The Back to School DWI

It's been a long and hot Ithaca summer. Compared to last year's record coolness, and lack of humidity this summer was brutal. I think we used the old window A/C units only few times last year. In fact, I was bragging to some friends how summer here is so lovely, blah, blah, blah, and then 2010 balanced it all out.

Cornell University and Ithaca College students are back, and the town is buzzing once again. My law practice focuses on DWI/DUI defense so naturally I have represented many students over the years.

One all too common DWI scenario is when a boyfriend and girlfriend have a nice dinner or a small party/get together. They all plan to spend the night, enjoy some drinks, and no one plans on driving. Then later in the evening or in the wee hours of the morning a fight or argument ensues. Maybe a drink spills on a laptop, or the liquor/beer/wine brings out some honest feelings or perspectives. Maybe the conversation becomes heated. Tempers flare and all reason gives way to heated emotion.

Now one party demands that the other leave immediately. Your best friend/lover/partner may even call the police after you leave, and tell them you are driving drunk or that you are driving high. With the flip of a switch you are in DWI hell. This situation is so common in my world that I call it the back to school DWI.

I always tell students that the time to think about a back up plan is not in the heat of the moment. You cannot think clearly with a combination of alcohol, and a polarized emotional state. Do not take any chances with your future. Always have cash and/or a credit card for a cab. Always have a car service number programmed in your cell contacts. Never assume that your friends are always looking out for your best interests. The bottom line is you have to protect yourself.

Ex Post Facto Protection Remains in a Post-Booker Sentencing World

by Mark D. Hosken,
Supervisory Assistant Federal Public Defender,
Western District of New York

The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a later manual would violate the Ex Post Facto clause. If an amended guideline section or enhancement substantially disadvantages the defendant, the application of the section or enhancement would violate the Ex Post Facto clause. Miller v. Florida, 482 U.S. 423, 432-433 (1987).
The Department of Justice is litigating a different position. The government maintains that Ex Post Facto protection is no longer relevant in determining which version of the Guidelines manual applies even if the amended section is more onerous to the defendant. The argument seemingly relies on Booker’s holding that the guidelines are advisory. Simply put, the contention is that since the guidelines are advisory, there can be no risk of increased punishment. For various reasons, the government’s position is flawed.
In Miller, the Supreme Court held that the application of a Florida sentencing scheme, similar to the U.S.S.G., violated the defendant’s Ex Post Facto protection. The decision addressed the central inquiry of the Ex Post Facto protection: was the defendant given fair notice of the punishment? The necessary analysis is whether the law applies to events occurring before its enactment and whether it substantially disadvantages the defendant. The Florida sentencing scheme set a sentencing range of 3 1/2 years to 4 1/2 years at the time the defendant committed his offense. Later changes increased the range to 5 1/2 years to 7 years when the defendant was sentenced. This substantially disadvantaged the defendant as it made “more onerous the punishment for (conduct) committed before its enactment.” Id at 435. As a result, the Ex Post Facto clause was violated.
A recent example demonstrates the continued viability of Ex Post Facto protection. A defendant is convicted of defrauding the United States (18 U.S.C. § 641) by securing federal FEMA funds by falsely claiming he resided in New Orleans during the Hurricane Katrina catastrophe. The defendant’s criminal conduct was complete in September 2005.

