May 31, 2014

Ski Slopes and Weed v. Snooki and the NJ Turnpike

This is a bit of a tangent, but, Chris Christie suggests that those in favor of legalizing marijuana in NJ ought to look at just how crappy life is in Colorado. Um, seriously?

NJ's main selling point is that it's close to New York City and has some nice beaches. Our main cities are Trenton, Newark, Camden, and Jersey City, and most people who've visited the state think of the NJ Turnpike, between exits 12 and 15, as our scenic strip, and shows like Jersey Shore as a reflection of our daily life. They're not that wrong. Now, I don't ski, but if legalizing marijuana will turn New Jersey into Colorado, deal me in!   (Link here).

NJ Turnpike

I'm not saying that this is a fair depiction of all of NJ. But I'm riding up and down this strip five days a week, so I can see/touch/taste it in my sleep. On the other hand, there's virtually nowhere in NJ where I can find what follows below. So where would you rather be?

Somewhere in Colorado

Mindy Kaling Speaks Truth to Power

Mindy Kaling
Mindy Kaling earning her honorarium
Mindy Kaling speaking to Harvard Law grads the other day, "People are going to listen to what you say now, whether you’re good or evil…Some of you are evil. That’s just the odds." And that's the truth.

(Updated: yes, the title was intended to be tongue in cheek).

(Link here)

Kerik v. Tacopina: Bernie's Tape

For those of you who are interested in the great theatrical legal drama that is Bernie Kerik v. Joe Tacopina (and Tacopina v. Kerik), there were some interesting developments this week. Bernie unveiled a tape recording from 2007 of a telephone conversation between him and Tacopina, which the latter had previously stated never occurred. The NY Daily News has a nice article (here) with some excerpts from the tape. Bernie also filed some new papers. The cases are proceeding in the United States District Court for the Southern District of New York but ought to be airing on the Bravo network. Fun stuff.

To set the stage, the date is December 9, 2007. A month earlier, in anticipation of Bernie's federal criminal trial, the US Attorney's Office had released it's witness list, which surprisingly featured Bernie's close friend and lawyer, Joe Tacopina. As Tacopina was a known witness, Bernie shouldn't have been speaking or communicating with him in any way. For his part, Tacopina steadfastly denied communicating with Bernie after he was named as a witness, at least according to his attorney Lanny Davis. This tape seemingly puts the lie to that claim.

May 29, 2014

One of the Giants

Harold Baer, Jr., a district judge in the Southern District of New York, passed away yesterday at the age of 81. It is a sad day and a true loss for the bar. I was in an Eastern District Courtroom when another attorney announced the news to the surprised judge, who remarked that Baer "was one of the giants." Reading his bio today, I was struck by the scope of his prior work history and the depressing certainty that his replacement will have a far more narrow background and limited breadth of experience.


According to the New York Law Journal, Judge Baer was born in 1933 to parents who were both New York University Law School graduates and Liberal Party activists. He was a New Yorker who graduated from Bronx Science H.S., Hobart College, and Yale Law School. He held a wide variety of positions, including on the New York State Commission on the Governmental Operations of the City of New York, the New York State Commission of Investigation, and in private practice. He was a state court judge for years, a federal prosecutor in various roles in the Southern District, the executive director at the Civilian Complaint Review Board, and, for the past 20 years, a federal district judge. He sat on the Mollen Commission, which investigated corruption in the NYPD, and was involved in an array of other matters. In short, as Judge Richard Berman said, he had the street smarts of a state court judge and the skills and expertise to manage more complex federal matters. 

Most notably, Judge Berman said, "he was a real people person." This was true. I had a smattering of cases before Judge Baer over the years, none of which went to trial, and so my experience with him was highly limited. But what always struck me was his treatment of the lawyers and people before him. His conferences often took place in chambers, where the lawyers and Judge Baer and one or two clerks would sit at a table and talk through the case. There was no hubris, no judicial arrogance, and no condescension. Unless you really deserved it. That is not to say he wouldn't make the occasional sarcastic remark to remind you that your argument was straying or perhaps weaker than you might like to admit, but, he wore the robes well and reflected the commitment to justice in the true sense of the word that one would hope to see in our judiciary.

As the federal bench has become increasingly less diverse, I have become used to the idea that new nominees will eventually have a background limited to either corporate work, be it in a large firm or in house, or as a federal prosecutor. This is not meant as a criticism of any particular judge, but rather as a comment on the ever narrowing criteria deemed acceptable in the judicial nominating process. The Senate's shameful rejection in March 2014 of the nomination of Debo Adegbile to head the DOJ's Civil Rights Division is a reminder that any break from the government/corporate mold is viewed as unacceptable leftist activism. 

But the corporatizing of the federal judiciary is a discussion for another day. Today, we pay our respects to Judge Harold Baer, Jr. He will be missed.

