a recent interview to Judge Lippman as someone whose "exquisite" skills as an advocate and a bureaucrat were on display during the push for creation of the pay commission.
Confluence of Events
The Judiciary also profited by a confluence of events that scrambled Albany's leadership structure in 2010. Mr. Paterson was a lame duck with little to lose politically by embracing a judicial pay increase because he had bowed out of the race for governor. He was both sympathetic to the need for higher judicial pay and had a good working relationship with Judge Lippman, the man Mr. Paterson installed as chief judge in 2009. Mr. Paterson proposed a bill creating a commission along the lines of one Judge Lippman, and Ms. Kaye before him, had been discussing for years. The commission did not include pay raise proposals for the Legislature because, sources familiar with passage of the bill at the time said, legislative leaders did not think the time was right to try to sell a raise for lawmakers to the public. Disarray in the leadership of the state Senate also appeared to help the Judiciary and Judge Lippman. A coup earlier in the year by maverick Democrats had thrown leadership and the operations of the chamber into near-chaos. Mr. Paterson's office began proposing agendas of bills daily to the Senate for its consideration, but the chamber usually ignored them. But Mr. Kiernan said Mr. Paterson instructed him to include a pay commission bill proposed by the governor. "So every day we had to send a new agenda to the Legislature," Mr. Kiernan said. "I just kept putting it on there and putting it on there. The seed was planted." Democrats were still in the majority when the commission was created, but they lost their advantage in the Senate to Republicans in the November 2010 election and would fall back into the minority in January 2011. Judge Lippman thus was able to lobby both Democrats and Republicans when the Senate returned into session in late November 2010, with each side still competing to dictate the passage of legislation. Neither side appeared to want to be blamed for another failure of a pay raise bill. Once through the Senate, Assembly Speaker Sheldon Silver, D-Manhattan, supported the bill among his Democratic majority, many of whom had privately been opposed to giving judges any raise if they themselves did not get one. Mr. Silver had said he supported pay raises for both legislators and judges, and his backing of a pay raise commission bill for judges has been widely seen since 2010 as a precursor of his eventual advocacy for a similar bill for lawmakers, perhaps following the November 2012 elections. By law, legislators are prohibited from raising their own pay in the two-year sessions in which they have been elected. They have traditionally preferred to convene after elections and make arrangements for higher pay that would take effect in succeeding sessions. "As far as the public is concerned, we still have an economic situation that may militate against their feeling that the Legislature is entitled to a raise," Mr. Lentol said. "But I think it is very open and very possible to be done this year."
Quick Recommendations
Once its seven members were appointed by Governor Andrew Cuomo, Judge Lippman and legislative leaders, the commission made relatively quick work of making its recommendations. It took the commission just over two months to approve a plan that, barring any last minute action by the Legislature, will kick in on April 1. While seven members supported a raise, Mr. Mulholland joined Chief Judge Lippman's two appointees to the panel—Robert Fiske Jr., a senior counsel at Davis Polk & Wardwell and former Southern District U.S. attorney, and Ms. Wylde—in opposing the amount. Voting in favor were Mr. Thompson; investment advisor William Mulrow; Richard Cotton, general counsel of NBC-Universal; and former Assembly Democratic Majority Leader James Tallon. All were appointed by Mr. Cuomo, except Mr. Tallon, who was appointed by Mr. Silver. Mr. Fiske said he would have immediately increased the salaries of Supreme Court justices to $195,000—a raise of nearly 43 percent—to restore the purchasing power judges lost when their salaries were frozen for 13 years. The salaries of other judges would have increased proportionately. "At the final meeting, on the last day, the governor's people and [the Assembly speaker's] person said it should be the same as the federal judges, but not right away and should be phased in over three years with no increase in the fourth year," said Mr. Fiske. "I thought it should be [$195,000] but I didn't think it was unreasonable to say it should be the same as the federal judges, although I did think it was unreasonable to phase it in over two years." But while Mr. Fiske did not care for the result, he did approve of the process. "It certainly was vastly preferable to what would have happened if there hadn't been a commission," Mr. Fiske said. "If there hadn't been a commission, there might not have been any increase, and I certainly think there was a better increase with the commission than there would have been without it." Mr. Mulholland said he found the recommendation "exasperating" because it takes three years for Supreme Court justices to reach the pay grade of federal district judges, who have not received a raise for three years. "We were asked to cure an imbalance and what we really did was perpetuate it," Mr. Mulholland said. "Just based on inflation, [the raise to federal court parity] will be six years outdated." Mr. Tallon said he was put on the panel because of his knowledge of the Legislature and Albany politics, and insight into what could cause lawmakers to balk at the panel's recommendation. "The speaker made clear to me that this was on my shoulders," said Mr. Tallon. "The goal I had personally in all this was to get to a reasonable number, and not get to a place where this would result in a re-opening of a controversy. Once you re-open a controversy, we were just going to default back into the inability to do a decision." Mr. Mulholland said that while he was mindful of avoiding a recommendation that was so far-fetched that it would be rejected by the Legislature, the commission could have done much more for the judges without reaching that point. "To raise the judicial salaries out of proportion certainly would have been inappropriate and unreasonable," Mr. Mulholland said. "But the higher numbers that some members—myself included—were pushing for were not unreasonable." Still, Mr. Mulholland said the process proved workable. "The enabling legislation was excellent in that it endowed the commission with broad and sweeping powers to call in witnesses and use the other resources of government to collect information, to go around the state and canvass different parts of the population," he said. Mr. Mulholland suggested that next time around there should be more public sessions. But he stressed, as did other commission members, that nothing was done privately or in secret. Ms. Wylde said the only thing she would change procedurally going forward would be to start earlier, affording more opportunity for public input and analysis. "I would hopefully have a little more time, but I think this set a positive precedent," Ms. Wylde said. "I think the judiciary was generally satisfied with the outcome. They would have liked more, but it seemed everyone felt the process was far preferable to the kind of political logjam that existed before." Mr. Tallon said the commission was relatively unique in that it included representation from all three branches of government, reflecting "myriad motivations." "It worked reasonably well because we all understood that we wanted to get to 'yes,'" he said. "How to define 'yes' was a legitimate and open debate. We had some differences of opinion and they were expressed publicly. After a long period in the wilderness, the process got us to 'yes.'" John Caher can be contacted at jcaher@alm.com. Joel Stashenko can be contacted at jstashenko@alm.com.
The New York Law Journal by John Caher and Joel Stashenko - March 30, 2012
With the power to finally break the 13-year salary logjam—or make it infinitely worse—a judicial pay compensation commission approached its task with the pragmatic goal of fashioning a package that was not only fair to judges, but politically doable, members of the panel said. "We wanted to come up with something that the Legislature wouldn't overturn," said William Thompson Jr., chairman of the commission and former New York City comptroller. "The Legislature had the opportunity to overturn what we did, and the judges would not have gotten raises. So we were trying to strike a balance. We wanted to make sure the judges got raises. They had gone so long and we thought, no matter what, that is what we wanted to do. And they got substantial raises." Several members of the Special Commission on Judicial Compensation said all seven favored increasing judges' salaries, and the debate over the amount and timing was heated. Some wanted a larger increase. Others wanted a pay hike that raised judicial salaries to immediate parity with federal judges, instead of the three-year phase-in that will increase salaries 27.3 percent by April 1, 2014. The final vote was 4-3. But commission members were uniformly intent on vindicating the process, proving that this new and untested means of compensating judges would work. To that end they sought to avoid a worst-case scenario in which the Legislature rejected the commission's proposal, leaving the pay increase again in limbo and the process in doubt. "Certainly, it would have been a complete breakdown if the commission produced a report that was rejected because it was unreasonable or unsound," said Mark Mulholland of Ruskin Moscou Faltischek in Uniondale, who was appointed to the panel by Senate Majority Leader Dean Skelos, R-Rockville Centre. "The path has been proven as one that does work and can succeed, so we should be able to avoid another long stretch of stagnation." Commission member Kathryn Wylde, president of the Partnership for New York City, said the panel was cognizant of the state's precarious financial situation. "The issue in terms of credibility was balancing the state's fiscal situation against the expectations of the judges," she said. "The big questions in my mind as a lay person were whether to adjust for cost of living in different geographic regions or for responsibilities in the different courts, but those with more experience with the judiciary said it was a non-starter." Ms. Wylde said the commission was also mindful that legislators had gone without a raise as long as judges. "Obviously, having the Legislature hanging out there without a salary increase was also an issue politically," she said. The commission, comprised of unpaid appointees of the governor, chief judge and legislative leaders, was established to ensure that judges' salaries are reviewed regularly and appropriately adjusted. Under the legislation, a special panel is created every four years to "examine, evaluate and make recommendations" on judicial salaries for the next four years. Its recommendations are binding and take effect automatically—unless the Legislature affirmatively rejects the plan. Though untested in practical terms until 2011, the idea of a commission to handle the politically sensitive task of recommending new salaries for judges, legislators and state government agency heads was hardly new. Assemblyman Joseph Lentol, D-Brooklyn, said his father advocated for such a commission as far back as 1966, when Edward Lentol was in the state Senate. In addition, commissions or task forces appointed by either the Legislature or the Judiciary reached the same conclusion in separate reports in 1972, 1979, 1982, 1988, 1993 and 1998 that in addition to immediate pay increases, judicial salary boosts in the future should be decided by commissions that were not subject to the whims of politics between the governor and the Legislature. Former Chief Judge Judith Kaye began promoting the formation of a commission in the mid-2000s, as the salary drought for judges stretched to five and six years and beyond. As several suits filed by judges failed to break the impasse, including one filed by Ms. Kaye herself, her successor as chief judge, Jonathan Lippman, became more insistent that a commission had to be formed to take a judicial pay raise out of the realm of the political horse-trading that had caused pay increases to be linked to non-judicial ethics reform, pay increases for state legislators and other non-judicial issues. Judge Lippman said the Legislature and governor reached a point in late 2010 where they realized "we couldn't continue on like this," that the "agonizingly long period" without giving raises to judges had become so extreme that the judiciary needed both a pay raise, and, just as importantly, a way to guarantee regular increases in the future. "We all realized that every judge felt the necessity to have a pay increase, but that we all felt that the future of the judiciary rested with a systematic, permanent solution to this problem and that we could not be satisfied with a one-time increase," said Judge Lippman, who was credited by Mr. Lentol and other legislators with doggedly lobbying the Legislature and then-Governor David Paterson for the pay commission bill. Mr. Paterson's former counsel, Peter Kiernan of Schiff Hardin, referred in a recent interview to Judge Lippman as someone whose "exquisite" skills as an advocate and a bureaucrat were on display during the push for creation of the pay commission.
