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February 2006
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Comedic Break

Today's comedic break, a humorous courtroom outtake, is from Richard Ledere's Collection of 'Transquips'.  The essay is a composite of his favorite courtroom bloopers from two books:   Humor in the Court (1977) and More Humor in the Court.

These books are out of print,  but another book that includes humorous transcripts from court proceedings, Disorder in the Court, can be found in my sidebar to the left.  I own this book and it's one of my favorites.  It never fails to make me laugh out loud.

Here is today's quote:

Did you ever stay all night with this man in New York?    

I refuse to answer that question.

Did you ever stay all night with this man in Chicago?    

I refuse to answer that question.

Did you ever stay all night with this man in Miami?    


Judge Grants Government Limited Access to Google Search Records

I previously posted about the DOJ's subpoena of Google in which it sought access to a "multi-stage random sample of one million URLs" from the Google database and a computer file with the "text of each search string entered onto Google's search engine over a one-week period."   This information was purportedly being sought by the government in an attempt to revive a law meant to shield children from online pornography

On Friday, the DOJ was refused access to most of the information that it was seeking from Google.  According to this article, Federal District Court Judge James Ware ordered Google to provide DOJ lawyers the addresses of 50,000 randomly selected web site addresses indexed by Google's search engine.  However, the judge refused to allow the DOJ access to the specific search requests of individual Google users.

The judge's decision can be found here.

The government also subpoenaed a number of other major search engines, including Yahoo, and the information requested was provided to the DOJ without as much as a peep. From now on, I'll be using either Google or, better yet, Scroogle, for all of my searches.  How about you?

For an interesting take on the issue, see this article.

In other legal-related Google news, a lawsuit was just filed against Google in federal court by a business alleging that Google "blacklisted" the business by causing it to drop in search engine rankings and thus lose business.

Court of Appeals Holds Murder in the Second is a Lesser Included Offense of Murder in the First

In People v. Miller, 2006 NY Slip Op 01194, the Court of Appeals considered the issue of what makes an offense a lesser included offense and thus subject to dismissal as an inclusory concurrent count.

At the outset, the Court noted that:

Inasmuch as lesser counts are subsumed within higher ones, the lesser counts are superfluous, and a defendant's conviction properly rests on the higher count or counts.

The Court applied CPL §§ 300.30 and 300.40 and concluded that Murder in the Second Degree is always an inclusory concurrent count of Murder in the First Degree.  Accordingly, the Court held that upon a defendant’s conviction for Murder in the First Degree, all counts charging Murder in the Second Degree based on the same death should be dismissed, and stated:

Were we to rule otherwise, it would mean that if a defendant is charged in a single-count intentional felony murder indictment, neither the prosecution nor the defense could ever have the jury consider felony murder.

Indignant Indigent posted about this case here.

NYPD Reports Regarding Public Protests Made Public

As part of a civil rights lawsuit brought against the City of New York by 16 animal rights activists arrested during the World Economic Forum, Federal Magistrate Judge Gabriel W. Gorenstein required the City to release a number NYPD internal reports regarding crowd control procedures used by the NYPD in recent years during political demonstrations (hat tip:  Talk Left).

According to this New York Times article, the power of the police to secretly monitor political gatherings had been tightly controlled by a federal court between 1985 and early 2003 as a result of a lawsuit by political activists, however many of the restrictions from that case, known as Handschu, were eased at the request of the City in 2003.

As a result of the eased restrictions, and as indicated in the now public reports, the NYPD now uses more "creative" tactics, including preemptive arrests:

(I)n another report, dated Feb. 8, 2002, and signed by Capt. Robert L. Bonifaci, commander of the Queens North Task Force. Captain Bonifaci wrote, "It should be noted that a large part of the success in policing the major demonstration on Saturday, Feb. 2, 2002, was due in part to the proactive arrest policy that was instituted at the start of the march at 59th Street and Fifth Avenue, and directed toward demonstrators who were obviously potential rioters." (Emphasis added).