Congress decided to increase the punishment for future fraud-related offenses similar to those occasioned by the Katrina disaster. The lawmakers enacted 18 U.S.C. § 1040 pursuant to Pub.L. 110-179. This legislation created a 30 year felony (Fraud in Connection with a Major Disaster or Emergency Benefits) instead of the 10 year maximum for 18 U.S.C. § 641. The effective date for the new crime was January 7, 2008. This was 27 months after the criminal conduct was completed in our example. The Sentencing Commission created an enhancement [2B1.1(b)(11)] to implement the directives of the new statute. This enhancement if applied to the defendant’s completed conduct would result in a doubling of the offense level from 6 to 12. The amended enhancement became effective on November 1, 2008. This was 37 months after the criminal conduct was completed in our example.
U.S.S.G. § 1B1.11(a) directs the use of the guideline manual in effect on the date of sentencing. Such application is modified by subsection (b)(1). This caveat requires the application of the earlier manual (date of offense) if the later edition violates the Ex Post Facto clause. Thus, the proper U.S.S.G. manual is the earlier one in our example.
The government argues the sentencing court need not use the earlier - and more favorable to the defendant - guideline manual. Such claim ignores the Supreme Court’s direction that the Guidelines remain the starting point and the initial benchmark in every sentencing proceeding. Gall v. United States, 552 U.S. 38, 49 (2007). Numerous courts rejected the government’s claim and applied the Ex Post Facto protection to post-Booker sentencings. See United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008) (using a later version of the guidelines created a substantial risk that the defendant’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause); United States v. Lanham, __F3d__, 2010 WL 3305937, *12 (6th Cir. Aug.24, 2010) (“the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns.”); United States v. Lewis, 603 F.Supp.2d 874, 877 (E.D. Va. 2009) (the clear preponderance of reviewing courts seem to favor post-Booker application of the Ex Post Facto Clause to sentencing guidelines calculations); United States v. Doyle, 621 F.Supp.2d 345 (W.D. Va. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2003 guidelines in effect at the time of the commission of the child exploitation offenses); United States v. Kladek, 651 F.Supp.2d 992 (D. Minn. 2009) (rejecting the use of the higher 2008 guidelines and instead applying the 2000 guidelines in effect at the time of the commission of the tax offenses); United States v. Sweeney, __F.Supp.2d__, 2010 WL 2222264, *4 (S.D.N.Y. June 3, 2010), (collecting cases and applying the 2003 guidelines in effect at the time of the conduct rather than the more onerous 2008 guidelines in effect at sentencing in a child exploitation case); United States v. Kilkenny, 493 F.3d 122, 127 (2d Cir. 2007) (holding that, the application of a particular version of the sentencing guidelines is retrospective, for purposes of the Ex Post Facto Clause, if the version went into effect after the last date of the offense of conviction); United States v. Johnson, 558 F.3d 193, 194 & n.1 (2d Cir. 2009) (per curiam) (explaining Kilkenny); and United States v. Gilmore, 599 F.3d 160, 166 (2d Cir. 2010) (at a minimum, in order to raise an Ex Post Facto concern, a law must apply to events occurring before its enactment).
The Second Circuit recently reaffirmed the Ex Post Facto principle in a post-Booker analysis. Though the reasoning was not determinative to the issue before the Court, the panel agreed the Ex Post Facto Clause applies: “Our holding continues to prevent the Sentencing Commission and Congress from imposing a heightened punishment following the commission of the criminal conduct triggering that punishment.” United States v. Kumar,___F.3d__, 2010 WL 3169270,*12 (2d Cir. Aug. 12, 2010). Judge Sack, in his dissenting opinion, agrees with the majority on this point:
“The majority and I begin on common ground. We first assume that the Ex Post Facto doctrine applies to the Sentencing Guidelines after the Supreme Court decided, in United States v. Booker, (citation omitted), that the guidelines are advisory. We then agree that [f]or a law to contravene the Ex Post Facto clause, two critical elements must be present: First, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the offender affected by it.”
Id at *25.
Recently, the Honorable David G. Larimer rejected the government’s argument that the application of a more severe guideline enhancement would not impact the Ex Post Facto protections. Judge Larimer recognized the higher guideline sought by the government would disadvantage the defendant. The Court decided the importance of the guidelines as a starting point in the sentencing process was enough to trigger the use of the earlier, less severe guideline manual. United States v. Lewis, Docket No. 10-CR-6060-001, WDNY, (decided Aug. 19, 2010).

The use of the later book in our example to apply the enhancement would violate the protections of the Ex Post Facto clause. The enhancement doubling the guideline range is the result of legislative action by Congress many months after the offender’s conduct was complete. The government seeks to retroactively apply the onerous enhancement to the defendant. If successful, that guideline enhancement would apply to events that ended before the legislative amendment. Moreover, such application would disadvantage the defendant by doubling his guideline range. Such application would be unconstitutional. The proper guideline to be applied in our example is the earlier manual. Contrary to the government’s contention, the protections of the Ex Post Facto clause remain for post-Booker sentencings.

Columbia Journalism Review Sues To Obtain Governor Paterson's Office Emails

Why We’re Suing
Let’s see those e-mails, governor
By The Editors of Columbia Journalism Review
LINK

Today, the Columbia Journalism Review will file a lawsuit in an Albany court, seeking to compel New York state to properly fulfill its duties under the state’s Freedom of Information Law—duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.

