Federal Thuggery: The Arrest and Harassment of 78-Year Old Fair Trial Activist Julian Heicklen

Heicklen being arrested in front of Federal court, NYC

To New York City Police and Federal Marshalls, judges:

C'mon, let's stop this nonsense!!!!! Now you are threatened by a 78-Year old grandfather?

Betsy Combier

Pamphleteer throwing a jury-tamper tantrum
By LEN MANIACE and BILL SANDERSON,
Posted: 12:49 AM, February 26, 2011

LINK

A 78-year-old New Jersey granddad believes he is involved in "the defining trial of the decade" over a charge he illegally handed out pamphlets in front of the Manhattan federal courthouse.

Julian Heicklen, of Teaneck, was arraigned yesterday on a federal charge of jury tampering for handing out pamphlets urging jurors to ignore judges' instructions and vote their consciences.

Usually, arraignments take about five minutes. But Heicklen was so argumentative that his hearing before Judge Kimba Wood took about two hours.

"It's a witch hunt," Heicklen said of the case.

Vows "trial of the decade."

He believes in the libertarian idea of "jury nullification," which says jurors have an obligation to ignore a judge's legal instructions if they deem them incorrect.

"The real jury tamperers are the judges," he said. "The jury has the right to decide what the law is, as well as the facts."

Heicklen, who plans to represent himself in court, claims to have no idea whether his pamphlets reached jurors.

bill.sanderson@nypost.com

Julian Heicklen sprung from the Big House

June 9, 2010

Julian Heicklen, the well-known libertarian and rights advocate who was arrested on May 25 for distributing Fully Informed Jury Association (FIJA) literature on public property in front of the US District Courthouse in Manhattan was released from detention at Riker's Island where he was being held.


Late Tuesday evening Heicklen issued the following statement to his many supporters nationwide:

Hi:
I was released from prison on June 8 at about 6:00 pm. The case against me has been dropped in the interest of justice.
My cell phone was confiscated, so I cannot access nor return any phone calls. Do not call me.
I have not read any e-mail lately, so I have not responded. It may take several days to read it all.
I am swamped with some personal items which must be attended. Once I get caught up, I will send progress reports and schedule of events again.



Yours in freedom—Julian.

Except for a witness, Heicklen had been distributing FIJA pamphlets alone when Federal Protection Services officer Clifford Barnes #245 placed him under arrest.

As he typically does when confronted with arrest, Heicklen lowered himself to the pavement and became unresponsive.

On past occasions the authorities called paramedics who transported him to a local hospital for psychiatric evaluation.

But this time, according to "Bile," the witness, officers brought out a wheelchair, lifted Heicklen into it, and rolled him into the courthouse.

According to the best accounts available, Heicklen was then turned over to the New York Police Department who transported him to the Bellevue Hospital Prison Ward. He was later sent to the New York City Department of Corrections where he was held in the North Infirmary Command at Riker's Island for 12 days.

The dismissal of misdemeanor resisting arrest and disorderly conduct charges is seen as proof by many of Heicklen's supporters that the arrest was unjustified in the first place

NY's "finest" manhandle, humiliate rights activist Heicklen
Examiner.com,  June 15th, 2010 5:11 pm ET
LINK
 
"I was cuffed very tightly behind my back and dragged into the courthouse. It was painful, and the capillaries in my wrists were broken." –Julian Heicklen.

The manhandling, humiliation, and verbal abuse of 78-year-old Fully Informed Jury Association (FIJA) activist Julian Heicklen in the New York jail system is further described in detail in Heicklen's report to his Tyranny Fighters, posted in its entirety, as always, at "Blog of Bile."
His arrest was tweeted almost minute by minute by individualist writer Darian Worden and photographed by fellow libertarian and supporter Jim Babb.

"I believe that he was arrested for unpaid fines related to previous demonstrations," Jim Babb speculated. "They were fully prepared for his abduction. They had a warrant for his arrest."

"During this time, I did not move a muscle or make a sound, except once when they really inflicted pain, I moaned." - Julian Heicklen

Babb, who has been on many FIJA outreach excursions with Heicklen in the past, made his first trip into Manhattan with five other supporters, including young AJ Allen, the son of Dr James Allen who, Babb noted, "received an interesting lesson in federal thuggery."

"My pants kept falling down, since I had no belt. Finally, I was put into a wheelchair and taken to a paddy wagon to be delivered to Bellevue Hospital." – Julian Heicklen

Babb described the Manhattan federal courthouse with its "massive number of government agents, vehicles and barricades, surrounded by massive gothic structures" as dramatically different from others where he has helped distribute FIJA materials.

As they approached, Babb overheard one officer say, "This should be interesting."

"I was returned to the federal courthouse and put into a small cell facing the wall. By then I had to urinate badly, so I urinated on the floor. The guard came rushing in, said that if I did that again he would beat me into sh*t and break my bones." – Julian Heicklen

The six supporters remained outside of the immediate courthouse area to act as observers while Heicklen entered the courtyard.

At 12:20 pm Worden tweeted, "Suit said, ‘Mr. Heicklen, we’re US marshals and we have a warrant for your arrest.'"

"Julian's courage to keep coming back here is truly impressive," Babb said of Heicklen's continued returns to the Manhattan courthouse. "There is a black void here that can suck the love out of anyone."



Diving into DUI in Key West

 Key West Versus Ithaca in February 2011

I love to go to seminars, last year I went to almost one a month, mind you I don't need any CLEs (continuing legal education credits), I go because I feel it is a privilege to learn and grow. Judging by the above photos it is also an opportunity to escape a long dismal Ithaca winter. Investing in whatever you do offers big payoffs because noone wants to wake up, look in the mirror, and see someone who sucks at their job or is just ok.

This week I have been in Key West, Florida listening to some of the best DUI/DWI defense lawyers in the country. Bruce Kapsack from San Fran, gave awesome closing arguments for drunk driving cases and Jim Nesci from Arizona gave us creative cross examination for the police. btw I have both their books and DWI defense from other states has a lot of cross application to New York.

We also had Dr. Bellack from LA, California not Louisiana, and he is a ENT specialist who testifies on GERD/LPR (reflux diseases that cause acid to enter the mouth) and how these diseases can affect alcohol breath test measurements. Jan Semenoff from Georgia, a breath test machine expert offered his expertise on how the police get falsely high breath tests in from 10% to 25% of the population, a big wow!

We also balanced out the program with attorney Hudson from Sarasota, FL, who spoke on repeat DWIs (felonies) and handling issues with addiction, treatment, and tactical considerations. His ideas were wise and creative. I am going home (back to Ithaca) with wonderful ideas, and I can't wait to begin implementing them. I have read that it is not the ideas you get that are important but having a recipe for dealing with them. Making my practice and service better is always the long term goal, because at the end of the day Key West sunshine is only temporary.

more Than 100 Law Professors Want Mandatory and Enforceable Ethics Rules for Supreme Court Justices

Law Profs Urge Ethics Rules for Supreme Court Justices

The BLT
LINK

Judge Antonin Scalia

More than 100 law professors have signed on to a letter released today that proposes congressional hearings and legislation aimed at fashioning "mandatory and enforceable" ethics rules for Supreme Court justices for the first time. The effort, coordinated by the liberal Alliance for Justice, was triggered by "recent media reports," the letter said, apparently referring to stories of meetings and other potential conflicts of interest involving Justices Antonin Scalia and Clarence Thomas among others.

The professors note that the Court is not covered by the code of conduct that lower federal court judges are required to follow. The Supreme Court has long said it looks to the code for "guidance" -- a concession which, the signers agree, "has proved insufficient." The letter also points out disapprovingly that individual justices alone decide whether they should or should not recuse in a given case, not subject to review by anyone else, and with no requirement to explain their decisions. We delved into the recusal issue in a recent story in our newsletter Supreme Court Insider (subscription required.)

