Sui Generis--a New York law blog

9/11 Damages Trials To Begin in the Fall

As reported in this AP article, Southern District of New York Judge Alvin K. Hellerstein has scheduled the trials of 9/11victims who have chosen to litigate rather than accept monies from a federal fund.  From the article:

The trials to determine the potential compensatory damages in six lawsuits will begin Sept. 4. In all, 41 cases are still pending that were brought by families who didn't take compensation money.

The liability phase will be decided by a single jury later. Defendants will include airlines, airline manufacturers such as Boeing and agencies like the Port Authority of New York and New Jersey, that were responsible for security at airports or the World Trade Center.

Of particular interest is that Judge Hellerstein has scheduled the damage phase of some trials to occur before the liability phase:

U.S. District Judge Alvin K. Hellerstein also took the unusual step of scheduling the damages portion of some of the cases — usually the second phase of a trial — before a jury even determines if the airlines and their security contractors can be held liable...

Andrew Maloney, an attorney for the plaintiffs, said it is unusual to have a trial on damages before it is decided who might be forced to pay them, but he said it has happened before in airline disaster cases.

Surprising Statistics About Juries

Two articles about juries recently caught my eye.

The first is a Reuters article that discusses a recent finding that Caucasians predominate on Manhattan jury pools.  Here are some startling statistics from the article:

Only about half of Manhattan's population is white, but three in four people who appear for jury duty are white, the report said.

Hispanics, who make up 27 percent of the overall population, are the most under-represented group in jury pools, accounting for about one in 16 people, it said.

Blacks make up 17 percent of the population, but just one in 10 appears in the pool, while Asians -- 10 percent of the population -- appear at a rate of one in 16.

Members of Citizen Action observed and recorded the race of 14,429 people who appeared in Manhattan juror assembly rooms from November 2006 through February this year.

The New York Personal Injury blog has posted a link to the full report and to a press release regarding the study here.

The prevalence of whites on juries is particularly striking when contrasted with the following data obtained via this Columbia Journalism News article that I found after a quick Google search: 

Although African Americans are only 15 percent of the population under 18, they constituted 26 percent of the juvenile arrests in 1998. Arrested African Americans are more likely to be formally processed, sent to adult court, and sent to a juvenile or adult detention or correctional facility.

In addition, the average prison stay for an African-American or Latino juvenile was longer than a white youth’s stay by an average of 86 days. A variety of self-reporting data shows that white and minority children commit crimes at similar rates, according to a report by Vincent Schiraldi, the director of the Justice Policy Institute.

While those statistics are limited to the juvenile population, as anyone who has recently entered a criminal courtroom can attest, African American and Hispanic defendants far outnumber Caucasians amongst the adult population as well.

Not surprisingly, this study confirms what most criminal defense practitioners could have already told you--the vast majority of defendants rarely encounter a jury of their "peers."

Another potential failing of juries that is of even greater importance is discussed in this AFP article which summarizes a troubling study from Northwestern University.  The study concludes that juries and judges are wrong 1/6 of the time. 

From the article:

So much for US justice: juries get the verdict wrong in one out of six criminal cases and judges don't do much better, a new study has found.

And when they make those mistakes, both judges and juries are far more likely to send an innocent person to jail than to let a guilty person go free, according to an upcoming study out of Northwestern University...

The study, which looked at 290 non-capital criminal cases in four major cities from 2000 to 2001, is the first to examine the accuracy of modern juries and judges in the United States.

It found that judges were mistaken in their verdicts in 12 percent of the cases while juries were wrong 17 percent of the time.

More troubling was that juries sent 25 percent of innocent people to jail while the innocent had a 37 percent chance of being wrongfully convicted by a judge.

Assuming that the findings are correct, the results of the study are disturbing. 

That's a big assumption, however, since the method used to determine whether mistakes were made in a given trial is a bit questionable, in my humble opinion:

Spencer's study does not examine why the mistakes were made or which cases ought to be overturned.

Instead, he determined the probability that a mistake was made by looking at how often judges disagreed with the jury's verdict.

"If they disagree they can't both be right," he explained.

Spencer found an agreement rate of just 77 percent, which means a lot of mistakes were being made.

Nevertheless, if the rate of error is even remotely close to 1 out of 6 cases, then as far as I'm concerned-- Houston, we've got a problem.

Spitzer Signs Bill Allowing Domestic Violence Victims to Break Leases Without Penalty

On Monday, Gov. Eliot Spitzer signed a new bill into law that is aimed at protecting domestic abuse victims.  It allows victims to break their leases without penalty.

From an AP article on this new law:

The new law allows domestic violence victims with an order of protection against a batterer to seek a separate court order that would allow them to terminate a residential lease without penalty.

Sponsors of the law say that many victims want to move where their abuser cannot find them, but lack the money to do it. Under the new law, victims would have to demonstrate to a judge that they are at risk in their current residence, that moving would reduce that risk and that they asked the landlord for a voluntary termination.

While I think that the principle behind the new law is admirable, I wonder why Gov. Spitzer signed the bill when he was well aware that there were problems with it as written.

And, yes, I'm aware that by even asking that question, it becomes painfully obvious that my naivety is showing.

Headline of the Day

 New York Lawyer brings us this intriguing and oh-so-revealing headline:  CLE, Not T&A: NY State Bar Cancels Porn Star's Talk.

Yes, you read that correctly.  Apparently the Family Law Section of the New York State Bar Association had booked a retired porn star to speak at its summer meeting.  Yes, it's true.  I kid you not.