Here’s how we got to this point. Way back on March 4, Peter Kauffman, Governor David Paterson’s director of communications, resigned, saying that as a former Navy officer he took “integrity… seriously” and that he could not “in good conscience continue in” his position.

His departure came in the midst of one of the one of the strangest chapters in New York’s recent political history. For weeks, the actions of the governor and his staff had been subject to an aggressive investigation by reporters from The New York Times, in the wake of a domestic violence case involving one of the governor’s most trusted aides. While the paper worked its sources, Albany’s rumor mill went into overdrive about the coming article, presumed to be a bombshell. Would it be hookers? Cocaine? Bribe taking? All of the above? With assists from social media and a hyperactive press corps, such speculation burst into the state’s political conversation.

Kaufmann’s resignation reminded Clint Hendler, our staff writer who specializes in politics and government transparency issues, of two recent public records requests. In 2009, just after South Carolina governor Mark Sanford’s staff told the press that their out-of-pocket boss was off “hiking the Appalachian Trail,” John O’Connor, a reporter at The State, filed an open records request that netted e-mails between reporters and the governor’s press office as the scandal brewed. That ingenious reporting trick inspired John Cook, then a reporter with Gawker, to file with New York for 2008 e-mails between former governor Eliot Spitzer’s press secretary and reporters, in the period immediately around his prostitution meltdown.

The documents yielded by both these requests contained some interesting nuggets, showing reporters aggressively angling for information and exclusives and revealing some of the tactics used by press secretaries to manage coverage. So Hendler thought that Kaufmann’s e-mails might be worth a look, and, the afternoon of his resignation, submitted a request under New York state’s Freedom of Information Law (FOIL) for the last seven weeks of e-mails between members of the press, Kaufmann, and his deputy, press secretary Melissa Shorenstein. When Shorenstein also resigned two weeks later, saying she’d been “unwittingly” caught up in the scandal, Hendler filed an amending request seeking similar e-mails through the time of her departure.

The requests—technically in Hendler’s name—entered an acknowledge-and-delay phase familiar to most anyone who has used freedom of information laws, until April 29, when, despite finding over 2,300 responsive e-mails, the executive chamber wrote us to say that, by the state’s reasoning, the public can’t see a single one of them. An administrative appeal garnered nothing further.

So we’re suing.

Why? Well, let us count the ways. First, we’re journalists, and we don’t like taking no for an answer.

More seriously, the records we’re seeking would likely help illuminate the press’s role in a bizarre chain of events in state history that led to the appointment of an Independent Counsel and to the governor dropping his election campaign. Sure, there will be lots of chaff in those e-mails. But perhaps they’d offer some information explaining the resignations, show reporters testing the most bizarre theories circulating at the time, or catalogue an evolving damage-control line from the state’s highest official.

Any of that would all be potentially interesting, and that’s why we will exercise our rights under the law and file suit.

But given the response from the governor’s office, we now also think this suit must be waged to protect the full force of two laws that the state’s press corps rely on: the Freedom of Information Law and the state’s shield law. As we argued in an editorial headlined “Shield Abuse” in our July/August issue, we like freedom of information laws and we like shield laws. We don’t like it when the latter is cynically pitted against the former, in a way that could ultimately damage the shield.

The governor’s office’s denial letter (pdf) gives two rationales for withholding the records. The first suggests that the e-mails would “reveal competitively sensitive information.” The law does allow the state to hold back private businesses information they may hold on the order of trade secrets—manufacturing formulas, for example—but, in this case, that rationale is silly. The state is claiming that the e-mails—none of which are less than five months old—might reveal proprietary lines of reporting, sources, or “methods used by reporters to conduct their research.” Proprietary methods like e-mailing the governor’s communications staff for information or comment? Please.

The other rationale is, to give it credit, at least more creative. The FOIL statute allows the state to withhold documents that other portions of state law demand be kept private. In this supposed spirit, the governor’s office has denied the records by citing the state’s shield law, which can offer journalists, depending on the circumstances, protection against being held in contempt for refusing to comply with a subpoena.

On its face, that won’t fly. The shield law protects journalists from subpoenas about their sources and reporting. It does not protect sources from being compelled to testify. Expanding its protections to sources—especially to government sources, paid by taxpayers, and acting in their official capacity—would pervert and dilute the law. Besides, any talk of testimony is entirely besides the point here. The FOIL process is not a subpoena, and the shield does not protect public records—even if those records reflect some aspect of a journalist’s communication with a public official—from being disclosed pursuant to a proper records request.