"Adherence to mandatory ethical rules by justices, and requiring transparent, reviewable recusal decisions that do not turn solely on the silent opinion of the challenged justice will reinforce the integrity and legitimacy of the Supreme Court," the letter asserted.

The professors directed their letter to the leaders of the Senate and House Judiciary Committees, with an eye toward hearings and legislation that would apply and enforce the code of conduct on Supreme Court justices, and impose rules for transparency and review of justices' recusal decisions.

In making their case, the professors invoked the Court's own language from the 2009 decision in Caperton v. A.T. Massey Coal Co., which disapproved of a state judge's refusal to step aside from a case that involved a major campaign donor. "Judicial integrity is," the Court said, "a state interest of the highest order."

Alliance for Justice president Nan Aron said her group became involved with the letter-writing effort after consulting with some legal ethics experts in the context of the growing controversy over meetings with conservative groups by Thomas and Scalia, as well as lobbying activities by Thomas's wife Virginia. "They were alarmed about what was happening," said Aron, so she agreed to "shepherd" the professors' letter through to fruition. "The time is overdue," Aron said, for new ethics rules for the high court.

Among the signers are leading names and experts on legal and judicial ethics, including Stanford Law School's Deborah Rhode, George Washington University Law School's Stephen Saltzburg and Alan Morrison, James Alfini of South Texas College of Law, Yale Law School's Lawrence Fox, Amanda Frost and Herman Schwartz of American University Washington College of Law, Northwestern University School of Law's Steven Lubet and Ellen Yaroshefsky of Benjamin N. Cardozo School of Law.

Notably absent, however, was Stephen Gillers of New York University School of Law, perhaps the best known legal ethics expert nationally. Asked about the letter today, Gillers said he agreed with most of it, but parted ways with the group over the recusal issue. Requiring justices to submit their recusal decisions for review by other justices, he said, could lead to "the appearance of opportunistic behavior" aimed at keeping a colleague on or off the case, and could spoil the Court's collegiality. Citing the current "highly politicized" debate over justices' ethics, Gillers also said he would rather that hearings and legislation take place "in a more neutral time."

Posted by Tony Mauro on February 24, 2011 at 01:31 PM in Politics and Government , Supreme Court
Permalink

Is Justice Clarence Thomas Guilty of Felony Ethics Violations?

AllGov., Monday, February 14, 2011
LINK
Ginni Thomas

Justice Clarence Thomas has been required since he joined U.S. Supreme Court in 1991 to disclose the income of his wife—something he failed to do until a liberal advocacy group blew the whistle on his inaction. Thomas has insisted the reporting failure was merely “a misunderstanding of filing instructions.” But Common Cause and other organizations aren’t buying the excuse.

Common Cause President Bob Edgar said it was “difficult to believe” and “implausible” that Thomas, a 20-year member of the high court, didn’t know the law pertaining to disclosure.

ProtectOurElections.org accused Thomas of receiving special treatment from the Judicial Conference of the U.S. Committee on Financial Disclosure by allowing him to file two decades worth of amendments to cover up for his breaking the law.

From 2003 to 2009, Thomas did not report more than $680,000 in income that his wife, Virginia Thomas, earned from working for The Heritage Foundation, a conservative think tank. He also did not reveal, until now, her earnings with the foundation during the period 1998-2003.

Thomas’ filing errors could result in a felony conviction if he were to be brought up on charges, according to ProtectOurElections.org.

As far back as 1989, Thomas marked the “NONE” box for his spouse’s non-investment income on his judicial financial disclosure forms. On January 21, 2011, he filed amendments admitting that his disclosure forms were wrong.

Meanwhile, his wife continues to draw attention to herself with her conservative political activism, as “she is rebranding herself as a lobbyist and self-appointed ‘ambassador to the Tea Party movement,’” writes Eric Lichtblau in The New York Times. Her work raises the question whether Clarence Thomas can remain independent on matters before the Supreme Court that his wife has invested herself in. On the website of her new lobbying firm, Liberty Consulting, Inc., Ginni Thomas promises “to leverage her 30 years of experience as a Washington ‘insider’ to assist non-establishment ‘outsiders’ who share her belief in our core founding principles and values.”

-Noel Brinkerhoff

January 19, 2011

Advocacy Group Says Justices May Have Conflict in Campaign Finance Cases
By ERIC LICHTBLAU, NY TIMES
LINK

WASHINGTON — When the conservative financier Charles Koch sent out invitations for a political retreat in Palm Springs later this month, he highlighted past appearances at the gathering of “notable leaders” like Justices Antonin Scalia and Clarence Thomas of the Supreme Court.

A leading liberal group is now trying to use that connection to argue that Mr. Scalia and Mr. Thomas should disqualify themselves from hearing campaign finance cases because they may be biased toward Mr. Koch, a billionaire who has been a major player in financing conservative causes.

The group, Common Cause, filed a petition with the Justice Department on Wednesday asking it to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups.

Common Cause also cited the role of Mr. Thomas’s wife, Virginia Thomas, in forming a conservative political group opposed to the Obama administration as grounds for his disqualification.

The petition is a new tack for opponents of the court’s decision in the Citizens United case. Common Cause, by its own acknowledgment, faces a difficult task in getting the justices’ to remove themselves from the case and seeking to have the Citizens United decision itself vacated.

“We’re treading in new territory here for us,” said Arn H. Pearson, Common Cause’s vice president for programs. “But a situation like this raises fundamental questions about public confidence in the Supreme Court.”

Officials at Koch Industries, which Mr. Koch leads, did not respond to e-mails and a phone call Wednesday seeking comment on the petition. A spokeswoman at the Supreme Court declined comment.

Supreme Court justices have wide latitude in deciding whether to recuse themselves from hearing cases. In one of the more well-known examples in recent years, Justice Scalia refused to remove himself from hearing a challenge to Vice President Dick Cheney’s energy task force after he had gone duck hunting with Mr. Cheney in 2004.

“It’s a steep uphill climb for Common Cause, but not an insurmountable one,” said Steven Gillers, who teaches legal ethics at New York University. At the very least, he said, the group’s petition could force a “public airing” of questions surrounding the two justices’ past appearances at the Koch retreat and their connections to the group.

Still unknown, for instance, is exactly when Justices Scalia and Thomas appeared before the group for its invitation-only retreat, which is aimed at promoting political strategies for economic freedom, or whether they were reimbursed for their expenses.

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

Mr. Koch and his brother, David Koch, were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case and became a favorite target of liberal groups, which accused them of effectively trying to buy the election.

The political action committee for Koch Industries, a Kansas-based energy company, spent $2.5 million in last year’s elections, according to the Common Cause complaint. Americans for Prosperity, a conservative group that the Koch brothers founded, is believed to have spent tens of millions more in the campaign to support conservative candidates.

This article has been revised to reflect the following correction:

Correction: January 27, 2011
An article last Thursday about concerns by the advocacy group Common Cause that the participation of two Supreme Court justices in a campaign finance case last year might have posed a conflict of interest misstated the purpose of a request Common Cause made to the Justice Department. The advocacy group wants Justice to investigate whether Justices Antonin Scalia and Clarence Thomas should have recused themselves in the case, involving Citizens United, because of their attendance at past retreats organized by the conservative financier Charles Koch, whose company operates a foundation that is a major contributor to political advocacy groups. Common Cause is not seeking to have the justices recuse themselves from all future campaign finance cases.
Clarence Thomas Letters (Velvet Revolution) (pdf)

Supreme Court Justice Clarence Thomas’ Failure to Disclose Income of Spouse (Common Cause) (pdf)

Justice Thomas’s Wife Sets Up a Conservative Lobbying Shop (by Eric Lichtblau, New York Times)

Clarence Thomas Didn’t Report Wife’s Political Income (by Noel Brinkerhoff, AllGov)

Clarence Thomas’ Wife May Have Benefitted from His Vote on Campaign Financing (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Wife of Supreme Court Justice Thomas Starts Conservative Lobbying Group (by Noel Brinkerhoff, AllGov)

Reckless Driving Causing Death Held Not To Be Depraved Indifference Murder

by
Drew R. DuBrin,
Special Assistant Monroe County Public Defender

In People v Prindle (_NY3d_, 2011 NY Slip Op 01320 [2/22/11]) Mr. Prindle urged that the evidence of depraved indifference was insufficient to support his murder conviction, where a passenger of another car was killed when Prindle collided his van into the other car during a police chase.