May 27, 2014

Supreme Court Decisions Are All Just Works In Progress

I was surprised to read this weekend that the Supreme Court justices often continue tinkering and changing their opinions long after they are published. According to the New York Times, these changes can be substantive and edits have been made as long as five years after the fact.

The temptation to edit and correct can be overwhelming, so the justices have my sympathy. Having said that, the Court does not release its decisions until all are on board, so presumably each voting member has parsed the issues and come to his/her final conclusion (and edited, revised, etc., at great length) prior to publication. I don't have several law clerks fresh from the finest law schools in the country drafting and proofing for me, but I still take care that my briefs say what I intended to say.

But it's not the post hoc editing that bothers me; it's the utter lack of transparency. The edits are done silently, without notice or acknowledgement, and without any indication as to what was done by whom and with what authority. If there's an inadvertent mistake that needs to be corrected, that's one thing. Changing the meaning or import of a decision is entirely different. Appellate procedures are governed by precise rules, and these ought to apply here. If the Court wants to revisit it's own decisions, it has to do so in a manner authorized by rule and apparent and announced to the public.

Surely (hopefully?) the NY Times article is just the beginning of an inquiry into this practice. 

May 23, 2014

A Life Reclaimed

Martin Tankleff was wrongly convicted of his parents' murder and served 17 years in prison before the charges were formally dismissed in 2008. He has since been hired by the law firm that fought for his freedom, and now, at the age of 42, has just graduated law school. Our congratulations.

Tankleff previously settled his state law claims for wrongful conviction for $3.37 million. His federal §1983 case against Suffolk County is proceeding in federal court in the Eastern District of New York. That these claims are split between forums reflects some interesting twists and limitations in the law, but that's a post for another day. (See NYLJ article here, and prior blog post here).

May 21, 2014

Jabbar Collins to Depose Disgraced Homicide Detective

Jabbar Collins (l) and Louis Scarcella.
Photo: Spencer Burnett; Steve White
A man who is currently suing the City of New York, former Kings County District Attorney Charles Hynes, and other members of Hynes's office, for their role his wrongful conviction for murder, won an interesting skirmish in his civil suit yesterday.

Jabbar Collins languished in a New York State prison for 15 years for a murder he did not commit until his conviction was finally overturned by a federal judge, who lambasted the prosecutors for their "shameful" handling of his case. That the prosecutors finally agreed to dismiss the indictment against Collins, rather than face questioning at a hearing, further bothered the judge, who was upset by Hynes's continued insistence that he and his office had done nothing wrong. The Collins case turned into one of many cases where Hynes's staff appeared to pursue wrongful prosecutions long after it appeared they should be dropped, and contributed to Hynes being wiped out at the polls by Ken Thompson. (See L&N blog post here).

May 19, 2014

Getting Rid of Mandatory Minimums

What happens when a criminal defense attorney and a conservative United States District Judge offer comments on both mandatory minimum sentences and each other's position on mandatory minimum sentences? Surprisingly enough, they agree. Mandatory minimum sentencing has to go. Hear hear.

Anybody who has ever defended people charged with violating federal drug laws has plenty of horror stories to share about mandatory minimum sentences. For the uninitiated, these are statutory requirements that a minimum sentence (say, five or ten years) be imposed when a drug offense involves more than a certain amount of of weight, regardless of the surrounding circumstances. Minimum sentences are a different animal than sentencing guidelines, which are established by the Sentencing Commission. The way those work is simple: crimes are given a certain guideline number, based on severity, etc. Then the number is adjusted upward or down based on case specific factors, such as the dollar amount of the loss, the offender's relative role in the offense, whether anybody was physically injured, etc.

For instance, years ago, I represented a woman with a severe crack addiction. On two occasions, desperate for her drug of choice, my 30 year-old client begged her local dealer (who was part of a large, New Jack City style operation) for a handout. One one occasion, he had her pick up his lunch from a local restaurant and get his dry cleaning. The other time, he told her to help his workers pack crack cocaine for a few hours. Both times he paid her with about $35 worth of narcotics. Unfortunately, her conduct made her part of the larger conspiracy to distribute crack cocaine, which meant that she had to be sentenced to at least 10 years in jail. Luckily, she qualified for a safety valve exception and her sentence was a small fraction of that time. Many others were not so lucky.

Anyway, in a blog post a week ago, U.S. District Judge Richard Kopf, a conservative, republican jurist, wrote that he had come to the opinion that we should do away with mandatory minimums. A supporter of sentencing guidelines, Kopf argued that mandatory minimums needless create conflict and allow the legislative branch to insert itself into the sentencing business. This post -- you can find it here -- was based on Kopf's polite disagreement with several of his colleagues' public demand that the minimums not be abandoned.