Confluence of Events
The Judiciary also profited by a confluence of events that scrambled Albany's leadership structure in 2010. Mr. Paterson was a lame duck with little to lose politically by embracing a judicial pay increase because he had bowed out of the race for governor. He was both sympathetic to the need for higher judicial pay and had a good working relationship with Judge Lippman, the man Mr. Paterson installed as chief judge in 2009. Mr. Paterson proposed a bill creating a commission along the lines of one Judge Lippman, and Ms. Kaye before him, had been discussing for years. The commission did not include pay raise proposals for the Legislature because, sources familiar with passage of the bill at the time said, legislative leaders did not think the time was right to try to sell a raise for lawmakers to the public. Disarray in the leadership of the state Senate also appeared to help the Judiciary and Judge Lippman. A coup earlier in the year by maverick Democrats had thrown leadership and the operations of the chamber into near-chaos. Mr. Paterson's office began proposing agendas of bills daily to the Senate for its consideration, but the chamber usually ignored them. But Mr. Kiernan said Mr. Paterson instructed him to include a pay commission bill proposed by the governor. "So every day we had to send a new agenda to the Legislature," Mr. Kiernan said. "I just kept putting it on there and putting it on there. The seed was planted." Democrats were still in the majority when the commission was created, but they lost their advantage in the Senate to Republicans in the November 2010 election and would fall back into the minority in January 2011. Judge Lippman thus was able to lobby both Democrats and Republicans when the Senate returned into session in late November 2010, with each side still competing to dictate the passage of legislation. Neither side appeared to want to be blamed for another failure of a pay raise bill. Once through the Senate, Assembly Speaker Sheldon Silver, D-Manhattan, supported the bill among his Democratic majority, many of whom had privately been opposed to giving judges any raise if they themselves did not get one. Mr. Silver had said he supported pay raises for both legislators and judges, and his backing of a pay raise commission bill for judges has been widely seen since 2010 as a precursor of his eventual advocacy for a similar bill for lawmakers, perhaps following the November 2012 elections. By law, legislators are prohibited from raising their own pay in the two-year sessions in which they have been elected. They have traditionally preferred to convene after elections and make arrangements for higher pay that would take effect in succeeding sessions. "As far as the public is concerned, we still have an economic situation that may militate against their feeling that the Legislature is entitled to a raise," Mr. Lentol said. "But I think it is very open and very possible to be done this year."
Quick Recommendations
Once its seven members were appointed by Governor Andrew Cuomo, Judge Lippman and legislative leaders, the commission made relatively quick work of making its recommendations. It took the commission just over two months to approve a plan that, barring any last minute action by the Legislature, will kick in on April 1. While seven members supported a raise, Mr. Mulholland joined Chief Judge Lippman's two appointees to the panel—Robert Fiske Jr., a senior counsel at Davis Polk & Wardwell and former Southern District U.S. attorney, and Ms. Wylde—in opposing the amount. Voting in favor were Mr. Thompson; investment advisor William Mulrow; Richard Cotton, general counsel of NBC-Universal; and former Assembly Democratic Majority Leader James Tallon. All were appointed by Mr. Cuomo, except Mr. Tallon, who was appointed by Mr. Silver. Mr. Fiske said he would have immediately increased the salaries of Supreme Court justices to $195,000—a raise of nearly 43 percent—to restore the purchasing power judges lost when their salaries were frozen for 13 years. The salaries of other judges would have increased proportionately. "At the final meeting, on the last day, the governor's people and [the Assembly speaker's] person said it should be the same as the federal judges, but not right away and should be phased in over three years with no increase in the fourth year," said Mr. Fiske. "I thought it should be [$195,000] but I didn't think it was unreasonable to say it should be the same as the federal judges, although I did think it was unreasonable to phase it in over two years." But while Mr. Fiske did not care for the result, he did approve of the process. "It certainly was vastly preferable to what would have happened if there hadn't been a commission," Mr. Fiske said. "If there hadn't been a commission, there might not have been any increase, and I certainly think there was a better increase with the commission than there would have been without it." Mr. Mulholland said he found the recommendation "exasperating" because it takes three years for Supreme Court justices to reach the pay grade of federal district judges, who have not received a raise for three years. "We were asked to cure an imbalance and what we really did was perpetuate it," Mr. Mulholland said. "Just based on inflation, [the raise to federal court parity] will be six years outdated." Mr. Tallon said he was put on the panel because of his knowledge of the Legislature and Albany politics, and insight into what could cause lawmakers to balk at the panel's recommendation. "The speaker made clear to me that this was on my shoulders," said Mr. Tallon. "The goal I had personally in all this was to get to a reasonable number, and not get to a place where this would result in a re-opening of a controversy. Once you re-open a controversy, we were just going to default back into the inability to do a decision." Mr. Mulholland said that while he was mindful of avoiding a recommendation that was so far-fetched that it would be rejected by the Legislature, the commission could have done much more for the judges without reaching that point. "To raise the judicial salaries out of proportion certainly would have been inappropriate and unreasonable," Mr. Mulholland said. "But the higher numbers that some members—myself included—were pushing for were not unreasonable." Still, Mr. Mulholland said the process proved workable. "The enabling legislation was excellent in that it endowed the commission with broad and sweeping powers to call in witnesses and use the other resources of government to collect information, to go around the state and canvass different parts of the population," he said. Mr. Mulholland suggested that next time around there should be more public sessions. But he stressed, as did other commission members, that nothing was done privately or in secret. Ms. Wylde said the only thing she would change procedurally going forward would be to start earlier, affording more opportunity for public input and analysis. "I would hopefully have a little more time, but I think this set a positive precedent," Ms. Wylde said. "I think the judiciary was generally satisfied with the outcome. They would have liked more, but it seemed everyone felt the process was far preferable to the kind of political logjam that existed before." Mr. Tallon said the commission was relatively unique in that it included representation from all three branches of government, reflecting "myriad motivations." "It worked reasonably well because we all understood that we wanted to get to 'yes,'" he said. "How to define 'yes' was a legitimate and open debate. We had some differences of opinion and they were expressed publicly. After a long period in the wilderness, the process got us to 'yes.'" John Caher can be contacted at jcaher@alm.com. Joel Stashenko can be contacted at jstashenko@alm.com.
Immigration Lawyer Slapped with $1.1 Million in Damages by Jury
Jury orders Morningside lawyer Alfred Placeres to pay man 1M for bungle
The New York Daily News by Erica Pearson - March 30, 2012
Alleged he let friend use his name to lend her immigrant service center the appearance of law office
A Civil Court jury this month ordered immigration Alfred Placeres to pay $1.1 million in damages to a Venezuelan man, who said he landed in an immigration detention center for more than a year, suffered a nervous breakdown and lost his job after Placeres bungled his case in 2004. Prominent Morningside Heights immigration attorney and small business booster Alfred Placeres has been lauded by Mayor Bloomberg and dished out advice on Telemundo. But this month, a Manhattan jury decided that Placeres owes a Venezuelan man a million dollars in damages after his case was bungled, landing him in immigration detention for more than a year. Placeres denies the allegations and says he plans to appeal. When engineer Jose Borges realized how long the feds might hold him in 2004, he had a nervous breakdown, he said. “I started freaking out. I started crying and screaming. I never did anything wrong, these people just took advantage of me,” said Borges, 41, who lives in Fair Lawn, N.J. “I just wanted to kill myself.” In the legal malpractice suit, Borges’ lawyer alleged Placeres let a paralegal friend use his name to give her Flatiron District immigrant service center the appearance of a legit law office. Placeres said he and the paralegal, Adela Ivan, had an above-board arrangement — she would do her clients’ immigration paperwork, but he would pitch in if they needed a lawyer to appear in court. He says that was clear to Borges from the beginning. “To me, the victim of all this is my reputation,” Placeres said. “She wasn’t doing anything on the sly . . . She was working on the immigration forms.” Placeres is president of umbrella group New York State Federation of Hispanic Chambers of Commerce. Bloomberg gave him a “Minority and Women-owned Business Enterprise Advocate of the Year” award in 2010. Ivan, whose Entra America business is now defunct, could not be reached for comment. Borges’ suit against her was dismissed based on statute of limitations and corporate immunity. Last year, New York passed a law requiring all notaries (“notario” in Spanish) or non-attorney immigration businesses to post a disclaimer saying they are not an attorney and cannot give legal advice on immigration or other matters. “He had been told that he was represented by a lawyer and it was just this woman pretending to be one,“ said Borges’ lawyer, Paul O’Dwyer. “Most of the papers that were filed in court were just basically gobbledygook. They made absolutely no sense.” Borges overstayed a tourist visa and came to Ivan for help; he was marrying a U.S. citizen and trying to fix his immigration status. According to Borges, Ivan repeatedly told him — saying the advice was coming from Placeres — not to attend a Newark court hearing. He was ordered deported for not showing up. Placeres says his plan was for Borges to show up without a lawyer so the judge would postpone it and give them more time. Borges, he says, made his own decision not to attend the hearing. Borges wound up spending more than 400 days in federal custody and lost his job at Alcoa Howmet because his work permit was revoked. During his year at a Jamaica, Queens, federal detention center, he was sent to nearby psychiatric facility Holliswood Hospital, paralyzed by depression and panic attacks. After Borges was released, in 2005, the feds said he had the right to stay. On March 2, a New York City Civil Court jury said Placeres owes him $1.10 million for his lost income and pain and suffering. epearson@nydailynews.com
The New York Daily News by Erica Pearson - March 30, 2012
Alleged he let friend use his name to lend her immigrant service center the appearance of law office
A Civil Court jury this month ordered immigration Alfred Placeres to pay $1.1 million in damages to a Venezuelan man, who said he landed in an immigration detention center for more than a year, suffered a nervous breakdown and lost his job after Placeres bungled his case in 2004. Prominent Morningside Heights immigration attorney and small business booster Alfred Placeres has been lauded by Mayor Bloomberg and dished out advice on Telemundo. But this month, a Manhattan jury decided that Placeres owes a Venezuelan man a million dollars in damages after his case was bungled, landing him in immigration detention for more than a year. Placeres denies the allegations and says he plans to appeal. When engineer Jose Borges realized how long the feds might hold him in 2004, he had a nervous breakdown, he said. “I started freaking out. I started crying and screaming. I never did anything wrong, these people just took advantage of me,” said Borges, 41, who lives in Fair Lawn, N.J. “I just wanted to kill myself.” In the legal malpractice suit, Borges’ lawyer alleged Placeres let a paralegal friend use his name to give her Flatiron District immigrant service center the appearance of a legit law office. Placeres said he and the paralegal, Adela Ivan, had an above-board arrangement — she would do her clients’ immigration paperwork, but he would pitch in if they needed a lawyer to appear in court. He says that was clear to Borges from the beginning. “To me, the victim of all this is my reputation,” Placeres said. “She wasn’t doing anything on the sly . . . She was working on the immigration forms.” Placeres is president of umbrella group New York State Federation of Hispanic Chambers of Commerce. Bloomberg gave him a “Minority and Women-owned Business Enterprise Advocate of the Year” award in 2010. Ivan, whose Entra America business is now defunct, could not be reached for comment. Borges’ suit against her was dismissed based on statute of limitations and corporate immunity. Last year, New York passed a law requiring all notaries (“notario” in Spanish) or non-attorney immigration businesses to post a disclaimer saying they are not an attorney and cannot give legal advice on immigration or other matters. “He had been told that he was represented by a lawyer and it was just this woman pretending to be one,“ said Borges’ lawyer, Paul O’Dwyer. “Most of the papers that were filed in court were just basically gobbledygook. They made absolutely no sense.” Borges overstayed a tourist visa and came to Ivan for help; he was marrying a U.S. citizen and trying to fix his immigration status. According to Borges, Ivan repeatedly told him — saying the advice was coming from Placeres — not to attend a Newark court hearing. He was ordered deported for not showing up. Placeres says his plan was for Borges to show up without a lawyer so the judge would postpone it and give them more time. Borges, he says, made his own decision not to attend the hearing. Borges wound up spending more than 400 days in federal custody and lost his job at Alcoa Howmet because his work permit was revoked. During his year at a Jamaica, Queens, federal detention center, he was sent to nearby psychiatric facility Holliswood Hospital, paralyzed by depression and panic attacks. After Borges was released, in 2005, the feds said he had the right to stay. On March 2, a New York City Civil Court jury said Placeres owes him $1.10 million for his lost income and pain and suffering. epearson@nydailynews.com