Mr. Prindle, who was caught stealing snow plow blades in Brighton, a Rochester suburb, sped onto Monroe Avenue and headed toward Rochester, reaching a speed of 65 miles an hour, running a number of red lights, driving into the oncoming lane of traffic to pass slower vehicles, and weaving in and out of traffic. The fatal crash occurred at the I 490 overpass on South Goodman, where the defendant ran the two red lights and crashed into the other vehicle at the south end of the overpass. Importantly, Mr. Prindle never strayed from the road and did not come close to striking a pedestrian.

Because trial counsel did not object to the jury charge, which correctly instructed jury under the law as it existed at the time -- that depraved indifference is an objective set of circumstances not a culpable mental state (which is now the law), the Court assessed the sufficiency of the evidence under the old standard. Without much explanation, the Court held that viewing depraved indifference, under the previous Register standard, the evidence of depraved indifference is legally insufficient. The Court ruled that the defendant's conduct did not evince the rare evil that is now understood to be depraved indifference. The Court contrasted the defendant's conduct to that of the defendant's conduct in People v Gomez, in which depraved indifference was found where the defendant mowed down two children while driving at high speed on a side walk.

Thus, the Court of Appeals has now appeared to take the position that death caused by highly reckless driving on a the road is not, by itself, evil enough to reflect a depraved indifference to human life.

Given that depraved indifference is now considered a culpable mental state, it is questionable whether highly reckless driving on a roadway (not in a parking lot or sidewalk) by a drunk driver could be said to be depraved indifference either, under the notion that an intoxicated driver does not fully comprehend the consequences of his actions. See People v Vallencia.

30.30 and Superceding Accusatory Instruments

by

Dre R. DuBrin, Special Assistant Monroe County Public Defender

In People v Farkas (_NY_, 2011 NY Slip Op 01318 [2/22/11]), the Court of Appeals decided a very important 30.30 case - against the defendant- but in so ruling confirmed principles that will often help defendants seeking to move to dismiss a superseding accusatory on 30.30 grounds.

In Farkas, the defendant was issued an appearance ticket for assault in the third degree. He was later arraigned on an assault third complaint and harassment second misdemeanor complaint (which commenced the criminal action). He was later indicted, charged with not only the misdemeanors but also a felony larceny. All the charges arose from the same incident. The defendant moved to dismiss the indictment, arguing that the People were entitled to exclude periods of pre-indictment delay only with respect to the misdemeanor charges, the argument being that the there had been no prior accusatory charging the felony larceny count.

The Court rejected that contention, finding that for 30.30 purposes, there is but one criminal action involving multiple accusatory instruments when the subsequent accusatory directly derives from a previous accusatory, regardless of whether charges of a different nature are alleged in the subsequent accusatory. The Court therefore concluded that the criminal action with respect to the felony commenced with the defendant's arraignment on the appearance ticket - even though the defendant was not issued an appearance ticket for that charge and the initial complaint failed to charge the defendant with that offense. The Court also concluded, logically (and unfortunately for the defendant) that the People were entitled to invoke the excludable time provisions with respect to all the excudable delay occurring between arraignment on the misdemeanor and the indictment charging the additional felony offense.

Snakes on a Train!

No animals permitted other than service animals?


From the AP:

BOSTON (AP) — A woman whose 3-foot-long snake slithered away from her in a Boston subway car and hid there for nearly a month has gotten a hefty cleaning bill.

Transit officials want Allston, Mass., resident Melissa Moorhouse to pay $650 to cover the costs of disinfecting and sanitizing the Red Line train to protect passengers from germs such as salmonella that may have been left by a boa constrictor named Penelope.

Moorhouse had traveled with the snake around her neck and lost it between stations Jan. 6. The snake was spotted on the train earlier this month by a commuter.

The Boston Globe reported Tuesday the Massachusetts Bay Transportation Authority says some subway riders wrote in with health concerns.

Moorhouse says she'll pay more attention the next time she takes the snake out in public.

Eavesdropping Warrant Requirement

On February 15th, the Court of Appeals decided People v Rabb and People v Mason (_NY3d_, 2011 NY Slip Op 01050 [2/15/11]). It reviewed a determination of the Appellate Division that requirements for an eavesdropping warrant had been met in a racketeering investigation into a labor coalition which had been alleged to engage various coercive tactics. The requirements, set forth in CPL 700.15 (4), are that an eavesdropping warrant application must demonstrate that normal investigation procedures had been tried and proven to be unsuccessful, were reasonably unlikely to succeed if tried, or were too dangerous to employ.

Keep in mind that the decision has somewhat limited value as precedent, given that the Court of Appeals' authority to review Appellate Division's factual determinations is limited to whether there is "some" support in the record for the determinations. The Court concluded that there was support for the determination that eavesdropping was not being used as an initial investigative step, noting that it had been alleged in the application that phone records, linking the defendants to the conspiracy, had been examined.

The Court also concluded that the People had adequately demonstrated in their papers that normal investigative procedures would not likely to be fruitful, finding that the People had adequately alleged that the use of a grand jury would not work, as the many of the witnesses themselves were targets of the investigation and the execution of search warrant would tip off the targets.

Judge Lippman dissented, concluding that the majority was improperly relying upon efforts tried and exhausted in separate investigations, efforts both unalleged in the defendants' applications and irrelevant to the analysis. These important principles remain intact:

1) The People must allege in their eavesdropping warrant application in a non-conclusory manner that the requirements of CPL 700.15 (4) had been met.

2) The People must demonstrate in their papers, in a non-conclusory manner, that eavesdropping is not the initial step in the investigation. While bootstrapping is apparently permitted, keep in mind that in Rabb, the allegations against others subject to an earlier portion of the investigation were much more substantial.

3) The People cannot meet their burden of demonstrating that the normal investigative procedures are not likely to be successful by merely alleging that similar, unrelated investigations, conducted without eavesdropping, were unsuccessful. Allegations of investigative efforts must be case specific.

I was tempted to note that Shortstops and Second Basemen are nominally required to have a foot on second base while making the turn in a double play, but in practice the rule is that the infielder need only be "in the neighborhood". If we conclude from Rabb that a substantial showing with regard to one part of a conspiracy supports eavesdropping as to other alleged members of the same conspiracy based on showing a connection, without any further showing as to the new eavesdropping target, then perhaps I should have.

Attorneys Have Duty To Advise Client Whether To Accept Plea Offer

In Young v Zonn ( __ 2011WL 1:04-cv-00363 [WDNY 02/18/11]), a habeas petition was granted based on failure of defense counsel in an Erie County prosecution to give adequate advice to his client as to whether he recommended that the client accept the plea offer. The court explained that

Under the performance prong of the Strickland v. Washington,466 U.S. 668 (1984), standard, trial counsel “must give the client the benefit of counsel’s professional advice on [the] crucial decision of whether to plead guilty.” Purdy v. United States, 208 F.3d 41, 44 (2d Cir.2000) (internal quotation marks omitted) (quoting Boria v. Keane, 99 F.3d 492, 497 [2d Cir. 1996]). “Defense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government.” Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003).

