I Write the Words . . .

This post is a bit off-topic, but as somebody who, for better or worse, writes his own blog posts, I thought the issue interesting.

Today in Real Lawyers Have Blogs, Kevin O'Keefe discusses the growing consensus that it is unethical for lawyers to use ghost writers to do their blogging for them. I'm not sold on the argument but I firmly agree that you shouldn't hire somebody else to think up your thoughts and write down your professional opinions. Call it pride, call it ego, but I can't fathom having a blog where somebody else selects an issue, decides what I ought to be saying, writes a post about it, and then publishes under my name. This is not to say that it wouldn't be a better written blog, but it certainly wouldn't be mine.

Supreme Court: Warrant Needed to Search Cell Phone

The Supreme Court today ruled that police officers need a warrant to search the data on your cell phone, even if you are lawfully under arrest. The ruling in Riley v. California, a surprising 9-0 decision, while a bit out of character for this Court, is a welcome reaffirmation of our basic privacy rights under the Fourth Amendment.

The underlying facts in Riley do not paint a sympathetic picture. Riley was initially stopped by police for driving with expired registration tags. The officers then determined that his license was suspended, leading to his arrest and an inventory search of the car. That search turned up two illegal handguns. A subsequent search of Riley uncovered evidence that he was a member of the Bloods street gang. A detective looked through Riley's smart phone and found, among other things, photographs of him by a car that the police knew had been used in the course of a recent shooting. In other words, Riley was a bad apple.

Selective Justice and the Central Park Five

While running for Mayor, Bill de Blasio promised to settle the Central Park Five's civil case; a long running civil action that flowed from the infamous arrest and prosecution of five teenagers for the brutal rape and assault of a young woman jogging in Central Park. As discussed in this space last week, the attack and the subsequent prosecution exposed deep racial divides in New York. In 2002, twelve years later, then Manhattan D.A. Robert Morgenthau moved to set aside the five convictions, citing compelling evidence that the rape was carried out by another man altogether. The Central Park Five, who had spent years in prison, sued, claiming that the police knowingly elicited false confessions, which were then used to convict them. The litigation ran for more than 10 years, before ending in a $40 million settlement last week.

It was a tremendous victory for the five men, representing a payout (about $1 million/year) that was significantly higher than the City ordinarily agrees to in wrongful prosecution cases. For instance, just a few months ago, the City agreed to pay David Ranta $6.2 million as compensation for his 22 years if imprisonment. To be fair, once de Blasio announced that he would not try the case and stripped the City's lawyers of the leverage of forcing a trial (at which they had meaningful defenses), the outcome was inevitable.

Handling the Mentally Ill With Deadly Force

A video depicts the shooting by police of an unarmed, handcuffed man in New Mexio. On March 8, 2013, P.O. Jose Flores, and a prison guard, were escorting 37 year-old Daniel Saenz from a city jail to a local hospital. Saenz, who was rear-cuffed, began struggling with the two men. Eventually, while Saenz was on the ground, Flores drew his handgun and fired one shot in Saenz. Moments later, Saenz died.

The video begins with footage of Saenz being escorted from his cell. Different cameras pick him up as he travels through the building. Finally, at about the 15:15 mark, he is dragged out of the building. Shirtless, and with his pants pulled partway down, Saenz visibly struggles with the two officers. He is most definitely a handful, and while he is cuffed and on the ground, he does have a decent range of movement.

At about the 18:55 mark, Flores stands up, steps back, pulls his weapon, and fires one shot. Saenz flops about a bit, but by 19:20, he is motionless.

The authorities called it an accident, saying that the prison guard bumped Flores, causing him to discharge his weapon. The bullet passed through Saenz's shoulder and into his heart, resulting in his death. There is no meaningful discussion about why Flores drew his gun in the first place. Was it to threaten Saenz into compliance? That seems unlikely, given that (a) Saenz does not appear to be responding to reason, and (b) in any event, Flores pulled the trigger scant seconds after he drew it.
A recent news story talks about how Saenz was apparently mentally ill and violent; that he had assaulted an officer earlier that day, and, according to a police union representative, had withstood 5 taser cycles earlier that day. Knowledge of these, and other events, was what prompted Flores to draw his weapon in the first place, the representative claims.
Be that as it may, there is no getting around the fact that a police officer drew his weapon and fired a shot into the torso of an unarmed, handcuffed man, and killed him. The episode points to the desperate need for better protocols for handling the mentally ill. Yes, Saenz was behaving violently and was a menace. But deadly force is a grossly disproportionate reaction under the circumstances. That the N.M. police force views it as nothing more than an accident says a lot about their policies and approach towards dealing with the mentally ill. 