What's that you say?  You're wondering what she was scheduled to speak about?  Well, my friend, that's nearly as funny as the headline.  From the article:

The topic of Ms. Steele's planned talk was to have been "Sex and love - making your time away from the office really count and how to not wind up as one of your clients."...

"It was basically an entertainment presentation at 9:15 one of the nights," he said. "Her spiel is about relationships and making the best of your relationships."

Sounds like a perfectly reasonable presentation for a bar association meeting, doesn't it?  Doesn't it?!?!

Especially coming directly from the mouth of a Miss "Sydnee Steele", who had previously starred in more than 200 porn films and billed herself as an "internationally published author, speaker and sexual empowerment consultant."

Do I ever wish I was making this up.  Do.I.Ever.

Gov. Spitzer Appoints Judge Lippman As Presiding Justice of 1st Department

As reported in this Buffalo Business First article, yesterday Governor Spitzer appointed Chief Administrative Judge Jonathan Lippman to serve as Presiding Justice for the Appellate Division, First Department:

Lippman is the longest serving chief administrative judge in state history. He was appointed to that position in 1996 while serving as judge on the Court of Claims, and has continued serving as such since then.

In 2005, he was elected as a Supreme Court justice for the 9th Judicial District and was then appointed as an associate justice for the Appellate Term for the 9th and 10th Judicial Districts.

A New York City native, Lippman received both his undergraduate and law degrees from New York University.

New York Judges Sue for Pay Raise

Three Long Island judges have filed a lawsuit seeking to compel higher judicial salaries.  The case is Maron v. Silver, 21984/06 and was originally filed in Nassau County. 

But, as reported in this NY Lawyer article, the lawsuit will soon be transferred to Albany County pursuant to a stipulation between the parties:

Supreme Court Justice Thomas A. Adams of Nassau County yesterday approved a stipulation through which the parties in Maron v. Silver, 21984/06, agreed that venue should be moved.

Justice Adams also set a briefing schedule requiring all papers to be readied by the return date on Sept. 17.

The actual papers must be physically transferred from Nassau no later than May 30, and an Albany judge is expected to be assigned to the case soon after.

And, it looks like the judges are finding it difficult to obtain support from the business community, as reported in this recent New York Law Journal article: Business Heads Silent on Pay Hike for Judges.

Interesting stuff, indeed.  I'll keep you apprised of the situation as I learn more.

Does Spitzer's New DNA Database Proposal Make Sense?

An article that I highlighted in today's legal news round up caught my attention--the New York Times article about Governor Spitzer's new plan to expand New York's DNA database.

From the article:

The governor’s proposal would order DNA taken from those found guilty of any misdemeanor, including minor drug offenses, harassment or unauthorized use of a credit card, according to a draft of his bill. It would not cover offenses considered violations, like disorderly conduct.

In expanding its database to include all felonies and misdemeanors, New York would be nearly alone, although a handful of states collect DNA from some defendants upon arrest, even before conviction...

The bill would make it easier for prisoners and defendants to obtain court orders to have their DNA tested against evidence collected in their cases and to have that evidence tested against the entire database of DNA, aides to the governor said.

It also would allow prisoners who have pleaded guilty to seek DNA testing that might prove them innocent, the aides said; some judges now decline such requests.

For the most part, I've been a big fan of much of the legislative initiatives of our new governor.  But, on this one, he's showing his prosecutorial stripes.   

The idea that the State will possess the DNA of everyone convicted of a felony and misdemeanor is alarming, to say the least.  The civil rights implications of this bill are huge.   

I'm sure that everyone reading this blog is relatively close with at least one person who has been convicted of a misdemeanor.  People of all walks of life have run ins with the law at some point in their lives. The alleged risk posed by one-time misdemeanor offenders does not warrant the extreme intrusion of the collection and storage of their DNA.

While the premise underlying the section of the proposed legislation that would make it easier for prisoners to obtain Court Orders to prove their innocence via DNA is certainly admirable, it's just a red herring as far as I'm concerned.

If the true motivation was to make it easier for the innocent to prove their innocence, then why not simply propose legislation focused on that goal alone?  Well, gee--because that's just a carrot being dangled in front of the "liberal" defense bar in an attempt to distract us with bright, shiny objects.

Nice try, Governor.  While I approve of much of what you've done thus far, this particular proposal does not impress me, shiny as it may be.  As a working mother, I'm easily distracted, but it's gonna require more than a little orange carrot tacked onto Big Brother-esque legislation to do so.

The Brazilian Nanny vs. the Dominatrix

It's hard to improve on the title of this article from the New York Law Journal:  So a Nanny and a Dominatrix Walk Into a Courtroom...

The article describes a lawsuit pending in the Southern District of New York brought by a Brazilian nanny, in which she seeks over $47,000 from her former employer based on allegations that her former employer, Scarlet LeMay, violated the Fair Labor Standards Act and the New York Labor Law.

My favorite part of the article is the description of the defendant, Ms. LeMay:

Ms. LeMay has had a long career as a dominatrix and advertises under "Ultimate Encounters" in the escort listings of the Yellow Pages. She also goes by the name of Vampyra in her role as lead singer for the goth band Mantik.

Man, is my life ever boring!  But, I digress...

After a little sleuthing I was able to locate a Mantik CD, which can be sampled and purchased here, should you be so inclined.  And, if you're feeling particularly adventurous, feel free to visit Ms. LeMay's MySpace page.

Personally, my favorite Mantik song is "Pleasure of the Whip."  What's yours?

Surprising Headline of the Day

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

You don't say?

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.

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?