Thursday, March 29, 2012
The Selective Hearing of the Truth
Refusal to Hear Confession Expert Upheld
The New York Law Journal by Joel Stashenko - March 30, 2012
ALBANY, NY - In a case of first impression, the state Court of Appeals ruled that trial judges are not required in all matters to let jurors hear expert testimony about the reliability of a defendant's confession. The court voted 5-2 to affirm Queens Supreme Court Justice Michael B. Aloise's (See Profile) decision not to conduct a Frye hearing into whether to admit an expert's testimony about admissions made by defendant Khemwattie Bedessie. Police said Ms. Bedessie, a former teacher's assistant, acknowledged both touching the penis of a 4-year-old in her care and placing the boy's hand over her partially bare breast at Vada's Learning World in Queens in January and February 2006. Ms. Bedessie, who contended that she had become worn down under police questioning and did not read the confession she signed, was sentenced to 20 years in prison for rape, sexual abuse and other charges. The woman, now 41, is is not eligible for parole until 2024. At her 2007 trial, Ms. Bedessie's attorneys unsuccessfully sought to call an expert in false confessions, Richard J. Ofshe. But in People v. Bedessie, 46, the Court of Appeals said on March 29 that such testimony was not germane to the case and was properly excluded. Justice Aloise "reasoned that this was unnecessary because Dr. Ofshe's expert testimony was not relevant and [not] likely to assist the jurors in any way," Judge Susan Phillips Read (See Profile) wrote for the majority. "He noted in particular that the jurors, based on their own life experiences, were competent to assess the reliability of defendant's confession, and, indeed, the expert's testimony threatened to usurp the jury's function." Mr. Ofshe is psychology professor emeritus at the University of California-Berkeley and the author of several books and articles on the perils of trusting in self-incrimination by defendants. But Judge Read said the body of Mr. Ofshe's anticipated testimony in the Bedessie case was "filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant's version of her interrogation" with police. The judge acknowledged that the "phenomenon of false confessions is genuine" and has "moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom." But she noted the fact that only one of 28 prospective jurors assembled for Ms. Bedessie's trial said beforehand that they could not set aside the possible guilt of a defendant who admitted to a crime showed an understanding that a defendant's confession is not necessarily true.
"False confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system," Judge Read wrote. "While the expert may not testify as to whether a particular defendant's confession was or was not reliable, the expert's proffer must be relevant to the defendant and interrogation before the court. Dr. Ofshe's proffer does not meet this standard," she added. Judge Read ruled that the template laid down by the Court of Appeals in People v. Lee, 96 NY2d 157 (2001) for the admissibility of expert psychological testimony on the reliability of eyewitness testimony is "instructive" about defendant confessions as well. In Lee, the Court said the admissibility of such expert testimony should be at the "sound discretion" of the trial court, which is to be guided by "whether the proferred expert testimony would aid a lay jury in reaching a verdict." Lee also directed that since expert testimony "may involve novel scientific theories and techniques, a trial court may need to determine whether the proferred expert testimony is generally accepted by the relevant scientific community." As to the Bedessie matter, Judge Read wrote that the alleged victim's testimony essentially corroborated Ms. Bedessie's confession as to both her identity and when the molestation occurred. There was not enough evidence to show that police, the boy's mother or other adults were overly suggestive in encouraging the boy to identify Ms. Bedessie as his assailant, the Court concluded. "Whether or not his allegation alone was sufficient reason for the judge to deny defendant's application [for a Frye hearing], Dr. Ofshe's proffer had nothing to say that was relevant to the circumstances of this case," Judge Read wrote. "The judge therefore did not abuse his discretion when he determined that Dr. Ofshe's testimony would not assist the jury in evaluating the voluntariness and truthfulness of defendant's confession or reaching a verdict." Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo, Robert S. Smith and Eugene F. Pigott Jr. joined in the majority. In dissent, Judge Theodore T. Jones Jr. said the majority had "curiously" concluded that Mr. Ofshe's testimony was not relevant. At the least, the prospect of what the expert could add to the case should have been considered at a Frye hearing, he wrote. "Here, the proffer was made by a highly qualified individual as demonstrated by his curriculum vitae, who had previously testified in numerous cases where defendant raised the reliability of a confession as an issue," Judge Jones said. "The proffer involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession." Chief Judge Jonathan Lippman joined in the dissent. Ms. Bedessie was represented by Ronald L. Kuby. Queens Assistant District Attorney Laura T. Ross argued for the prosecution. "We are pleased that the Court affirmed the conviction and are grateful that the child at the center of this case will not have to re-live the traumatizing experience he suffered by again having to testify in court," Queens District Attorney Richard Brown said in a statement.
'Inverse Condemnation'
In another ruling, the Court ruled 7-0 that an "inverse condemnation" claim could continue against Verizon by customers who claimed they deserved compensation for the positioning of communal phone boxes on structures. Corsello v. Verizon New York, 51, was initiated by William and Evelyn Corsello, owners of a four-unit apartment building in Brooklyn, who claimed starting in 2007 in a putative class action suit that they should be paid for the placing of a "rear terminal" on the back wall to distribute phone lines to customers who lived in the building. The lower court refused to dismiss the claim that the placement of the phone box represented an "inverse condemnation," which means Verizon was using the homeowner's property for its own gain without compensation. But it dismissed the Corsellos' claim unjust enrichment. An unanimous Appellate Division, Second Department, panel dismissed the claim for inverse condemnation, but reinstated it for unjust enrichment. The Second Department panel held that the plaintiffs had sufficiently stated a claim for inverse condemnation, but that the action was barred by the statute of limitations (NYLJ, Sept. 21, 2010). But the Court of Appeals reinstated the inverse condemnation claim, while ruling against the unjust enrichment cause of action. Writing for the Court, Judge Smith rejected Verizon's argument that it has the power to decide to exercise its power of eminent domain over the property where the phone boxes were placed. "Such a limitation on the rights of property owners would be not only inconsistent with modern authorities, but also unfair," Judge Smith wrote. "It would invite an entity having the power of eminent domain to occupy property without risking more than damages for a temporary trespass, and to decide at a later date whether to acquire the property or abandon it." Judge Smith said the practice violated Real Property Law §261, which states that no grant of authority should be assumed to be given to the attachment of any "wire or cable used for any telegraph, telephone, electric light or other electric purpose" without express permission. "The thrust" of Real Property Law 261 "is that a company may not unlawfully attach its wires or cables to private property and then, by lapse of time, deprive the property owner of any remedy for the unlawful act," the court said. Patrick F. Philbin of Kirland & Ellis represented Verizon. David Wise of Babylon argued for the plaintiffs.
Police Perjury
Also on March 29, the Court unanimously upheld a finding by the Appellate Division, First Department, that former New York City police detective Christopher Perino was guilty of perjury for denying that he had not interrogated attempted-murder suspect Erik Crespo in the Bronx in 2005 before Mr. Crespo made what he characterized as a "spontaneous admission" to his mother. Unbeknowst to Mr. Perino, Mr. Crespo taped the interview on Mr. Crespo's MP3 player and later caught the detective in some apparent misstatements about the conversations. In an opinion by Justice Pigott, the Court agreed with the Appellate Division, First Department, that, while some counts of perjury should be reduced from first to third degree, the evidence pointed to misstatements that Mr. Perino made under oath while describing his interview with Mr. Crespo. The decision rejected appeals by both Mr. Perino and the prosecution. Mr. Perino argued that the admission of Mr. Crespo's "spontaneous" statement was not material to the issues being litigated at Mr. Crespo's trial, having been settled at a suppression hearing. Therefore, he contended, his own testimony could not be considered perjury. But the Court held that Mr. Perino's testimony was "relevant to the jury's determination on whether Crespo's statement to his mother was truly spontaneous and voluntary or whether it was triggered by police conduct that could reasonably have been anticipated to evoke such a statement." Bronx Assistant District Attorney Christoper Blira-Koessler argued for the prosecution. Ira Feinberg of Hogan Lovells represented Mr. Perino. Mr. Perino, a 19-year police veteran, was originally sentenced to four months in jail, which the First Department reduced to two months, but he has remained free on bail pending appeal. Joel Stashenko can be contacted at jstashenko@alm.com.
The New York Law Journal by Joel Stashenko - March 30, 2012
ALBANY, NY - In a case of first impression, the state Court of Appeals ruled that trial judges are not required in all matters to let jurors hear expert testimony about the reliability of a defendant's confession. The court voted 5-2 to affirm Queens Supreme Court Justice Michael B. Aloise's (See Profile) decision not to conduct a Frye hearing into whether to admit an expert's testimony about admissions made by defendant Khemwattie Bedessie. Police said Ms. Bedessie, a former teacher's assistant, acknowledged both touching the penis of a 4-year-old in her care and placing the boy's hand over her partially bare breast at Vada's Learning World in Queens in January and February 2006. Ms. Bedessie, who contended that she had become worn down under police questioning and did not read the confession she signed, was sentenced to 20 years in prison for rape, sexual abuse and other charges. The woman, now 41, is is not eligible for parole until 2024. At her 2007 trial, Ms. Bedessie's attorneys unsuccessfully sought to call an expert in false confessions, Richard J. Ofshe. But in People v. Bedessie, 46, the Court of Appeals said on March 29 that such testimony was not germane to the case and was properly excluded. Justice Aloise "reasoned that this was unnecessary because Dr. Ofshe's expert testimony was not relevant and [not] likely to assist the jurors in any way," Judge Susan Phillips Read (See Profile) wrote for the majority. "He noted in particular that the jurors, based on their own life experiences, were competent to assess the reliability of defendant's confession, and, indeed, the expert's testimony threatened to usurp the jury's function." Mr. Ofshe is psychology professor emeritus at the University of California-Berkeley and the author of several books and articles on the perils of trusting in self-incrimination by defendants. But Judge Read said the body of Mr. Ofshe's anticipated testimony in the Bedessie case was "filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant's version of her interrogation" with police. The judge acknowledged that the "phenomenon of false confessions is genuine" and has "moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom." But she noted the fact that only one of 28 prospective jurors assembled for Ms. Bedessie's trial said beforehand that they could not set aside the possible guilt of a defendant who admitted to a crime showed an understanding that a defendant's confession is not necessarily true.
