Jan 21 2015

Time to Undo Another Shameful Vestige of the Hynes Era

At one time, Charles “Joe” Hynes was the untouchable District Attorney of Kings County, holding down the post as Brooklyn’s top prosecutor form 1989 to 2013. He often ran for election with little or no opposition. But as is often the case with politicians who overstay their welcome, the end of his career with filled with allegations of wrongdoing and corruption.  In 2010, Hynes’ office vacated the murder conviction of Jabbar Collins, who had been convicted in 1995 of killing a Brooklyn rabbi. Collins had been sentenced to 34 years to life in prison, but won the right to retrial after the district attorney’s office admitted that a key witness had recanted his testimony in the presence of a prosecutor before trial, and that this information had not been disclosed to the defense. Collins was released after another of the original witnesses against him, Angel Santos, testified that the case’s original prosecutor, Assistant District Attorney Michael Vecchione, had coerced Santos to testify against Collins with threats of physical violence and imprisonment. Following Collins’ release, Hynes said Vecchione was “a “very principled lawyer” and “not guilty of any misconduct”, and said he had no plans to investigate anyone who had been involved in Collins’ prosecution.  News of other similar incidents involving Vecchione and Brooklyn Detective Louis Scarcella arose that called into question how trials were conducted and witnesses treated. Another controversy arose when it was alleged that Hynes had used forfeiture money for campaign expenses and had been privately communicating with Kings County Administrative Judge Barry Kamins; Kamins resigned from his judgeship as a result of the scandal. Hynes was driven out of office by the election of Kenneth Thompson who ran on a platform of focusing on wrongful convictions from the 80s and 90s.

Hynes was also known for politically-motivated prosecutions, often charging folks who had the audacity to try and unseat him.  In 2001, civil court judge John Phillips announced his intent to oppose Hynes in that year’s race for district attorney. Shortly afterward, Hynes’ office began an investigation that resulted in claims that Phillips was the victim of a real estate scheme, and that the 70-year-old judge was incompetent to handle his own affairs. Hynes’ former chief of staff was named as temporary guardian of Phillips’ real estate holdings.In 2003, Hynes’ office filed felony theft charges against Sandra Roper, a lawyer who had challenged Hynes in the 2001 primary race. Prosecutors said that Roper had stolen about $9,000 from a client, whom she allegedly told she was representing for free. Ms. Roper’s defense argued that the funds were legal fees that the client had agreed to. Hynes subsequently recused himself from the case. Following a 2004 mistrial due to a hung jury, the charges were dismissed in 2005 after Roper repaid the funds to the client.


O'Hara's in Good Company

O’Hara’s in Good Company

But the worst politically-motivated prosecution of all is the one I am writing about today: In 1997, Hynes successfully prosecuted lawyer John O’Hara for voting in the wrong election district.  O’Hara admitted that he had voted in his girlfriend’s district where he had been living. As a result he was disbarred, paid a $20,000 fine, and served 1,500 hours of community service.  Only one other person was ever convicted in New York for voting in the wrong district: Suffragette Susan B. Anthony! . O’Hara has claimed he was prosecuted because he had run for office against Hynes’ allies and had supported challengers against Hynes. In 2009, the state Supreme Court’s Appellate Division unanimously approved a report by a state judicial committee that found that O’Hara’s prosecution was unjustified; the report said, “Mr. O’Hara, accurately it appears, claims that [Hynes’ political] machine went gunning for him and pounced on his change of residency calling it election fraud.” O’Hara was reinstated to the bar, although his conviction was  unfortunately upheld as presumably his actions did meet the elements of the statute – though the conviction seems to be on factually shaky grounds in my opinion: O’Hara lived in an apartment on 61st Street in Brooklyn and voted from that address for many years. After redistricting in the early 1990’s put his apartment in a different election district, O’Hara filed a new registration form stating residence at the 47th Street basement apartment of the building owned by his ex-girlfriend.The registration put O’Hara back in his old district, and he voted under the 47th Street address five times.

O’Hara has now filed a new motion to overturn his conviction. The motion claims Hynes, among other things, let certain prosecutors sidestep residency requirements while Hynes submitted his own “false real estate-related filings” and did not give his own correct address for voting purposes.

In pushing a “newly discovered evidence claim,”  O’Hara’s motion points to a bar reinstatement report by the fitness committee of the Appellate Division, Second Department, voicing “grave doubts” about the high-profile case and the absence of other criminal prosecutions for electoral fraud cases.  O’Hara is represented by Joel Rudin, a well-known litigator, who represented Jabbar Collins. It is hoped that DA Kenneth Thompson does the right thing here and agrees to support the motion. This kind of political hatchet job should not be allowed to stand.

