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When Intent Is In the Eye of the Beholder

Drlogo11_7I'm now writing a weekly column for Sui Generis' partner The Daily Record.  My prior columns can be accessed here.

This week's Legal Currents column is entitled "When intent is in the eye of the beholder."  The article is set forth in full below, and a pdf of the article can be found here:

*****
There are few issues as divisive and polarizing as abortion.

For those who oppose it, it is a matter of life and death, and for those who believe it should not be outlawed, the issue revolves around the belief that women have a fundamental right to control their bodies and destinies. Analysis of the issues involved requires a delicate balance of these competing interests.

A recent 5-4 U.S. Supreme Court decision, Gonzales v. Carhart, is a prime example of the deep fissures created by this controversial subject. Reasonable minds can differ, as evidenced by the fact that this panel of intelligent and thoughtful justices was unable to come to an agreement as to how the legal principles at issue should be framed, let alone decided.

In Gonzales, the court upheld a federal statute that bans a controversial abortion method known as “partial birth abortion.”

One issue raised by opponents of the law is that the statutory language relating to the required mens rea is indeterminate and, therefore, unconstitutionally vague.

Writing for the majority, Justice Kennedy attempted to explain why the statute at issue is not void for vagueness: “Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. ... Just as the Act’s anatomical landmarks provide doctors with objective standards, they also ‘establish minimal guidelines to govern law enforcement.’ The scienter requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion. It cannot be said that the Act ‘vests virtually complete discretion in the hands of [law enforcement] to determine whetherthe [doctor] has satisfied [its provisions].’...This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact dilation and evacuation (D&E). If a doctor’s intent at the outset is to perform a D&E in which the fetus would not be delivered to either of the Act’s anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present.”

Justice Kennedy’s somewhat convoluted logic on the issue of proof of intent is likely to make criminal defense practitioners cringe. Criminal prosecution for an alleged violation of this contentious procedure will not occur in a vacuum, and the personal, moral and religious beliefs of law enforcement officers will no doubt affect their judgment when the determination is made regarding whether there was sufficient evidence of intent to commit the crime.

As such, the blanket assertion that the Act provides clear mens rea guidelines, thereby rendering arbitrary and baseless prosecution unlikely, is questionable at best.

One wonders what will trigger a prosecution for an alleged violation of this law. Will each occurrence of an intact D&E be investigated to determine the intent of the physician performing it? Or will law enforcement place undercover agents in all abortion clinics who will report back as to the suspected intent of the physician at the outset of the procedure?

How might a physician go about proving that, when the procedure began, the original intent was to avoid an intact D&E? Would a notation in the patient’s chart suffice? Or would a notarized affidavit signed by the ob/gyn prior to the procedure be necessary to protect a physician from prosecution?

One’s stance on this contentious issue does not change the fact that the statute is poorly drafted, rendering it difficult, if not impossible, to enforce. Prosecution will require law enforcement to divine the mens rea of a physician prior to commencing this complex medical procedure, and the determination of intent will most certainly be influenced by one’s personal beliefs regarding abortion.

In other words, intent cannot help but be in the eye of the beholder.

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The following is a 2 minute video that sums up this ruling:


The NY Legal Blog Round Up

Blawgs_3It's time for the weekly round up of interesting posts from my fellow New York blawgers.  So, without further ado:


Surprising Headline of the Day

Master of the obvious says:  Minorities fare worse in traffic stops (AP). 

You don't say?Black_man_jail_2

From the article, the following not-too-surprising conclusions (at least not surprising to this ex-public defender):

Police were much more likely to threaten or use force against blacks and Hispanics than against whites in any encounter, whether at a traffic stop or elsewhere, according to the Justice Department...

Black, Hispanic and white motorists were equally likely to be pulled over by police — between 8 percent and 9 percent of each group....The racial disparities showed up after that point: _Blacks (9.5 percent) and Hispanics (8.8 percent) were much more likely to be searched than whites (3.6 percent)...

Blacks (4.5 percent) were more than twice as likely as whites (2.1 percent) to be arrested. Hispanic drivers were arrested 3.1 percent of the time.

Among all police-public contacts, force was used 1.6 percent of the time. But blacks (4.4 percent) and Hispanics (2.3 percent) were more likely than whites (1.2 percent) to be subjected to force or the threat of force by police officers.


Spitzer Proposes Major Judicial Reform

As reported in this Buffalo Business First article, on April 26th, Governor Spitzer offered a judicial reform package that would substantially change the New York judicial system as we know it. Gavel

First, Supreme Court justices would no longer be elected, an issue that has been hotly debated ever since a U.S. District Court ruled that the current judicial nominating system was unconstitutional:

(T)he governor wants to be able to appoint justices of the Supreme Court, the lowest level of New York state court, to be chosen by regional judicial nominating commissions. Supreme Court judges are elected for 14-year terms...Under Spitzer's plan local judicial commissions would vet candidates and forward a list of potential justices to the governor, who would make the final selection. The same system is used to pick judges for the four Appellate Division courts.