"False confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system," Judge Read wrote. "While the expert may not testify as to whether a particular defendant's confession was or was not reliable, the expert's proffer must be relevant to the defendant and interrogation before the court. Dr. Ofshe's proffer does not meet this standard," she added. Judge Read ruled that the template laid down by the Court of Appeals in People v. Lee, 96 NY2d 157 (2001) for the admissibility of expert psychological testimony on the reliability of eyewitness testimony is "instructive" about defendant confessions as well. In Lee, the Court said the admissibility of such expert testimony should be at the "sound discretion" of the trial court, which is to be guided by "whether the proferred expert testimony would aid a lay jury in reaching a verdict." Lee also directed that since expert testimony "may involve novel scientific theories and techniques, a trial court may need to determine whether the proferred expert testimony is generally accepted by the relevant scientific community." As to the Bedessie matter, Judge Read wrote that the alleged victim's testimony essentially corroborated Ms. Bedessie's confession as to both her identity and when the molestation occurred. There was not enough evidence to show that police, the boy's mother or other adults were overly suggestive in encouraging the boy to identify Ms. Bedessie as his assailant, the Court concluded. "Whether or not his allegation alone was sufficient reason for the judge to deny defendant's application [for a Frye hearing], Dr. Ofshe's proffer had nothing to say that was relevant to the circumstances of this case," Judge Read wrote. "The judge therefore did not abuse his discretion when he determined that Dr. Ofshe's testimony would not assist the jury in evaluating the voluntariness and truthfulness of defendant's confession or reaching a verdict." Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo, Robert S. Smith and Eugene F. Pigott Jr. joined in the majority. In dissent, Judge Theodore T. Jones Jr. said the majority had "curiously" concluded that Mr. Ofshe's testimony was not relevant. At the least, the prospect of what the expert could add to the case should have been considered at a Frye hearing, he wrote. "Here, the proffer was made by a highly qualified individual as demonstrated by his curriculum vitae, who had previously testified in numerous cases where defendant raised the reliability of a confession as an issue," Judge Jones said. "The proffer involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession." Chief Judge Jonathan Lippman joined in the dissent. Ms. Bedessie was represented by Ronald L. Kuby. Queens Assistant District Attorney Laura T. Ross argued for the prosecution. "We are pleased that the Court affirmed the conviction and are grateful that the child at the center of this case will not have to re-live the traumatizing experience he suffered by again having to testify in court," Queens District Attorney Richard Brown said in a statement.
'Inverse Condemnation'
In another ruling, the Court ruled 7-0 that an "inverse condemnation" claim could continue against Verizon by customers who claimed they deserved compensation for the positioning of communal phone boxes on structures. Corsello v. Verizon New York, 51, was initiated by William and Evelyn Corsello, owners of a four-unit apartment building in Brooklyn, who claimed starting in 2007 in a putative class action suit that they should be paid for the placing of a "rear terminal" on the back wall to distribute phone lines to customers who lived in the building. The lower court refused to dismiss the claim that the placement of the phone box represented an "inverse condemnation," which means Verizon was using the homeowner's property for its own gain without compensation. But it dismissed the Corsellos' claim unjust enrichment. An unanimous Appellate Division, Second Department, panel dismissed the claim for inverse condemnation, but reinstated it for unjust enrichment. The Second Department panel held that the plaintiffs had sufficiently stated a claim for inverse condemnation, but that the action was barred by the statute of limitations (NYLJ, Sept. 21, 2010). But the Court of Appeals reinstated the inverse condemnation claim, while ruling against the unjust enrichment cause of action. Writing for the Court, Judge Smith rejected Verizon's argument that it has the power to decide to exercise its power of eminent domain over the property where the phone boxes were placed. "Such a limitation on the rights of property owners would be not only inconsistent with modern authorities, but also unfair," Judge Smith wrote. "It would invite an entity having the power of eminent domain to occupy property without risking more than damages for a temporary trespass, and to decide at a later date whether to acquire the property or abandon it." Judge Smith said the practice violated Real Property Law §261, which states that no grant of authority should be assumed to be given to the attachment of any "wire or cable used for any telegraph, telephone, electric light or other electric purpose" without express permission. "The thrust" of Real Property Law 261 "is that a company may not unlawfully attach its wires or cables to private property and then, by lapse of time, deprive the property owner of any remedy for the unlawful act," the court said. Patrick F. Philbin of Kirland & Ellis represented Verizon. David Wise of Babylon argued for the plaintiffs.
Police Perjury
Also on March 29, the Court unanimously upheld a finding by the Appellate Division, First Department, that former New York City police detective Christopher Perino was guilty of perjury for denying that he had not interrogated attempted-murder suspect Erik Crespo in the Bronx in 2005 before Mr. Crespo made what he characterized as a "spontaneous admission" to his mother. Unbeknowst to Mr. Perino, Mr. Crespo taped the interview on Mr. Crespo's MP3 player and later caught the detective in some apparent misstatements about the conversations. In an opinion by Justice Pigott, the Court agreed with the Appellate Division, First Department, that, while some counts of perjury should be reduced from first to third degree, the evidence pointed to misstatements that Mr. Perino made under oath while describing his interview with Mr. Crespo. The decision rejected appeals by both Mr. Perino and the prosecution. Mr. Perino argued that the admission of Mr. Crespo's "spontaneous" statement was not material to the issues being litigated at Mr. Crespo's trial, having been settled at a suppression hearing. Therefore, he contended, his own testimony could not be considered perjury. But the Court held that Mr. Perino's testimony was "relevant to the jury's determination on whether Crespo's statement to his mother was truly spontaneous and voluntary or whether it was triggered by police conduct that could reasonably have been anticipated to evoke such a statement." Bronx Assistant District Attorney Christoper Blira-Koessler argued for the prosecution. Ira Feinberg of Hogan Lovells represented Mr. Perino. Mr. Perino, a 19-year police veteran, was originally sentenced to four months in jail, which the First Department reduced to two months, but he has remained free on bail pending appeal. Joel Stashenko can be contacted at jstashenko@alm.com.
Wednesday, March 28, 2012
Top Ethical Attorney Eliot Spitzer and Friends in News Again
NYPD cop convicted of sexual assault, but jury stuck on rape charge
The New York Daily News by Melissa Grace, Barbara Ross and Corky Siemaszko - March 28, 2012
Juror Lloyd Constantine admits ties to Manhattan District Attorney Cy Vance
Officer Michael Pena was convicted of sexually assault, but the jury deadlocked on whether he raped a Bronx school teacher. A jury found a city cop guilty of sexual assault Tuesday but deadlocked on whether he raped a Bronx schoolteacher after the trial was thrown into chaos by revelations that one juror was a tennis buddy of the Manhattan DA. That juror was Lloyd Constantine, a prominent lawyer and player in city legal circles who had once been an adviser to disgraced former Gov. Eliot Spitzer. Constantine never mentioned he and Cy Vance Jr. were pals — or that he gave the district attorney a $5,000 campaign contribution in 2008 — during jury selection. When asked why, Constantine brazenly told the judge he felt he wouldn’t be biased either way and that he’d passed his “own subjective test.” The discovery of Constantine’s connections came just before the jury handed down a partial verdict against the officer, finding him guilty of predatory sexual assault. Pena was fired by the NYPD and will lose his pension after his felony conviction. He sat silently as the eight men and four women on the jury announced their verdict. But his 25-year-old victim burst into tears when the jury declared it still hadn’t reached a verdict on the four rape counts. The fact that Pena was convicted of forcing her to submit to oral and anal sex — six charges that could send him to prison for life — appeared to be little comfort to her. Constantine’s presence on the panel was all the more surprising because the DA himself watched the closing arguments in the trial and his buddy sat in the front row of the jury box. Vance’s spokeswoman said the DA didn’t spot Constantine in the courtroom. She said they began looking into him after another juror complained he was trashing the prosecution’s case and mentioned that he worked with Richard Aborn, who ran against Vance for DA in 2009. When they realized Constantine’s link to Vance, they immediately reported the potential conflict of interest to Manhattan Supreme Court Justice Richard Carruthers. Pena’s lawyer said he too doubts Vance would have been able to see Constantine. “Vance is going to start eyeballing the jury?” Ephraim Savitt said. “He was all the way back there in the back of the courtroom and the place was packed.” Constantine’s chutzpah came as no surprise to Darren Dopp, a former Spitzer spokesman. He said Constantine was one of Spitzer’s advisers. “He is not a team player and he was a very arrogant individual,” said Dopp. “Lloyd would shrug at being called arrogant. He would say I have a right to be.” Dopp said most Spitzer hands have shunned Constantine since he published a memoir blaming the governor’s downfall on the fact they stopped playing squash together. “When Lloyd joined that team he became a very disruptive force,” said Dopp, who is also on the outs with Spitzer. Constantine and the rest of the bitterly divided jury will resume deliberating after Carruthers told them he was not ready to settle for a partial verdict. “Please be respectful to one another,” he said. But Carruthers allowed the alternates to go home — and they wasted no time escaping the courthouse. “It was a difficult process, it was trying,” said Pat Lee as she rushed out. Pena, 27, was charged with 10 counts total. He has admitted assaulting the woman and threatening to shoot her in the face but denies raping her. Savitt said they have not decided yet whether they will appeal the convictions, but might ask for a mistrial if the jury doesn’t reach a final verdict. “There is a lot of bickering going on,” Savitt added. “It seems to be a remaking of ‘12 Angry Men.’” With Kerry Burke, Glenn Blain and Rich Schapiro - mgrace@nydailynews.com
CLICK HERE FOR BACKGROUND STORY, "TAMMANY HALL II BANGS NY GOVERNOR."