Amazingly enough, it wasn’t long ago that the Paterson administration would have agreed with us. Remember John Cook and his 2009 request for Governor Spitzer’s press secretary’s e-mails? It was fulfilled without complaint by the Paterson administration, without any exemptions claimed. But once FOIL’s requirements were trained on Paterson, and threatened to expose something about the operations of his staff, his lawyers found reasons to deny.

Who knows exactly what a fulfilled request would reveal? But it already has revealed something about how freedom of information requests are sometimes handled by governments, who can deny on slim or specious legal grounds with the bet that the requester will throw up their hands, frustrated by the expense and hassle of taking the government to court. It’s a cynical ploy that frustrates the public and the press’s right to know.

And luckily, that won’t be the case here, thanks to our lawyers at Friedman & Wittenstein, who have generously agreed to take the case at no charge to us. Instead, they hope to recoup their costs under a provision of New York’s FOIL allowing plaintiffs to bill the state if the judge finds that a denial was especially capricious.

And if that’s the standard, we like their chances.
CJR sues to disclose N.Y. governor's office's e-mail messages
LINK

The Columbia Journalism Review today filed suit to compel New York state to release several weeks’ worth of e-mail messages among Gov. David Paterson’s former director of communications, Peter Kaufmann, Kaufmann's deputy press secretary, Melissa Shorenstein, and the media.

The governor’s office on April 29 refused to reveal the roughly 2,000 e-mail messages responsive to CJR’s freedom of information request, claiming that those public records were exempt by law – citing the New York shield law, which provides a state reporter's privilege.

Clint Hendler, a CJR reporter, had previously requested the government e-mail messages under New York’s Freedom of Information Law (FOIL). Kaufmann resigned on March 4, 2010 citing issues of “integrity” following a political dust-up in which reporters were investigating accusations that an aide to Gov. Paterson, David Johnson, was involved in a domestic violence dispute. Shorenstein resigned two weeks later.

While the governor's office cited the New York shield law as a basis for withholding information, state shield laws in fact exist to ensure the flow of news and information to the public and to protect an independent press; indeed, the proposed federal shield legislation is entitled the “Free Flow of Information Act.” This particular privilege from producing documents or testifying is referred to as the “reporter’s privilege” because it belongs to a reporter to assert, not to the government as a means to prevent it from disclosing public information.

The denial also cited portions of “commercially sensitive” information in the messages as additional grounds for denial.

CJR wrote that it is suing to “compel New York state to properly fulfill its duties under the state’s Freedom of Information Law — duties we believe the state is speciously and cynically trying to shirk by citing inapplicable exemptions and New York’s shield law.”

Columbia Journalism Review is being represented pro bono by the New York law firm of Friedman & Wittenstein.

— Cristina Abello

Behind the News, Transparency — April 29, 2010 06:59 PM
An Attempted FOIL

NY governor’s office denies CJR’s records request
By Clint Hendler, CJR

LINK

Late this afternoon I got an email from the New York governor’s office initially denying a pair of requests I filed in March under the state’s Freedom of Information Law.

The subject of said requests? All emails between the governor’s two top press aides and journalists sent between January 15, 2010, and the dates in March when the flacks resigned their positions. As you may recall, in that period of time the governor and a top aide were under the aggressive investigative lens of The New York Times. The paper was examining the aide’s record of domestic abuse, and accusations that the governor and members of the state police discouraged the aide’s girlfriend from filing domestic abuse charges after an apparently violent incident that the governor office originally described as a “bad breakup.”

You may also recall that in the run up to the Times’s blockbusters on the scandal, almost all of New York’s press corps got swept up in rather uninformed and all too public speculation about a story that the Times hadn’t run yet.

Where there are rumors, there are press secretaries called upon to deny them, and for that reason among others, I thought it would be interesting to get a peek at what the flacks were getting and giving in those hectic days.

Credit for this idea goes to John Cook, a reporter now with Yahoo! News. While working for Gawker, he had filed a similar request with the Paterson administration for emails sent and received by Governor Eliot Spitzer’s press secretary during his dissection by the Times. (Cook, in turn, credits South Carolina’s The State, which filed the same kind of request when Governor Mark Sanford was not hiking on the Appalachian Trail.)