The court held that to the extent that the defense attorney failed to offer any recommendation about the pros and cons of accepting the plea, he was ineffective. The court further held that given the sentencing disparity between what he faced at trial (25 years and the plea offer (7 or 10 years) and the strength of the evidence against him, the fact that the defendant maintained his innocence does not mean he was not prejudiced by this failure to give advise on the desirability of the plea.

The Court ordered specific performance of the rejected plea offer, and since Young had already served 11 years the court ordered that the sentence be reduced to time time served and that the defendant be discharged. This order was not stayed pending appeal and the defendant was released the following day.

Important Right To Counsel Holding

In People v Lopez (_NY3d_, 2011 NY Slip Op 01316 [2/22/11]) the Court of Appeal, considerered whether the right to counsel, as set forth in People v Rogers (48 NY2d 167 [1979]), was violated by police interrogation of a defendant in custody in Pennsylvania pending prosecution on Pennsylvania charges, who wasrepresented by a Pennsylvania attorney who had entered that case was lawful where the police, where the police, having never asked, did not knwo that the defendant had counsel By a 4-3 vote the Court held the officer should have been deemed chargeable with knowledge of that representation and entry.

The majority explained that

Permitting a police officer to remain deliberately indifferent — avoiding any inquiry on the subject notwithstanding the nature of the custodial charges and the likelihood that a lawyer has entered the matter — in order to circumvent the protection afforded by Rogers is not only fundamentally unfair to the rights of the accused, it further undermines the preexisting attorney-client relationship that serves as the foundation of the Rogers rule. A contrary holding would allow a police officer who is fairly certain that an attorney is involved in the custodial matter to flout Rogers by claiming that he was not fully confident about a lawyer's involvement. For these reasons, we hold that an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant's representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge.

SLAM's Federal Court Action: Summary and Comment on the Saga of the Mummy Mask

The St. Louis Art Museum (SLAM) on February 15, 2011 filed a lawsuit against the United States seeking a declaratory judgment in the case of the Ka-Nefer-Nefer mummy mask. It is helpful to explain both what this lawsuit is about and what missing information and discrepancies are starting to appear at this early stage of the court process.

Summary of SLAM’s Complaint and Legal Arguments

A declaratory judgment is a binding ruling by a court that decides a party’s rights in a dispute. It is a preventive action taken when a party believes that it will face impending legal action. In this case, SLAM filed a complaint in federal district court to prevent authorities from seizing the mummy mask in its possession. SLAM’s complaint suggests that federal authorities were preparing to seize the controversial mummy mask of Ka-Nefer-Nefer, excavated in 1952 in Egypt and purchased by the museum in 1998 from Phoenix Ancient Art, Geneva. The complaint alleges that “counsel for the Museum was contacted by the United States Attorney's Office for the Eastern District of Missouri in St. Louis, to request a meeting regarding the Mask. On January 13, 2011, the U.S. Attorney's Office in St. Louis hosted a meeting regarding the Mask. In attendance were Assistant U.S. Attorneys from the St. Louis U.S. Attorney's Office and, telephonically, the Southern District of New York, and agents from DHS in St. Louis and, also telephonically, a DHS agent stationed in Cairo, Egypt. During this meeting, the Assistant U.S. Attorneys communicated their intention to seize and forfeit the Mask pursuant to 19 U.S.C. 1595a.” The museum responded by filing the current petition for declaratory judgment.

SLAM wants the federal district court in St. Louis to declare that the mummy mask cannot be seized by federal officials. The museum essentially argues that the US government cannot legally take the mask because the statute of limitations has run out and because there is no reason to believe that the mask is Egyptian property or that it was illegally stolen or smuggled into the United States.

The museum presumes that federal authorities wish to seize the mummy mask under a specific section of the US customs law, specifically 19 U.S.C. §1595a. There are other means to seize the mask under federal or state law, but SLAM assumes (not unreasonably) that this particular law would be used.

The museum first argues that the time has run out for the federal government to seize the mummy mask. SLAM’s lawyers point to the fact that the US government had, at most, five years to seize the mask from the time it had information that the mask was allegedly stolen. The museum cites several examples of how it believes federal officials possessed this knowledge as early as 1998, including that
- the US Department of Justice in February 1998, actually or constructively, received from INTERPOL the museum’s letter inquiring about whether the mask was stolen or illicit and

- the FBI in December 2005 and January 2006 knew or should have know about allegations that the mask was stolen because the founder of the Museum Security Network sent emails to the FBI Art Crimes Program asserting that the mask was probably stolen.

SLAM therefore argues that the United States cannot seize the mummy mask because the statute of limitations clock set by 19 U.S.C. §1621 now forbids it.

Second, the museum claims in its complaint that even if the statute of limitations clock has not run out, federal authorities still cannot seize the mummy mask because “[t]he Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

SLAM argues that federal agents cannot take the mask because the government cannot produce sufficient information to show that the mask was stolen or smuggled into the United States pursuant to 19 U.S.C. §1595a. The museum further points out that “Egyptian Law No. 215 on the Protection of Antiquities, the [cultural patrimony] law applicable at the time the Mask was discovered and excavated, allowed for personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted and, as such, did not establish ownership of the Mask by Egypt.” The museum’s lawyers conclude that “the United States lacks an evidentiary basis for asserting the Mask was stolen pursuant to Egyptian Law No. 215, or seizing and/or causing the forfeiture of the Mask pursuant to 19 U.S.C. § 1595a.”

Now that the complaint has been filed by SLAM, federal attorneys will file a response.


Emerging Missing Information and Discrepancies

SLAM’s complaint says that it purchased the mummy mask sometime in April 1998 from Phoenix Ancient Art in Geneva, Switzerland. The museum acknowledges that Mohammed Zakaria Goneim excavated the mask near King Sekhemkhet’s unfinished pyramid in Saqqara sometime around 1952. SLAM’s reported history of the mask (the provenance) picks up in the early 1960s when the museum reports that “the Mask was a part of the Kaloterna (or Kaliterna) private collection, during which time it was purchased by Ms. Zuzi Jelinek ('Jelinek'), a Croatian collector in Switzerland. In or around 1995, Jelinek sold the Mask to Phoenix Ancient Art, S.A. of Geneva ('Phoenix'). On or about April 3, 1998, the Museum purchased the Mask from Phoenix.”

Absent from the legal complaint are significant pieces of information that one hopes will be filled-in during the ensuing litigation. The court process can oftentimes shed light on murky or unknown facts, and supplemental information in this case can fill in important gaps and clear up lingering discrepancies. A few are described here.

For example, SLAM’s description of the mummy mask’s provenance in its legal complaint differs from the mummy mask’s chain of custody as reported by the Riverfront Times in 2006. That newspaper reviewed the provenance of the mask based on paperwork supplied by SLAM. The Riverfront Times reported that the mask went from excavation/Egypt - to an unknown Brussels dealer sometime around 1952 – to Kaloterna - to Jelinek – to Phoenix Ancient Art/Aboutaam brothers. SLAM’s legal complaint states that the mask went from excavation/Egypt - to the Kaloterna private collection – to Zuzi Jelinek – to Phoenix Ancient Art/Aboutaam brothers.

SLAM’s legal complaint omits a description of who exactly took possession of the mask after it was excavated by the Egyptians. Most importantly the complaint is silent about how an excavated and documented mummy mask legally exited Egypt in the first place. The court papers filed also ignore the fact that Goneim was an antiquities inspector in Egypt and was the archaeologist who discovered Sekhemket’s pyramid site. Goneim’s status as both a scientist and an Egyptian government official/employee are important facts since issues about what laws and regulations he and his Egyptian superiors followed during the 1950s and 1960s are likely to be significant to the question of whether the mask was stolen.

