The "DiscoverReady" Churn and Burn Continues

"We were told that this was going to be a 2-3 month project. Last night, just after several days of work, I got the call not to come in. They claim DiscoverReady 'overstaffed' our project. This is nuts. These people really know to exploit the suffering of a desperate economic situation. DiscoverReaady sucks."

The "Lex-Pollution" Tax Audit

"TTT, here is the language of the warning I received:

By now you would or should have received in the mail a standard letter from Lexolution on Lex letterhead which reads: we are being audited by the NYS Taxation and Finance Department to determine compliance with the state's regulations regarding income tax withholding.

As part of the audit, we were asked to contact a number of current and former employees and request they complete form AU-7, the "Employee Wage Statement" (enclosed.)

This form lays out wages paid by Lexolution to you in 2005, 2006 and 2007 on which either

1) no state tax was withheld, corresponding to pay periods when you requested that you be classified as "exempt" in our payroll system, or

2) due to changes in withholding status you asked us to implement during the withholding period, it appears that an incorrect amount of tax was withheld.

On the form, you are asked to certify that these wages were reported on your NYS tax returns in the appropriate years, and that you have paid the taxes due on these wages.

Please return the AU-7 form in the enclosed post paid envelop, by 12/12/08. If you do not return the AU-7, we will note that in our response to the auditor.

I hope they audit and fine Dickhead Osman for his persistent abuse and violations.

What about an OSHA and/or NYC Fire Department inspection of Lex sites? That would be awesome to have them up to code.

Bastards!"

Second Circuit Recognizes Importance of Defendants' Right To Examine Prosecution Witness's Racism

In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (--- F.3d ----, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence) that the complainant harbored strong racial bias towards blacks. The Court first reviewed the evidentiary right to present evidence or bias and concluded that

where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness's testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.

Applying the five factor test set forth by the Supreme Court in Delaware v. Van Arsdall 475 U.S. 673 the Court ruled that the error was not harmless, given the critical role of the complainant's testimony and the absence of other means to establish this bias.

Similarly, in U.S. v. Figueroa --- F.3d ----, 2008 WL 4911158 [2nd Cir 11/18/08], the Court held that an Hispanic defendant's constitutional right to confrontation was violated when the federal district court judge precluded cross-examination of a prosecution witness about the witness's swastika tattoos. The Court explained a person choosing to have swastika tattoos tends to suggest that the person holds racial, religious, or ethnic biases and this evidence of bias is relevant and admissible under Federal Rule of Evidence 402. However, given the other evidence of guilt, the Court found this erroneous violation of the right to confrontation to be harmless beyond a reasonable doubt.

Down in the Data Mines

Check out the following article from the ABA Journal:

http://www.abajournal.com/magazine/down_in_the_data_mines/


Speaking of the ABA, don't forget to vote for Temporary Attorney in the 2008 Blawg100 competition. Looks like we are in stiff competition against the Clerkship Notification blog. As someone on JDU so aptly noted,

"How the fuck is the 'Clerkship Notification Blog' ahead of Temporary Attorney? Who the fuck even cares about what judge some ivy league dickwad is going to be sucking off next term? It's almost insulting because it's as though a whole class of legal workers are being ignored and swept under the rug. I wouldn't be surprised if they rigged the "voting" to ensure that TemporaryAttorney doesn't win.

By voting TTT to the top, the plight of the vast majority of today's law grads will at least get some attention from the ABA. They would like to go on believing that the big issue of the day in the minds of recent law grads is who gets a judicial clerkship, but we have to show them just how bad today's legal job market really is.

FUCK THE ABA. Spread the message through as many of their own channels as possible!"

http://www.abajournal.com/blawgs/blawg100_2008/careers

Slain by a Madman

Didn't feel like posting this, but it is the current talk of temp town.

How awful to toil away in some soul-crushing, paper-pushing job, and then to be shot dead in cold blood by some crazed lunatic on your weekend off, and then, to top it all off, be brandished as some kind of fringe freak as your death is sensationalized on the cover of some right wing tabloid rag.

http://www.nypost.com/seven/12042008/news/regionalnews/lawyers_deadly_secret_142622.htm

Molineux and Multiple Count Prosecutions

In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be considered regarding the other counts.

While the Court approved introduction of detailed evidence regarding how stolen property the defendant possessed came to be stolen, it disapproved the use of such evidence to show that unrelated activity was an attempted burglary. In reversing some counts, the court found that possession of the proceeds of prior burglaries "has no bearing other than to show that defendant is of a criminal bent or character and thus likely to have committed the crime charged" with regard to a currently charged attempted burglary. Thus, the Court held that the trial court

erred by failing to issue a limiting instruction to cure the potential
prejudicial effect of the evidence regarding the uncharged burglaries on the attempted burglary and possession of burglar's tools counts. Supreme Court should have advised the jury that it could consider the evidence for the possession of stolen property counts, but that it could not consider the prior burglaries with respect to the attempted burglary and possession of burglar's tools counts.

The Court also arguably acknowledged, sub silentio, that the viability of
the persistent felony statute is uncertain (it declined to reach the
issue), even though the Court of Appeals has consistently upheld the
statute against Apprendi (Apprendi v New Jersey, 530 US 466 [2000) claims
(see People v Rivera, 5 NY3d 61 [2005]. The post-Rivera decision of the
United States Supreme Court in Cunningham v California, 549 US 270 [2007] suggests that Rivera might not be the last word on the constitutionality of the New York persistent sentencing law.

Evelyn Louie: "Times Are Tough"

"I am working at De Novo right now. I feel very lucky to have a job. Evelyn came into our office last week to let us all know that times are tough and all new projects will be staffed at a $35 flat rate, as the market is so tight. Also, all other 'perks' like free lunch on Fridays have been cut.

Just an update for your site. It would be good to hear what other agencies are saying. The rumor at De Novo is that we maybe seeing some agencies fold.

Hope your employed!"