Sui Generis--a New York law blog

Justice Theodore Jones Nominated to New York Court of Appeals

Today Governor Eliot Spitzer nominated Theodore T. Jones, a Brooklyn Civil Term administrative judge, to fill the vacancy on the New York Court of Appeals.  (Hat tip:  New York Civil Law)

As reported in this New York Law Journal article:

Mr. Spitzer interviewed all seven candidates and met face to face with four of them - a virtually unprecedented approach, observers say...Justice Jones is a favorite of lawyers, particularly those representing plaintiffs in civil cases and his star rose after his deft handling of the 2005 Christmas season transit strike...Mr. Spitzer said Sunday that while the transit strike matter was perhaps Justice Jones' most publicly prominent, it was the judge's body of opinions and decisions over the last 16 years that swung the pendulum in his favor...

Justice Jones, 62, was born in Brooklyn and grew up in Queens. His mother was a teacher and his father worked with the Long Island Rail Road, eventually becoming station master at Penn Station. He saw active duty in Vietnam from 1967-1969 and left the military as a captain.

A graduate of Hampton University and St. John's University School of Law (1972), Justice Jones spent two years with the criminal division of the Legal Aid Society. He then clerked for a Court of Claims judge and practiced law in Brooklyn before his election to Supreme Court in 1989. Justice Jones was a member of the Second Department's character and fitness committee from 1978 to 1990 and has taught as an adjunct professor at the City University of New York and St. John's University School of Law.

Prosecutors Behaving Badly

Why oh why can't those crazy prosecutors behave?  It seems that they're up to their usual antics, yet again:

• Former U.S. prosecutor charged in call-girl ring:  A trooper was charged, too.  It's a double whammy for law enforcement!  (Hat tip:  Quizlaw)
• NYC Prosecutor Arrested for Alleged Drunken Rampage After Holiday Party:  "Matthew F. Knouff, 27, was intoxicated, according to law enforcement sources. He allegedly broke a window at the restaurant, pushed a bartender and kicked the hand of a police officer. He further resisted arrest by kicking officers as they placed him in a patrol car, sources said."  Not exactly "prosecutor-like" behavior, now, is it?
• Former Prosecutor Accused of Sexual Misconduct With Underage Boys:  "In March, an investigation by the Illinois attorney general's Internet Crimes Against Children task force accused Waclawski of flying to Chicago and then driving to nearby Wheaton in an alleged attempt to meet with a child he had encountered on the Internet, who turned out to be an undercover police officer."  Oops. 
• Former Weld Prosecutor Accused Of Death Threats :  Threats against another prosecutor, no less.  And they were left on her voice mail.  Did he learn nothing from those that he prosecuted?  Here's my tip of the day:  Never, ever leave a voice trail if you're going to make death threats.  That's a big no-no.

I guess I'll just never understand why prosecutors can't act more like their upstanding and law abiding colleagues in the private bar.  Or, at the very least, try to act like their esteemed members of the judiciary.

The Unspoken Word

As I read this AP article "Pentagon abandons active-duty time limit", the question that kept running through my mind was "Does this administration think that the American people are stupid?" 

At the very least, it thinks that we can't do simple math.  In addition to its announcement regarding the abandonment of the active duty time limit, the Pentagon also announced that it intends to increase the size of the Marine Corps and the Army by over 650,000 92,000 over the next 5 years.  Yep, you read that correctly--650,000 92,000 (thanks Rob!) people: 

The Pentagon also announced it is proposing to Congress that the size of the Army be increased by 65,000, to 547,000 and that the Marine Corps, the smallest of the services, grow by 27,000, to 202,000, over the next five years.

Either the military plans to start accepting all those rejected citizens (92,000 of them--who knew?) who keep knocking on their doors offering to head on over to Iraq to fight the insurgency or the "D" word is in play.  They're just not saying it out loud--yet.  But, they're firing up a media campaign to get us used to the idea. 

Apparently they think that they can toss around numbers like that without any explanation or plan and expect us to simply accept the numbers without question.  92,000 American citizens.  Over the next 5 years.  In Iraq and Afghanistan.  Amongst the bullets, bombs and insurgents.  Outrageous.

I'm just glad my kids are little and my husband is too old to be drafted.

Now, on to the main focus of the article--the Pentagon's recent announcement that the Pentagon has abandoned the limits on the time that a citizen-soldier will be required to serve on active duty.  As a result of the policy change: 

(A) citizen-soldier could be mobilized for a 24-month stretch in Iraq or Afghanistan, then demobilized and allowed to return to civilian life, only to be mobilized a second time for as much as an additional 24 months. In practice, Pace said, the Pentagon intends to limit all future mobilizations to 12 months.

But, according to David Chu, the Pentagon's chief of personnel, it's "no big deal."  Yep, you read that right as well.  From the article:

The fact that some with previous Iraq experience will end up spending more than 24 months on active duty is "no big deal," Chu said, because it has been "implicitly understood" by most that they eventually would go beyond 24 months.