Today the governor’s office denied my request. (They also, it turns out, just denied a similar, though apparently narrower, request made by John Cook.) Here’s a PDF laying out the legal reasoning behind one of the denials. (The two letters are essentially identical.) The governor’s lawyer offers two arguments, both of which, let’s note, Paterson’s lawyers didn’t find fit to cite when it was Spitzer’s press secretaries’ emails on the line.

The first is that the governor’s office claims that New York’s state’s shield law forbids emails to be released because they are “the work product of journalists.” If you look at the denial letter, you’ll note that Jeffrey Pearlman, the lawyer who signed the denial, doesn’t cite any text from the state’s shield law in making this argument. I think I have an idea why: there’s not a word in the law to support this claim. The law protects journalists from being held in contempt if they themselves refuse to reveal their sources, unpublished information, and other work product as the result of a court or legislative subpoena. It doesn’t protect other people who may possess information about a journalist’s work. I can’t imagine the governor’s office being able to offer a plausible defense of this argument.

The second argument is perhaps more colorable—though that’s not saying much. Pearlman suggests that the information, sources, and methods of reporting described in the emails would if disclosed “cause substantial injury to the competitive position” of the news organization employing any given reporter. But “substantial injury” is a high bar, and it’s hard to see how months-old emails between the governor’s official press staff (no Deep Throat there) and the working press would have much content that could clear it.

It will be interesting to see how well these arguments hold up should I—or Cook, or any other reporter out there who may have asked for the emails—decide to seek an administrative appeal, or involve New York state’s ombudsman-like Committee on Open Government, or the courts.

I have a guess

NYS Appellate Court in Albany: "Deliberative Process" Exemption To FOIL Applies To Federal/State Communications

Robert Freeman, Director, Committee On Open Government

New York appeals court expands scope of records exemption
LINK

A New York appellate court in Albany on Thursday ruled that the "deliberative process" exemption to the state's freedom of information law ("FOIL") applies to communications between federal and state officials. At issue in the case were records sought by a Saratoga County water district relating to a water supply option report developed by General Electric Co. as part of its efforts to remediate contaminated portions of the Hudson river. New York state officials, in conjunction with the U.S. Environmental Protection Agency, had co-regulatory authority over the cleanup project.

Water district officials expressed concern that plans to dredge upriver portions of the Hudson river to remove hazardous PCB sediments could negatively affect the local water supply. They therefore requested the disclosure of a variety of documents under FOIL related to the proposed remediation plan, including some communications between EPA and state officials.

The state refused to disclose certain records, claiming that they constituted intra-agency or inter-agency pre-decisional deliberative materials that were exempt from disclosure under the law. FOIL provides for such an exemption on the grounds that pre-decisional communications exchanged internally purely for discussion purposes should be protected in order to promote frank and open discussion.

The water district argued that the inter-agency and intra-agency confidentiality protections only covered an "agency" as that term was defined under FOIL. FOIL limits the definition of an "agency" to state and municipality entities thus arguably not covering communications with federal bodies such as EPA. The lower court agreed with the water district's reading of the law.

The appeals court, however, disagreed. It first recognized that neither "inter-agency" nor "intra-agency" were defined under FOIL and that prior case law has interpreted these terms to include certain non-state entities despite how the term "agency" is defined under the same law. The court went on to rule that the proper test to uphold the intent of the deliberative process exemption "can only be served by focussing on the nature of the relationship that exists between the entities, and asking whether the communication in question is exchanged as part of the deliberative process in government decision-making."

Applying that test, the court noted that the relationship between federal EPA and state officials "has existed for more than 25 years" and was in place due to statutory and contractual obligations that required cooperation. "In terms of this project, [New York state] and the EPA share a common objective, and by law as well as by contract are required to work as one unit to achieve that objective," the court stated.

The court then ordered the lower court to conduct a review of the documents at issue to determine which, if any, of the withheld documents constituted deliberative process communications. In addressing a separate claim, the court also ruled that certain settlement negotiation documents were improperly withheld, finding that the state failed to provide any specific legal basis supporting non-disclosure.

In dissent, one member of the court noted that the majority's decision "thwarts the basic premises that FOIL is to be construed liberally, that government records are presumptively available for public inspection, and that exemptions are to be construed narrowly." The dissent goes on to highlight the limited definition of an "agency" under FOIL and notes that the state Committee on Open Government (a persuasive but non-binding authority) has previously — and correctly — found that communications between the state and EPA are not covered under the deliberative process exemption.