Curiously, the legal complaint also avoids any mention at all of the mask having been seen with a Brussels antiquities dealer. The Riverfront Times reported that SLAM received documents from Phoenix Ancient Art that included a 1997 note from Charly Mathez, an elusive Swiss man, which explained how he spotted the mask in 1952 in the hands of an unidentified antiquities dealer located in Brussels, Belgium. The absence of this information from the legal complaint raises questions.

In any case, the SLAM’s complaint also omits a description of how the mask made its way from the point of excavation to the Kaloterna private collection, or a description of who owned this collection. There is also no information about the date or the nature of the transfer from the Kaloterna private collection to Zuzi Jelinek in Switzerland. The hazy information currently supplied in the legal complaint should be described more fully as the case continues through the federal process.

Meanwhile, SLAM’s assertion that Jelinek sold the mask to Phoenix Ancient Art will likely be challenged by the federal government. The Riverfront Times described an unusual transaction between Zuzi Jelinek and Phoenix Ancient Art, or perhaps the lack of a transaction at all. The newspaper explained:

“According to Swiss telephone listings, a Suzana Jelinek-Ronkuline lives at 84 Quai de Cologny in Geneva. Her telephone number is identical to the one on the letter Phoenix Ancient Art provided to the St. Louis museum. Reached by phone in Geneva, a man identifying himself as Jelinek's son, Ivo Jelinek, says his mother never owned the Ka-Nefer-Nefer mask. ‘This is completely false information. . . .’ Jelinek says his mother's name may be linked to the Ka-Nefer-Nefer mask for another reason: the Aboutaam brothers, owners of Phoenix Ancient Art, rented another house she owns on Quai de Cologny. . . . Presented with this information, Hicham Aboutaam directed the Riverfront Timesto a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don't know what all I have.’”

Phoenix Ancient Art allegedly bought the mask in 1997 from Jelinek. The purchase price paid by Phoenix was not known, according to the Riverfront Times. But this price hopefully will be reported during the current federal litigation since an object’s fair market value or its undervalue is a piece of evidence used to determine whether property was legally or illegally transferred. It also goes without saying that evidence of a purchase and sale can certainly establish whether Jelinek engaged in a transaction involving the mask. That evidence can take many forms, including evidence of the parties’ bank statements for example, documenting the release of purchase money or the deposit of sale money.

Also of interest is the museum’s reported due diligence. One must always ask “What diligence is due?” The museum’s complaint certainly details a variety of concrete and laudible steps taken to verify the mummy mask’s provenance. However, several questions remain regarding the actual information learned through that diligence and how that information was accepted or rejected when deciding to purchase the mask.

Hopefully we will learn more as the case progresses.


Sources:
THE ART MUSEUM SUBDISTRICT OF THE METROPOLITAN ZOOLOGICAL PARK AND MUSEUM DISTRICT OF THE CITY OF SAINT LOUIS AND THE COUNTY OF SAINT LOUIS v. THE UNITED STATES OF AMERICA, SLAM’s complaint for Declaratory Judgment (February 15, 2011) (http://www.courthousenews.com/2011/02/16/MummyMask.pdf) (last visited February 19, 2011).

Malcolm Gay, “Out of Egypt: From a long-buried pyramid to the Saint Louis Art Museum: The mysterious voyage of the Ka-Nefer-Nefer mask,” Riverfront Times, Feb. 15, 2006 (http://www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full) (last visited February 19, 2011).

Lawyers Returning Calls: The Art of Being a Mensch!

I guess I have some pet peeves, I hate when I don't get my calls returned. I just think it is common courtesy to return/respond to a call. Even from people I don't know or don't like. I have prosecutors that I call over and over, I have companies I call over and over, who raised these people? A return call takes a couple of minutes.

It all comes down to just basic human respect. My dad, still rings in my head, may he rest in peace (it's been 33 years), always said he wanted just ONE thing from me, "respect." Not great grades, not stellar athletic performance, not monumental worldly success just respect for myself and others, because he saw that as the basic foundation to everything else. How can you be principled and maintain a sense of values, common decency to humanity without this quality? Those that respect others and their property and their values were in my father's eyes Mensches (in Yiddish this means being a "human being of integrity and honor.") He raised me or more groomed me to be that man. From the way he gave of his time to people in need to the way he tipped a server. My father gave people dignity.

So I have had dealings with fellow lawyers over the years, and many do not return my calls. To me it shows a self worth issue, they are more important, or their time is more important than mine, and that is probably the thing people dislike most about lawyers. They (clients) want to be able to communicate about their case, their situation, and having a true counselor available brings peace of mind. I pride myself on returning calls and being available. Does that make me better? Well yes and no, better for my clients, not always for me because my clients come to expect me to be there for them any time. btw I am better early in the day, old habits die hard, I get up very early, and go to sleep by 9 or 930 generally, so don't call after that if you want someone who is coherent.

If you ever compare me to someone else know that I am unique in this regard. I am in a word: Available!

And as I strive to serve I keep in the back of my mind my father's wish to have a mensch for a son.



Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law

504 North Aurora Street
Ithaca, NY 14850

http://www.ithacadwi.com

Verdict due in western NY cat marinating case

Believe it or not.....

http://www.timesunion.com/news/article/Verdict-due-in-western-NY-cat-marinating-case-1017694.php

New York Puts New Penalties on Phoning While Driving

New York State ever on the cutting edge of either creating new law or updating old law is implementing new punishments for P.W.D. (phoning while driving) or T.W.D. (texting while driving) today. BTW NYS had the first DWI laws in the nation so if you are looking for a trend setter look to New York. (spoken as a true New Yorker)

Phoning or texting while driving used to be a NO point violation with merely a fine. Now it has 2 points associated with it which can cause your auto insurance to rise up to 20%. These points can also contribute towards the 11 points within an 18 month time period which mandates a 6 month DMV license suspension.

Driving requires you to be mentally focused on the task at hand. Distracted driving is a serious problem whether from a driver using a GPS, eating, applying make up, smoking, or any other non-driving related activity.

My problem is that when I see people behind the wheel eating their Mickey D's,,, is the issue really talking on a cell phone? I know we need to draw lines on behaviors that are dangerous but can we legislate and fairly apply these laws to create real change?

There still are many states that DO NOT require seatbelts, insurance, helmets, and FREELY allow cell phone use while driving. Is limiting our freedom to choose our own behavior going to make us safer? If you can safely drive while eating a bag of chips should we legislate a no snacking law for those who cannot? What about older drivers? Have you seen senior citizens get out of their cars who can barely walk and/or move too quickly? Are those 80 year old motorists, many who are on medication, and thus semi-distracted really safer than a 35 year old on a cell phone?

New York thinks so I'm not quite sure.

The Need for Reliable Information From Egypt

The Egyptian people are to be lauded for their desire for liberty, which has borne significant fruit thus far. George Washington noted that "[l]iberty, when it begins to take root, is a plant of rapid growth." We must always be mindful, nevertheless, of Alexis de Tocqueville's observation that "[i]n a revolution, as in a novel, the most difficult part to invent is the end."

The welfare of the Egyptian people are to be considered first while we continue to monitor cultural property issues. One issue that requires attention is obtaining reliable information. The lack of credible information regarding the theft or looting of cultural objects in Egypt requires resolution, especially since many cultural organizations have called on law enforcement to remain alert. Authorities at the US border cannot be expected to be on heightened alert when there is conflicting information about the extent of looting at archaeological sites or thefts from museums.

Egytians involved with cultural heritage, aided by journalists on the ground, should investigate the extent of damage to cultural heritage in Egypt. Only then can American authorities provide appropriate assistance.

Ithaca DWI Out of State Student

DWI Defense Can Begin Early

Being from Brooklyn, I love pizza, and Ithaca has a couple of great pizza places. One of them is "The Nines." http://www.theninesithacany.com It is a cool place to go for a drink, and have some finger food as well. They have corn nuggets that are to die for. Also their spinach salads.

