Tuesday, May 18, 2010

Twofer Tuesday - COMMISSION GEARS UP TO REVIEW STATE’S COMPLEX, INCONSISTENT SENTENCING SCHEME and JACOBS SEES PROGRESS, BUT CONTINUING HEAVY CASELOAD

NYLJ 6-11-07

3. COMMISSION GEARS UP TO REVIEW STATE’S COMPLEX, INCONSISTENT SENTENCING SCHEME
4. JACOBS SEES PROGRESS, BUT CONTINUING HEAVY CASELOADS



3. Putting aside the Spitzer fiasco, one of the few things that came out of his brief administration is the Commission on Sentencing Reform. One assumes it took a really hard-as-nails prosecutor to see how flawed the system is—and to want to reform it. Everyone may know “an eye for an eye”, if they like biblical retribution, or “Let the punishment fit the crime,” if they are into the Mikado, but the only other people outside the DAs and defense attorneys who know what’s going on are the ones facing jail time.

And this is what you can give props to the ex-gov for: every society deserves to be judged not on its successes, but how it deals with its failure—such as those who step outside the Law and must be brought back in, one way or another. The another is what is more interesting. The Commission’s mandate to review criminal statutes, sentencing practices, alternatives to incarceration, programs to reduce time for inmates, parole and programs aiding convict’s re-entry into society—promises to bring authentic change to an area of law enforcement desperately in need of it.


4. And this includes a backlog of court cases, particularly immigration. The Second Circuit Judicial conference, meeting at Bolton Landing at Lake George has discussed such measures as borrowing district and magistrate judges and providing law clerks funded by circuit monies. There are 45 to 50 appeals each week from asylum seekers on the non-argument calendar, which has led to a large increase in terminated cases.

Even with this buffer, Chief Judge Jacobs says, “This circuit is fortunate and unusual in having so few judicial vacancies.” (Only four then.)

Monday, May 17, 2010

NYLJ 6-11-07

3.COMMISSION GEARS UP TO REVIEW STATE’S COMPLEX, INCONSISTENT SENTENCING SCHEME
4.JACOBS SEES PROGRESS, BUT CONTINUING HEAVY CASELOADS



3. Putting aside the Spitzer fiasco, one of the few things that came out of his brief administration is the Commission on Sentencing Reform. One assumes it took a really hard-as-nails prosecutor to see how flawed the system is—and to want to reform it. Everyone may know “an eye for an eye”, if they like biblical retribution, or “Let the punishment fit the crime,” if they are into the Mikado, but the only other people outside the DAs and defense attorneys who know what’s going on are the ones facing jail time.

And this is what you can give props to the ex-gov for: every society deserves to be judged not on its successes, but how it deals with its failure—such as those who step outside the Law and must be brought back in, one way or another. The another is what is more interesting. The Commission’s mandate to review criminal statutes, sentencing practices, alternatives to incarceration, programs to reduce time for inmates, parole and programs aiding convict’s re-entry into society—promises to bring authentic change to an area of law enforcement desperately in need of it.


4. And this includes a backlog of court cases, particularly immigration. The Second Circuit Judicial conference, meeting at Bolton Landing at Lake George has discussed such measures as borrowing district and magistrate judges and providing law clerks funded by circuit monies. There are 45 to 50 appeals each week from asylum seekers on the non-argument calendar, which has led to a large increase in terminated cases.

Even with this buffer, Chief Judge Jacobs says, “This circuit is fortunate and unusual in having so few judicial vacancies.” (Only four then.)

Monday, May 10, 2010

STATE COURT ASKED IF LONG ARMS REACHES TO PARTY IN UK SUIT

NYLJ 6-11-07

2. STATE COURT ASKED IF LONG ARMS REACHES TO PARTY IN UK SUIT

2. When it comes to diversity of jurisdictions, it probably doesn’t get any wider than when the Long Arm Statute has to cross an ocean. Not to belittle the New World’s complexities, but the Old World has such embedded historical precedent that you could call the Magna Carta a relative newcomer when stacked up against Talmudic body and the Code of Hamunarabbi.

So it gets even more humorous when an upper level authority, like the US Court of Appeals for the 2nd Circuit, has to ask a lower one, namely the NY CoA, for “guidance”—a term more familiar when applied to camp counselors or spiritual gurus. Although, when it does come down to a statutory interpretation, namely CPLR section 302(a)(1), the 2nd is preferring to err (or not) on the side of caution, as the lower court’s prior decision does “not yield a clear answer” about the scope of it. The statute confers jurisdiction over a non-NY resident who “in person or through an agent…transacts any business within the state,” if the cause of action arises out of the defendant’s NY transaction.

The instant case is one of a libel judgment won by a Saudi multi-billionaire banker against a writer-researcher in the city. That Ehrenfield was too broke to defend herself in England, where the wily arab filed and won his suit, should tell you a lot about the Hunter and the Game. From the giddyup, the rules of evidence and burden of proof being a whole lot looser there (and assuming Shiek-Yer-Moneymaker could afford some major talent), it was as close to a done deal as you might imagine.

