October 21, 2014

Comedic Break: Televising the Supreme Court

John Oliver is correct. If somebody insisted on playing audio tapes of crappy piano music hammered out on a cheap electric organ, you'd eventually punch them in the face. But if it were accompanied with a video of a cat playing said organ, well then, you would willingly watch it over and over. You might even click "share."

With that understanding of the synthesis between dull auditory sensations and adorable animals dressed up like humans, behold the canine Supreme Court.  Skip ahead to the 2:45 mark to see the Court called to order.

Woof woof, Your Honor, woof woof.

October 18, 2014

Justice versus Law

As readers may recall, I am a fan of Richard Kopf's blog, Hercules and the Umpire. While I may sometimes disagree with him, he is a smart and thoughtful sitting United States District Judge who is willing to share his views on a variety of interesting topics. An advocate of transparency, he is one of the few judges who speaks his mind, a trait sorely lacking amongst the judicial branch of government.

He has recently revisited the question of doing justice versus doing law. Where some see the role of the judiciary as being the former, Kopf plainly believes it is the latter. Interestingly, he sees his inability to fully grasp the notion of doing justice to his lack of religious faith, whereas true believers are determined to do justice in all their endeavors. (He also comments favorably on Christopher Hitchens, which is a definite plus, although Hitchens took some harsh positions with which I strongly disagreed. No, not his attack on Mother Teresa, I sort of enjoyed that one).

As a fellow non-believer, I struggle somewhat with Kopf's notion that "justice" may be beyond our reach. Whatever your personal take, it's a meaty topic worthy of further thought.

Kerik v. Tacopina: Not With A Bang . . .

It's been awhile but there's a few updates on the Bernie Kerik-Joe Tacopina brouhaha. As a person who always enjoys a good legal slugfest and who has no connection to any of the players, I must profess my disappointment with how things are going. As of today, it looks like the federal litigation will end up dismissed or settled, depriving us of live testimony about some serious allegations of misconduct. There's a new state court case underway as well, but it doesn't look like much. Oh well.

United States District Judge John Koeltl heard oral argument the other day on the parties' motion practice stemming from Tacopina's bid to have Kerik's suit dismissed on various grounds. The most obvious and difficult hurdle for Kerik has always been how plainly untimely his suit appeared. According to the Daily News, that was a serious problem for Judge Koeltl as well. As for Kerik's claims that Tacopina more recently slandered him, the judge was troubled by Kerik's apparent failure to show the defamatory statements were not merely knowingly false but made with malice. The point being that, while Judge Koeltl has not yet ruled, it's looking bleak for Bernie.

The judge also ordered that the parties meet with a magistrate judge to discuss settlement. You would be forgiven for assuming that the level of animosity between the parties and their lawyers is far too great, and that too much has already been said and done, for settlement to be remotely possible. But both sides could benefit from taking this case (and Tacopina's companion suit against Kerik) out to the yard and putting it down. So, it's possible, but unlikely.

Finally, Kerik's attorney, Tim Parlatore, has filed a suit against Tacopina in Manhattan in New York State Court on behalf of an unidentified female plaintiff. The gist of the case is that Tacopina represented the woman in a sexual harassment case case against a Connecticut based law firm, which ended with a low-dollar settlement. According to the woman, Tacopina failed to mention to her that he was also working with this same firm in a "big-dollar case," and that he induced her to give up her lawsuit for a pittance in order to protect that relationship. She also alleges that he made various misrepresentations to her about his experience, level of prior success, and perhaps most importantly, suggested incorrectly that he was licensed to practice in Connecticut.

In conjunction with the filing of the suit, Parlatore moved by Order to Show Cause (a device that allows a party to obtain immediate injunctive relief, a/k/a a temporary restraining order, without going through the formal process of normal motion practice) to freeze Tacopina's assets.

According to the Daily News, Tacopina is one of a group of investors who are purchasing an Italian soccer club, and Tacopina has previously announced plans to move his family to Italy. Based on this, according to the News, Parlatore is seeking to protect his client against Tacopina's potential flight:

'Tacopina's stature in the community is largely fabricated and his numerous misdeeds in betraying the interests of other clients are coming to light in a manner that will most likely bring an end to his career and his inflated image,' Parlatore said in court papers filed in New York Supreme Court. 'Plaintiff has reason to believe that Tacopina has put into motion a plan to flee the jurisdiction with his family and his assets and to reestablish himself overseas, out of the reach of our courts and the multitudes of his former clients, who have become his victims.'

I have no clue whether there's any truth to any of the allegations, or if Tacopina really has any exposure in terms of a the injunctive relief sought. But one thing is clear, his name and reputation are taking a serious beating, a deep bruising that won't be easily cured, even if with a clear cut thumping of Bernie Kerik on untimeliness grounds.