We were recently there, it was a bitter cold Sunday, thank G-d they were open, it's great to go out of season, when the Colleges are on break, anyway my wife's coke had a cool glass.

Perfect product or service placement if you ask me, cheaper than a DWI and IMHO the best defense begins right there!

Dog bite dismissal ruling upheld in the Appellate Division, Second Department

In a case[1] decided on February 8, 2011, the Appellate Division, Second Department affirmed a ruling granting summary judgment to defendants in a dog bite case. In addition to discussing the strict liability standard applicable to animals, the court held that customary confinement of a dog in a garage could not, by itself, establish that the owners feared the dog would do harm to visitors and establish liability existed the bite.

---

[1] Roche v. Bryant, 2011 WL 451945

New Plates!

I thought that I could support the failing state budget by contributing a few more dollars to the NYS DMV.........

Aurora Foundation On-Line Event

On  February 7, 2011 the Aurora Foundation was featured on www.hollywoodhustle.com as part of a live internet feed from the Ben and Jerry's Moo Room for the 2011 Albany Lark Street festivities. I was fortunate to be a part of the presentation to advocate for the Foundation's mission statement for the work that the Foundation does for Capital District animals and residents of our region. For more information go to www.afnortheast.org..

Update Ignition Interlock Devices Declared Unconstitutional

New case out of City Court of Watertown, NY makes big waves.

People v. Waters, declares sections of New Leandra's Law Unconstitutional. Apparently the way the New York State Courts have been applying the Ignition Interlock Device has been Unconstitutional since August 2010... says New York rolled out the devices on first time offenders too fast and thus haphazardly infringed their rights under due process, equal protection, and overall fairness.

1. Unfair to force installation on every vehicle they own and/or operate

I have been arguing this point since I heard the new law, what if someone had multiple cars for family members (like me)?, What if someone owned a fleet of work cars?

Everyone is forced to suffer with the IIDs- makes no sense

2. Unfair to have no standards/guidelines for Judges to find indigency to install and maintain

Another point I have seen all too often, one court argued they needed to be on welfare or SSI

another Court Judge said they would decide based upon having a cell phone and a car payment

No set scale or published numbers?

3. No set cost (fines) on devices filed with the Court. These companies the IID firms have an open ticket in our pockets, as I say "carte blanche" the white card of prestige and utter power to do as they will

We still have them (the IIDs) but we definitely need further input and guidance in their use and application.

NYS is also forcing out of state motorists to install in their home states and send back via satellite the monitoring info, what if they fail do they have to travel back to NYS? Apparently the reach of NYS extends from sea to shining sea now!

DC Police Breathalyzer Wrong for Years

Can you imagine that the police knowingly used an inaccurate breathalyzer for years? How many innocent people went to jailand sustained convictions based on this machine?

see news story here:

http://www.myfoxdc.com/dpp/news/local/dc-breathalyzer-calibration-questioned-121410

The DWI Exceptions to the Constitution

People think they have all their constitutional rights in all criminal cases. The truth is scary. People who have been accused of murder have more rights than those accused of Drunk Driving. We in the drunk driving defense community call this the DWI exception or exceptions to the Constitution.

One of my mentors, a founding father of the NCDD (National College of DUI Defense) and a great DUI attorney from California, Lawrence Taylor put it best in his talk which details this erosion of our rights:

http://www.drunkdrivingdefense.com/general/lawrence-taylor.htm

Know that what rights you do have need to be preserved early and demanded in Court!

My First Widget

Attorney Dominic A. Barbara Is Suspended From The Practice Of Law By The Appellate Division, Second Department

Matter of Barbara
2011 NY Slip Op 01023
Decided on February 8, 2011
Appellate Division, Second Department

Per Curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

WILLIAM F. MASTRO, J.P.
REINALDO E. RIVERA
MARK C. DILLON
THOMAS A. DICKERSON, JJ.

2009-10255

[*1]In the Matter of Dominic A. Barbara, an attorney and counselor-at-law. Grievance Committee for the Tenth Judicial District, petitioner; Dominick A. Barbara, respondent. (Attorney Registration No. 1487958)
DISCIPLINARY proceeding instituted by the Grievance Committee for the Tenth Judicial District. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on February 24, 1971. By decision and order on application of this Court dated February 3, 2010, the Grievance Committee was authorized to institute and prosecute a disciplinary proceeding against the respondent and the issues raised were referred to the Honorable Michael F. Mullen, as Special Referee to hear and report.

Robert A. Green, Hauppauge, N.Y. (Michael Fuchs of counsel), for petitioner.

Moran Karamouzis LLP, Rockville Centre, N.Y. (Grace D. Moran of counsel), for respondent.

OPINION & ORDER

PER CURIAM.The Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated November 17, 2009, containing five charges of professional misconduct. Charge five was withdrawn by the Grievance Committee following the hearing. After a preliminary conference on March 30, 2010, and a hearing on April 15, 2010, the Special Referee sustained the four remaining charges of professional misconduct. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline as the Court deems just and proper. The respondent's counsel has submitted an affirmation in response seeking to disaffirm the Special Referee's report with respect to charge two and to afford appropriate weight to the evidence of mitigation.

Charge one alleges that the respondent failed to forward to his client in a domestic relations matter a written, itemized bill on a regular basis, at least every 60 days, in violation of 22 NYCRR 1400.2.

The respondent was retained by Louis Rubino on or about September 24, 2004, to represent him in a domestic relations matter pending in the Supreme Court, Suffolk County. The respondent received the sum of $40,000 for his representation of Mr. Rubino in that matter. Mr. Rubino discharged the respondent in or about May 2005. During his representation, the respondent [*2]failed to issue written, itemized bills for legal services to Mr. Rubino on a regular basis.

Charge two alleges that the respondent failed to adequately supervise the conduct of attorneys and non-attorneys in his law firm, in violation of Code of Professional Responsibility DR 1-104(c) and (d)(2) (22 NYCRR 1200.5[c], [d][2]) .

During the time in which he represented Mr. Rubino, the respondent was the only named partner in his firm and had supervisory authority over other lawyers and non-lawyers in the firm. Each attorney in the respondent's firm was responsible for maintaining time sheets on the matters to which they were assigned and for forwarding completed time sheets to the firm's bookkeeper to prepare billing statements. The bookkeeper was responsible for forwarding client billing statements to the individual attorneys responsible for the matter to review and approve. The attorney responsible for each matter was responsible for reviewing and approving the billing statement and returning it to the bookkeeper. After receiving the billing statement back from the attorney, the bookkeeper was responsible for forwarding it to the client.

In the exercise of reasonable management or supervisory authority, the respondent knew or should have known that the firm's procedures were not being followed by all attorneys and non-attorneys in the firm with respect to billing statements for Mr. Rubino.

Charge three alleges that the respondent failed to refund that portion of a legal fee paid in advance which had not been earned, after being discharged by the client, in violation of Code of Professional Responsibility DR 2-110(a)(3) (22 NYCRR 1200.15[a][3]).

On or about May 11, 2006, the respondent was retained to represent Laura Gunther in a matrimonial action and was paid a retainer in the sum of $10,000. Although Ms. Gunther made several requests for a return of the balance of the unused retainer, the respondent failed to comply. Thereafter, by letter dated July 30, 2007, the respondent and his associate, Cindy Prusinowski, were advised that Christopher Cassar was now representing Ms. Gunther. The letter stated that the matrimonial action had been discontinued, that the respondent's services were no longer needed, and requested a refund of the balance of the retainer in the sum of $7,482.50.

Although the respondent's firm received that letter, it failed to respond. A duplicate letter, marked "Second Request" and dated August 21, 2007, was mailed to the respondent and Ms. Prusinowski. Although that letter was also received, the respondent's firm failed to respond or to issue the requested refund.