Kerik Answers Tacopina's Motion to Dismiss

It was already on, so now it's really, really on. Bernie Kerik's legal team has filed its opposition to Joe Tacopina's motion to dismiss Kerik's amended pleading and for sanctions against both Bernie and his lawyers. That this litigation was chock full of personal animosity between the litigants was clear. These papers confirm that it is getting personal for the lawyers as well.

The USPTO and Offensive Trademark Applications

In the wake of the the U.S. Patent and Trademark Office's revocation of the Washington Redskins' trademark, ATL offers a post discussing comparably offensive brand names. Some were denied the USPTO's blessing, others were okay. For instance, my personal fave, Heeb Media was rejected, as were apparel company names JAP and SPIC. On the other hand, the "Squaw" in Squaw Valley Development Company was perfectly fine, and high-class men's magazine Black Tail was summarily approved. While it would likely be on the losing end of a legal battle today, the Coon Chicken Inn (a restaurant with several franchises) operated for some 25 to 30 years in the mid-1900s. I haven't touched on applications for brand names that contain Dyke and FAG, but you might be surprised by some of the rulings. Or perhaps not.

Generally speaking, I am somewhat conflicted by the idea that the USPTO can, or should, strip the Redskins of their trademark protections. Legally, they seem to be on solid ground. But censorship seems like the wrong way to go. Oh sure, it's no problem when you are offended by the offensive words. But conceptually it's a slippery slope premised on the idea that words and ideas can be too dangerous to be addressed on their merits. One minute it's the blatantly racist name "Redskins" (that seemingly bothered virtually no one other than Native Americans until about five minutes ago), which we can all agree ought to go, but the next thing you know, it's a politically unorthodox idea that's being suppressed. You see where I'm going with this.

Don't get me wrong, I'm not a libertarian (and have no love for the Ayn Rand Paul school of thought, which defines real liberty as stopping the government from stoppieng corporate America from trampling the rest of us). But I do think we are all adults, capable of hearing, considering, and responding to all sorts of ideas, bad words, and what have you, without fainting away.

Sure, the name is offensive and owner Dan Snyder's insistence on hanging onto it indicates the sort of thickheadness that has made him a running joke in the NFL. But it would be nice to see public pressure force the NFL into action, much like it forced the NBA to finally respond to years of Donald Sterling's overt racism. So I'm on the fence on this one.

PBA's Challenge to New York City's Anti-Profiling Law Denied

A Manhattan judge has ruled that New York City's anti-profiling law -- passed in 2013 by the City Council following the determination in the federal Stop and Frisk litigation that the NYPD's police employed racial profiling -- has a valid civil rights objective that is not preempted by the Criminal Procedure Law. The decision by Justice Anil Singh is a clear win for the Council and a hard slap in the face for the police unions who sought to have the statute invalidated. The decision may well be appealed to the Appellate Division, with leave eventually being sought to take the matter to New York's Court of Appeals. The same police unions are currently seeking to force their way into the federal litigation (see here), so this appeal may be a bargaining chip in the larger three-way battle being waged between the City, civil rights organizations (and the individual plaintiffs), and the police unions.

Central Park Jogger Case Reported Settled

According to the New York Times, the City of New York has reached a tentative settlement with the Central Park Five, the five men wrongly arrested and jailed for the infamous rape of the Central Park Jogger. According to the Times, the City has agreed to pay the men about $40 million, which appears to be about $1 million per year, per plaintiff. It is a stunning turnabout in the long-running, bitterly fought case.

I had previously commented that Mayor de Blasio had put the City's lawyers in a very difficult negotiating spot by announcing his intention to settle the case. Prior to that, the City had vigorously argued that police and prosecutors had done nothing wrong in a constitutional sense, that the guilt or innocence of the Central Park Five was not the issue; rather, it was whether the men could show that the investigating officers and prosecutors had engaged in conduct that they had to know would violate the plaintiffs' constitutional rights. Lawyers for the City argued that the arrests were supported by probable cause, pointing to the plaintiffs' confessions, and carefully scrutinized criminal proceedings that resulted in the men's convictions.

