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The New York Legal News Round Up

Latest_news The work week is more than halfway over and that means it's time for the round up of New York law-related headlines from the past week:

Voices From the Grave

Drlogo11_2 This week's Daily Record column is entitled "Voices from the grave."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.


Voices from the grave.

Last week, the U.S. Supreme Court heard oral arguments in Giles v.California,No. 07-6053.

At issue was whether the defendant’s Sixth Amendment right to confront his accusers was violated where the trial court admitted the dead victim’s prior statements into evidence, where the statements implicated the defendant in her murder.

Last year, the New York State Court of Appeals considered a similar issue in People v. Nieves-Andino, 2007 NY Slip Op 05584, but never reached the constitutional mer- its of the issue, concluding instead that the victim’s state- ments were not testimonial.

In Nieves, Jose Millares, the victim who later died, was discovered lying in the road by a police officer respond- ing to a 911 call regarding shots fired.

The responding officer summoned an ambulance and then asked Millares for his name and other pedigree information. He also asked him what had happened. Millares responded that he had argued with a man named Bori who had shot him three times.

The defendant argued that admitting the victim’s statement into evidence at trial would violate his Sixth Amendment right to confront the witnesses against him pursuant to the Supreme Court’s ruling in Crawford v. Washington. The prosecution argued that the statement fell under the excited utterance exception to the hearsay rule and that its admission would not violate the Sixth Amendment.

The court concluded the victim’s statements did not violate the defendant’s right to confront witnesses against him since the officer’s primary purpose in questioning Millares was to address an ongoing emergency, and thus the statements were not testimonial in the first instance: “Our decision is guided by Crawford v. Washington(541 US 36 [2004]) and Davis v. Washington (126 S Ct 2266 [2006]). In those cases, the Supreme Court held the Federal Confrontation Clause prohibits the ‘admission of testimonial
statements of a witness who did not appear at trial unless [the witness] was unavailable to testify, and the defendant had had a prior opportunity for cross-examination’ (Davis, 126 S Ct at 2273). Only statements that are testimonial make the absent declarant a ‘witness’ within the meaning of the Confrontation Clause (see id.) … When ... a police officer justifiably believes that the assailant no longer poses a threat to the victim, the purpose of his or her interrogation of the victim may ‘evolve’ from dealing with an ongoing emergency to establishing past events with a view to later criminal prosecution (id.). On this record, however, the initial purpose of Officer Doyle’s inquiry did not change.”

In contrast, under the facts of Giles v. California, the statement appears to be testimonial, therefore the Supreme Court must address the constitutional issue and consider whether the defendant’s Sixth Amendment rights were violated by the trial court’s decision to admit the dead victim’s statements into evidence.

The highest appellate court below, the California Supreme Court, concluded the defendant waived the right to confront his accuser by operation of the common law “forfeiture by wrongdoing” doctrine, since his actions were the very reason that the dead victim was unavailable to testify.

Based on recent decisions from the Supreme Court, I predict that it will uphold the California Supreme Court’s ruling.

This conclusion, while an uncomfortable one for me as a criminal defense attorney, is the only outcome that would make sense from a public policy perspective. To hold otherwise would be to encourage assailants to cause every physical assault to end in death in order to take advantage of the protective umbrella of the Sixth Amendment.

Quite frankly, I’m not sure that the alternative — allowing murderers to benefit from the death of their victim — is one that should be available in a civilized society such as our own.

The New York Legal Blog Round Up

Blawgs The weekend is long gone, and that means that it's time for the weekly round up of interesting and informative posts from my fellow New York blawgers:

Indignant Indigent:

Judgment Day:

Juz the Fax:

New York Civil Law:

New York Public Personnel Law:

Second Opinions:

Simple Justice:

Wait a Second!:

Define That Term #280

Dictionary_2_3 Last week's term was eggshell skull, which is defined as:

A hypothetical medical condition used to illustrate the idea that if you are at fault when you injure someone, you are responsible for all the consequences, whether you could have foreseen them or not. For example, if you cause an injury to a hemophiliac who begins to bleed severely, you are responsible for whatever happens to him, even though you had no way of knowing that the injury would be so severe.

Once again, Edward Wiest got it right!

Today's term is:

sprinkling trust.

As always, no dictionaries, please.

Mining for Metadata in New York?

 In the smack down of the decade, the New York County Lawyer's Association Ethics Committee butts head with the American Bar Association Ethics Committee on the issue of mining for metadata inadvertently disclosed by opposing counsel.  It's hunky dory per the ABA, but apparently the NYCLA respectfully disagrees with that conclusion.

And how:

This Committee finds that the NYSBA rule is a better interpretation of the Code’s disciplinary rules and ethical considerations and New York precedents than the ABA's opinion on this issue. Thus, this Committee concludes that when a lawyer sends opposing counsel correspondence or other material with metadata, the receiving attorney may not ethically search the metadata in those electronic documents with the intent to find privileged material or if finding privileged material is likely to occur from the search.

Oh snap!  Wish I could have been a fly on that wall!

Hat tip:  Legal Blog Watch.