The proposed reform goes even further than that, however, and suggests that a number of changes be implemented, including:

  • Consolidating the state's trial courts into a two-tiered statewide system
  • Increasing the number of Supreme Court judges
  • The creation of a fifth appellate court division
  • Allowing appellate division to be redrawn every ten years instead of being fixed
  • Increasing judicial salaries
    • Supreme Court judges would receive an annual salary of $162,100, and effective April 1, 2006, Supreme Court judges would get $165,200. Salaries of all other judicial officers would be based on a percentage of the salary set for Supreme Court Justices

Major changes are on the horizon should this reform package be enacted. Some of the proposed changes, such as increasing judicial salaries and adding more Supreme Court judges, make sense to me. 

But, I was somewhat surprised by the proposed changes regarding the addition of an appellate division and allowing the redistricting of the appellate divisions every ten years.  I haven't read anything that has indicated that the current set up is problematic, so it seems strange that the Governor wants to enact such extreme changes.  But, maybe I'm missing a piece of the puzzle.

Either way, I'm having a hard time envisioning the effect of all of these changes--particularly as they relate to the appellate divisions.  Would the overall effect be good, bad, or negligible? What do you think?


Second Circuit On Gonzales v. Carhart

Interestingly, in National Abortion Federation v. Gonzales,04-5201-cv, a case that challenges the constitutionality of the now upheld "partial-birth" abortion federal statute, the Second Circuit has issuedProtesters an Order allowing the parties to submit briefs regarding the effect of the Supreme Court's recent decision in Gonzales v. Carhart upon their claims.  The order can be accessed here.

Judge Straub issued a strong dissent:

No further presentation of views is necessary or appropriate within the context of this case. In the mirror image of this case, the United States Supreme Court has held the statute at issue is constitutional. Gonzales v. Carhart, ____ S. Ct. ____, 2007 WL 1135596 (April 18, 2007). There simply is no remedy available much less one requiring the further expression of views in the context of this case.

Accordingly, I dissent from the order directing further briefing and believe the prudent, indeed the only path available to this Court is to issue an order that (1) vacates the majority opinion, partial judgment, and order to brief the issue of remedy; (2) vacates as moot the stay of briefing on the issue of remedy; and (3) remands the case to the District Court with instructions to enter judgment for the government pursuantto Carhart. I believe that Carhart requires this result.

I tend to agree with Judge Straub regarding the procedural effect of Carhart and am somewhat puzzled by this Order.  Anyone care to enlighten me as to why the Second Court issued this Order and/or predict the outcome of this case?


Judges' Part Rules

Rules_graphicThe New York Law Journal provides free online access to the judges' part rules (registration is required). 

The rules can be accessed here and, as explained, the database consists of "a comprehensive listing of the Rules for the Judges in both State and Federal Courts. Counties included are New York, Bronx, Kings, Queens, Richmond, Suffolk, Nassau, Westchester, Dutchess, Orange, Putnam and Rockland. We also provide the rules for both Southern and Eastern District Judges as well as the Second Circuit Court of Appeals."

(Hat tip:  New York Supreme Court Criminal Term Library).


Crimes & Misdemeanors

DohThere's criminal activity afoot and I'm here to tell you all about it, live from the Big Apple!


Is a "Depiction" an Image or an Idea?

In People v. Kozlow, 2007 NY Slip Op 03592, that was the issue considered by the New York Court of Appeals.  In this case, the defendant, a 42 year old man, was convicted below of Attempted Dissemination of Indecent Materials to Minors in violation of Penal Law § 110, former Penal Law § 235.22. He was alleged to have engaged in explicit online sexual conversations of a sexual nature with an undercover officer posing as a 14 year old boy. 

On appeal the defendant alleged that one can only be convicted of "depicting" sexual conduct through communications that included visual images.  The Court of Appeals disagreed.

The Court first examined the roots of the word "depict"and the legislative intent behind that statute:

We begin with a brief observation about the ordinary meaning of the word "depict." While one meaning of "depict" is "to represent in a picture," and the etymology of the word lies in the Latin "pingere" ("to paint"), the word "depict" also has a standard sense of "to represent or portray in words" and it has been used in that manner since the colonial era (see 4 Oxford English Dictionary 477 [2d ed 1989])...The sponsors of the 1996 legislation...described the email communications they sought to criminalize as predominantly textual. [*4]"Typically, the pedophile, posing as a minor, makes contact, wins the confidence of the minor and slowly begins to draw the victim into discussions of sex and sexuality." (Senate Introducer's Mem in Support of L 1996, ch 600, 1996 McKinney's Session Laws of NY, at 2524 [emphasis added].

The Court then explained that the defendant was properly convicted, despite the lack of allegations that he did not send sexually explicit visual images via email:

(W)e think it far more likely that legislators considered the word "depict" broad enough in meaning to cover a wide range of indecent materials...*(and)we reject defendant's theory that Penal Law § 235.22 is void for vagueness if the word "depict" is interpreted to include textual descriptions. A legislative decision to use language that is imprecise and open-ended "does not render a statute fatally vague if that language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices'"...

This is an important decision and one that will resonate for years to come, especially given the likelihood that additional variations of online conduct will be criminalized order to keep up with rapid technological advancements.