Criminal defense attorney Scott Greenfield responded in a post on his blog, Simple Justice -- here -- that blasted Kopf for his continuing support for the guidelines. It is a no-holds-barred attack on the guidelines, and the judges that employ them, that ended,
Thus, the court defers. And loses no sleep at night knowing that the magical voodoo of the United States Sentencing Commission is right and just.
Kopf responded here, suggesting that Greenfield hold off on his attack on the guidelines so that they could join forces, so to speak, in their attack on mandatory minimums. Greenfield agreed, in an update to his original post.

On the guidelines, I wholeheartedly concur with Greenfield. At the same time, the Kopf's reliance arguments in favor of the guidelines are problematic for a number of reasons. However, both are absolutely right that getting rid of statutory minimums is a good and just cause.

May 13, 2014

Kerik v. Tacopina: A Minor Setback

The latest twist in the Kerik v. Tacopina litigation may be nothing more than a passing blip or it may be significant. Back around 2009, when the feds were prosecuting him, Bernie received various documents and discovery material. These documents, Bernie has been recently claiming, would help establish how his then-attorney Tacopina ratted him out to government prosecutors. 

May 10, 2014

The Banality of Brady Violations

Like many others, I recently took note of Bronx Criminal Court Judge John Wilson's smackdown of Bronx ADA Megan Teesdale for a blatant Brady violation, and his subsequent banishment of Teesdale from his courtroom. Unlike some other bloggers, my post focused on the episode as yet further evidence of the harms inflicted by absolute prosecutorial immunity. In retrospect, perhaps I should have paid more attention to Judge Wilson's abject refusal to recognize the violation as more than a mere mistake; that Wilson's willful blindness to the deliberateness of the conduct in the case before him and the casual ease with which some prosecutors violate their oaths was itself emblematic of the "epidemic" of Brady violations that infect too many prosecutors' offices.

Lest We Forget

Fifteen year-old Mason Michalec of Needville, Texas, offers a useful reminder of what it was like to be young, strong-willed, clear-headed, and unwilling to compromise on matters of principle. By way of Legal Satyricon comes a story reported by KHOU.com about Michalec, a high-school sophomore, in Needville, Texas. Earlier this school year, angry with a federal government that had little regard for civil liberties, Michalek decided that he wasn't going to stand for the daily recitation of the pledge of allegiance anymore. His teacher ordered him to stand, and when he declined, he was suspended for two days. The principal has made it clear more suspensions may follow if Michalec doesn't cave in. My guess is that the school's social studies teachers are not citing this as a shining example of the interplay between constitutional law, the First Amendment, and political protest.

May 6, 2014

Comedic Break: More Fun with Depositions

A bit OT, but a modestly viral video posted by the New York Times with actors portraying an actual deposition where the dimwitted witness claims not to know what a photocopier is has been making the rounds. While I sympathize with the lawyer (dumb witnesses can be really frustrating, even if they're also potential goldmines), there was nothing really all that unusual about that exchange.

But it reminded me of my introduction to depositions. There was a time early in my career when my office shared a wall with the suite's main conference room. One of the partners in the firm I rented space from (and was of counsel to for a time) had a deposition style that was, to be nice, antagonistic. His depositions, which I could often hear clearly when things got heated, would often include bouts of yelling, table pounding, and the like. It was distracting, sure, but consistently hilarious. I say this with an eye on Mel Brooks's old line about comedy being tragic things happening to other people. Certainly, I found nothing funny about battling nasty, obstructionist lawyers in own my depositions. 

The Times bit started me wandering around the internet, where I stumbled into some older, far more entertaining clips of actual depositions. The two below are far from new, but they're new to me. My current fave: famed Texan trial lawyer Joe Jamail was deposing a chemist while an attorney representing Monsanto kept objecting. Another attorney demands to know if the lawyer represents the witness or not, which leads to an increasingly heated argument and near fisticuffs. Very funny. (Link here)


Equally entertaining is the bit below from a deposition where an angry witness goes on a long and increasingly angry rant about some kind of survey or chart or something, only to be asked rather drily whether his answer was a yes or a no. That was a f--- you! he explained, sounding and looking very much like Walter Matthau.  (Link here).

 

Is there a point? No, not really. Just that litigation can be contentious, aggravating, enraging even. There's often a lot at stake for the parties and for us lawyers. When you're in the midst of the storm, it's absolutely critical that you maintain your poise, no matter how angry you may be. For those of us disinterested spectators, it's just all good comedic theater.

May 4, 2014

Another Off-Duty NYPD Shooting

If it seems like just a few days ago that I posted a series of stories about three police officers who did some drinking and then did some shooting, ending with suspensions and arrests, that's because it was. Now today we welcome NYPD Police Officer Jamarie Flowers to the fold. According to NBC News, Flowers was home in New Rochelle early Saturday when he was involved in some sort of dispute. Bringing his training and expertise to bear, Flowers pulled his gun and fired several shots into the air. Flowers was subsequently arrested for reckless endangerment and has been suspended. The prior shootings appeared to be fueled, at least in part, by alcohol. No info as to Flowers's sobriety was available.

