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Prosecution of Innocents


This week's Daily Record column is entitled "Prosecution of Innocents."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.


Prosecution of Innocents

I came across an interesting case last week, People v. Rios, 26 Misc.3d 1225(A), 2010 WL 625221 (N.Y. Sup. Ct. 2010), while conducting research for this year’s annual supplement for the Thomson West book I co-author with Judge Karen Morris, Crim- inal Law in New York.

The case was based on a criminal prosecution that involved an unusual set of facts and prosecutorial over- reaching that could have been the basis of a “Law & Order” episode. People had died, gosh darn it, and someone was going to pay with their freedom — lack of criminal liability notwithstanding.

In this unfortunate case, which never should have been prosecuted in the first instance, a jury convicted the defendants — a building owner and manager — of the charges of criminally negligent homicide and second-degree reckless endangerment.

The victims were firefighters who died while responding to a fire in an apartment building owned and managed by the defendants. While fighting the fire, six firefighters became trapped on the fourth floor. Ultimately they jumped from a window on the fourth floor as an attempt to escape the fire. Tragically, two firefighters died, while the other four were severely injured.

A subsequent investigation revealed the lessee of the apartment from which the firefighters jumped had installed illegal partitions that blocked some fire escapes and impeded the firefighters’ ability to predict the fire’s strength, and to navigate within the apartment to escape. It also was determined that another lessee’s modifications in an apartment on the third floor — which included installation of an illegal partition and a jury rigged electrical system created in order to heat the room created by the partition — caused the fire in the first instance.

The defendants were prosecuted on the theory that they “recklessly tolerated the hazardous conditions that were created by the tenants and that caused the deaths of the firefighters.”

One issue raised on appeal concerned whether the court should grant the defendants’ motion to set aside the verdict on the grounds that the evidence was legally insufficient to establish that the defendants knew of the conditions that caused the firefighters’ deaths. A second issue raised, which I plan to address in another column, concerned whether juror misconduct occurred when a juror sent a Facebook “friend”request to a firefighter witness while the trial was pending.

Ultimately, after an extensive analysis of the facts, the trial court granted the defendants’ motion to set aside the verdict on the ground that the evidence did not support the prosecution’s theory that the defendants had actual knowledge of the conditions in the fires that resulted in the deaths. The court noted that no electrical or building violation codes ever were issued for the building where the fire occurred, and that the prosecution relied solely on circumstantial evidence to establish that the defen- dants had actual knowledge of the conditions at issue.

In fact, that was what I found most striking about the case — the apparent house of cards on which the prosecution relied as its case in chief. The court described the prosecution’s utter lack of evidence as follows:

The inferences argued by the People ... were neither reasonable nor logical, and called for the jurors to engage in speculation and conjecture. ... These inferences upon inferences were not circumstantial evidence upon which the jury could properly have inferred guilt.

Inferences upon inferences never should be the foundation of a criminal prosecution. In the face of pointless and tragic deaths, many seasoned prosecutors seek to place blame and lose sight of the fact that civil liability does not necessarily amount to criminal liability. Tenuous prosecutions such as this — while great fodder for a prime time television show — are shameful when real people’s lives are at stake. Convicting people innocent of a crime does not bring back the dead. It only serves to contort our criminal justice system into an unrecognizable beast, driven by vengeance rather than justice.

Feedly: My Favorite Online Tool


This week's Daily Record column is entitled "Feedly: My Favorite Online Tool."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Feedly: My Favorite Online Tool

A few weeks ago I explained how using an RSS feed reader can simplify your life and bring information relevant to your areas of practice and interests directly to you.

This week I want to fully explore one of my favorite online tools, Feedly — an RSS feed reader and so much more.

At the outset, I’d like to note that I receive nothing in exchange for my frequent recommendations of Feedly. I’m simply a huge fan of Feedly, and find I use it constantly whenever I’m online.

So, what’s so great about Feedly? It’s your all-in-one information gathering tool — an RSS feed reader, a search engine and a sharing tool — all rolled into one.