O’Hara helped me out on my recent exoneration of David McCallum using some of his contacts to bring the story to the attention of the media and otherwise being there to bounce off ideas and strategize. When I learned first-hand the details of his situation, I could not believe Hynes had gotten away with it. John O’Hara has suffered the serious consequences of this selective and shady prosecution. It is time to undo the conviction and clear his name. It is time to clean up another disgraceful mess from the Hynes Era.


Jan 20 2015

You Gotta Fight For Your Right To . . . Legal Fees!

To quote Kenny Rogers, “You gotta know when to hold them, know when to fold them, know when to walk away and know when to run.”  Emergy drink company Monster should have heeded Kenny’s advice in the lawsuit brought by the great and influential rap group Beastie Boys against the company.   A court in June 2014 ruled in favor of  Beastie Boys and found that Monster infringed on their music. But the group claims they actually lost money even though they jury awarded $1.7 million in damages because they  rang up $2.4 million in lawyer fees due to what they argue are Monster’s evasive legal techniques. As a result, the Beasties are asking Monster to shoulder some of that financial burden and are taking the company back to federal court.

“Monster’s tactics significantly increased the costs for Beastie Boys to vindicate their intellectual property rights, such that, absent an award of attorney’s fees and costs, plaintiff’s success at trial would become a Pyrrhic victory,” the Beastie Boys’ legal team wrote in their legal filing Saturday (via Billboard). Attorneys for Monster did not comment.

copyright logoAfter two years of litigation and an eight-day trial, the Beastie Boys accuse Monster of failing to engage in a good-faith negotiation and then attempting to overturn the verdict by filing an appeal that accrued even more legal bills for the band.

Monster admitted  to using snippets of four Beastie tracks without authorization in a promotional video that was online for five weeks. The company had argued that the infringement was only worth $125,000.00 – a ridiculously low sum considering the fame of the songs and the size of the company and the nature of the infringement.

The Copyright Act provides for the awarding of legal fees if the plaintiff proves an infringement of registered works of art so the group is on strong legal grounds. But the case shows the danger of over-aggressively defending these claims. It is bizarre that Monster would think they could use Beastie Boys tracks on their commercial without getting permission and  paying for it; but once caught and sued, it is equally bizarre that they did not try to reduce the damage by trying to settle early at a reasonable number and by limiting the battle. Copyright defendants facing indefensible claims need to employ a variety of techniques to reduce their exposure and try to stop the bleeding.
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Jan 12 2015

Sommes-nous vraiment Charlie?

For the French-impaired: “Are we really Charlie?”    The vicious attack on the offices of Charlie Hebdo in Paris have spurred a wonderful viral catchphrase of solidarity with Paris and the victims of the two terrorist attacks: “Je Suis Charlie”  Its easy to say but harder to uphold. But in America today you would be hard-pressed to say that we value, honor and protect the First Amendment as intensely as we once did. For one thing – we did not even send a high ranking official to the solidarity march in Paris this weekend so how could we claim to “be Charlie” when we can’t even get John Kerry or Joe Biden to go to Paris. Eric Holder was already actually in Paris and still he didn’t go. Simply shameful.

But beyond this diplomatic faux pas, our country’s commitment to the First Amendment took some serious hits these last few years. Do you think any American newspaper would have the courage to print the satirical cartoons Charlie Hebdo ran? Despite the fact that nearly all reasonably-minded people would be able to distinguish a criticism of Islamic extremism from an attack on Islam in general, the outcry for political correctness would be huge if say, the NY Post ran the identical cartoons. While I would disagree with any media outlet that tried to use cartoons to attack an entire religion  over the acts of a select few extremists, I would support their right to do so. Those who disagree are free to boycott the media outlet, protest against them or start another form of campaign against the company. While it would be clearly within their First Amendment rights to print the cartoon I just don’t believe they ever would.

bill-of-rights.jpgThe First Amendment has also taken hits on college campuses where many institutions in the name of inclusiveness have enacted and enforced “speech codes” that prohibit  students and organizations form making statements about certain groups. While much of that speech can be categorized as “hate speech”  less offensive expression of speech would still be prohibited by the code. College students last year demanded that invitations to Condoleeza Rice (at Rutgers University) and Bill Maher (UC-Berkeley) be rescinded due to the proposed speakers viewpoints on various issues. We have gotten to the point where we are too delicate to even HEAR an offensive viewpoint.