It was my belief, in fact, prior to de Blasio's election, that this case would never settle. The City and the NYPD were so heavily invested in defending its conduct, and had fought the case with such aggressive zest, that it seemed impossible that they would turn the requisite 180 degrees necessary to reach a settlement. Certainly, the thought of paying anything of consequence would have been anathema to the Giuliani and Bloomberg administrations.

Court Rejects Witness Recantation, Upholds Conviction

Were you lying then, or are you lying now? This old saw begs the question of whether the witness was ever telling the truth in the first place. Sometimes, the combination of internal and external pressure, coupled with the inherent frailities of the human mind and the passage of time, can cause even the surest of witnesses to begin to wonder if she can distinguish between truth and fiction, reliable memory or mirage.

The issue of witness reliability arose in a recent decision by Bronx Supreme Court Justice Richard Lee Price, who denied an attempt to overturn a 20 year-old conviction based on a key witness's recantation.

Adrian Thomas Acquitted

On Thursday, June 12, a jury in Rensselaer County found Adrian Thomas not guilty of the killing of his infant son. He was freed after having spent the past six years in prison. The case is most notable for Thomas's coerced confession, original conviction, and eventual the 7-0 Court of Appeals decision that the confession was improperly obtained.

I have written previously about Adrian Thomas, how police in Troy, New York, had lied to Thomas to induce him to confess to murdering his infant son. For instance, officers told him that his son was alive but doctors needed to know precisely how his injuries had occurred if they were to save him when, in fact, the boy had already been declared brain dead, and that they would charge his wife with murder if Thomas did not admit to beating the boy to death. Ultimately, the New York Court of Appeals vacated the conviction, finding that it “completely undermined” Thomas’ right to remain silent using “highly coercive deceptions.”

In the retrial, prosecutors could not introduce the coerced confession, which appears to have gutted their case. In his defense, Thomas put on medical experts who testified that the boy died from a bacterial infection, not because of any actions by his father. (See here). The jurors ultimately agreed that, based on the record before them, Thomas was not guilty.

The ten hour interrogation -- and the way in which false confessions can be artfully coaxed from suspects -- was the subject of a the well received documentary "Scenes of a Crime," which culminates with Thomas's original conviction.

Brooklyn District Attorney Ramps Up Conviction Review Unit

Brooklyn D.A. Ken Thompson

In a positive step for justice and prosecutorial integrity, Newly elected Brooklyn D.A. Ken Thompson has put in place a conviction review unit to take a second look at questionable convictions. The really good news is that this is not grandstanding. Thompson has brought in a crackerjack staff and they have taken on tremendous workload.

I won't restate all the details (they're here, in a New York Law Journal article), but allow me to summarize: his until is looking at 90 convictions -- 80 of which were obtained by former D.A. Charles Hynes's office -- and has appointed 10 full-time prosecutors to the unit. In contrast, when Hynes buckled under the pressure of his re-election campaign and began reviewing his own convictions, he only assigned three prosecutors.

The unit is looking at cases referred to them by defense counsel, but is also turning over its own rocks and initiating its own reviews.  Not surprisingly, according to the NYLJ, University of Michigan Law School Professor Samuel Gross, who tracks exonerations across the country, described the caseload as "staggering," and says that the program is superior to others throughout the country, noting that it "could become a model for other big-city D.A.'s offices."

I have written repeatedly about the need to do away with prosecutorial immunity, and the numbing regularity of prosecutorial misconduct (i.e., here, here, and here). It is equally important to observe and applaud those who take their prosecutorial obligations seriously, those who are willing to forego a conviction if doing justice or observing the constitution so requires. We are early into the Ken Thompson era, but his willingness to turn a harsh light on past practices is most welcome.

Bench Trials, Police Defendants, and Judicial Bias

NYPD Det. Abel Joseph

That police officers who are indicted for felonious acts committed while on duty elect to have bench trials should surprise nobody. On May 23, 2014, NYPD Det. Abel Joseph was cleared of perjury by State Supreme Court Justice Thomas Farber. It is further evidence of the difficult task prosecutors have when the defendant is a police officer, and highlights the problems we civil rights lawyers face in cases based on police misconduct.

As previously reported, the case was quite simple: In August 2010, Joseph swore before the grand jury that he never took his eyes off a particular suspect whom he swore he had seen selling drugs. Joseph also swore under oath that he and his unit were unable to apprehend the people he had seen buying drugs (which would explain why there was no corroborating arrests).  But he later testified, also under oath, that he had indeed lost sight of the suspect. Moreover, he acknowledged that his unit did seize several people who he said had just bought drugs from the suspect, but none of them had any drugs in their possession. 