Unbelievable.  Absolutely unbelievable.  What is happening in this country of ours?

Crimes and Misdemeanors

There's a lot of crime out there and someone has to keep track of it all.  So, here it goes:

• Tigger Smacks Kid On The Head:  I always knew that bouncing fool wasn't as sweet as he seemed. (Findlaw)

• Prosecute 'Em--That'll Stop 'Em From Wetting Their Pants:   Why not charge a 12 year special education student with a discon for wetting her pants?   Well, maybe because it's a really bad idea, as the school superintendent quite possibly admitted when he said, quite cryptically, that "it was probably not a good idea."  (Quizlaw)

• What's So Bad About Trying To Make Friends With An Arresting Officer?:  Apparently there are methods that work--and methods that don't.   From the looks of it, some arresting officers aren't all that fond of being (allegedly)(and repeatedly) groped in their nether regions as they're conducting an investigation.  (Dave Barry's Blog)

• Prisoners, Eating Their Own!:  The food at this particular prison must have really been lacking.  (Legal Reader)

• Eyewitness In Murder Questions Her Own Reliability On Stand:  Now that's my kind of prosecution witness! (Court TV)

• Censured Judge--Come On Down!:  Not surprisingly, the Second Department doesn't  take too kindly to a judge offering a defendant a "game show" choice.  (Quizlaw)
  

Crimes and Misdemeanors

There's always criminal activity afoot, and you can learn all about it right here:

• North Carolina Bar Files Charges Against Duke ADA Mike Nifong--He's accused of making inflammatory and misleading statements to the media regarding the Duke rape case (The Legal Reader)
• A recently Retired California Judge Is Told She Can Never Return to the Bench--Apparently she was "surly" and downright rude (Quizlaw)
• Mike Tyson Arrested For DUI--Don't forget to check out the booking photo!  (AP article)
• New Orleans Cops Indicted For Post-Katrina Murders--Trigger happy or just doing their job?  You decide.  (TalkLeft)
• Ex-Gossip Editor Convicted of Sex Charge--Yet another guy who thought he was talking to a cute little 13 year old that turned out to be a 50-year-old cop with a beer belly and a 5 o'clock shadow (Yahoo)
• Cindy Sheehan Arrested at Bush Ranch Yesterday--There's a mug shot, but it's not as entertaining as Tyson's (The Smoking Gun)

Pataki Appoints 3 Judges to Appellate Division, 4th Department

As reported in Buffalo Business First, Governor Pataki designated three Western New York Justices to fill the vacancies in the Fourth Department:  Eugene Fahey, Robert Lunn, and Erin Peradotto (hat tip:  Outside Counsel).

From the article:

Fahey, has been a state Supreme Court justice since 1997. He was previously a Buffalo City Court justice from 1995 to 1997 and a former Buffalo councilman and mayoral candidate.

Lunn is a former Monroe County assistant district attorney and Town of Penfield Town Justice. He has been a state Supreme Court Justice in the Seventh Judicial District since 1995. In August 2005, he was tapped to serve on the Appellate Division, Second Division.

Peradotto has served as a state Supreme Court Justice in the Eighth Judicial District since 2004. Peradotto was an assistant attorney general for the state Attorney General's Office and has an extensive private practice, focusing on personal injury litigation.

Is the Surgical Removal of a Bullet an Unreasonable Search and Seizure?

In a case that raises a number of really interesting constitutional and privacy issues--and sounds like something right out of Law and Order, prosecutors in Texas have obtained a search warrant authorizing the surgical removal of a bullet from a man's head.  As reported in this article:

Prosecutors say (the bullet) will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.

But Bush and his lawyer are fighting the removal, in a legal and medical oddity that raises questions about patient privacy and how far the government can go to solve crimes without running afoul of the constitutional protection against unreasonable searches and seizures.

"It's unfortunate this arguably important piece of evidence is in a place where it can't be easily retrieved," said Seth Chandler, a professor at the University of Houston Law Center. "You have to balance our desire to convict the guilty against the government not poking around our bodies on a supposition."

A judge took the unusual step of issuing a search warrant to retrieve the bullet from Bush's head in October. But a Beaumont doctor determined that small pieces of bone were growing around the slug, and he did not have the proper tools in the emergency room to do it. The doctor said that removal would require surgery under general anesthesia and that no operating rooms were available.

Police then obtained a second search warrant and scheduled the operation for last week at the University of Texas Medical Branch hospital in Galveston. It was postponed again, however, after the hospital decided not to participate for reasons it would not discuss.

Prosecutors said they continue to look for a doctor or hospital willing to remove the bullet. 

All sides agree that removing the bullet would not be life-threatening. But Bush's family and attorney say it would be a violation of the teenager's civil rights and set a dangerous precedent.