But even hate speech should be protected by the First Amendment particularly on college campuses.  The free discussion of all viewpoints – whether you view those viewpoints as right or wrong – is of paramount importance during your higher education. As the ACLU points out in its excellent article on this issue “Hate Speech on Campus” :

How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When one of us is denied this right, all of us are denied. Since its founding in 1920, the ACLU has fought for the free expression of all ideas, popular or unpopular. That’s the constitutional mandate.

Where racist, sexist and homophobic speech is concerned, the ACLU believes that more speech — not less — is the best revenge. This is particularly true at universities, whose mission is to facilitate learning through open debate and study, and to enlighten. Speech codes are not the way to go on campuses, where all views are entitled to be heard, explored, supported or refuted. Besides, when hate is out in the open, people can see the problem. Then they can organize effectively to counter bad attitudes, possibly change them, and forge solidarity against the forces of intolerance.

And this lack of understanding of the meaning and importance of the First Amendment did not just materialize on college campuses. Sony Pictures pulled the movie The Interview due to a single threat of violence. Last year, the US Air Force refused an airman’s re-enlistment after the officer crossed out the words “so help me God” in the oath papers he had to sign. The Air Force claimed they were basing their decision on the need to follow the forms approved by Congress, but that just begs the question of why Congress would require an oath to God in re-enlistment papers in the first place. Also last year, the States of New Jersey and Michigan had lawsuits filed against them  for their rejection of vanity license plates that made statements –  “8THEIST” (NJ) and “WAR SUX” (Michigan). Both were deemed “offensive” by the respective DMVs.

How can we expect anyone to believe that we value the First Amendment as much as France does when we don’t treat it with the respect and protection it deserves here at home. We have to do more than pay lip service to it by walking around with French flag pins or “Je Suis Charlie” T-shirts. We have to realize that the First Amendment may require that we be exposed to and hear ugly comments and negative beliefs but that banning the speech we dislike is never the answer.  We fought a revolution over these issues once and French journalists  appear to be ready to lay down their lives in support of their beliefs. We need to show that courage here as well.




Jan 04 2015

Back Up Your Files Today …. or Else!

For my first blog of the New Year I want to go off my regular beat of discussing legal topics to alert readers of a new fear for 2015 – Russians kidnapping your hard drive! There is  new breed of criminal trolling the internet that is likely to gain in popularity as the year moves on: Ransomware. If you haven’t heard of it before be thankful. Ransomware is computer software that locks up all your files and then delivers a ransom note: ” Pay $500.00 to unlock your files within five days or the price goes up to $1,000.00″ Often the ransomware will claim you have done something illegal with your PC, and that you are being fined by a police force or government agency. These claims are false and are a scare tactic designed to make you pay the money without telling anyone who might be able to restore your PC.

There are several varieties of ransomware. Some just tell you that a virus ahas hit your hard drive and you must apy for their anti-virus program to clen it up. Others wil hide you desktopicons so all you can see is their message. These are generally fixable through regular malware programs like Malwarebytes. What I am talking about is the third and most serious type – All your pictures, documents, videos, program files etc. become encrypted and inaccessible. The two main purveyors are CryptoLocker and CryptoWall -and there is NO REMEDY for the most complex of these programs.

To make matters worse, the data kidnappers only accept Bitcoin, so a victim has to create a Bitcoin wallet and transfer money into it to pay the ransom. With the heavy fluctuation of Bitcoin value, you may have to make sure to put more than is aksed because if the price drops you wont have enough and then the ransom will go up. You may have to scour the NYC area looking for a Bitcoin ATM (these actually exist) to do a quick deposit.

Large Man Looking At Co-Worker With A Magnifying GlassLaw enforcement groups estimate that last year these thieves earned over 30 million dollars in ransom.  But isn’t this a crime you ask? Yes indeed it is. It’s called extortion. But good luck getting anyone to do anything about it. These thieves operate out of Russia or other former Soviet bloc countires and are unreachable. In fact, the NYTimes reports today that the Dickson County Sheriff’s Office in Tennessee paid a hefty ransom to unlock its 72,000 files, including autopsy reports, witness statements and crime scene photographs.  I.T. Professionals cannot figure out how to de-encrypt the files once hit by the software. Even Liam Neeson’s “particular set of skills” won’t help you if you get taken. All you can do is pay up.

