Are You on the Hook for Mom's Nursing-Home Bill?

Thought you were immune from your parents' debts? Not so fast. Twenty-nine states have "filial support" laws that could be used to go after patients' adult children for unpaid long-term-care bills. More ...

Dinosaur Claimant's Attorneys File Sharply Worded Reply Memorandum and Ask Court for Expedited Hearing

In a sharply worded reply memorandum filed Tuesday in the forfeiture case of United States v. One Tyrannosaurus Bataar Skeleton, lawyers for dinosaur claimant Eric Prokopi ask the Manhattan federal district court to rule on its motion to dismiss "now."  The claimant's attorneys write (with citations omitted):

"Some three months after filing this civil forfeiture action, the Government has arrested Claimant Eric Prokopi ('Prokopi' or 'Claimant') on criminal charges that largely track the allegations in its 'First Amended Verified Complaint' for civil forfeiture ('Amended Complaint'). This sequence of events raises serious questions. If Government investigators honestly believe that Prokopi engaged in criminal conduct cumulating in consigning the Tyrannosaurs Bataar Display Piece ('the Display Piece') for sale in a public auction, why not treat the matter as a criminal one from the start? One might wonder whether the Government is now merely punishing Prokopi for daring to file a claim to property coveted by the President of Mongolia, and is using the criminal complaint to hamstring Prokopi’s ability to reclaim the Display Piece, the fruit of a year of Prokopi’s own work, Prokopi’s own financial investment and Prokopi’s own expertise."

Prokopi assembled the dinosaur bones to sell at an auction this past spring. At the request of the Mongolian government, American officials seized the Tyrannosaurus Bataar and filed a claim for forfeiture in federal court. A judge recently expressed concern about awarding forfeiture, but allowed the U.S. government to resubmit its case. Federal attorneys not only filed a new forfeiture complaint, they arrested Prokopi on charges of conspiracy, false classification of goods, and receipt and transportation of stolen property.

Prokopi's reply memorandum comes on the heels of the government's own court pleading filed soon after Prokopi's arrest. Read the October 20, 2012 update at the bottom of the post for a description of the federal government's memorandum.

The claimant's attorneys conclude their reply memorandum by saying, "The Government should not be allowed to profit from its hardball tactics, nor should it be allowed to seize property based upon obscure foreign laws or unwritten interpretations of 'country of origin' or valuation rules for fossils. Moreover, the Government has not alleged sufficient facts to establish a reasonable basis to believe that it could meet its burden to prove that the component parts of the Display Piece were 'stolen' under U.S. law. For all these reasons, the Complaint should promptly be dismissed and Prokopi should be awarded attorney’s fees and costs."  They attorneys have asked the court for an expedited hearing.

Meanwhile, the federal district court in Manhattan on Monday set the appearance bond in the criminal case of U.S. v. Eric Prokopi (1:12-mj-02634-UA) at $250,000: "Bail terms set in Florida to continue with following amendments: Bond raised to $250,000 to be co-signed ...." Home detention vacated. Wife's passport to be surrendered. Travel SDNY/EDNY and Northern District of Florida and intervening Districts."

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

Leave to Appeal Granted on Issue of Permissible Limits of Police Deception During Interrogation

Last week, Jim Eckert posted (see) on the conflicting decision of the Appellate Divisions for the Second and Third Department as to the limits on permissible police deception during interrogation. In both cases, the police had purposely misled a suspect into believing that the person the suspect was accused of assaulting was alive.

In People v Thomas (93 AD3d 1019 [3d 2012]), Mr. Thomas was suspected by police in a shaken baby case.  Police knew that the child was not expected to survive, and yet falsely told Thomas, in a recorded interrogation, that they needed to know exactly what the defendant did, so that treatment of his child could be effective.The Third Department rejected Mr. Thomas's contention that this tactic rendered his resulting statement inadmissible . The Court held, in part, that this deception "did not create a substantial risk that [Mr. Thomas] might falsely incriminate himself."

In People v Aveni (2012 WL 4901136, 2012 N.Y. Slip Op. 06968 [2d Dept 10/17/12]), Mr.Aveni was suspected by the police in the drug overdose death of his girlfriend.  However, he was told by police that she was being treated and that she would die without proper care, which required telling the doctors what had happened. Mr. Aveni admitted to injecting her with heroin. The Second Department held that the police deception coerced Mr. Aveni to speak at all, and, thus, constituted, improper pressure.


As Jim pointed out there are two dangers with respect to the use of overbearing deception.The first, addressed by the Third Department, is the risk that the defendant will be coerced into making a false confession. The second danger, addressed by the Second Department, is that the suspect will be coerced into making a statement at all, true or false.