Standing alone, it's not much of a story. Off-duty officer gets into dispute, makes poor decision re: whether to pull his gun and what to do with it once he pulls it. Is charged for being a knucklehead and now waits to see if his career is completely derailed. Viewed in the context of the three separate shootings that occurred over the past two weeks, however, a pattern begins to emerge. We'll soon see if this is the last of a series of coincidences, or if there's more to come. Here's hoping for the former.

Kerik v. Tacopina Updates: New Venue, New Counsel

There are two updates to report in my current favorite case to watch, Bernie Kerik versus Joe Tacopina.

The competing allegations are detailed here. The short version: Kerik, a former NYPD Commissioner turned federal felon, is suing his former criminal attorney and close friend, Joe Tacopina, claiming Tacopina was informing on him to federal prosecutors, using information he gained as Bernie's friend and counsel. Tacopina is counter-claiming for defamation and charging that reporters from the Daily News conspired with Kerik to smear Tacopina. These are ugly and serious charges all the way around. All signs are pointing towards bare knuckle brawling with lots of scorched earth.

So, the updates. First, the New Jersey federal court where Bernie filed his suit denied Tacopina's motion to dismiss, which he surely expected, but granted his motion for a change of venue. The case has been transferred to the SDNY and is now before Judge John Koeltl. Tacopina's deadline to answer the complaint or move again for dismissal is May 16, 2014.

Second, Tacopina has added Judd Burstein to his defense team. In his April 10, 2014, letter to the Court, Burstein advised that he would be moving to dismiss the complaint and for sanctions against Kerik and/or his counsel, presumably if the complaint was not withdrawn before the motion to dismiss was filed. Burstein's appearance should dispel any doubt that Tacopina intends to vigorously fight this suit.

Time to break out the popcorn and settle in for some entertaining litigation.

May 3, 2014

The Slow Death of Civil Trials in Federal Court

Although I may often disagree with the opinions he offers in his always entertaining blog, Hercules and the Umpire, Richard Kopf's observation of the slow death of the federal civil trial is right on the money. In posts from last June and earlier today, Kopf touches on federal rollbacks over the past few decades, including the increased use of summary judgment and directed verdicts, as well as the de facto abandonment of notice pleading in favor of a more stringent fact-based standard. Let me be clear, we are really talking about the growing difficulty plaintiffs are having in getting their cases to trial.


May 1, 2014

NYPD Shooting Trifecta


The NY Post has reported on a recent series of unusually stupid, alcohol-fueled moments that resulted in gun fire by and criminal charges against three NYPD officers. Perhaps it's time to invest a little more funding and care in the employee hiring and monitoring processes.

On April 24, while on duty, 75 Precinct detectives Jay Poggi and his partner, Matt Sullivan, told their supervisors they were heading out to do some detecting. Instead, they drove out of Brooklyn and over to the Cross Bay Diner in Queens to do some drinking. Loaded up, they returned to their car, where a drunken Poggi pulled out an old revolver to show his colleague. Naturally, the gun discharged and Sullivan was shot in the wrist. Poggi then drunkenly drove Sullivan to the hospital, where he underwent surgery, while Poggi blew a .113 on the breathalyzer. He was arrested and charged. Poggi's series of poor decisions are mind boggling, particularly given his 31 years of apparently exemplary service. (Post)


On April 29, off-duty P.O. Brendan Cronin, having spent some time at the NYPD firing range, went drinking in Pelham, Westchester. Boozed up, Cronin drove off in his car. After pulling up next to another car at a red light, Cronin, for reasons unknown, pulled out his gun and fired 13 shots into the other car, striking the driver six times. Luckily, the victim survived. There are no known reasons (other than Cronin's complete inebriation) for the shooting. Cronin was arrested and is facing charges. (Post)


On April 30, in New Jersey, a drunken Sgt. Wanda Anthony, returning with her date to her date's home, encountered her date's wife, who was not pleased to see her husband enjoying his evening out with Sgt. Anthony. The wife yelled at Anthony, who handled the situation with all due courtesy, professionalism, and respect, by shooting the wife's car several times. She too was arrested. (Post)

The common threads are, obviously, alcohol and guns. Individually, when employed excessively or with poor judgment, they are potentially problematic. Together, they make a lethal cocktail. Not surprisingly, Commissioner Bratton has said, “We’re very concerned with a number of reports . . . that are part of a longer-term problem of inappropriate use of alcohol by members of our department.” The introduction of NYPD support and monitoring programs for its officers appears imminent.