Feedly is a Firefox add on, so the Firefox browser must be used. Once you’ve installed Feedly, you can either subscribe to the feeds of your favorite blogs and news sites from scratch, or it will automatically pull the feeds you subscribe to using Google Reader. If you subscribe from scratch, it’s easy to add feeds to Feedly. Simply visit the website you want to add, click on the “+f” — found on the right hand side of your URL address bar — and Feedly will automatically guide you through the process of adding the feed.

Feedly also allows you to create different categories of feeds. For example, you could create categories such as “criminal law,” “real estate” and “national news.” When you subscribe to a feed using the process I’ve described, you’ll be prompted by Feedly to place the feed into one or more categories.

Once you’ve subscribed to a number of feeds, Feedly presents them to you in a far more user-friendly interface than most other feed readers. Feeds appear in a magazine-like view that is much easier on the eyes, and sorting through new items is simple and intuitive.

As you read your feeds, Feedly allows blogs posts and articles appearing in your feed to be shared quickly and easily. Choose the appropriate button in the tool bar appearing at the top of each item in your feed and, with the click of a button, you can do a number of things with the item.

The item within Feedly can be bookmarked so that you can read it later. You can share content on Twitter, Google Buzz or Facebook. Feedly automatically creates the body of the post and shortens the link. With the click a button, it’s automatically posted to your chosen social network. Another option is to e-mail the content to a client or colleague
to whom it might be of interest. Simply click on the e-mail icon and it connects to your e-mail account and opens up a new message. Other icons allow you to add the item to your Delicious or Diigo bookmarks, clip it to Evernote, or post about it at your Tumblr or Posterous blog.

Feedly also has a feature called “Karma,” which allows the links you’ve shared on Twitter to be tracked. You can see what links are most popular, how many times people have re-tweeted them and how many times viewers clicked through to the content.

Another nice feature is that, as you surf the Web, content can be shared quickly via e-mail, Facebook or Twitter using a mini-tool bar at the very bottom left corner of each Web page.

One of my favorite Feedly features is its search feature, which pops up whenever you search Google. Feedly will run your search term through Feedly and offer a few relevant suggestions from your RSS feed subscriptions, which appear in a box on the bottom right side of the Google search results page. I’ve found that many times the Feedly search results provide more useful and relevant sources than those appearing at the top of the Google results. Sometimes I even search Feedly using the search option within Feedly before searching Google, since I know the results likely will be more accurate for my purposes.

Finally, Feedly allows you to customize its interface so that it best suits your needs and preferences. The customization option makes an already very user-friendly tool all the more enjoyable to use.

All in all Feedly is a great tool. Everyone who has tried it based on my recommendations loves it, and wonders how they ever man- aged without it. Give it a try. I’m confident you’ll feel the same way.

Silence is no longer golden


This week's Daily Record column is entitled "Silence is no longer golden."

A pdf of the article can be found  here and my past Daily Record articles can be accessed here.


Silence is no longer golden

Earlier this month, the U.S. Supreme Court handed down its decision in Berghuis v. Thompkins, No. 08-1470.

At issue in Berghuis was whether the defendant, Van Chester Thompkins, a suspect in a shooting, waived his Miranda rights by remaining silent and then, after three hours of interrogation, responded to a question from one of the interrogating officers with a one-word response.

The Court held, in a 5-4 decision written by Justice Kennedy, that by remaining silent the defendant did not invoke his right to remain silent. The Court also concluded that when Thompkins ultimately spoke to police following a three hour period of silence, his actions were knowing and voluntary, thus he waived his right to remain silent. In the dissent, Justice Sotomayor explained the second half of the holding as follows:

The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of ‘waiver’ must, counterintuitively, speak — and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police.

In other words, the majority deemed that any ambiguity be construed in favor of the police, since interrogating officers are apparently too thick to comprehend silence indicates a desire to be silent. Or, as Justice Kennedy explained in the majority opinion:

If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression "if they guess wrong."

Because, really, the last thing we want police officers to do is to think. And in their defense, one would necessarily require a degree in quantum physics to make the deduction that a prolonged period of silence on behalf of a defendant from the very start of an interrogation indicated a desire to remain silent.

So, it would seem that the motivation behind the decision is to protect the police from their own stupidity. Because otherwise, the dimwitted police might face the oh-so-embarrassing happenstance of suppression of evidence, should they violate an accused’s constitutional right to remain silent.