So when he tries to get an enforcement here, the lady countersues that the judgment is not enforceable on constitutional and public policy grounds. The SDNY judge dismissed this outright, finding a lack of personal jurisdiction—which is pretty much how this involves New York State vs. a British court. Then, the US CoA 2nd got a hold of it and had a second think, certifying the question to the state CoA as to whether the statue applies to someone who “sued a NY resident in a non-NY jurisdiction,” which she is and he did, “whose contact with New York stemmed from the foreign lawsuit and whose success in the foreign suit resulted in acts that must be performed by the subject of the suit in New York.” Seems to be pretty clear on the “if” part of the proposition, which is all you need for a certified question. Now the NY CoA is not obligated to answer certified questions from the 2nd Circuit, but—hey!—let’s worry about “then” when we get there, right?

Ehrenfield put up as evidence the number of papers served upon her and her publisher and the overall plan to use the suit to chill out the work of investigative journalism and the research she does in NYC. This is her attorney’s means of putting the ball in the local courts and taking it “into the paint”—so to speak in some metaphor about “Home court advantage” or such—on the issue of 1st Amendment rights and THAT IS the public policy issue in and of itself. That this would be setting a precedent is why it is being so carefully parsed and measured and weighed.

In poring over the process to date, the 2nd DID agree with SDNY that, at least in one part, CPLR section 302(a)(1) does not provide for personal jurisdiction. Also, that it was correct in refusing to grant a motion for jurisdictional discovery (whatever that is).

At the heart of the matter, the issue at issue, the res, is Eherenfield’s book linking Mahfouz to Al Qeda as a financier of terrorism. In America today, perhaps, there has never been so favorable a climate for this particular contest. Yet, the present state of the legal wrangling has nothing of the nation policy about it: this is strictly on personal jurisdiction—whether the billionaire tribesman has to re-sue in the USA.

When you look at whose filing the Amicus Curae briefs in this—including the American Society of Newspaper Editors, the Author’s Guild, Association of American Publishers and the Online News Association—there’s little question in the peer group that it doesn’t mean here evidence is conclusive. They just want to know what ground they stand on, in the whole world of possible places where such arguments may arise.

Saturday, May 8, 2010

REPORT HIGHLIGHTS PLEA DEAL THREAT TO IMMIGRANTS

NYLJ 6-11-07

1. REPORT HIGHLIGHTS PLEA DEAL THREAT TO IMMIGRANTS

1. The song comes to mind, if little more than the lilting refrain: “You got me caught between/the Devil and the Deep Blue Sea.”

The state of the immigrant is tenuous, at best, and an illegal non-existent, when facing felony drug abuse charges. Having pled guilty to an offense in order to enter a treatment program, which includes community and domestic violence and mental health/therapy courses, is to truly enter into the court of last resort. After this, upon conviction, is prison, no question. But the lingering threat as well, and one which is unvoiced, is the possibility of deportation.

The Deputy Chief Administrative Judge’s position is that the guilty plea at the outset is crucial to the treatment regimen, ensuring that the defendant’s know the consequences of walking out or otherwise refusing to cooperate with the program. And that the cases are usually dismissed once the treatment has been successfully completed is also a potent spur towards the model.

The Special Narcotics Prosecutor takes exception to the recommendations of the report, citing no known cases where participants who plead guilty were deported. However, the supervisor of the Immigrant Defense Project said she’d handled two case where Homeland Security had leveled the threat.

The Rockland County DA added his support of the model with more practical concerns. “Many defendant’s are in treatment programs for one or two years and the passage of time is very detrimental to the prosecution.” From that angle—the actual job to be done by his office—can’t be argued with: if a defendant drops out down the line, then witnesses are more difficult to find and their memories may have faded as well. Add to that the starting up of a case again, with arresting officers and calendaring and adding in the up-to-speed need for new ADA’s and you’ve got cost as well. Also, it is “not very victim-friendly”. It may be that the standard version of drug offenses is that they harm themselves the most, but wives and lovers and children? That changes whatever compassion one might have for a disturbed defendant, and allows for the possibility of stalking or other predator moves.

Nope. The guilty plea looks best, but some alternatives are being floated, such as allowing DA’s and judges to use their own discretion. That it has been found that a number of judges actually failed to inform defendants of their exposure to the deportation possibility has been noted as well. One might think this would be grounds for a misconduct suit but Criminal Procedure Law Section 220.50(7) explicitly states that the absence of a warning shall not be ground for invalidating a plea.

So, perhaps, as the Brooklyn DA’s office has been experimenting with—taking a confession of judgment, without the consequences of 8 USC section 1101(a)(48)(A)—a method to take La Migra out of the loop, there are creative alternatives being offered. And even allowing judges more latitude and discretion in taking pleas—shall we call it longitude as well?

Which would put a lot more Deep Blue Sea out there, and possibly less Devil.