Juror Lloyd Constantine admits ties to Manhattan District Attorney Cy Vance
Officer Michael Pena was convicted of sexually assault, but the jury deadlocked on whether he raped a Bronx school teacher. A jury found a city cop guilty of sexual assault Tuesday but deadlocked on whether he raped a Bronx schoolteacher after the trial was thrown into chaos by revelations that one juror was a tennis buddy of the Manhattan DA. That juror was Lloyd Constantine, a prominent lawyer and player in city legal circles who had once been an adviser to disgraced former Gov. Eliot Spitzer. Constantine never mentioned he and Cy Vance Jr. were pals — or that he gave the district attorney a $5,000 campaign contribution in 2008 — during jury selection. When asked why, Constantine brazenly told the judge he felt he wouldn’t be biased either way and that he’d passed his “own subjective test.” The discovery of Constantine’s connections came just before the jury handed down a partial verdict against the officer, finding him guilty of predatory sexual assault. Pena was fired by the NYPD and will lose his pension after his felony conviction. He sat silently as the eight men and four women on the jury announced their verdict. But his 25-year-old victim burst into tears when the jury declared it still hadn’t reached a verdict on the four rape counts. The fact that Pena was convicted of forcing her to submit to oral and anal sex — six charges that could send him to prison for life — appeared to be little comfort to her. Constantine’s presence on the panel was all the more surprising because the DA himself watched the closing arguments in the trial and his buddy sat in the front row of the jury box. Vance’s spokeswoman said the DA didn’t spot Constantine in the courtroom. She said they began looking into him after another juror complained he was trashing the prosecution’s case and mentioned that he worked with Richard Aborn, who ran against Vance for DA in 2009. When they realized Constantine’s link to Vance, they immediately reported the potential conflict of interest to Manhattan Supreme Court Justice Richard Carruthers. Pena’s lawyer said he too doubts Vance would have been able to see Constantine. “Vance is going to start eyeballing the jury?” Ephraim Savitt said. “He was all the way back there in the back of the courtroom and the place was packed.” Constantine’s chutzpah came as no surprise to Darren Dopp, a former Spitzer spokesman. He said Constantine was one of Spitzer’s advisers. “He is not a team player and he was a very arrogant individual,” said Dopp. “Lloyd would shrug at being called arrogant. He would say I have a right to be.” Dopp said most Spitzer hands have shunned Constantine since he published a memoir blaming the governor’s downfall on the fact they stopped playing squash together. “When Lloyd joined that team he became a very disruptive force,” said Dopp, who is also on the outs with Spitzer. Constantine and the rest of the bitterly divided jury will resume deliberating after Carruthers told them he was not ready to settle for a partial verdict. “Please be respectful to one another,” he said. But Carruthers allowed the alternates to go home — and they wasted no time escaping the courthouse. “It was a difficult process, it was trying,” said Pat Lee as she rushed out. Pena, 27, was charged with 10 counts total. He has admitted assaulting the woman and threatening to shoot her in the face but denies raping her. Savitt said they have not decided yet whether they will appeal the convictions, but might ask for a mistrial if the jury doesn’t reach a final verdict. “There is a lot of bickering going on,” Savitt added. “It seems to be a remaking of ‘12 Angry Men.’” With Kerry Burke, Glenn Blain and Rich Schapiro - mgrace@nydailynews.com
CLICK HERE FOR BACKGROUND STORY, "TAMMANY HALL II BANGS NY GOVERNOR."
Tuesday, March 27, 2012
The Corrupt Picking of Judges
Manhattan Dems have gone behind closed doors to pick judges
The New York Daily News by Julia Zanthos - March 11, 2012
Highly-qualified candidate excluded from surrogate race
As Manhattan Democratic boss, Assemblyman Keith Wright has damaged the judicial screening process. Assemblyman Keith Wright, Manhattan’s Democratic county leader, has meddled with the process of choosing judges since taking over in 2009. Before Wright, screening panelists’ names were made public in advance. He has kept those identities under wraps — hiding them or putting them out belatedly, on illegible lists. Worse, Wright’s screening panel just reported out only two candidates for an open surrogate judgeship — the most lucrative judicial plum there is — approving a pair of Civil Court judges. The panel could have named three. Left off: The highly qualified John Reddy. As counsel to the public administrator, Reddy is one the top trust and estates lawyers around, and was deemed most highly qualified for surrogate four years ago. What changed? Wright’s panel. Reddy’s absence fuels suspicion that the semi-secret panel was overtly political. Judicial selection should be about public trust — not partisan spoils.
The New York Daily News by Julia Zanthos - March 11, 2012
Highly-qualified candidate excluded from surrogate race
As Manhattan Democratic boss, Assemblyman Keith Wright has damaged the judicial screening process. Assemblyman Keith Wright, Manhattan’s Democratic county leader, has meddled with the process of choosing judges since taking over in 2009. Before Wright, screening panelists’ names were made public in advance. He has kept those identities under wraps — hiding them or putting them out belatedly, on illegible lists. Worse, Wright’s screening panel just reported out only two candidates for an open surrogate judgeship — the most lucrative judicial plum there is — approving a pair of Civil Court judges. The panel could have named three. Left off: The highly qualified John Reddy. As counsel to the public administrator, Reddy is one the top trust and estates lawyers around, and was deemed most highly qualified for surrogate four years ago. What changed? Wright’s panel. Reddy’s absence fuels suspicion that the semi-secret panel was overtly political. Judicial selection should be about public trust — not partisan spoils.
Time to Demand Justice
Commentary: Trayvon Martin case underscores parents' need to demand justice
The Journal News - OPINION - March 26, 2012
Trayvon Martin, 17, was shot to death Feb. 26 by a neighborhood watch leader in Sanford, a small, gated Florida community. Martin left his father’s home to buy candy and iced tea for his little brother at a nearby 7-Eleven. The young black man was walking back — wearing a hoodie in the rain — when George Zimmerman spotted him and called police to report a “suspicious person.” Against the advice of the 911 dispatcher, Zimmerman followed Martin. Zimmerman told the Sanford police that he shot the teen in self-defense because he was fearful for his life, in accordance with Florida’s controversial “Stand Your Ground” law. The case has stirred demonstrations, with marchers wearing hoodies, carrying bags of Skittles and cans of ice tea, as Martin was when he was killed; probes into local police inaction and botched investigation in the face of a deadly shooting; and examinations of the relationship between young black men and law enforcement. “I’ve always let him know we as African Americans get stereotyped,” Tracy Martin, Trayvon’s mother, told USA Today. “I told him that society is cruel.” This is a parent’s worst nightmare: Your child fails to return home and you find out from law enforcement it is because he has been gunned down allegedly by the local neighborhood watch vigilante. To compound matters, you listen helplessly as he cries out for help on a 911 call seconds before the shooting. This is the reality for the parents of Trayvon Martin. Martin’s only “crime” was walking while black in Sanford, Fla. And that was enough to cost him his life. The truth of the matter is Martin has had a target on his back since he came into the world. According to the Kaiser Family Foundation, black men die at a rate that is at least 1.5 times the rate of young white and Hispanic men, and almost three times the rate of young Asian men. For young black men, the leading cause of death is homicide. In our society, there are very few choices for many black men and boys. It’s either prison, where they represent more than 40 percent of inmates, or the cemetery. And those who do manage to dodge the prison or the morgue are often treated as rare specimens or idolized, like President Barack Obama.
Wake-up call
The media don’t help matters. The portrayal of black men as violent criminals, thugs and vagrants paves the way for acts such as the one perpetrated against Martin. The shooting of Martin should be a wake-up call to our collective moral consciousness. It is not OK to criminalize and demonize children. The person who killed Martin should be arrested and charged. It’s appalling that this hasn’t happened in the three weeks since the shooting. We must rise up as parents, concerned citizens and moral communities. We must insist upon justice, regardless of race or background. And we must offer all American children the opportunity to reach their full potential. The writer is an assistant research professor and the executive director of the Women of Color Policy Network at the Robert F. Wagner Graduate School of Public Service at New York University.
The Journal News - OPINION - March 26, 2012
Trayvon Martin, 17, was shot to death Feb. 26 by a neighborhood watch leader in Sanford, a small, gated Florida community. Martin left his father’s home to buy candy and iced tea for his little brother at a nearby 7-Eleven. The young black man was walking back — wearing a hoodie in the rain — when George Zimmerman spotted him and called police to report a “suspicious person.” Against the advice of the 911 dispatcher, Zimmerman followed Martin. Zimmerman told the Sanford police that he shot the teen in self-defense because he was fearful for his life, in accordance with Florida’s controversial “Stand Your Ground” law. The case has stirred demonstrations, with marchers wearing hoodies, carrying bags of Skittles and cans of ice tea, as Martin was when he was killed; probes into local police inaction and botched investigation in the face of a deadly shooting; and examinations of the relationship between young black men and law enforcement. “I’ve always let him know we as African Americans get stereotyped,” Tracy Martin, Trayvon’s mother, told USA Today. “I told him that society is cruel.” This is a parent’s worst nightmare: Your child fails to return home and you find out from law enforcement it is because he has been gunned down allegedly by the local neighborhood watch vigilante. To compound matters, you listen helplessly as he cries out for help on a 911 call seconds before the shooting. This is the reality for the parents of Trayvon Martin. Martin’s only “crime” was walking while black in Sanford, Fla. And that was enough to cost him his life. The truth of the matter is Martin has had a target on his back since he came into the world. According to the Kaiser Family Foundation, black men die at a rate that is at least 1.5 times the rate of young white and Hispanic men, and almost three times the rate of young Asian men. For young black men, the leading cause of death is homicide. In our society, there are very few choices for many black men and boys. It’s either prison, where they represent more than 40 percent of inmates, or the cemetery. And those who do manage to dodge the prison or the morgue are often treated as rare specimens or idolized, like President Barack Obama.
Wake-up call
The media don’t help matters. The portrayal of black men as violent criminals, thugs and vagrants paves the way for acts such as the one perpetrated against Martin. The shooting of Martin should be a wake-up call to our collective moral consciousness. It is not OK to criminalize and demonize children. The person who killed Martin should be arrested and charged. It’s appalling that this hasn’t happened in the three weeks since the shooting. We must rise up as parents, concerned citizens and moral communities. We must insist upon justice, regardless of race or background. And we must offer all American children the opportunity to reach their full potential. The writer is an assistant research professor and the executive director of the Women of Color Policy Network at the Robert F. Wagner Graduate School of Public Service at New York University.
The Illusions of a Post-Racial Era
The illusions of a post-racial era
The New York Daily News by Chauncey Devega - March 25, 2012
The Trayvon Martin tragedy lays waste to the notion of a color-blind America
Did he die because he was black? On Friday, President Obama himself weighed in on the killing of Trayvon Martin by George Zimmerman in a gated community in Florida: “If I had a son, he’d look like Trayvon,” he said. The implications of that statement are clear. If a black man killed a white kid for holding a bag of Skittles, he would be in jail. If a black man killed an innocent white teen in an act of vigilante justice, he would also not be walking free. And yet there is a temptation in supposedly color-blind 21st century America to think of racism as a thing of the past. In 2004, Obama famously said, “There is not a Black America and a White America and Latino America and Asian America — there’s the United States of America.” Maybe he spoke too soon. True, we are beyond overt acts of intolerance: burning crosses, white robes, lynchings. But racism is more than this: It is structural and institutional. Today’s racism teaches subtle lessons about whose personhood is to be protected — and which people are deemed expendable. Zimmerman breathed in this toxic ether. He seems to have learned its lessons well. I think that Zimmerman killed Martin because he knew, either on a conscious or subconscious level, that he could get away with it. This point needs reiteration: The lives of young people of color are systematically devalued in American society. In New York City, for example, black and Latino youth are routinely subject to racial profiling and police harassment under the policy of stop-and-frisk. Young black and brown people are faced with consistent threats and intrusions on their civil liberties by police authorities — even though many studies have shown that there is no greater yield of contraband when minorities are stopped. And as documented by The Sentencing Project and discussed in Michelle Alexander’s recent book, “The New Jim Crow,” when charged with the same crimes as whites, blacks are more likely to receive harsher sentences. Researchers have found that whites are more likely to imagine that harmless objects (phones, keys, candy bars, wallets), when held in the hands of black people, are guns or other weapons. As the 1999 killing of Amadou Diallo in the Bronx demonstrated, implicit bias and subconscious racism can have deadly consequences. The public schools that black youth attend are more likely to be underserved and resource-poor. All things being equal, black children are also more likely to face suspension, be stigmatized as “special education” or find themselves placed in lower educational tracks than their white peers. Because of disparities in access to health care, black people live significantly shorter lives than whites, dying 5-7 years earlier. In the housing market, racial minorities were offered riskier and more expensive mortgages than whites — even when their credit scores were identical or better. The sum effect of these racist policies was the devastation of the black and brown middle classes. Zimmerman may not have had access to these facts, but he was certainly influenced by the values they represent: Black youth, and the communities to which they belong, are less valued than those of white Americans. America is a society still sick with racism. The murder of Trayvon Martin, and the assumption likely made by George Zimmerman that he could kill a black youth at will, is proof of this illness. That Zimmerman is still walking free, and some are rallying to his defense, demonstrates how far America has yet to go in order to exorcise these demons from its collective psyche. DeVega is the editor and founder of the blog “We Are Respectable Negroes” and a contributor to Alternet and Salon.