On October 23, Court of Appeals Judge Robert Smith granted Mr. Thomas leave to appeal. The Thomas decision will provide an opportunity to consider the appropriate limits on police deception during interrogations.

Another case pending before the Court of Appeals raising questions about the limits of police interrogation tactics is People v Guilford (96 AD3d 1375 [4th Dept 2012]), in which the Court will consider the admissi bility oif statements made  after a 49–hour interrogation, where there was an eight–hour break between interrogation and his statements.

The issue of the proper limits for police interrogation is heightened by an increased awareness, as a result of DNA exonerations, that courts and juries have often accepted as voluntary and reliable, statements which are neither true nor voluntary. (Steven Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891-1007 [2004]). The 2009 New York State Bar Association Report regarding 53 recent wrongful convictions in New York found false confessions to be a leading cause of these wrongful convictions.

SLAM Litigants Move Toward Resolving Ka Nefer Nefer Mummy Mask Case

The St. Louis Art Museum (SLAM), the United States government, and the Republic of Egypt appear to be in discussions to settle the contest over title to the mummy mask of Ka Nefer Nefer. Last week the U.S. Attorney's Office for the Eastern District of Missouri filed an unopposed motion with the Eight Circuit Court of Appeals asking for filing deadlines to be held in abeyance in the case. The court granted the motion.

The federal government's October 17 motion tells the court that "the parties believe that continued discussions will be productive and that there is a significant possibility that they will reach a resolution that would obviate the need for the appeal to continue."  The appeals court was notified that "the United States must consult further with the Solicitor General, the Department of State, and the government of the Republic of Egypt before it can propose or agree to any potential settlement terms."

U.S. Attorney Richard Callahan appealed the mummy forfeiture case in June after a federal district court denied the government's efforts to seize and forfeit the Ka Nefer Nefer mask from SLAM.  The federal government alleges that the mask was stolen from Egypt and is in the United States in violation of the law.  SLAM asserts that they are the rightful owners of the artifact.  SLAM filed a declaratory action in February 2011 to gain quiet title to the mask followed by the U.S. Attorney's petition for forfeiture in March 2011.


This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2012 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT: www.culturalheritagelawyer.com

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New York Court of Appeals Determines Who Decides Whether to Request that the Jury Consider a Lesser Included Offense - Counsel or Defendant

In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted

Having accepted the assistance of counsel, a defendant retains authority over certain fundamental decisions (see Jones v Barnes, 463 US 745, 751; People v Colon, 90 NY2d 824, 825; People v White, 73 NY2d 468, 478, cert denied 493 US 859). Strategic and tactical decisions, in contrast, rest with counsel (see People v Colon, 90 NY2d at 826; Arko v. Colorado, 183 P3d 555, 558 [Colo]). The demarcation between the two, however, is elusive (see Government of Virgin Is. v Weatherwax, 77 F3d 1425, 1433, cert denied 519 US 1020).

After detailing the division of authority on this issue, the Second Department decided the case without resolving whose decision control as to seeking to have a lesser offense charged.  Instead, that Court concluded that under the facts of the Colville case, in which counsel acquiesced to the defendant's decision not to request submission of lesser-included offenses to the jury, it did not have to reach a decision on this issue, since such acquiescence does not constitute ineffective assistance of counsel even if it was decision to be made by counsel. The Court, thus, affirmed, Colville's conviction.

Judge Read of the Court of Appeals granted Mr. Colville leave to appeal. And, writing for a 4 judge majority, Judge Read and the Court of Appeals in People v Colville (2012 NY Slip Op 07047,_NY3d_ [10/23/12]) has finally provided New York attorneys and judges with much needed guidance on this issue. The Court held that "that the decision whether to seek a jury charge on lesser-included offenses is a matter of strategy and tactics which ultimately rests with defense counsel." Thus, the Court held it was reversible error for the trial court to refuse to charge lesser offenses as requested by counsel " because defendant objected."

The majority, noting that this was the near unanimous position of other courts, rejected the District Attorney's argument that the decision as to whether to request a lesser offense was a fundamental one to be made by the defendant, such as the decision as to whether to enter a guilty plea (Jones v Barnes, 463 US 745), or to request consideration of an affirmative defense (see People v. Petrovich, 87 NY2d 961).

A Comprehensive FREE Estate and Financial Planning Workshop for SPECIAL NEEDS PARENTS

Sunday, November 11, 2012
10:20 AM - 12 PM

3495 Nostrand Ave
Brooklyn NY 11229