Friday, May 7, 2010

DOCTRINE REJECTED FOR DISCRETE AUDITS

NYLJ 6-8-07

2. DOCTRINE REJECTED FOR DISCRETE AUDITS


2. Do not ask for whom the bell tolls, just where and when, especially if you’re one of the Seven Sisters: the major accounting firms who audit corporate America. Arthur Anderson only heard the peals after it was on its way to dissolution. That they were much too cozy in their continuous relationship with Enron should have alerted investigators before that, but, up to then, no top rank auditor had ever been forced to pony up for their client’s defaults—or not in such a drastic extent.

Price Waterhouse Cooper LLP’s big league rep for decades, and even star power as being the ones who count the ballots and deliver “the envelope” to the Oscar podium. (Ok. So you need to tack on the Lybrand as well…but if that ain’t the seal of integrity, what is?) While the various Lipper funds (namely convertible and Fixed Income) have been high-flying arbitrageurs since the go-go ‘80s, at least from 1995 to 1999 PWC hass done the annual bookkeeping check-up. It was, in their figures, reasonable to value their assets at well over $1 billion every time. Thing is, when the funds hit a slide in 2002, as two top managers bailed with golden parachutes, the actual number was more like $400 million. This news sent a lot of limited partners scurrying for the exits and set the whole damned thing on a downward spiral to dissolution as well. The Bankruptcy trustee Williamson looked at the cooked books and concluded collusion.

It was his lawsuit under the continuous representation doctrine that brought them to task; not so much that 3-yr. Statute of Limitations could be tolled in 2004 for a last ledger in 1999, but that it was the compounding of errors that inflated assets, capital & profits—which is how you get from an H&R Block visit in early April to continuous rep. while the Manhattan Sup. Ct. could dismiss claims for all but 2000 and the 1st Dept. could reverse on the 3-2 decision, the trustee was entitled to no less than an opportunity to develop his case, it took the CoA to nail it shut.

It was a unanimous decision, just to make it more serene.

The history of the continuous representation doctrine shows its first and primary application to have been a medical malpractice, in 1962. Only 20 years later, in 1982, would it be applied to the legal profession. And, while it has since been used against engineers, architects, and surveyors, the latest is a new wrinkle, most likely as a result of the aforementioned Enron, et alia. The key here is that both sides understood and accepted that they were involved in an ongoing professional relationship. In the instant case, however, that was not present.

“The plaintiff’s allegations makes clear that the funds entered into an annual engagement with the defendants for the provision of year-end financials. Once those services were completed, no further work was undertaken. This constitutes a continuing professional relationship and not a course of representation.” The plaintiff’s attorney was quick to cop to that interp. “Auditors typically have long-lasting relationships with their audit clients, “ hanging out that representation as the sole flag of surrender, he put his best face on a worst case scenario. “As a consequence, one’s exposure for an event, no matter how old and stale…” Ah me! Not purposefully neglecting the fact that you could just as easily rule they should return the money for having utterly failed in their obstensible duties. And we, naturally, are speaking of their fiduciary duties; not the one’s they owe to Enron’s investors and employee pension funds and retirement accounts when they allowed monstrous malfeasance to go undetected, unprosecuted and unpunished.

That’s another bell-ringer altogether.

Wednesday, May 5, 2010

COURT UPHOLDS DMV LICENSE REQUIREMENT

NYLJ 6-8-07

1.COURT UPHOLDS DMV LICENSE REQUIREMENT

1. You say po-tat-o, I say po-tot-o. You say to-mat-o, I say to-mot-o. I say the DMV of NYS requiring people to verify that they are in the US legally when they can’t produce an SSN or a card denial notice is well within the province and scope of Vehicle & Traffic Law Section 490, 501, and 502 and 15 NYCRR Section 3.9, if they want a driver’s license. You say the DMV is usurping the power of the legislature by introducing an unauthorized prerequisite to get that primary piece of precious ID and discriminating against immigrants.

Let’s call the whole thing off…icially a matter for the Court of Appeals to say the whole thing is “merely an interpretation or explanation of a pre-existing rule,” but—with a dissent. That it was J. Carmen Beauchamp Ciparick who sided with the Puerto Rican Legal Defense & Education Fund counsel may be thought of as possible Hispanic favoritism (along the grounds of the “wise Latina” catcalls from the right-wing peanut-job gallery), until you regard her opinion. “Through this policy, the Commissioner is effectively setting immigration policy—an act well outside his authority—in the guise of verifying identity, which IS within his scope.”

That the Commish in question is also named Martinez only further spices up the lexical imbroglio. After all, it really does come down to the flexibility of labels…which brings up a favorite of our own at blueback blues: Parsing!

As one might suspect, any time regulations and Homeland Security come into the picture, 9/11 and the constant vigil against terrorists get ref’d. However, the majority opinion pointed out that an internal DMV document dated 11/6/01 proves that such measures were in place while Moh. Atta and his boys were still hanging out at Florida stripper bars. At its core, this measure was adopted, originally, to guard against fraud. So, then, the H.S. documentation is not that different from the card denial notice, only a bit steeper a climb, maybe. By the Court’s lights, “this classification plainly creates no suspect class, infringes no fundamental right, and raises no serious equal protection questions.”

Ok. Now you need the denial card AND an H.S. one saying you are here legally, not just entitled to work.

Ahhhh1 Let’s call the whole thing bureaucracy.