What an intriguing issue.  Not surprisingly, I'm not in favor of allowing the retrieval of the bullet.  The assertion that removal of the bullet "won't be life threatening" is simply false.  Any operation is potentially life threatening--especially one that requires  general anesthesia.  Adverse reactions to the drugs used are possible as is an unexpected head bleed or other adverse consequence as a result of the operation. 

I strongly oppose the prosecution's position in this case.  In my opinion, the risks, no matter how statistically unlikely, are potentially quite serious and far outweigh any potential benefits of the fishing expedition being carried out by prosecutors.  And, the ethical issues, both medical and legal, are quite complex and consist of innumerable shades of gray, as well.  It's a slippery slope and the ramifications of allowing this procedure are far reaching.  It's simply not worth it.

Jury Finds NYC Arrest Policy Violated First Amendment

Earlier this week, a Manhattan jury found that the NYPD's written policy from May 2001 that required that demonstrators be arrested and held overnight rather than issued an appearance ticket violated the First Amendment right to free speech and assembly and the 14th Amendment right to due process.  As reported in this article:

The verdict came after a lawsuit, brought on behalf of some 350 demonstrators, accused the city of starting to lock up all demonstrators it arrested after the 1999 killing of an unarmed African immigrant, Amadou Diallo, who was struck by 19 of 41 bullets fired at him by police officers.

The lockups sometimes occurred despite a city policy that had existed in which people charged with misdemeanors are usually given desk-appearance tickets, telling them when to show up at court for arraignment.

The overnight lockup in Manhattan is notorious for mixing those charged with all sorts of crimes as they await arraignment, making it a particularly unpleasant experience for those unlikely to face any jail time even if they are convicted.

In the past, I've posted about similar lawsuits regarding allegations that the NYPD violated the rights of civil rights protesters during the 2004 GOP convention and animal rights activists during the World Economic Forum.  One lawsuit challenged the NYPD's arrests of "obviously potential rioters'  during who 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.

Peaceful political demonstration is one of the very activities intended to be protected by the First Amendment.  In recent years, the government at all levels has repeatedly crossed the constitutional "line in the sand"  by attempting to silence demonstrations in opposition of its policies.  Hopefully, this jury verdict and the other pending lawsuits will discourage the NYPD and other police departments throughout New York from illegally arresting and holding peaceful demonstrators and otherwise interfering with legitimate political protests. 

Hey Officer--He Stole My Pot!

Headline of the day:  Man calls 911 to report stolen drugs. 

From the article:

The victim told police Thursday that a buyer had pulled out a sawed-off shotgun and stole the drugs...The victim was booked into Sedgwick County jail on several charges, including possession with the intent to sell drug.

As stupid as it may seem, this type of occurrence isn't as uncommon as you might think.  For some reason, people believe that the police are going to be more concerned about the theft-related crime than the crime of drug possession  Sometimes they're right and sometimes they're not.  It's really a toss up. 

I think that the cops balance the relative "badness" of the complainant and the suspected robber.  For example, I was involved in one case where the police turned a blind eye to the fact that the complainants--some college kids--possessed pot (a lot of it) since some really "bad" inner city guys with extensive criminal records forcibly stole it from them using semi-automatic weapons.  But then again, I've seen other cases where the drug possession wasn't ignored, much to the dismay of the "victim".

My 2 cents:  if you're dealing drugs, getting ripped off on occasion is just the cost of doing business.  I wouldn't recommend getting the cops involved--unless of course they're interested in making a purchase--which wouldn't surprise me one bit.

Should Sex Offenders Be Required to Register Their Email Addresses?

Senators Schumer and McCain think so.  (Hat tip:  New York Supreme Court Criminal Term Library).  According to this article, the senators recently announced that they planned to introduce legislation that would require registered sex offenders to submit their active email addresses to law enforcement:

The legislation would allow online companies, including social networking Web sites, to cross-check new members against a database of registered sex offenders to ensure that predators are unable to sign up for the service...

Under the planned legislation, registered sex offenders would be required to log an e-mail address with their probation or parole officers. Any offender caught using an unregistered e-mail address would be in violation of probation or parole terms and face a return to prison. Senators Schumer and McCain are also working together on other provisions in an effort to better protect children online.

As many of you know, I've been conflicted in the past regarding the various measures that have been enacted to monitor convicted sex offenders.  And, not surprisingly, I find myself in the same boat yet again. 

My knee jerk reaction was that this measure was too invasive.  However, after giving it some thought, I've decided that the threat of online predators in a serious one and the interests in preventing the victimization of online users, particularly children, likely outweighs the minimally invasive nature of an email registration requirement.

That being said, the penalty that might result due to a single inadvertent lapse in registering an email address--a parole or probation violation--seems a bit excessive to me.  This is especially so given that many of us have any number of email addresses and it's hard to keep track of them all.  I'm thinking that there should be a "three strikes and you're out" provision, just to give a bit of leeway. 

It's an interesting issue, however, and the senators have proposed a novel way of tracking internet use, which has become a popular avenue for sexual predators.  It's a start.