This means that either one or both versions of Jospeh's sworn testimony was false. This is something we lawyers call "lying," also known as "testilying" when done by police officers, and it is the sort of thing one is not supposed to do. Remarkably, the Manhattan District Attorney chose to prosecute, a rarity in this situation. But Judge Farber found that the giving of false testimony was not "willful." In other words, it was a mistake, an accident. Yes, Detective Abel directly contradicted himself on material facts, but the Court chose to believe that Joseph's memory failed him, nothing more.

NYC's Stop and Frisk Litigation Continues

It may seem like yesterday's news to some, but the Stop and Frisk litigation that dominated the City's news and political landscape last year is still going on. The parties have asked United States District Judge Analisa Torres to rule on pending motions by various police unions to enter the fray. Given the importance of the litigation and the length of time the motions have already been pending, a decision is likely to be rendered soon. The outcome will help determine whether Peter Zimroth, the monitor previously appointed by Judge Shira Scheindlin can begin his work while the underlying case begins the process of fading away, or if the litigation will ramp up once again.

It is difficult to sum up the history of this litigation, but, in relevant part, in August 2013 Judge Scheindlin issued a monumental ruling, holding that the NYPD's Stop and Frisk policy involved racial profiling and was being employed in an unconstitutional manner. Her order established an outside monitor for the NYPD, and she appointed Peter Zimroth to the post. There was a slew of motions and rulings and then an appeal for a stay to the Second Circuit Court of Appeals, which granted the stay and removed Judge Scheindlin from the case. That action triggered further filings.

Meanwhile, recognizing that then-incoming Mayor Bill de Blasio was committed to withdrawing the appeal and adhering to Scheindlin's order, the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association and the Captains' Endowment Association, filed motion papers in which they sought, essentially, to take over the defense of the NYPD, notwithstanding the fact that the NYPD is merely a city department and that the Law Department (under the mayor's direction) represented the NYPD. 

Today's Tangent: Karma Sweet Karma

It's a bit off-point, but Above the Law has reported on a fun bit of irony: a law firm that specializes in foreclosures has itself been kicked out of its offices following a foreclosure. According to A.T.L., the firm of Connolly, Geaney, Ablitt & Willard, located in Massachusetts, stopped paying rent when its office building was foreclosed on, and then topped that by firing a bunch of employees and then failing to pay it's group health insurance premiums, causing its employees' coverage to lapse. Rather than admit the obvious ("we are failing and will soon close"), the firm has announced that it is fact doing better than ever. Right.

They seem like a swell bunch of fellas and I sure wish them the best.

ABA Votes Its Wallet, Rejects Extern Pay

The American Bar Association has shot down an attempt by its Law Student Division to lift the ban on law students receiving both pay and credit for externships. There's not a lot to say, other than the ABA's stated concern for the tension between employees and externs is nonesense.

Law firms who use externs (referred to as interns in my firm and others, which may be technically incorrect, but so what), are supposed to assign work that supplements and furthers the student's education. Basically, you can't use interns as free labor to do the chores you ought to be paying somebody to do. Do you have envelopes that need stuffing, documents that need shredding, or some letters that you want hand delivered across town? Pay somebody you cheap bastard, that's not a proper internship. Are you looking for somebody to assist with some legal research or digest transcripts? That's different; particularly if you are also letting the student sit in on some meetings, depositions, or court conferences. In short, no exploiting the already heavily indebted law student who is just looking for a few credits and some fluff for her resume.

Everybody knows law school tuition is crazy expensive and that many law students are already grappling with serious undergrad debt. Why not allow a law firm or non-profit to also give the student a stipend or salary? Cloaking itself in the sort of saccharine ethical concern normally employed by the NCAA when it punishes impoverished student-athletes for letting a booster buy them dinner, the ABA cites the need to distinguish between the obligations of a paid employee and an intern.

It's hooey. Externs and interns are limited to certain sorts of work because they are engaged in an educational activity. The firms don't have to pay them, but certainly should be able to. The employees, on the other hand, can be assigned a far broader range of work precisely because it's not an educational endeavor. The firms' obligations to these two categories of workers are already clear. It isn't complicated and it's not a close call.