The dissent also distinguishes prior case law holding that certain non-state, non-municipality entities can qualify for deliberative process protection by stating that such inclusion had previously only applied when the non-state actor was in a consulting position. Here, the dissent found the EPA to be acting with independent authority.

— Mark Caramanica

Copyright 2010 The Reporters Committee for Freedom of the Press.

Blast From The Past: Tom Robbins on Picking Judges, 2007

Judith Kaye

One of the most corrupt judicial processes in America is right here in New York City: picking judges for the New York State (and Federal) courts.

Citizens, this is where the money passes from palm to greased palm. More at a later date, but for your reading pleasure, here is the article published by the Village Voice in 2007:

Benchwarmers
Everything you never wanted to know about picking judges for an important court you've never heard of
Tom Robbins, Village Voice, July 17, 2007
LINK

I was warned against writing this column.

Details:
"You might think twice about doing that judges story," were the exact, ominous words.

OK, the threat came from my editor, who added: "Nobody cares how judges get picked. Where is that S&M piece you promised?" I did not knuckle under. As you may know, this paper is currently owned and operated by out-of-towners and recent transplants, so I was able to convincingly argue that, aside from rent hikes and Alex Rodriguez, there is no subject New Yorkers get more passionate about than the selection of appellate judges. Please do not cross me up on this.

Here, then, is the unvarnished truth—which only the Voice will tell you—about how New York came to select a rookie judge with a powerful ally as the presiding justice for the busiest and most powerful appeals court in the state.

Already you're thinking, "Appellate court? Presiding justice? Alex Rodriguez?" Bear with me. Part of the problem here is the purposely obscure nomenclature employed by lawyers, who are the only ones who really do care about judges. They care so much that they see the judges' faces in their Grape-Nuts every morning. They address their cereal, practicing small, obsequious remarks like: "Heard Your Honor hit a par four last week. Nice."

Many people erroneously assume that the state's most important court is the Court of Appeals in Albany, which supposedly settles all the big cases. See? You're already the victim of legal obscurantism. Albany? Are you kidding? The state's most important court is right here where it belongs, in Manhattan, at the corner of Madison Avenue and East 25th Street, where is found the magnificent marble headquarters of the Appellate Division, First Judicial Department.

The few non-lawyers who stumble across this structure are immediately struck dumb by the big Greek columns and the statues of half-naked men and women on the roof. This is a building for judges and lawyers only; jurors are not allowed, not only because no jury trials are held here, but because they would befoul the building with dark splotches of chewing gum and half-completed Sudoku puzzles. Oh, yes, there is a also a cadre of heavily armed court officers who are charged with keeping jurors out and making sure there are parking spots for the 16 appellate judges who work here.

You are wondering: Why do they need to drive? What are they, firefighters? This is another sad example of reader ignorance. The former governor, George Pataki, a Republican from Putnam County (I can only tell you it is near the Taconic Parkway), recognized after taking office that New York City's appellate courts were severely segregated. Local judges, overwhelmingly Democrats, held most positions. To remedy this outrage, Pataki commenced a bold integration scheme in which he bussed in judges from upstate to sit on the city's appeals courts. Surprisingly, most of his choices were white Republicans like himself. Opponents of this measure complained (quietly, so as not to be seen as bigots) that the imports were generally of a lower IQ than the locals. Plus, they took up all the parking spots because, of course, they didn't really take a bus to work.

This was the situation that greeted newly elected governor Eliot Spitzer (a Democrat from Manhattan, though he also has a residence in Columbia County, apparently farther up the Taconic). It was day one and everything had to change, so he got right to work on the appellate courts, starting with the First Department in Manhattan, because it handles all the most important cases. Would you want some hick court in Elmira ruling on the likes of High Risk Opportunities Hub Fund Ltd. v. Credit Lyonnais? Of course not.

Spitzer's first task was to appoint a new presiding justice, an opportunity that made the governor's people ecstatic. This plum had fallen into their laps thanks to a display of stunning ingratitude by one of Pataki's own picks. Everyone knew that Pataki had intended, on his way out of office, to name his pal and former counsel, Justice James McGuire, to this top job. McGuire had been especially helpful to Pataki when a federal grand jury in Brooklyn began asking why his administration had granted parole to felons whose parents gave a lot of money to his campaign. McGuire did well: Only a couple of Koreans and some low-level parole aides were convicted.

