So the Civil Liberties Review Board has now found that not a single case exists of the NSA thwarting a terrorist attack with its phone data collection program. Remember, this is the program th at collects data on virtually every phone call made in the US. The Board was established by the government after 9/11. The Board recommends stopping the program, but it has no legal authority. The Obama administration has made changes to the program in response to criticism, but many civil liberties advocates dismiss them as not sufficient. I was willing to give the government some benefit of the doubt when it comes to fighting terrorism, but I think it is time now for thepr ogram to go. The astounding lack of results, at the cost of loss of our privacy, is a severe indictment of the NSA. The surveillance should stop now.

Happy Holidays!
And so this is Christmas
And what have you done?
Another year over
And a new one just begun.
And so this is Christmas
I hope you have fun
The near and the dear one
The old and the young.
A very merry Christmas
And a happy New Year
Let’s hope it’s a good one
Without any fear.

Montana Appeals 30 Day Rape Sentence

There is a lot of understandable outrage over the Montana rape case where the rapist got a 30 day sentence. However, most of the commentary overlooks important facts of the case.

The defendant is a 47 year old former teacher, the victim was a 14 year old student of his. The two had consensual sex. Because of the girl’s age, she could not, of course, legally consent. The teacher was charged with what amounts to statutory rape. Tragically, the girl later killed herself. Partially due to this, the prosecutor agreed to dismiss the case if the defendant admitted guilt and enrolled in a treatment program.

This would have been the end of the case. However, the defendant was kicked out of the program for having unsupervised visits with minors. It turns out they were family members. The prosecution revived the case. The judge decided the violations were minor, and since the defendant was classified as low risk to re-offend, he sentenced him to 30 days jail.

This would also probably have been the end, except that the judge made highly offensive statements regarding the victim. He said she was older than her chronological age, and as in control of the situation as the defendant. This sparked widespread outrage and led to calls for a much longer sentence. The prosecution now wants a 20 year sentence.

While I understand the outrage, in my opinion the prosecution’s current request is also outrageous. They offered the earlier deal, and the violation by the defendant is very technical. It would be a violation of due process, in my opinion, to now ramp the sentence up to 20 years. Any current sentence has to reflect the violation, not the original allegation. I think the judge got the sentence right, even if his comments were very wrong.

Types of Family Court Cases

I spend a lot of my time in Family Court, and I notice that many people don’t know what kinds of cases New York Family Court handles. If you are one of those people, this post is for you!

Family Court cases fall into 3 general categories: child protective, juvenile, and general family law cases. Child protective cases include neglect, abuse, and termination of parental rights (tpr). These cases are usually filed by the Administration for Children’s Services against parents or other caretakers of children. The respondents are alleged to have endangered the life, health, or safety of the children. Abuse cases involve more serious conduct than neglect, often rising to criminal offenses. Children can be placed in foster care in these proceedings. If they are, and if the parents take too long to get them back, a TPR can be commenced, and the children could eventually be adopted.

Juvenile cases include delinquency and persons in need of supervision (PINS) cases. Delinquency cases involve allegations of criminal conduct against persons younger than 16. Children can be put on probation or even placed in juvenile facilities as a result of these cases. These cases are filed by the NYC Law Department, also known as the Corporation Counsel. PINS cases are brought by parents or guardians against kids alleging that they are beyond their control. The court can offer services or place the kids in care if the parents refuse to take them.

The last group of cases is the general family cases. These included custody, visitation, child support, spousal support, paternity, adoption, and orders of protection. These cases are typically brought by a family member against another family member. They can result in various types of orders affecting children, families, and people in intimate relationships.

There is one important kind of case that NY Family Court doesn’t handle: Divorces. These cases are actually filed in Supreme Court, and Family Court has no jurisdiction over them.

I’ll try to go into more detail on these proceedings in future posts. Til then, enjoy the Fall.


Stop and Frisk Decision

Some thoughts on the recent decision on the NYPD stop and frisk policy: My constitutional law is a little rusty, but I did retain a few things from my second year Con Law class at Columbia. In order for a cop to stop, detain, search, and/or arrest someone, they have to have “probable cause.” This means they have to have a reasonable belief that the person has committed a crime.

Now, in the vast majority of the NYPD stops, there is no probable cause. The most common reason given for a stop is a “furtive mmovement.” This is way too vague to establish probable cause. So, how could anyone think the stops could be constitutional?