What I learned From Game of Thrones

I'll confess that HBO's Game of Thrones is a guilty pleasure, one that I look forward to every Sunday.

It is too cheesy, gory, and cartoonish to be confused with other highly promoted HBO shows like Boardwalk Empire, the Wire, or cable shows like Breaking Bad. It's really just an expensive fantasy piece, a thoroughly violent bit of escapism that merges King Arthur-type fables with a Lord of the Rings motif, under a heavy overlay of prime time soap opera and palace intrigue. It's essentially Knots Landing for the Dungeons and Dragons set.

Other than confirming how lucky I am not to have lived in the days of the Seven Kingdoms, when life could rightly be described as "nasty, brutish and short," GOT generally fails as an educational show. That is, until Tyrion Lannister once again chose trial by combat in an attempted end-around his rigged trial for regicide.

When I first graduated law school, an older lawyer gave me a piece of advice that has held true: when you are winning, shut up. I have on many occasions heard lawyers talk themselves out of victory. One very credible story told to me involved a seasoned, verbose lawyer arguing a motion at the bench. Upon hearing the judge rule in his favor, the lawyer nodded approvingly and said, "that's a good ruling judge, and let me tell you why . . . ." Seriously, a true story.

This leads me to trial by combat. (An excellent idea, by the way, but only if I get to handpick my opponents). Watching Oberyn primp and preen over his fallen adversary, you could just see his demise coming. Like a badly staged WWE wrestling match, the Mountain was just biding his time, waiting for the right moment to act.

My point? Whatever gold stars you think you win by playing to the crowd, or by seeking collateral concessions -- whether it's trying to get your adversary to admit to raping and murdering your sister or something more banal -- you are risking far too much not to take the win when it is offered. In short, if victory is possible, seize it immediately. Seeking to perfect it, to score every point, or obtain every possible dime, puts you at risk of having your adversary catch you by the ankle, roll over you, plunge his thumbs through your eyes, and squeeze your head in his giant hands until it bursts.

No matter how skilled an attorney you are, no matter your level of confidence, always respect your adversary, and remember the cruel and fickle hand of fate. Or, when you are winning, shut up and step back.

New Kerik Complaint Ratchets Up Charges

The nasty, and very personal, litigation between Bernie Kerik and high-profile lawyer Joe Tacopina has this week morphed into something extra-special for courthouse observers (or at least me). The newest claims unveiled by Bernie earlier this week have added several new plot twists, including some salacious allegations about sexual escapades, drug abuse, and bombshell civil RICO claims against Tacopina.

Background: it's no secret that Bernie Kerik -- former NYPD commissioner and almost-head of Homeland Security turned federal felon -- recently launched a jihad against his former lawyer and friend, Joseph Tacopina, claiming, in simple terms, that Tacopina ducked out of a federal investigation by snitching on Bernie. In the process, Bernie alleges, Tacopina coughed up attorney-client confidences, committed malpractice, and was an all-around no-goodnik. These claims were offered in a federal lawsuit (filed in NJ and then transferred to federal court in Manhattan) and a grievance complaint to the local bar. These claims also pale in comparison to what Bernie is now alleging.

The Hynes Legacy Grows: Roger Logan Exonerated

Today, Roger Logan, was freed by a Brooklyn court after he served nearly 17 years for a 1997 murder. Det. Louis Scarcella produced the key eyewitness who fingered Logan for the crime. The only problem? The witness was in police custody at the time she testified she saw Logan at the crime scene. Congratulations to Logan, whose release prompts the inevitable question: how many more wrongly convicted are still sitting in prison, victims of corrupt police work and complicit prosecutors?

Charles Hynes Heading to the Hoosegow?

Is former Brooklyn District Attorney Charles Hynes destined to serve prison time? Based on a Department of Investigation report released yesterday to the New York Times, it appears he ought to be. (The NYT article is here, the DOI report here).

Former Brooklyn DA Charles Hynes

Charles Hynes was voted into office as the Brooklyn District Attorney on the strength of his role as special prosecutor in the investigation and prosecution of the 1986 racial bias attack in Howard Beach. By the time he was voted out of office in 2013, his reputation was greatly tarnished, due in no small part to deeply flawed prosecutions and convictions of innocent men, such as David Ranta and Jabbar Collins. Given the opportunity to ride off into the sunset after losing the primary election to Ken Thompson, Hynes instead fought to the bitter end, leaving in a swirl of petty vindictiveness.