If he'd been appointed, McGuire would have held this post until 2018, making him Pataki's proudest legacy. (OK, his only legacy.) Sadly, this plan fell apart when the then-presiding justice, one John Buckley, an import from Oneida County (no idea, look it up), refused to step down. Buckley was reluctant to do so because he would've had to go back to wherever Oneida County is. December 31, 2006, came and went. Buckley was still there. This gave Spitzer the right to choose the new presiding justice when Buckley turned 70, which he soon did.

(To quickly recap: The presiding justice runs a big building with Greek columns where many important legal cases are heard and where you, in all likelihood, will never enter.)

Because he wanted to do things properly, Spitzer appointed a special panel to advise him on whom to appoint. This is called "merit selection." It is preferable to elections, because voters are notoriously ignorant (see Bush, George W., Election of). Choosing a new P.J. (common vernacular for "presiding justice"—please memorize) is especially important because he also gets to pick the watchdogs who penalize wayward attorneys. Since Manhattan's hordes of attorneys all live in terror of being cited for wrongdoing, this causes the P.J. (see above) to be viewed as somewhere north of God. His jokes are the funniest ever heard, his wisdom unfathomable.

Unfortunately, Spitzer's panel didn't fully grasp the "merit" part. It selected five candidates as "highly qualified," yet somehow neglected to include two of the First Department's most distinguished members: Richard Andrias, a Vietnam vet with a Bronze Star who is considered such a stellar judicial performer that he has been nominated five times for the Court of Appeals, and David Saxe, another appellate Hall of Famer who is widely considered the best writer on the bench since the late William O. Douglas.

Cynics maintain that the absence of stars like Andrias and Saxe made it easier for the governor to select the judge he ultimately chose, Jonathan Lippman. An amiable insider, Lippman was for many years the court's able administrator and served as a loyal deputy to the state's top judicial officer, Chief Judge Judith Kaye of the Court of Appeals. As for actual judging, Lippman had a late start in the business: He never heard a case until 2004 and wasn't elected to the bench until 2005.

While this may seem an unlikely résumé for someone selected to head the state's busiest court, Lippman's many fans insist he is otherwise superb. The fact that he and his boss, Judge Kaye, have failed to get a raise for the state's judges for nine years should not be held against them, the fans say. And Judge Kaye's reluctance to go along with demands from scores of irate judges who want to sue the governor's ass to get that raise is also irrelevant.

Moreover, Lippman is so good that he is already being touted as a likely successor to Kaye when she has to step down late next year. Recommendations for that post will be made by another special gubernatorial panel.

That is how merit selection works. Who else are you going to trust to pick judges—editors?

Museums and Arts Organizations At Risk for Losing IRS Tax Exempt Recognition: Is Your Organization on the List?

The IRS recently published a long list of non-profits that have not filed appropriate forms for the last three years. Many museums, historical societies, and arts organizations are featured. These groups risk losing their tax-exempt status if action is not taken soon.

The IRS is giving organizations the opportunity to keep their tax-exempt recognition so long as paperwork is filed by October 15, 2010.

See if you are on the list at
http://www.irs.gov/charities/article/0,,id=225889,00.html?portlet=7.

The Display of Art - A Fiduciary Duty of the Museum

Recently Eli Broad, art collector and philanthropist, told the American Association of Museums about its members' duty to take art out of storage and put it on display. “If 90% of your work is in storage you need to begin lending it to other institutions. Get art out of the basements,” The Art Newspaper reported.

The fiduciary duties of care, loyalty, and obedience obligate art museums to display their works. Museums are generally institutions legally formed for the public good. They hold works in trust for the viewing public. When works are accessioned and not displayed, museum boards of directors may be putting themselves at risk of violating their fiduciary duties.

While these duties have not been traditionally enforced by state attorneys general, the rise in deaccessions by institutions to raise revenue for operating costs could prompt greater scrutiny of these fiduciary duties. Taking works out of the basement makes good legal sense.

Congress Finally Cracking Down On Foreign Medical School TTT's

This is very encouraging news. Expect a long drawn out lobbying fight from the Caribbean scammers. It's only a matter of time before the corrupt law school TTT's find themselves in the regulatory crosshairs. The fat cat administrators are padding their pensions and plotting their exit strategies as we speak.