By check dated April 3, 2008, the respondent's firm issued a refund to Ms. Gunther in the sum of $7,122.50, the balance of the retainer. During the period from May 11, 2006, through April 3, 2008, the respondent was the only named partner in his firm and was responsible for the conduct of attorneys and non-attorneys in the firm.

Charge four alleges that the respondent engaged in conduct that adversely reflects on his fitness as a lawyer by failing to adequately communicate with his client or her new counsel, in violation of Code of Professional Responsibility DR 1-102(a)(7) (22 NYCRR 1200.3[a][7]), based on the factual allegations of charge three.

Based on the evidence adduced and the respondent's admissions, the Special Referee properly sustained the four remaining charges of the petition. Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted.

In determining an appropriate measure of discipline to impose, the Grievance Committee takes note of the respondent's extensive disciplinary history. Between August 17, 1988, and October 1, 2009, the respondent received nine Letters of Caution, nine Admonitions, and two Advisements. Eight of those Admonitions were issued on December 7, 2007, for separate complaints. Some of these Grievance Committee-level sanctions were issued for professional misconduct identical to the charges in the instant proceeding. For example, six of the Admonitions were for inadequate supervision, and for failing to properly bill clients in domestic relations matters. One Admonition involved the respondent's failure to promptly refund a retainer balance. The respondent was also issued two Letters of Caution for failing to adequately cooperate with a client's replacement counsel.

The respondent attempts to mitigate his disciplinary history by noting that most of the complaints which led to an avalanche of Grievance Committee sanctions were caused by his health problems, compounded by the sabotage of his law practice by disloyal associates. The respondent contends that he had no opportunity to amend his office procedures following the Admonitions inasmuch as the other complaints, including those underlying this proceeding, were already filed. He [*3]proudly points out that in all his years of practice, he was only the subject of two malpractice claims which were dismissed in their early stages.

The respondent emphasizes the remedial efforts he has undertaken to improve his office, such as downsizing and hiring an administrative assistant, and the lack of substantial harm to clients. He asks the Court to take note of his commitment to rehabilitation and sobriety, his remorse, his complete cooperation, his strong public service record, and the character letters attesting to his integrity, competence, and dedication to his clients.

Balancing the respondent's disciplinary history with the remedial efforts undertaken and the mitigation proffered, the respondent is suspended from the practice of law for a period of 18 months.

MASTRO, J.P., RIVERA, DILLON and DICKERSON, JJ., concur.

ORDERED that the respondent, Dominic A. Barbara, is suspended from the practice of law for a period of 18 months commencing March 10, 2011, and continuing until further order of this Court; the respondent shall not apply for reinstatement earlier than March 9, 2012, and in such application, the respondent shall furnish satisfactory proof that during said period he (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (see 22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(c)(2), and (4) otherwise properly conducted himself; and it is further,

ORDERED that pursuant to Judiciary Law § 90, during the period of suspension and until the further order of this Court, the respondent, Dominic A. Barbara, shall desist and refrain from (l) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor-at-law; and it is further,

ORDERED that if the respondent, Dominic A. Barbara, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

ENTER:

Matthew G. Kiernan
Clerk of the Court

Online lawyer rating for Dominic Barbara

Irony and the Sex Offender Management and Treatment Act (SOMTA)

There was widespread outrage at the conduct of Nushawn Williams, who was alleged to have had unprotected sex with numerous girls and women despite being told he was HIV positive (see). This failure to inform the women that they risked not merely pregnancy or an STD, but rather a potentially fatal infection, without cure, meant that the sexual encounters were not truly consensual. Indeed, now that Mr. Williams is completing his sentence for a conviction by guilty plea for the statutory rape of two of these women, New York is attempting to have Mr. Williams civil committed as a detained sex offender requiring confinement pursuant to the Sex Offender Management and Treatment Act (SOMTA)(see).

Today, the Court of Appeals, in People v Harnett (2011 NY Slip Op 00744 [2/11/11/]) rejected the argument that since a possible consequence of a plea to a sex conviction is a lifetime civil commitment, fundamental fairness requires that the failure to warn a defendant who pleads guilty to a sex offense that he may be subject to the Sex Offender Management and Treatment Act (SOMTA) automatically invalidate the guilty plea.

The Court did "recommend to trial courts that the possible effects of SOMTA be explained to anyone pleading guilty to an offense that may result in SOMTA proceedings."

In so holding, the Court ruled that the undisclosed possibility that a plea might result in a lifetime commitment does not automatically render the plea unintelligent or involuntary.

Allegations in Support of 440 Motion May Require Holding Hearing to Promote Justice

In People v Campbell (2011 NY Slip Op 00813 [4th Dept 2/11/11]) the Court held that it was error to summarily deny a motion pursuant to CPL 440.10, based on the contention that the defendant was denied effective assistance of counsel because his trial attorney had failed to inform him of potentially exculpatory evidence, i.e., that before the murder an inmate at a state prison had advised the District Attorney that he had information concerning a plot to murder the victim that implicated persons other than defendant.

The Court explained that a hearing on this motion was required where

It is undisputed that defendant's trial counsel had obtained an "open file" discovery arrangement with the District Attorney and that the correspondence was included in the file. Despite the fact that counsel representing defendant on the CPL 440.10 motion asked defendant's trial counsel to provide an affidavit setting forth what he knew and what he had advised defendant about the information in that correspondence, trial counsel failed to provide the affidavit..... We therefore conclude, based upon the record before us, that " a hearing should be held to promote justice [because] the issues raised by the motion are sufficiently unusual and suggest searching investigation' " (People v Ausserau, 77 AD2d 152, 155, quoting People v Crimmins, 38 NY2d 407, 416; see People v Kearney, 78 AD3d 1329; People v Nicholson, 222 AD2d 1055, 1057).

Escape From an Unauthorized Arrest is Not An Escape

Pursuant to Executive Law § 259-i(3)(a)(i)and 9 NYCRR 8004.2, a parole officer is required to obtain a warrant before arresting a parolee for an alleged parole violation. There is currently no statutory exception to that warrant requirement
So what if pursuant to a verbal order from a Senior Parole Officer, a parole Officer, without a warrant, arrests and and shackles a reporting parolee when he arrived at the parole office. and them after the senior parole officer finished processing the necessary forms to obtain a warrant after defendant was taken into custody, the shackled parolee escaped. Is that Escape in the First Degree?

In People v Colon (2011 NY Slip Op 00831 [4th Dept 2/11/11])the Appellate Division, Fourth Department held that it is not an escape in violation of the penal law because there had not been an authorized arrest. The Court explained

Pursuant to Penal Law § 205.15 (2), “[a] person is guilty of escape in the first degree when . . . [h]aving been arrested for, charged with or convicted of a class A or class B felony, he [or she] escapes from custody . . . .” A person is in “[c]ustody” when he or she is restrained “by a public servant pursuant to an authorized arrest” (§ 205.00 [2] [emphasis added]). Inasmuch as defendant’s arrest for a parole violation was not made pursuant to a warrant, it was not authorized (see Bratton, 8 NY3d at 642-643), and thus defendant was not in “[c]ustody” pursuant to Penal Law § 205.00 (2). Even assuming, arguendo, that the warrant was signed and issued after defendant’s arrest but before his escape, we conclude that such warrant did not render the arrest valid (see Bratton, 8 NY3d at 642-643).