The New York Daily News by Chauncey Devega - March 25, 2012
The Trayvon Martin tragedy lays waste to the notion of a color-blind America
Did he die because he was black? On Friday, President Obama himself weighed in on the killing of Trayvon Martin by George Zimmerman in a gated community in Florida: “If I had a son, he’d look like Trayvon,” he said. The implications of that statement are clear. If a black man killed a white kid for holding a bag of Skittles, he would be in jail. If a black man killed an innocent white teen in an act of vigilante justice, he would also not be walking free. And yet there is a temptation in supposedly color-blind 21st century America to think of racism as a thing of the past. In 2004, Obama famously said, “There is not a Black America and a White America and Latino America and Asian America — there’s the United States of America.” Maybe he spoke too soon. True, we are beyond overt acts of intolerance: burning crosses, white robes, lynchings. But racism is more than this: It is structural and institutional. Today’s racism teaches subtle lessons about whose personhood is to be protected — and which people are deemed expendable. Zimmerman breathed in this toxic ether. He seems to have learned its lessons well. I think that Zimmerman killed Martin because he knew, either on a conscious or subconscious level, that he could get away with it. This point needs reiteration: The lives of young people of color are systematically devalued in American society. In New York City, for example, black and Latino youth are routinely subject to racial profiling and police harassment under the policy of stop-and-frisk. Young black and brown people are faced with consistent threats and intrusions on their civil liberties by police authorities — even though many studies have shown that there is no greater yield of contraband when minorities are stopped. And as documented by The Sentencing Project and discussed in Michelle Alexander’s recent book, “The New Jim Crow,” when charged with the same crimes as whites, blacks are more likely to receive harsher sentences. Researchers have found that whites are more likely to imagine that harmless objects (phones, keys, candy bars, wallets), when held in the hands of black people, are guns or other weapons. As the 1999 killing of Amadou Diallo in the Bronx demonstrated, implicit bias and subconscious racism can have deadly consequences. The public schools that black youth attend are more likely to be underserved and resource-poor. All things being equal, black children are also more likely to face suspension, be stigmatized as “special education” or find themselves placed in lower educational tracks than their white peers. Because of disparities in access to health care, black people live significantly shorter lives than whites, dying 5-7 years earlier. In the housing market, racial minorities were offered riskier and more expensive mortgages than whites — even when their credit scores were identical or better. The sum effect of these racist policies was the devastation of the black and brown middle classes. Zimmerman may not have had access to these facts, but he was certainly influenced by the values they represent: Black youth, and the communities to which they belong, are less valued than those of white Americans. America is a society still sick with racism. The murder of Trayvon Martin, and the assumption likely made by George Zimmerman that he could kill a black youth at will, is proof of this illness. That Zimmerman is still walking free, and some are rallying to his defense, demonstrates how far America has yet to go in order to exorcise these demons from its collective psyche. DeVega is the editor and founder of the blog “We Are Respectable Negroes” and a contributor to Alternet and Salon.
We Are All Lawyers Today
How we're all lawyers on the health care law
The Washington Post by Jonathan Bernstein - OPINION - March 27, 2012
When it comes to major constitutional questions, such as those raised by the health care case before the Supreme Court this week, we’re all lawyers. Except, oddly enough, for the actual lawyers on the Supreme Court – and that may turn out to save health care reform. We’re all lawyers? Not lawyers as in experts on the law, precedent, and the Constitution. No, I mean lawyers as we think of lawyers in the popular imagination: willing to believe whatever is necessary in order to make the best case for our client. And since most of us, especially those of us who pay enough attention to politics to know about Supreme Court arguments, are partisans, that means that most of us have as our “clients” the positions our party takes on the underlying issue. What I mean is: there are vanishingly few people who believe that the Affordable Care Act was a terrific piece of legislation except that it is unfortunately unconstitutional. Nor are there more than a handful who believe that the ACA is certainly permitted by the Constitution, but is otherwise a terrible idea. And that’s consistent across almost all issue areas. Few indeed are those in the pro-life camp who believe Roe vs. Wade was correctly decided, or pro-choicers who believe that there is no Constitutional right to privacy that includes abortion. And yet, as with the health care example, there’s nothing particularly contradictory about believing, say, that abortion should be legal even though there doesn’t happen to be a Constitutional right to it. What should we learn from all of this? Mostly, that we shouldn’t take at all seriously anyone’s protests that what they’re doing is driven mainly by Constitutional doctrine. The strongest Tea Partiers out there will be happy to complain all day about the intrusiveness of the federal government…except that on the Second Amendment, they believe the courts have been quite right to enforce the right to bear arms against states’ preferences for gun control. That’s not to say that Americans don’t care about the Constitution: We certainly do, and probably we’re quite attached to most of the broad provisions of the Constitution, including the Bill of Rights, in the abstract. We just interpret it, in the particular, as allowing whatever we want it to allow and banning those things we want it to ban. Except, perhaps, those at the very extreme tip of the information curve: Constitutional specialists, including those on the Supreme Court. They may, ultimately, decide this one as partisans, but it’s far more likely that the justices will actually apply constitutional doctrine, regardless of what they believe about the substance of the case, than most ordinary citizens would. That doesn’t mean that the Court isn’t political – after all, the doctrines that each justice adopts may be very much shaped by the substantive implications it holds in many cases. And it’s true that some cases seem to be best explained by partisanship. But my guess is that judges in general, and Supreme Court justices in particular, are about the most likely people in the entire country to be able to live comfortably in those otherwise empty spaces in which they like the substance but find the bill unconstitutional or the other way around.
The Washington Post by Jonathan Bernstein - OPINION - March 27, 2012
When it comes to major constitutional questions, such as those raised by the health care case before the Supreme Court this week, we’re all lawyers. Except, oddly enough, for the actual lawyers on the Supreme Court – and that may turn out to save health care reform. We’re all lawyers? Not lawyers as in experts on the law, precedent, and the Constitution. No, I mean lawyers as we think of lawyers in the popular imagination: willing to believe whatever is necessary in order to make the best case for our client. And since most of us, especially those of us who pay enough attention to politics to know about Supreme Court arguments, are partisans, that means that most of us have as our “clients” the positions our party takes on the underlying issue. What I mean is: there are vanishingly few people who believe that the Affordable Care Act was a terrific piece of legislation except that it is unfortunately unconstitutional. Nor are there more than a handful who believe that the ACA is certainly permitted by the Constitution, but is otherwise a terrible idea. And that’s consistent across almost all issue areas. Few indeed are those in the pro-life camp who believe Roe vs. Wade was correctly decided, or pro-choicers who believe that there is no Constitutional right to privacy that includes abortion. And yet, as with the health care example, there’s nothing particularly contradictory about believing, say, that abortion should be legal even though there doesn’t happen to be a Constitutional right to it. What should we learn from all of this? Mostly, that we shouldn’t take at all seriously anyone’s protests that what they’re doing is driven mainly by Constitutional doctrine. The strongest Tea Partiers out there will be happy to complain all day about the intrusiveness of the federal government…except that on the Second Amendment, they believe the courts have been quite right to enforce the right to bear arms against states’ preferences for gun control. That’s not to say that Americans don’t care about the Constitution: We certainly do, and probably we’re quite attached to most of the broad provisions of the Constitution, including the Bill of Rights, in the abstract. We just interpret it, in the particular, as allowing whatever we want it to allow and banning those things we want it to ban. Except, perhaps, those at the very extreme tip of the information curve: Constitutional specialists, including those on the Supreme Court. They may, ultimately, decide this one as partisans, but it’s far more likely that the justices will actually apply constitutional doctrine, regardless of what they believe about the substance of the case, than most ordinary citizens would. That doesn’t mean that the Court isn’t political – after all, the doctrines that each justice adopts may be very much shaped by the substantive implications it holds in many cases. And it’s true that some cases seem to be best explained by partisanship. But my guess is that judges in general, and Supreme Court justices in particular, are about the most likely people in the entire country to be able to live comfortably in those otherwise empty spaces in which they like the substance but find the bill unconstitutional or the other way around.
Wednesday, March 21, 2012
Ex-Con Gets Law License While Political Retaliation Victims Still Suffer
Panel Admits Lawyer Convicted of Crimes in His 'Earlier Life'
The New York Law Journal by Brendan Pierson - March 21, 2012
A man who went to law school after he was imprisoned for nearly six years on charges he had dealt prescription drugs and tried to kill his ex-girlfriend in the 1980s has been admitted to practice in New York state courts after being repeatedly rebuffed over the last 17 years. Justice Peter Tom wrote in a 4-1 opinion for the Appellate Division, First Department on March 20 Justice Peter Tom wrote on March 20 in an 82-page 4-1 opinion that the crimes Neal E. Wiesner committed "in an earlier life" should no longer bar him from practicing in New York. Justices Angela M. Mazzarelli, Sallie Manzanet-Daniels and Nelson S. Román joined the opinion. Justice David B. Saxe, in an impassioned, 46-page dissent, said that Mr. Wiesner should not have been admitted because he still had not taken full responsibility for his actions. Mr. Wiesner, now in his late 50s, had already been admitted to practice in federal court in the Eastern, Western, Northern and Southern districts of New York and the Second and Third Circuit Courts of Appeal, in state and federal court in New Jersey and in federal tax court, according to the opinion. However, the First Department had denied him admission nine times because of his past crimes. Mr. Wiesner, who lives on Staten Island, had a troubled childhood. He became addicted to drugs at age 12, dropped out of high school at 16 and supported himself for a time by giving banjo lessons (NYLJ, May 12, 2006). Between 1980 and 1982, he ran a scheme in which he paid doctors to prescribe Quaaludes to patients on request. The scheme made millions of dollars, allowing Mr. Wiesner to live a lavish lifestyle, though he continued to use drugs heavily.