"The federal government, through the Federal Family Education Loan program administered by the Education Department, loaned U.S. students enrolled at foreign free-standing medical schools $1.5 billion between 1998 and 2008, according to the report.

Although that amount represents less than 1 percent of all federal student loans made during the same period, borrowing has grown by more than 300 percent because of increases in tuition, student enrollments and the availability of other loan funds.

Foreign medical schools that participate in the loan program have to meet certain statutory requirements. One requirement has been that 60 percent of their students who take the USMLE must pass the test. Beginning last month, however, Congress increased that must-pass percentage to 75 percent of students.

According to the report, the Education Department has not been able to fully enforce the institutional pass rate requirement on foreign medical schools. One reason is that private organizations that administer each step of the exam have refused to release student scores on grounds that the information is proprietary.

Stall, stall, stall..... Obfuscate, obfuscate, obfuscate........ Pad those pensions.

http://www.aafp.org/online/en/home/publications/news/news-now/resident-student-focus/20100809gao-loans.html

Hunger Strike!

Release: Unemployed J.D. Begins Hunger Strike to Support Law School Transparency

On August 5, 2010, Ethan Haines, self-designated J.D. Class Representative, emailed an Official Notice of Hunger Strike to administrators of ten randomly selected law schools ranked in the Top 100 of the 2010 U.S. News & World Report's annual rankings. These schools were selected because they stand to gain the most from keeping the current rankings structure in place.

Below is a partial listing of recipients of the Official Notice of Hunger Strike:

1. University of Pennsylvania Law School (Philadelphia, PA)
2. Fordham University School of Law (New York, NY)
3. William S. Richardson School of Law, University of Hawaii at Manoa (Honolulu, HI)
4. Florida State University College of Law (Tallahassee, FL)
5. American University Washington College of Law (DC)

The Notice sets forth two conditions that administrators can satisfy to end Ethan's hunger strike. One condition is to provide written confirmation of their intent to cooperate with the Law School Transparency (LST) organization's information request regarding employment statistics. Ethan is not affiliated with LST, but is an avid supporter of the cause and intends to forward the compliance statements to the organization.

The remaining five law schools will be announced Friday, August 6, on the blog http://www.unemployedJD.com. A Twitter petition http://twitition.com/wqtfs is also circulating the internet in support of the cause.

Feel free to contact Ethan Haines for additional information.

Ethan Haines
J.D. Class Representative
ethan@unemployedjd.com

Excelerate Discovery

Excelerate Discovery, the current nesting place of several former Update Legal recruiter hacks, apparently had a bit of a shake up last week. Alexandra "Lexie" Newman was reportedly shit-canned during her Israeli vacation, and apparently went ballistic on Facebook. Just another day of backstabbing and juvenility in the distguished profession of law.

Missing jurors

Nobody gives Parker warnings to the jury. No judge says to the jury "if you fail to appear, the trial will continue without you". If they did, then the jury might feel free to stay home instead of being afraid someone would come looking for them. So what do you do if parts of your jury don't show up when they're supposed to? CPL 270.35(2)(a) is one of the better statutes in terms of being specific. Basically, any juror who does not return within two hours can be replaced.

It's not quite that simple. Upon learning that one of our jurors is missing, the trial judge is required to conduct a "reasonably thorough inquiry" to determine whether the juror is reasonably likely to return within two hours of the time court was scheduled to resume. This is why the ADA will call the area hospitals. It's like advertising in the Daily Record to give notice to someone you know is living in California. Pointless though they may be, the formalities must be observed.

As to the two hours, note that it's not two hours from the time of the phone call. If the juror will not return within two hours of the time set for the trial to continue, then the juror can be replaced. So if you find out about problems at 4PM today and the trial is supposed to continue tomorrow at noon, any juror due back by two tomorrow cannot be replaced. If you find out about the problem at 4PM, and court was scheduled to begin again at 2:30, any juror not due back until after 4:30 can be excused. You have a right to be heard before any juror is excused, and the court must place the reasons for dismissal on the record (CPL 270.35[2][b&c]).

What if the jury is deliberating? The judge cannot replace a deliberating juror without the defendant's express written consent, executed in open court (CPL 270.35[1]; People v Gomez, 308 AD2d 460 [2d Dept 2003]). The defense doesn't need a good reason - or any reason - to refuse to consent. If you think replacing the deliberating juror would be a mistake, then the court must declare a mistrial and schedule a new trial date.