Interestingly, the "obviously potential rioters" arrested during the economic forum were held by the police for up to 40 hours prior to arraignment which is twice as long as those accused of murder, rape and robbery arrested during the same time frame.

Also reported in the article was that the NYPD utilized undercover operatives during the protest:

The reports, which were heavily edited at the request of the city, also discuss the use of undercover officers at the protests. Captain Hardiman wrote that "the use of undercovers from narcotics provided useful information." And on Inspector Shortell's list of positive aspects of the strategy, he listed "the use of undercover personnel in the ranks of the protesters." (Emphasis added).

The article also indicates that the claims in this lawsuit mirror those made in hundreds of other recent lawsuits against the City brought by demonstrators who were arrested at war protests and bicycle rallies during the Republican Convention.

How interesting.  It makes one wonder what type of "useful information" was obtained by the undercover operatives during the protests and whether it was even tangentially related to crowd control. 

The good news is that the "war on drugs" has apparently been "won" since the NYPD has seen fit to divert the use undercover narcs from the drug war to the "war" de jour.

Court of Appeals Concludes Express And Unambiguous Preservation of Rights Required

In Matter of Brisson v. County of Onondaga, 2006 NY Slip Op 01193, the Court of Appeals considered the issue of whether the requirement of preserving the right to offset future benefit payments plainly and unambiguously applied to all self-insured or worker’s compensation carriers or only those with existing liens.

In reaching its decision, the Court noted that the issue of whether rights to a future offset were adequately preserved in a particular case is a factual one for the Board to consider, and its decision would be upheld as long as it was supported by substantial evidence. The Court stated:

Finally, whether an employer adequately preserved its right to a future offset is a factual issue for the Board. A finding of fact made by the Board is considered conclusive on the courts if supported by substantial evidence. Where such evidence exists, the Board's decision may not be disturbed. (Internal citations and quotations omitted.)

The Court held that a self-insured employer or workers' compensation carrier is obligated to preserve its right to any offset expressly and unambiguously when consenting to settlement of a third-party action, regardless of whether there is an existing lien against the claimant's recovery.  The Court then applied the holding to the case at issue and concluded that substantial evidence supported the Workers' Compensation Board's finding that the defendant failed to adequately preserve its rights.

A Comedic Break

A new feature of this blog is posts that highlight law-related humor. Here's a lawyer joke that I recently came across that made me laugh:

A doctor and a lawyer in two cars collided on a country road. The lawyer, seeing that the doctor was a little shaken up, helped him from the car and offered him a drink from his hip flask.     The doctor accepted and handed the flask back to the lawyer, who closed it and put it away.    

"Aren't you going to have a drink?" asked the doctor.    

"Sure I am.  Right after the police leave," replied the attorney.

Should Tax Dollars Fund Home Security Systems for Federal Judges?

I came across an interesting article today regarding the applications of 1500 federal judges for government-funded home security systems.  Many of the judges were motivated by what happened to Judge Joan Humphrey Lefkow last year.  According to the article:

After a man broke into the home of District Judge Joan Humphrey Lefkow  and murdered her husband and mother last March, the Judicial Conference of the United States, the policymaking board for federal courts, urged Congress to provide additional security measures for judges and their families.

I'm on the fence regarding whether this is an appropriate use of our tax dollars, but am inclined to think that it might be.  Judges are at an increased risk of retaliatory violence due to the nature of their job, and shouldn't be left to fend for themselves.  And, as a society, we certainly don't want qualified candidates turning down judgeships out of fear for their own lives or the lives of their loved ones.

That being said, where do you draw the line?  Prosecutors and defense attorneys are also at risk, as are probation and parole officers.  How much governmental protection and/or monies should be provided to to protect those involved in the criminal  justice system?  And who "deserves" more protection?  I'm not sure what the answer is, but it's an interesting issue.