September 28, 2015

Practice Tip: Beware District Court Bundling Rules

For federal practitioners there are three sets of rules that must be adhered to. These are, generally: the Federal Rules of Procedure (appellate, civil, or criminal, depending on your case); the local district rules; and district judges' individual rules. Unfortunately, they are occasionally in conflict and a failure to properly read and adjust thereto can cause real and lasting harm to your client.

Case in point: many federal judges where I practice (the EDNY and SDNY) require that attorneys "bundle" their motions. What this means is that the motion is not to be filed until after it is fully briefed and served. It works like this: a briefing schedule is issued by the court pursuant to which the movant serves its motion and accompanying papers but does not docket the motion on ECF or otherwise file it. The opposing party then serves its opposition, with the movant to then serve any further reply. It is only then that the motion is actually filed. Some judges require the moving party to file each of the parties' papers, while others expect each party to file its own, but either way, the motion is not filed until long after motion papers are drafted and served.

Parenthetically, I have no idea why some judges do this. The only benefit I see is that it keeps the motion practice entries grouped together on the electronic docket. But since most judges also require that the parties send courtesy copies to chambers, the whole thing is pretty pointless.

Anyway, one scenario that has arisen concerns the interplay between the Federal Rules of Appellate Procedure, which require that a notice of appeal in a civil action be filed within 30 days of the final judgment, and rules governing the filing of a motion for reconsideration, which would toll the deadline for filing a notice of appeal.

September 26, 2015

Protecting Prosecutors

Several regional sections of New York's Commission on Statewide Attorney Discipline met recently to discuss, in part, whether an independent Commission on Prosecutorial Misconduct should be formed to address the growing public recognition that some prosecutors (and, more importantly, prosecutorial offices) were cutting constitutional corners to gain convictions, with disastrous consequences. (NYLJ with pay wall here). It was a collision of sorts between competing interests and voices. It's not hard to guess who won.

From one direction came the proponents who saw such behavior as a real threat to due process and public confidence in the criminal justice system. Treating such misconduct as serious was a critical step towards eliminating it, and the first step would be the public recognition afforded by the creation of a state-wide commission. Barreling down the main avenue at full tilt from the opposite direction was the system's constant desire to insulate itself from public attack, to limit the legal repercussions to private scoldings whenever possible. These opponents, claiming budgetary concerns, joined hands with the bar associations and those who believed it best to protect state actors generally from the harsh light of day, and to ensure the safety and sanctity of the status quo.

Just like any collision between a large truck steaming downhill without brakes and a small fiat sitting sideways in the intersection, the public's interest in a criminal justice system that requires prosecutors to exhibit respect for basic constitutional principles was promptly obliterated.

Instead, the Commission recommended that prosecutorial misconduct cases be referred to one of the four existing disciplinary panels already in place for complaints about lawyer's conduct generally. These four committees are divided geographically across New York. For instance, claims against lawyers in New York City and the surrounding counties are referred to either the First or Second Department, whereas lawyers in the western or northern parts of the state are governed by the Third or Fourth Departments. An overseer would be appointed to make some passing attempt at equalizing the approach and treatment of the four committees. In other words, gross overstepping might be subject to punishment, but only after a long, drawn out process that made clear that the miscreant under the microscope was but a rare, rare specimen.

It's a shameful exercise to maintain business as usual and protect the county prosecutors from embarrassment. As a general matter, it's a well-accepted fact that the disciplinary process varies widely from one committee to the next. What might land you in hot water one place will be promptly waved off elsewhere. Having a misconduct czar might help somewhat, but only in terms of punishing the occasional scapegoat. That is to say, once in a while somebody will blatantly withhold Brady material or something similar, valuing the potential conviction over the prosecutor's overarching duty to uphold the constitution and to do justice. That prosecutor runs the risk of being trotted out for a public hanging if only to prove that the system works. The larger problems, county prosecutors who had no respect for their duties or the law, politicians who valued the press release over all else, and the like, will remain untouchable, barring an avalanche of bad clippings with a stench so overpowering it cannot be ignored -- think, Charles Hynes. In other words, business as usual.

September 10, 2015

Bratton's One-Time Apology Tour

Yesterday members of the NYPD saw a black man they thought was a suspect in an identity theft crime, rushed him, grabbed him, and slammed him to the sidewalk. He was cuffed and held on the scene for about 15 minutes. Nothing unusual there.

Except it turns out that they had the wrong guy. Still nothing unusual. Except that the black man in question was retired professional tennis player James Blake, who at the height of his career was ranked fourth in the world. (NY Daily News). Now that is a little different.

What was really different, however, was the NYPD's response today. The officer responsible was summarily placed on modified duty, and Commissioner Bratton actually issued a personal public apology, saying, in part, that the incident "should not have happened." Video available on ESPN's site shows Bratton giving his department a public spanking.

Somewhere somebody's saying, hey that's some progress. No it's not. This sort of thing happens every day throughout the City. Officers manhandle people, treat them without respect, and strip them of their dignity, even when the people they're abusing haven't done anything wrong or the behavior is grossly excessive to the situation. Let me say that in my experience, the NYPD never apologizes. I don't mean they usually won't, I mean they never will. Every now and then individual officers will whisper an apology in private, though they would deny it if asked. Even when the City is forced to pay out hundreds of thousands of dollars, millions even, to settle a lawsuit, they will not do so unless they can continue to deny responsibility.

So why now? Because Blake is a well known, articulate, former athlete with plenty of access to sympathetic friends in the media. He is a potentially damning testimonial to the NYPD's baser instincts. It's not a question of money; I'd actually be surprised if he files suit. The only currency here is a public apology and Bratton smartly decided to pay sooner rather than later.

I have no problem with the apology itself. But let's be clear: it's a one-time event, offered without sincerity or any remote possibility of subsequent remedial action. It's a meaningless gesture that will likely let the NYPD off the hook way too easily.

September 4, 2015

The Non-Story that is Kim Davis

Some arguments are so facially silly, so intellectually vacuous, that it's hard to understand how's there's an argument in the first place. Enter Kim Davis, the Kentucky county clerk who believes laws she says conflict with her religious views should not apply to her. A ridiculous position unworthy of serious discussion? You bet.

Yet, here we are; debating whether Kim Davis's supposedly deeply held religious beliefs vests in her the discretionary authority to decide which court orders ratified by the Supreme Court will be enforced, and which won't. What about a constitutional obligation that expressly requires her to issue marriage licenses to couples of legal age regardless of gender? No, that's for heathens heading to the lake of fire and she's not having it.

The argument is plainly baseless. If Ms. Davis feels so strongly about same-sex marriage that she cannot bring herself to issue gay couples marriage licenses even though issuing marriage licenses is part of her job, she should get a new job. What's next for the homophobic clerk? Refusing to enter real property deeds for gay couples? That's absurd, do your job or get a new job.

We are, as nobody can dispute, a nation of laws. We have rules in place that govern our conduct, and a system for resolving conflicts over what those laws mean and how to apply them. Imagine if we were to agree that we need not follow these laws if we can articulate some subjective faith-based reason. Let's go one step further and assume that the religion in question is any religion other than Christianity.