Well, the Supreme Court has established an exception to the general rule. Police are allowed to pat someone down for a weapon if they have reason to believe the person may be armed. The purpose of this rule is to protect the safety of the police and others. The purpose is not to find contraband or evidence of illegal activity.

It seems in the NYPD case, the exception may have swallowed up the rule. It stretches belief that in all of the tens of thousands of stops done by the NYPD, they suspected someone had a weapon. Especially when weapons were found in less than ten percent of stops. It is clear that the stops are employed to discourage criminals from carrying guns. And an argument can be made that they have contributed to making New York’s crime rate the lowest in its history. However, the legal question isn’t whether it’s effective, but whether it is constitutional. I think the judge probably got it right.

Identity Theft

This is a blog post I didn’t expect to write. I got a call the other day from a woman who said she had something important to discuss with me. I called her back, assuming she was a potential client. Not exactly. She told me a story about a man she met and dated for a while. He wined and dined her extravagantly. He claimed to be a successful lawyer with a Columbia law degree. As proof, he showed her his website. Although things started off well, he started going psycho and stalking her, and she had to call the police. I guess it’s not that surprising.

So, what does this have to do with me? Well, the lawyer with a Columbia degree that he claimed to be was ME! And the website he showed her was MINE!

The moral of this story is if someone claims to be me, call me to confirm it. And don’t trust anybody. And I should think about putting a picture on my website.


Zimmerman Verdict

Well, hate to say I told you so, but . . . Of course, I’m not the only one who predicted an acquittal. The evidence of Martin being on top, Zimmerman screaming for help, and Zimmerman’s injuries doomed the case from the beginning. That’s not to say he bears no responsibility for what happened. He is partly responsible. But he’s not a criminal, and certainly not a murderer. And yet this is exactly what special prosecutor Angela Corey called him. And she called Martin prey. Outrageous. AFTER a not guilty verdict. Combined with the overcharging, and the withholding of evidence, Corey needs to be disciplined, fired, and/or disbarred.

Zimmerman Trial

I’ve watched some of the trial and I have a prediction. It will be an acquittal. There’s a possibility of a conviction on a lesser charge, but 2nd degree murder is out of the question. I should say, you never know what a jury will do, but a 2nd degree murder conviction would be outrageous. The prosecution clearly overcharged, I think unethically so. And I believed in the beginning that it was clearly a racially motivated murder. The facts, however, made me do a 180 degree turnaround. Most people despise changing an opinion once they have it, and will grab at any shred to hold onto it. I’m one of those masochists who always tries to challenge my own opinions. Anyway, with some witnesses saying Martin was on top hitting Zimmerman, with the injuries to Zimmerman, and other evidence, there’s enough reasonable doubt to drive a truck through. It’s a tragedy, and there may be civil liability for Zimmerman, but there’s no way he should be convicted. If the Judge has courage, she should dismiss the top charge at least. It’s doubtful, though, in such a high profile case.

I had a somewhat uncommon experience in family court the other day: I got a neglect case dismissed. Actually, I can only take partial credit – I was the attorney for the child, and there was an attorney assigned for the parent who did much of the heavy lifting. I advocated for dismissal on behalf of the children. As any lawyer who does neglect cases can tell you, that rarely happens. For various reasons, judges almost always make a finding of neglect after a trial, no matter who the lawyers are. That isn’t to say that lawyers are useless in these cases. Only a small portion of cases go to trial, and lawyers assist in a hundred ways during the case. Anyway, in this case the evidence was weak, but many judges would have made a finding. No one second-guesses a judge for making a finding, but the whole world does if a case is dismissed and something happens to the children. Anyway, in this case dismissal was the right result, and I commend the Judge for doing the right thing,.

Second Blog Post

Welcome back my friends to the blog that never ends (hopefully). I thought I would say a little about myself to the imaginary people who are reading. I’m about to be 50 (yikes). I was born on Staten Island, and I’ve been here my whole life (although they do let me out occasionally). I graduated from Port Richmond H.S., went to Wagner for 2 years, and got my B.A. (not to be confused with BS) from NYU. I then got my Master’s from Rutgers, and finally got my law degree from the illustrious (so they say) Columbia Law School. Like the song says “I’ve been everywhere, man.” After law school, I worked at the Legal Aid Society for seven years, and then I hung out my own shingle. Anyway, this post is getting long and boring, so I’ll conclude for now. In my next one, I’ll get into the exciting world of what my practice consists of. As my daughter would say, TTFN!