Attorneys Have Duty to Inform Defendants that the Ultimate Decision Whether to Testify is the Defendants' Alone

Both the United States Supreme Court and the New York Court of Appeals have held that once a defendant chooses to be represented by counsel, counsel and not the defendant has control over most strategic decisions are made by the attorney and not the defendant (Jones v Barnes, 463 US 745, 751 [1983]; People v White, 73 NY2d 468, 478 [1989]). However, there are a few decisions that are so critical that they can be made only by the client. These decision that can only be made by the defendant, upon the advise of counsel, are whether to plead guilty, whether to waive a jury trial, whether to testify at trial and whether to appeal(Jones v Barnes, at 751; White, at 478)

In People v Cosby (2011 NY Slip Op 00925 [4th Dept 2/11/11) the Appellate Division, Fourth Department considered the question of who is responsible for insuring that the defendant is aware that he and the counsel get to decide whether the defendant should testify at trial. In the context of a record showing that neither the court nor the attorney ever informed the defendant who told his attorney that he wanted to testify that the decision to testify is reserved to the defendant, not defense counsel, the Appellate Division, Fourth Department held that

The trial court has no obligation to inform a defendant of his or her right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so (see People v Fratta, 83 NY2d 771, 772; People v Dolan, 2 AD3d 745, 746, lv denied 2 NY3d 798). The issue here, however, is whether a defendant's attorney has a duty to advise the defendant of his or her right to testify, even against the advice of the attorney. We conclude that the attorney does have that duty.

"[T]rial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of [the] constitutional right" to testify at trial (Brown v Artuz, 124 F3d 73, 74, cert denied 522 US 1128; see People v Carpenter, 52 AD3d 729, lv denied 11 NY3d 830; People v Perry, 266 AD2d 151, 152, lv denied 95 NY2d 856). In addition to informing the defendant that he or she has the right to testify at trial, in the event that the attorney advises the defendant not to testify, the attorney must also inform the defendant that the ultimate decision whether to testify is the defendant's alone (see Brown, 124 F3d at 79; Teague, 953 F2d at 1533). Without receiving such advice, a defendant may erroneously believe that the decision whether to testify is one of the many decisions over which the defendant's attorney has control (see generally Ferguson, 67 NY2d at 390).

The People contend that "the law should not, as a matter of sound public policy, place the burden of affirmatively telling a client that the client can ignore defense counsel's advice upon a defense attorney." We reject that contention. Rather, we conclude that it is indeed sound public policy for defense counsel to notify a defendant that he or she has a fundamental right to testify on his or her own behalf and that the decision whether to testify rests with defendant, not counsel. Of course, defense counsel should still render advice to defendant concerning whether a good trial strategy would warrant testifying on his or her own behalf. But we cannot stress enough that defense counsel should make it clear to the defendant that it is the defendant, not counsel, who has the final word on the matter. The imposition of such a duty on defense counsel is consistent with the Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.2 (a), which provides in relevant part that, "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to . . . whether the client will testify." We thus agree with the court that defense counsel erred in this case by failing to advise defendant that the final decision whether to testify was defendant's to make.

Green Island, Going Green?

An article in the Troy Record this month reported that the Village of Green Island is converting to the use of “environmentally friendly” motor oil derived from unused cow fat. The motor oil is manufactured at a company in Illinois, distributed locally here in the Capital District and is touted as being not only a superior lubricant but biodegradable and “renewable”.

I don’t usually comment on the Animal Law related stories and cases reported in this blog, but I just can’t resist here as many thoughts and questions jumped out at me from this article.

First, is this really a “green” technology? The statistics on how much energy, water and land use are required to raise one beef cow are well published, and staggering. Even though the technology presently uses cow fat, which is essentially a waste product from slaughterhouses that process animals for food, could this change in a point in time between twenty and fifty years from now where the world’s crude oil supplies are depleted to the point where it is more economically feasible to raise animals not for food production, but for energy? In a country that, by some statistics, has 5% of the world’s population, yet consumes nearly 25% of the world’s resources this scenario may be a closer reality than some would think. Let us remember that less than 100 years ago whales were hunted almost to extinction for the energy contained in their blubber in the form of oil.

If animals start to be raised strictly for energy, what will be the impact on water resources in this country which we are just starting to realize may be the threatened natural resource of this century? Will animals be cheaply and inhumanely raised overseas and the resulting bio-mass transported to the US for conversion to end-user energy products? Will such events result in increased interaction between the legal system, animals and people?

Should such events come to pass will small firm or solo-attorney Animal Law practices become merged with larger law firms’ Energy and Regulatory Practices to provide guidance on the many new laws and regulations which surely would come about as a result of the conversion of our energy industry? Will conflict arise between activist groups and corporations as our country struggles to supply energy through any means possible, including the use of animal bio-mass fuel to power our energy thirsty lifestyles?

Perhaps the questions posed are far-fetched and hypothetical, however, I hope that our bar finds the questions thought provoking and a further illustration of how Animal Law touches on all types of law practices.

New York DWI Refusal Cases

The unique opportunity with DWI refusal cases is the administrative refusal hearing. It allows for cross examination of the police officer concerning the legality of the stop and the arrest. It can be a great beginning to gathering the evidence (all the facts) necessary to defending the case against intoxicated driving.

The hearing is for four main areas legally:

DMV Refusal hearing:

VTL 1194 (2) (c) : the hearing is limited to the following issues:

1. did the police officer have reasonable grounds (PC) to believe that such person had been driving in violation of any subdivision of VTL 1192?

2. Did the police officer make a lawful arrest ?

3. was such person given sufficient warning, in clear and unequivocal language, prior to such refusal that such refusal to submit to such chemical test or any portion thereof, would result in the immediate suspension and subsequent revocation of such person’s license or operating privilege whether or not such person is found guilty of the charge for which the arrest was made.

4. did such person refuse to submit to such chemical test or any portion thereof?

Was the refusal persistent?

3 Reasons You Won't Hire Me for Your New York DWI

There are as many reasons for hiring a lawyer as there are for not hiring one. Not everyone is for everyone. I know I am not everyone's cup of tea. I used to say, I'm a peach but not everyone likes peaches. They say "you can't be all things to all people" or "if everyone likes you that's a problem"... lets be real I love to practice DWI defense but if the relationships I have with my clients are horrible then my practice (and life) is gonna suck.

I want relationships with people who want me to be their lawyer. In turn I want to give my personal time and attention to these clients. Take a look at my video where I go through the 3 main reasons someone doesn't want me as their DWI lawyer:

The Unique New York State Justice Courts

I practice in the Finger Lakes region of New York State. It is a beautiful part of the country. I feel fortunate to have had opportunities to experience different Courts in all the smaller towns, villages, and cities. NYS is unique in that we still have these little local Courts which handle a wide array of matters including criminal misdemeanors.

Chief Judge Kaye said, “The Justice Courts are New York’s oldest tribunals, dating back centuries, and today continue to serve a critical role in the state’s justice system, handling more than two million cases each year and collecting more than $210 million in fees annually.”

There are 1300 Justice Courts throughout New York State. 2,100 plus Town and Village Justices serve in these Courts and over 2/3 of the Justices (Judges) are not lawyers. The Judges are elected to four-year terms, practice part time, and do not do it for the money. These are very committed individuals who seek in many instances to do the right thing and to serve their communities.

These Courts have come a long way over the years. Now there are electronic recording devices in most of these Courts. The Judges go through a training and education program specific to their Court duties.

This comes from the NYS Courts Judicial Website:

Changes to the training of new non-attorney Justices are particularly dramatic. In contrast to the single week of instruction prior to the Action Plan (2006), newly elected non-attorney Justices now receive seven weeks of pre-bench training, consisting of alternating periods of at-home assign- ments (a total of five weeks) and classroom training (a total of two weeks). Significant time is spent devoted to the most sensitive decisions facing a new Justice, such the right to counsel and determining bail. Instruction is provided initially by lecture for many topics, but is followed by mock proceedings where the Justices actually have to make difficult decisions based on “real” facts. The new Justices also receive two days of training after they have been on the bench for two to three months. New Justices report that these sessions at such an early point in their career on the bench have been particularly helpful.

This system is unlike the majority of Court systems in any of the other states. I think being familiar with these Courts, the people in them, and how they are conducted is even more important in the upstate New York area because of these differences.