Meanwhile, it's looking like Parlatore may have stumbled into a previously unheard of niche practice: representing the disgruntled clients of Joe Tacopina.

October 16, 2014

A Legacy of Disgrace

Yesterday, David McCallum walked out of a Brooklyn courthouse a free man. Wrongly convicted for murder in 1986, McCallum was incarcerated for about 29 years before finally being released. The vacatur of his conviction was primarily the result of Brooklyn District Attorney Ken Thompson's Conviction Review Unit, which asked Supreme Court Justice Matthew D'Emic to vacate the convictions of McCallum and his co-defendant Willie Stuckey, and to dismiss their indictments, and the work of McCallum's pro bono attorney, Oscar Michelen. Stuckey did not live to see this day, having died in prison in 2001.

October 13, 2014

Judge Kamins Resigns, Hynes's Fate Unknown

Justice Barry Kamins (left) and Charles Hynes
courtesy of  http://www.vosizneias.com
New York State Supreme Court Justice Barry Kamins has announced his retirement. That was a smart move, since it allows him to exit stage left gracefully and seemingly on his account. That he was run out of office after being caught flagrantly disregarding basic legal rules of which he was certainly aware, and that his forced removal was all but guaranteed had he not quit now, is beside the point. Kamins, an important and well known figure in local legal circles, is a nobody in the eyes of the general public, and his departure caused nary a ripple in the local press. But, it does serve as a reminder: the fate of Charles Hynes is still unresolved.

October 10, 2014

Civil Suit v. Mafia Cops Survives SJ

Steven Caracappa (left) and Louis Eppolito
It's a gritty crime story straight out of Hollywood. Two seasoned, experienced NYPD detectives went dirty and worked for the mob for a period of years, all while wearing their gold shields. They personally carried out murders, and provided confidential info that led to other killings and helped high level mobsters evade capture. They were finally brought down and convicted years later.

In 2006 and 2007 their victims filed various lawsuits against the City of New York and the two detectives, Louis Eppolito and Steven Caracappa, under state and federal law, based in large part on the City's failure to discipline Caracappa when he was caught passing confidential police documents to a known member of the Mafia way back in 1985. Ultimately, the detectives were convicted in the United States District Court for the Eastern District of New York of various crimes, and their conviction was affirmed in 2008.

The actions were consolidated and assigned to the Hon. Raymond J. Dearie, a former prosecutor himself and a longtime judge. Last week, Judge Dearie denied the defendants' motion for summary judgment on the federal claims. The state claims were dismissed, but the plaintiffs will have their day in the court.

For those of you that enjoy crime novels and the like, you really ought to read the opinion, which follows after the break at the bottom of the page.

The decision is also useful to practitioners as it addresses both claim accrual issues (i.e., why these claims are not time barred), and Monell liability. For the casual reader, municipalities aren't normally liable when their officers deliberately engage in criminal activities. Certainly, as a matter of law, unlike private sector employers, they are not vicariously liable even though these are on the job acts. Rather, the plaintiffs needed to point to some policy or executive action from which the underlying actions sprung, or evidence that the city was deliberately indifferent to the possibility that its officers were engaged in misconduct. A tough task indeed.

October 9, 2014

The NYPD Film Festival: A Misconduct Triology

It's been a bad week for the NYPD, as a series of videos have surfaced depicting New York's Finest engaged in various acts of blatant misconduct, ranging from random, entirely gratuitous violence, to thievery. Much of this conduct is egregious and impossible to explain away, but we'll see how the PBA spins it. And so, without further ado . . .

October 7, 2014

Update: Court Rejects Trial Judge's Claim That He Was Biased

The post-trial events are somewhat unuusal: a white liberal judge hears a murder case where the defendant is white and the victim is black, and issues a conviction. Years later, said judge states that maybe he erred, maybe the defendant was actually the victim of the judge's own unconscious biases. The defendant moves to vacate the conviction and a hearing is held. Fascinating stuff, at least to me.

October 4, 2014

Same Old Same Old CCRB

Mayor Bill de Blasio just named two respected law professors to the City of New York's Civilian Complaint Review Board. This follows on the heels of his appointment of Richard Emery as Chairman. (Here). The new appointees, Deborah Archer and I. Bennett Capers, have impressive pedigrees (see here) and, theoretically, ought to help ensure greater public confidence in the CCRB.

Certainly, de Blasio must be hoping the appointments will foster the belief that the CCRB is more than just a weak-kneed, useless organization, whose only purpose is to falsely lead NY'ers to believe there's a place to complain when cops abuse their authority. But those of us who have been around understand that the CCRB is essentially nothing more than a complaint box hangin on a wall in the back of a store; a box that management periodically empties directly into the nearest garbage can.