That’s what bothers me the most about this decision: When it's distilled down to its essence, there is an underlying assumption that police are less savvy and intelligent than the suspects whom they interrogate. That’s certainly not the case when it comes to police procedures. No one knows how to walk that fine line between lawful and unlawful behavior better than the police, especially when it comes to interrogations.

On the other hand, when it comes to Miranda rights,the jurisprudence has become so complicated, that the invocation of those rights requires specific words, which vary depending on the jurisdiction in which you’re arrested. In order to successfully invoke Miranda rights, an accused must either accidentally stumble on the correct choice of words or take a course to learn about the proper way to protect one’s constitutional rights.

Even that’s not as simple as it seems, however. Just a few weeks ago, two Norfolk, Va. high school teachers were placed on administrative leave after a parent complained about their efforts to educate students about the proper invocation of their constitutional rights when stopped by the police.

The lesson to be learned is that, in the wake of Berghuis, U.S. citizens would be wise to take to the Internet and educate themselves regarding the protection of their rights during an encounter with the police. Because, according to the U.S. Supreme Court, if you don’t properly invoke a Constitutional right, you lose it.

Why You Need an RSS Feed Reader


This week's Daily Record column is entitled "Why You Need an RSS Feed Reader."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.


Why You Need an RSS Feed Reader

Whenever my colleagues approach me for advice about setting up a blog, the first thing I do is ask them which RSS feed readers they use.

Most of the time I’m met with a blank look, which never ceases to amaze me given how long feed readers have been around.

Using an RSS feed reader is such an important step to take, and since I continue to be met with puzzled expressions whenever I broach the subject, I figured it Is high time I explained the concept more fully.

An RSS feed is a summary of website content that can be found on most news websites and blogs. An RSS feed reader is a web-based application that allows you to subscribe to the RSS feed of various websites, then aggregates the multiple feeds, allowing you to read them at a single location.

Feed readers are important because they simplify your life and bring information relevant to your areas of practice and interests directly to you. Instead of having to check in daily at different websites, such as the New York Times or the Wall Street Journal Law blog, those sites’ newly created content automatically appears in your feed reader.

The first step is to sign up for an RSS feed reader. Feedly ( is my RSS reader of choice because it allows you to view the feeds in a magazine-like format and also offers a number of other features — which I’ll address in a future column.
Google Reader ( and Bloglines ( also are good alternatives.

Once you’ve set up an RSS feed reader account, the next step is to add content. Subscribe to feeds from websites that interest you, including feeds from news websites like the New York Times or, feeds from blogs that you enjoy reading and Google news alerts you’ve set up (a process I describe later). By doing so, you will be notified instantly when new content is created or when news breaks that may affect your cases.

You can locate blogs that interest you by searching for relevant terms at Google blog search ( or reviewing the categories at law blog directories, such as Justia’s
blawg directory (, the American Bar Association’s Blawg Directory ( or U.S. Law’s directory (

Once you’ve located blogs you enjoy, you can subscribe to the feed by clicking on the icons located somewhere on the website or by clicking on a “subscribe” bookmark installed via your RSS feed reader located in your browser’s tool bar. Once you’ve subscribed to the blogs you would like to follow, new posts from those blogs will appear in your feed reader automatically whenever you log in.

The same process can be followed to subscribe to any news site feed, such as

Another way to obtain information to support your practice is to subscribe to Google searches for terms relevant to your practice. Once a Google alert is created, Google will automatically search for news stories that contain the terms you’ve identified. You then can subscribe to an RSS feed of the search and will be notified of new results in your RSS feed reader.

To do this, go to Google News ( and type in the search terms. At the very bottom of the page, click on the orange “RSS” button. You will be guided through the process of adding the news search to your RSS feed reader. Once you have subscribed to a search successfully, all news items that include your search terms will appear in your RSS feed reader automatically.

It doesn’t take much time to set up an RSS feed reader and subscribe to the feeds of websites that interest you, and it’s well worth the effort. An RSS feed reader is an invaluable tool that simplifies your online life and offers just one more way to stay up to date about the most recent news in your areas of practice.