The New York Legal News Round Up

Latest_newsIt's the middle of the week and time for the round up of interesting New York news headlines from the past week:

The Lawsuit That Never Should Have Been

Drlogo11_2 This week's Daily Record column is entitled "The lawsuit that never should have been."  The article is set forth in full below and a pdf of the article can be found here.

My past Daily Record articles can be accessed here.

The lawsuit that never should have been

“Where the use of Mounted Unit becomes necessary for crowd control purposes, incident commanders are reminded that if Mounted officers are deployed for such purpose it is important to ensure that a crowd or group to be dispersed has suffi- cient avenues of escape and/or retreat available to them and has a reasonable chance to disperse.”

— Paragraph 3 of the March 28 settlement order in Stauber and the New York Civil Liberties Union v. the City of New York, 03-cv-09164

In 2003, the New York Civil Liberties Union filed a lawsuit against the New York Police Department on behalf of protesters injured by police during peaceful antiwar demonstrations. 

The complaint alleged the NYPD prevented protesters from leaving police barricaded areas and approached the trapped crowds on horseback, causing injuries to many in attendance.

The plaintiffs included a then-law student, now an attorney, who was injured by a police horse and a woman confined to a wheelchair who alleged she was trapped behind a police barricade and her wheelchair was damaged by a police officer when she attempted, for medical reasons, to leave the barricaded area.

Pursuant to the Settlement order, the defendants agreed to pay $100,000 in attorneys fees to the New York Civil Liberties Union and $25,000 in damages to the injured plaintiffs. 

The NYPD also agreed to adopt written policies that ensure those lawfully exercising their First Amendment rights can gain access to protest areas, have adequate means of ingress and egress from the areas set aside for the protest, and that police provide adequate warning and an opportunity to disperse prior to using the Mounted Unit for crowd control.

In other words, the police agreed, apparently because they had no other choice, to give people a chance to get out of the way before charging into crowds on police horses, each of which weighs a ton or more.

It would seem this last concession would have been self-evident to the Mounted Police as they sat atop their large horses, looking down on the tiny mortals below them — some in wheel chairs, some with children, some with long, unkempt hair — engaging in a process as American as apple pie: peacefully protesting a contentious war. 

Shouldn’t “New York’s finest” have known better than to stomp on its citizens with the heavy hooves of horses? One would think that in 21st century America, such flagrant abuses of police power wound be a thing of the distant past.

One would hope taxpayers wouldn’t have to foot the bill for a costly lawsuit brought to prevent the NYPD from using horses to stampede the very same people it is paid to protect.

And yet, it turns out such wishful thinking is apparently naïve, at best, since that is exactly what New York taxpayers had to do: pay damages to the injured plaintiffs, pay attorneys fees to their counsel and fund the investigation and defense of a lengthy federal lawsuit for police conduct that never should have occurred in the first place.

Police conduct in this instance was deplorable just as the costs of defending the abusive conduct were unnecessary and unforgivable. 

All the more unforgivable is the fact that this claim was even necessary to protect our constitutional right to gather and engage in peaceful protest, for this was a lawsuit never should have been.

The New York Legal Blog Round Up

Blawgs_2 It's time for weekly round up of interesting posts from my fellow New York law bloggers:

New York Attorney Malpractice Blog:

New York Civil Law:

New York Personal Injury Attorney Blog:

New York Public Personnel Law:

Simple Justice:

Wait a Second!:

Define That Term #279

Dictionary_2 Last week's term was words of procreation, which is defined as:

Language used to leave property to a person and his or her descendants, which typically take the form "to A, and the heirs of his body," where A is the person receiving the property.

No one dared to hazard a guess this time around...

Today's term is:

eggshell skull.

As always, educated guesses are welcome; dictionaries are not.

Statute of Limitations and Emotional Distress Claims

Gavel2 Statute of limitations cases always interest me, since they present unique issues, and Schultes v Kane 2008 NY Slip Op 03271 is just such a case.

Schultes offers an unusual factual scenario, and clarity on the issue of when the statute of limitations begins to run on emotional distress claims.

In this case, 30 years after the plaintiff and defendant divorced, the defendant, without the plaintiff's knowledge, had their children's bodies disinterred from a burial plot owned jointly by the parties and had the bodies placed elsewhere.

The plaintiff learned of this fact a few years later in 2005, and shortly thereafter filed a lawsuit alleging, inter alia, intentional and negligent infliction of emotional distress.  The husband alleged that her claims were precluded by the statute of limitations.

The Third Department disagreed:

The statutes of limitations do not bar plaintiff's causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress. "[A]s a general proposition, a tort cause of action cannot accrue until an injury is sustained. That, rather than the wrongful act of defendant or discovery of the injury by plaintiff, is the relevant date for marking accrual"...Because extreme emotional distress is an element of each of these causes of action, and plaintiff could not truthfully allege all of the elements until she suffered this element of injury, these causes of action did not accrue until she suffered distress as a result of learning that her children's bodies had been disinterred...As plaintiff commenced the action within two months after these causes of action accrued, the statutes of limitations had not expired...

Sounds about right to me.