In 1983, he was arrested for allegedly holding his ex-girlfriend captive in her apartment for hours and attempting to shoot her when she escaped by jumping out of a second-story window, seriously injuring herself. In Mr. Wiesner's own recollection of the event, which he has repeated from his trial through each of his numerous applications to be admitted in the First Department, his ex-girlfriend stayed with him voluntarily because he was threatening to kill himself, and the shots he fired out the window were not aimed at her. He also has testified that he had taken an entire bottle of an amphetamine-like diet drug that day. In 1984. Mr. Wiesner was taken into federal custody on narcotics trafficking charges. He was still there when he was convicted in 1985 of attempted murder, burglary and other charges by a Staten Island jury and sentenced to 12 1/2 to 25 years in prison. In 1987, he pleaded guilty to the federal drug charges and was sentenced to time served. In 1989, Eastern District Judge Raymond Dearie granted a habeas corpus petition filed by Mr. Wiesner on the grounds that he had been denied his constitutional right to represent himself, and instead had been assigned counsel. He was released from prison in January 1990. In 1991, on the eve of his retrial, he pleaded guilty to second-degree attempted murder, without admitting to any facts in connection with the plea, in exchange for a sentence of two to six years, deemed to have begun in 1984 and to have run concurrently with the federal sentence. Once freed, Mr. Wiesner quickly obtained a college degree. He then earned a law degree from the City University of New York School of Law and passed the bar in 1994. He applied for admission in the First Department in 1995, but was denied on the ground that he did not satisfy the good moral character requirement of the Judicial Law. Despite his admission to practice in several jurisdictions over the following years, the First Department repeatedly rebuffed his motions to renew his application. Mr. Wiesner also lost two federal lawsuits challenging the First Department's refusal.
In August 2009, the First Department panel granted Mr. Wiesner's tenth motion to renew his application to the First Department's Committee on Character and Fitness. In February 2010, the committee recommended that Mr. Wiesner be admitted. Justice Tom opened his opinion adopting that recommendation by noting that the Judiciary Law did not give a clear-cut definition of good moral character. However, he said, the law did make clear that a past crime did not forever bar an attorney from being admitted. "Notably, the statute does not contemplate open-ended moral findings of a personal nature," the judge wrote. "Thus, the statute reflects no intent to impose a continuing punishment on an applicant with a criminal past." Justice Tom said that the passage of time, and Mr. Wiesner's unblemished record as a practicing lawyer in other jurisdictions, contributed to the First Department's change of heart. "Although our approval in the past was impeded by the brevity of time, a sufficient time period has now passed without incident in petitioner's life—during which he has been a practicing attorney in good standing and has contributed to society—that we are now persuaded that a change in circumstances warrants a different result," he wrote. Justice Tom also cited the numerous character witnesses who have vouched for Mr. Wiesner's integrity, including John D. Feerick, former dean of Fordham Law School; Joseph L. Forstadt of Stroock & Stroock & Lavan; Albert Richter, former law secretary to former First Department Justice John Carro; Mr. Carro himself; solo attorney Roland R. Acevedo, who has himself been imprisoned twice for attempted robbery and who represented Mr. Wiesner in one of his federal lawsuits; Ariyike Oshunkoya Diggs,, who represented him in his present application for admission; and several others. "Crediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society—matters to which all witnesses have attested—as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement" of the Judiciary Law, Justice Tom wrote.
Remorse Disputed
In dissent, Justice Saxe, said that in the course of his testimony before the Character and Fitness Committee, Mr. Wiesner had at times expressed "exasperation, even resentment" at being asked to show his remorse. More importantly, the judge said, Mr. Wiesner had made no attempt to square his version of what happened in 1983 with the testimony of his victim, or with certain undisputed facts. For example, he said, Mr. Wiesner had never offered any explanation of why she jumped out of a window if she had been staying with him voluntarily. Justice Saxe also referred to a "piece of disturbing information" provided by Mr. Wiesner's victim during cross-examination: that at one point in their relationship, Mr. Wiesner force-fed her drugs and branded her skin. Although no charges ever arose from that testimony, Justice Saxe said, it could still be "evidence relevant to petitioner's character." The judge also provided a footnote, citing Wikipedia, in which he said that "the historical practice of human branding to mark slaves, prisoners or convicts has been widely abandoned as inhumane, but remains in current use by some street gangs, college fraternities, and among some sadomasochists." "It is not that he has no remorse for the crimes he committed; it is that he approached these applications with a sense of entitlement," Justice Saxe wrote. "Having worked very hard to turn his life around, he seems unwilling to accept that establishing his rehabilitation might cause him to experience humiliation or emotional discomfort, by requiring him to clearly acknowledge the totality of his misconduct and to demonstrate—not merely recite—the nature and extent of his remorse." He continued, "In fact, the requirement I would impose is one to which the majority gives lip service: candor." Justice Saxe stressed that Mr. Wiesner did not have to admit that he intended to kill his ex-girlfriend when he shot out the window, but said that he at least had to address the apparent contradictions between his testimony and the known facts. "I have never suggested that petitioner's rehabilitative efforts and accomplishments be ignored; I recognize that petitioner has started down the road to redemption and rehabilitation," Justice Saxe wrote. "But, he simply has not gotten there." Justice Tom, in a portion of his opinion addressing the dissent, said that Justice Saxe was demanding of Mr. Wiesner "an endless quest in which petitioner will never succeed." He also said that Justice Saxe's focus on the facts of the 1983 crime and of the testimony of Mr. Wiesner's victim amounted to "trying petitioner all over again." Justice Tom took particular issue with Justice Saxe's mention of Mr. Wiesner's alleged branding of his ex-girlfriend, saying that it was inappropriate to consider testimony that the court had no basis for evaluating. He also criticized the footnote, saying that "as of yet, Wikipedia is not recognized source material for serious jurisprudential analysis" and saying that the references to slavery and gangs were irrelevant. "Petitioner was once a successful operator of an illegal enterprise that sold Quaaludes, not a gang thug," Justice Tom wrote. "Nevertheless, in a landscape of petitioner's life that has been viewed time and time again, the dissent now seems determined to forcibly sketch in new details that simply do not fit." In an interview Mr. Wiesner said, "I'm very happy and gratified....I wasn't optimistic. The court seemed very dug in." Ms. Diggs said, "It's been a very difficult and very emotional journey for Mr. Wiesner, but it's finally over, and I'm so grateful that these judges got it. Finally, they got it. The right decision was made, and he can move on with his life." Brendan Pierson can be contacted at bpierson@alm.com.
The New York Law Journal by Brendan Pierson - March 21, 2012
A man who went to law school after he was imprisoned for nearly six years on charges he had dealt prescription drugs and tried to kill his ex-girlfriend in the 1980s has been admitted to practice in New York state courts after being repeatedly rebuffed over the last 17 years. Justice Peter Tom wrote in a 4-1 opinion for the Appellate Division, First Department on March 20 Justice Peter Tom wrote on March 20 in an 82-page 4-1 opinion that the crimes Neal E. Wiesner committed "in an earlier life" should no longer bar him from practicing in New York. Justices Angela M. Mazzarelli, Sallie Manzanet-Daniels and Nelson S. Román joined the opinion. Justice David B. Saxe, in an impassioned, 46-page dissent, said that Mr. Wiesner should not have been admitted because he still had not taken full responsibility for his actions. Mr. Wiesner, now in his late 50s, had already been admitted to practice in federal court in the Eastern, Western, Northern and Southern districts of New York and the Second and Third Circuit Courts of Appeal, in state and federal court in New Jersey and in federal tax court, according to the opinion. However, the First Department had denied him admission nine times because of his past crimes. Mr. Wiesner, who lives on Staten Island, had a troubled childhood. He became addicted to drugs at age 12, dropped out of high school at 16 and supported himself for a time by giving banjo lessons (NYLJ, May 12, 2006). Between 1980 and 1982, he ran a scheme in which he paid doctors to prescribe Quaaludes to patients on request. The scheme made millions of dollars, allowing Mr. Wiesner to live a lavish lifestyle, though he continued to use drugs heavily.
In 1983, he was arrested for allegedly holding his ex-girlfriend captive in her apartment for hours and attempting to shoot her when she escaped by jumping out of a second-story window, seriously injuring herself. In Mr. Wiesner's own recollection of the event, which he has repeated from his trial through each of his numerous applications to be admitted in the First Department, his ex-girlfriend stayed with him voluntarily because he was threatening to kill himself, and the shots he fired out the window were not aimed at her. He also has testified that he had taken an entire bottle of an amphetamine-like diet drug that day. In 1984. Mr. Wiesner was taken into federal custody on narcotics trafficking charges. He was still there when he was convicted in 1985 of attempted murder, burglary and other charges by a Staten Island jury and sentenced to 12 1/2 to 25 years in prison. In 1987, he pleaded guilty to the federal drug charges and was sentenced to time served. In 1989, Eastern District Judge Raymond Dearie granted a habeas corpus petition filed by Mr. Wiesner on the grounds that he had been denied his constitutional right to represent himself, and instead had been assigned counsel. He was released from prison in January 1990. In 1991, on the eve of his retrial, he pleaded guilty to second-degree attempted murder, without admitting to any facts in connection with the plea, in exchange for a sentence of two to six years, deemed to have begun in 1984 and to have run concurrently with the federal sentence. Once freed, Mr. Wiesner quickly obtained a college degree. He then earned a law degree from the City University of New York School of Law and passed the bar in 1994. He applied for admission in the First Department in 1995, but was denied on the ground that he did not satisfy the good moral character requirement of the Judicial Law. Despite his admission to practice in several jurisdictions over the following years, the First Department repeatedly rebuffed his motions to renew his application. Mr. Wiesner also lost two federal lawsuits challenging the First Department's refusal.
In August 2009, the First Department panel granted Mr. Wiesner's tenth motion to renew his application to the First Department's Committee on Character and Fitness. In February 2010, the committee recommended that Mr. Wiesner be admitted. Justice Tom opened his opinion adopting that recommendation by noting that the Judiciary Law did not give a clear-cut definition of good moral character. However, he said, the law did make clear that a past crime did not forever bar an attorney from being admitted. "Notably, the statute does not contemplate open-ended moral findings of a personal nature," the judge wrote. "Thus, the statute reflects no intent to impose a continuing punishment on an applicant with a criminal past." Justice Tom said that the passage of time, and Mr. Wiesner's unblemished record as a practicing lawyer in other jurisdictions, contributed to the First Department's change of heart. "Although our approval in the past was impeded by the brevity of time, a sufficient time period has now passed without incident in petitioner's life—during which he has been a practicing attorney in good standing and has contributed to society—that we are now persuaded that a change in circumstances warrants a different result," he wrote. Justice Tom also cited the numerous character witnesses who have vouched for Mr. Wiesner's integrity, including John D. Feerick, former dean of Fordham Law School; Joseph L. Forstadt of Stroock & Stroock & Lavan; Albert Richter, former law secretary to former First Department Justice John Carro; Mr. Carro himself; solo attorney Roland R. Acevedo, who has himself been imprisoned twice for attempted robbery and who represented Mr. Wiesner in one of his federal lawsuits; Ariyike Oshunkoya Diggs,, who represented him in his present application for admission; and several others. "Crediting his witnesses and taking into account his postrelease conduct and achievements, the manner in which he makes himself available to help individuals and his contributions to the betterment of society—matters to which all witnesses have attested—as well as the absence of conduct contrary to the ethics governing the legal profession over an extensive period of time, it is manifest that petitioner has rehabilitated himself to such an extent that he satisfies the character and fitness requirement" of the Judiciary Law, Justice Tom wrote.