Three tips to avoid having this problem: (1) The best defense is to make sure that you have your files backed up onto a cloud program like  like Zipcloud, Carbonite or Asigra. Also back up your entire hard drive onto an external hard drive as well. This way if you get hit by one of these criminals you can at least restore your files and ignore the ransom note. My law firm’s servers are automatically backed up and I use an external hard drive to back up my personal computer. I used to do it quarterly but after reading  today’s Times article I will do so more frequently.       (2) Load a good antivirus and anti-malware program on your computer and update it regularly. (3) Do not open attachments that come in emails unless you are 100% certain of the source. Almost all ransomware is delivered through this method.

As with all new technology, criminals have found a way to make our lives miserable by applying the latest computer software to their nefarious deeds. But with some minor preventative measures you can make yourself immune to their demands and protect your computers from attack. HAPPY 2015!




Dec 30 2014

NY Gov Vetoes Bill Imposing Liability on Homeowners For Inaction

NY Gov. Andrew Cuomo vetoed a bill imposing what sponsors said was a first-in-the-nation duty on hosts to “provide reasonable assistance” to guests they believe are suffering from a life-threatening condition. If they failed to do so, the proposed law would have made homeowners  “liable for damages for injuries sustained by such guest or for damages for the death of such guest which occurred by reason of such failure.” The veto was the right thing to do as the last thing NY needs is another source of litigation and the last thing NY homeowners need is the likely increase in their insurance if this bill passed.

The Governor correctly understood the difference between a moral obligation and a legal obligation saying:

“Although it is morally incumbent on a person to render assistance in the event of a medical emergency, when possible, this bill is too vague and may create a threat of civil liability and impose the obligation to defend a civil lawsuit unnecessarily on people.”

cuomoSponsors dubbed the legislation “Steven Kovacs Law” in honor of a 22-year-old college student who died of a drug overdose at a friend’s home in Carmel, Putnam County in July 2009. His mother, Joni Kovacs-Howe, has maintained that her son was found unconscious by his friend’s father at 7 a.m., but that for several hours, neither the father nor three of her son’s friends sought medical help.Kovacs was pronounced dead at about 12:30 p.m. at the hospital where his friends finally took him, Kovacs-Howe said.

In my opinion, governors all across this nation should automatically veto any bill named after a particular person. The bills are generally drafted by press hungry legislators looking to take advantage of a newsworthy event. That event is usually an isolated and unusual incident that is not covered by current statutes – usually for a reason. The new law is then rarely applied to the same scenario as caused its issuance since it was such an unusual occurrence in the first place. Instead, it gets stretched to cover actions (or in this case inactions) not contemplated by the new law but which fit into the language of the law.

Ms. Kovacs stated that she pushed for years for legislation that would make homeowners criminally liable for failing to summon help for stricken guests, but settled for civil liability because of opposition in the Legislature to criminal negligence.  Steven Kovacs had just completed a bachelor’s degree in psychology at the State University of New York at Binghamton when he died. He was set to begin studying in September 2009 in a graduate program in psychology at the University of Tennessee.

Thank goodness that even the pandering NY State legislature saw fit not criminalize inaction; they should have had the backbone to tell Ms. Kovacs that while well-intentioned “Steven’s Law” would have caused a flood of litigation over whether a homeowner knew that a guest’s issues at a party were “life-threatening.” Also what does “reasonable assistance” mean? Is calling 911 enough if the homeowner is a doctor? A nurse? an EMT? A psychiatrist?

A memo of opposition from the New York Insurance Association said the legislation would result in higher insurance premiums for homeowners:

“An omission to act is rarely punished in our legal system, based on the long-standing public policy that requiring the performance of affirmative acts is unduly coercive and beyond the legitimate scope of government,” the group, which represents property and casualty insurers, wrote.

A drug reform group, the Drug Policy Alliance, was also against the legislation, saying:

“Increasing penalties, even civil penalties, will not save lives, but will likely lead to increased overdose fatalities,” Additionally, the term ‘reasonable assistance’ is vague and likely to create confusion, unfair and unnecessary lawsuits, and increase people’s fear of taking action. This will lead to deadly delays in seeking help to save a life.”

Mr. Kovacs’ death was certainly a tragedy but it should be used to help shed light on the growing surge of abuse of prescription painkillers – not to add another level of liability to NY homeowners.


Read more: http://www.newyorklawjournal.com/id=1202713402066/Cuomo-Vetos-Bill-Imposing-Liability-for-Hosts-Inaction#ixzz3NOzkHbsz

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