Remorse Disputed
In dissent, Justice Saxe, said that in the course of his testimony before the Character and Fitness Committee, Mr. Wiesner had at times expressed "exasperation, even resentment" at being asked to show his remorse. More importantly, the judge said, Mr. Wiesner had made no attempt to square his version of what happened in 1983 with the testimony of his victim, or with certain undisputed facts. For example, he said, Mr. Wiesner had never offered any explanation of why she jumped out of a window if she had been staying with him voluntarily. Justice Saxe also referred to a "piece of disturbing information" provided by Mr. Wiesner's victim during cross-examination: that at one point in their relationship, Mr. Wiesner force-fed her drugs and branded her skin. Although no charges ever arose from that testimony, Justice Saxe said, it could still be "evidence relevant to petitioner's character." The judge also provided a footnote, citing Wikipedia, in which he said that "the historical practice of human branding to mark slaves, prisoners or convicts has been widely abandoned as inhumane, but remains in current use by some street gangs, college fraternities, and among some sadomasochists." "It is not that he has no remorse for the crimes he committed; it is that he approached these applications with a sense of entitlement," Justice Saxe wrote. "Having worked very hard to turn his life around, he seems unwilling to accept that establishing his rehabilitation might cause him to experience humiliation or emotional discomfort, by requiring him to clearly acknowledge the totality of his misconduct and to demonstrate—not merely recite—the nature and extent of his remorse." He continued, "In fact, the requirement I would impose is one to which the majority gives lip service: candor." Justice Saxe stressed that Mr. Wiesner did not have to admit that he intended to kill his ex-girlfriend when he shot out the window, but said that he at least had to address the apparent contradictions between his testimony and the known facts. "I have never suggested that petitioner's rehabilitative efforts and accomplishments be ignored; I recognize that petitioner has started down the road to redemption and rehabilitation," Justice Saxe wrote. "But, he simply has not gotten there." Justice Tom, in a portion of his opinion addressing the dissent, said that Justice Saxe was demanding of Mr. Wiesner "an endless quest in which petitioner will never succeed." He also said that Justice Saxe's focus on the facts of the 1983 crime and of the testimony of Mr. Wiesner's victim amounted to "trying petitioner all over again." Justice Tom took particular issue with Justice Saxe's mention of Mr. Wiesner's alleged branding of his ex-girlfriend, saying that it was inappropriate to consider testimony that the court had no basis for evaluating. He also criticized the footnote, saying that "as of yet, Wikipedia is not recognized source material for serious jurisprudential analysis" and saying that the references to slavery and gangs were irrelevant. "Petitioner was once a successful operator of an illegal enterprise that sold Quaaludes, not a gang thug," Justice Tom wrote. "Nevertheless, in a landscape of petitioner's life that has been viewed time and time again, the dissent now seems determined to forcibly sketch in new details that simply do not fit." In an interview Mr. Wiesner said, "I'm very happy and gratified....I wasn't optimistic. The court seemed very dug in." Ms. Diggs said, "It's been a very difficult and very emotional journey for Mr. Wiesner, but it's finally over, and I'm so grateful that these judges got it. Finally, they got it. The right decision was made, and he can move on with his life." Brendan Pierson can be contacted at bpierson@alm.com.
Attorney Is Sanctioned for 'Unbelievable' Violation of Filing Rules
Attorney Is Sanctioned for 'Unbelievable' Violation of Local Filing Rules
The New York Law Journal by John Caher - March 21, 2012
A Buffalo attorney with a long history of filing late or inadequate memoranda has been hit with a sanction of nearly $14,000 after suggesting to a federal judge that the attorney was impaired in his ability to file required documents because of the death of his father 11 years earlier. Western District Judge Charles J. Siragusa of Rochester (See Profile) described attorney David J. Seeger's conduct in CA-POW! v. Town of Greece, 10-cv-6035, as "unbelievable" for a lawyer with 29 years of experience who had already been chastised at least four times for violating local rules. "This was not a pro se proceeding in which the Court was required to allow leeway to non-lawyer parties," Judge Siragusa observed. The underlying action was one in which an environmental group sued a Rochester suburb over waterway protection issues and storm water management. Mr. Seeger represents the plaintiff, Citizens Alert: Protect Our Waters! Records show that in March 2010 Judge Siragusa directed the parties to file and serve papers by May 11, 2010. However, Mr. Seeger filed only a cover letter by the deadline and then attempted—76 minutes before oral arguments—to submit an amended complaint. In a prior decision, Judge Siragusa struck the amended complaint and dismissed the original complaint. His March 9 order dealt only with the imposition of attorney fees.
"The Court found that Plaintiff's counsel's contention that he was unsure what to do, or that he was 'toying with the decision' to seek leave to amend, or that his father's death 11 years ago affected his ability to file a memorandum of law in this case did not contain the ring of truth," Judge Siragusa said. The judge noted that Mr. Seeger has repeatedly been warned about filing late submissions, once submitted a 29-page brief "containing no case law or other pertinent legal authority" and on another occasion filed a memorandum of law that "contained no meaningful factual or legal argument." The court ordered $13,383 in legal fees under 28 U.S.C. §1927 and Local Rule 11, covering the period from when Mr. Seeger attempted to file an amended complaint at the 11th hour and the time when he sought leave to amend the complaint a month later. "Plaintiff's counsel's actions in this case…were in bad faith and unreasonably and vexatiously multiplied the proceedings," Judge Siragusa wrote. The defendant Town of Greece had sought reimbursement for all of its legal expenses related to the litigation, a total of $79,295, under a provision in the Clean Water Act (33 U.S.C. 1365). But the court dismissed the action after finding that the plaintiffs lacked capacity to sue and never reached the Clean Water Act issue of whether the action "was frivolous, unreasonable or groundless, or that Plaintiff continued to litigate after it clearly became so." Robert B. Koegel of Remington, Gifford, Williams & Colicchio in Rochester represents the Town of Greece. Mr. Koegel said the lawsuit was brought not for any legitimate reason but to avenge a prior loss. "We are pleased to see the court recognized that this was not right," said Mr. Koegel, a veteran environmental lawyer. "I am very sympathetic to the environment, but when [litigation] is done for ulterior purposes, as I think was the case here, sanctions are appropriate to deter this kind of conduct." Mr. Seeger argued in court papers that "not a penny in attorney's fees should be awarded." He admitted that he should have sought leave before submitting the amended complaint, but said he was unaware of a rule change requiring such an application. Mr. Seeger said that before a December 2009 revision to Rule 15 of the Federal Rules of Civil Procedure, an amended complaint could be filed "as of right" and did not require leave. "Plaintiff's counsel conceded his error, acknowledging that the proposed amendment required leave of court, and on that same date Plaintiff moved for leave to amend," Mr. Seeger said in a memorandum of law opposing the imposition of sanctions. John Caher can be contacted at jcaher@alm.com.
The New York Law Journal by John Caher - March 21, 2012
A Buffalo attorney with a long history of filing late or inadequate memoranda has been hit with a sanction of nearly $14,000 after suggesting to a federal judge that the attorney was impaired in his ability to file required documents because of the death of his father 11 years earlier. Western District Judge Charles J. Siragusa of Rochester (See Profile) described attorney David J. Seeger's conduct in CA-POW! v. Town of Greece, 10-cv-6035, as "unbelievable" for a lawyer with 29 years of experience who had already been chastised at least four times for violating local rules. "This was not a pro se proceeding in which the Court was required to allow leeway to non-lawyer parties," Judge Siragusa observed. The underlying action was one in which an environmental group sued a Rochester suburb over waterway protection issues and storm water management. Mr. Seeger represents the plaintiff, Citizens Alert: Protect Our Waters! Records show that in March 2010 Judge Siragusa directed the parties to file and serve papers by May 11, 2010. However, Mr. Seeger filed only a cover letter by the deadline and then attempted—76 minutes before oral arguments—to submit an amended complaint. In a prior decision, Judge Siragusa struck the amended complaint and dismissed the original complaint. His March 9 order dealt only with the imposition of attorney fees.
"The Court found that Plaintiff's counsel's contention that he was unsure what to do, or that he was 'toying with the decision' to seek leave to amend, or that his father's death 11 years ago affected his ability to file a memorandum of law in this case did not contain the ring of truth," Judge Siragusa said. The judge noted that Mr. Seeger has repeatedly been warned about filing late submissions, once submitted a 29-page brief "containing no case law or other pertinent legal authority" and on another occasion filed a memorandum of law that "contained no meaningful factual or legal argument." The court ordered $13,383 in legal fees under 28 U.S.C. §1927 and Local Rule 11, covering the period from when Mr. Seeger attempted to file an amended complaint at the 11th hour and the time when he sought leave to amend the complaint a month later. "Plaintiff's counsel's actions in this case…were in bad faith and unreasonably and vexatiously multiplied the proceedings," Judge Siragusa wrote. The defendant Town of Greece had sought reimbursement for all of its legal expenses related to the litigation, a total of $79,295, under a provision in the Clean Water Act (33 U.S.C. 1365). But the court dismissed the action after finding that the plaintiffs lacked capacity to sue and never reached the Clean Water Act issue of whether the action "was frivolous, unreasonable or groundless, or that Plaintiff continued to litigate after it clearly became so." Robert B. Koegel of Remington, Gifford, Williams & Colicchio in Rochester represents the Town of Greece. Mr. Koegel said the lawsuit was brought not for any legitimate reason but to avenge a prior loss. "We are pleased to see the court recognized that this was not right," said Mr. Koegel, a veteran environmental lawyer. "I am very sympathetic to the environment, but when [litigation] is done for ulterior purposes, as I think was the case here, sanctions are appropriate to deter this kind of conduct." Mr. Seeger argued in court papers that "not a penny in attorney's fees should be awarded." He admitted that he should have sought leave before submitting the amended complaint, but said he was unaware of a rule change requiring such an application. Mr. Seeger said that before a December 2009 revision to Rule 15 of the Federal Rules of Civil Procedure, an amended complaint could be filed "as of right" and did not require leave. "Plaintiff's counsel conceded his error, acknowledging that the proposed amendment required leave of court, and on that same date Plaintiff moved for leave to amend," Mr. Seeger said in a memorandum of law opposing the imposition of sanctions. John Caher can be contacted at jcaher@alm.com.
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