Feb 03 2016

Judge Rules Cosby Case Can Go Forward

Bill Cosby, long-beloved American comedic icon and serially-accused serial rapist, is finally having his day in court. After his long denying the accounts of dozens and dozens of women who have made claims that he sexually assaulted them, one of those accusations is about to be heard in open court for a jury to determine its validity and his guilt. A judge has now ruled that a quirky deal made by a former DA cannot stop this prosecution.

It seems that way back in 2005, when then-Montgomery County Pennsylvania District Attorney Bruce L Castor had these accusations in his office felt there was “insufficient evidence” to bring charges. And the potential charges were serious. Mr Cosby’s accuser, a Temple University basketball manager, claimed that Cosby had drugged her and sexually assaulted her at his home. The accuser also had filed a civil suit against Cosby. So apparently, the DA and Cosby’s lawyers struck a deal: The DA would not prosecute Cosby if Cosby agreed to testify truthfully at a deposition in the civil case. Castor has said he felt this would give “some measure of justice” to the complainant. The only problem is that no one put the agreement in writing. Cosby’s then-criminal lawyer is now dead and cannot give his understanding of the deal. Castor has now taken the stand to say that his understanding of the deal was that Cosby would be given immunity from prosecution “for all time.” And that does make sense. I know I would never let a client facing such serious criminal charges testify at a civil proceeding without full and final immunity. But I would also never let such an important deal rest with a handshake. I would demand it be memorialized in writing. Its very odd indeed that Cosby’s lawyer did not get it writing.

Montgomery County Judge Steven T. O'Neill

Montgomery County Judge
Steven T. O’Neill

But if the DA says that was the deal, and the lawyer is now dead, who’s to say otherwise? Cosby having testified in the civil case is also proof that he felt the deal was in place. He admitted illegally acquiring Quaaludes and giving them to women in order to have sex with them. He admitted that he offered to pay for the young women’s education (provide she maintained a 3.0) after her and her mother demanded to know what drug she had been given. Would he ever make those admissions with the threat of a criminal prosecution hanging over him? Is it fair to Cosby now that he held up his end of the bargain, that the deal he made be pulled out from under him?

But Judge Stepehn O’Neill decided an oral agreement of this nature cannot be enforced, particularly since it was made before Cosby was even charged – in other words, no case was actually pending. Current DA Kevin Steele – who defeated Castor in the most recent election for DA at least in part relying on ads that blamed his handling of this matter – had his hands full with this issue. He argued that it was against public policy to allow a DA to merely testify that he had given such broad immunity without anything in writing to declare the terms of the agreement saying:

“A secret agreement that permits a wealthy defendant to buy his way out of a criminal case isn’t right,”

The next issue will be whether the DA could use the civil deposition testimony in the criminal trial. Without the deal, his lawyer could have made a motion to freeze the civil case until the criminal case was over. That procedure is common when a criminal case and a civil case over the same occurrence are on-going at the same time. So I think its pretty clear what the parties intended the deal to mean and I think it would be wrong to use the civil deposition in the criminal trial. Interestingly, new DA Steele stated he revived the case based on “new information and evidence” obtained. While he has not specifically stated what that new evidence consists of, most assume it is the deposition. So how would that be fair to Cosby? A DA promises him not to prosecute him if he testifies at a deposition, so he testifies, and then another DA down the road uses that deposition to prosecute him. That just ain’t right. Cosby may indeed be the sleazebag he appears to be, but that still ain’t right.

Jan 13 2016

Let’s Use Lessons Learned To Not Pre-Judge Brooklyn Rape Case

A horrible story appears in the NY Press. An 18 year old woman is reportedly raped in a Brooklyn park by 5 men – their ages ranging from 14 to 18. The woman’s father was reportedly threatened with a gun and chased away when he tried to protect her and stop the crime from occurring. Initial media reports that several suspects were arrested and that at least two of them “confessed to involvement in the crime.” The media and the populace immediately go into vigilante-posse mode and decry the perpetrators and demand that they be treated as adults in adult court (as permitted by NY law). Talking heads appeared on cable news shows talking about the psychology of group violence.

Simultaneously, the nation was in the grips of an obsession with the Netflix documentary series “Making a Murderer” chronicling the arrest and prosecution of Steven Avery and his nephew Brendan Dassey. While the series was dealing with one murder case in rural Manitowoc County Wisconsin, the show opened up a national dialogue on overreaching police; overzealous prosecutors; the ineffectiveness of Len Kachinsky; the phenomena of false confessions; whether the criminal justice system as currently operated in most areas lives up the ideals of the Constitution; and the overall difficulty and pressure of being caught up in that criminal justice system.

Yet here, no one was mentioning the possibility that maybe we were not getting the whole story on the Brooklyn rape case. The information that was fed to us was taken as gospel. No one even hinted at the possibility that maybe some of the boys charged were not guilty. Just from hearing the facts of the case, the community had convicted the accused. Now, I am not saying they didn’t do it. But remember that as potential jurors, we need to presume them innocent. We need to keep an open mind and not pre-judge the case before we have all the facts. These are young men charged with a horrific crime. They need all the help the Constitution provides. Let’s all remember that most of us (myself included) were sure -absolutely sure- of the guilt of the Central Park Five only to be proven dramatically wrong.

And when I first heard the account of this case, as I was discussing it with my wife, I said that something just did not seem right to me. How was the father shooed away – yes a gun was pointed at him allegedly but I said that I would likely die trying to save my child from a gang rape. How did five men all rape a woman in the 12 minutes it took for the father to call the police and get them to arrive at the park – where the girl was found half-clothed but the assailants were gone. And sure enough these last few days and into today, we are learning some more information that is very troubling.

Meaningless unless actually used

Meaningless unless actually used

The complainant did not report ever seeing a gun as the father alleged. Furthermore, a police official was quoted yesterday saying “The initial report that all five of them raped her, is not looking like it happened that way.” She now said that only one man raped her while two others forced her to have oral sex and the others grabbed her breasts. It appears both the girl and her father were heavily intoxicated, having gone to the park specifically to drink – intoxication of the victim is not a defense to rape of course but that fact does possibly alter her ability to properly identify the alleged assailants. Videos of the father entering two stores to ask for a phone do not show him as being in serious distress or even saying what he needed the phone for. What about the alleged confessions? Yesterday I read in the NY Times that none of the boys giving statements actually admitted to committing the rape or any crime. Two of the suspects said a third suspect had sex with the complainant. That suspect said he was on the phone the whole time and did not know what his friends were up to. So three admitted to being present but none admitted to direct participation in the crime. Exactly the scenario in the Central Park Five case and in the case of my client David McCallum, who served 29 years for a murder he did not commit based solely on his confession which placed him at the scene while his co-defendant allegedly shot the victim;his co-defendant Willie Stuckey (also cleared of the murder but who died in prison after having served 16 years) was made to say he was there while he saw David McCallum commit the murder. Also, in the Brooklyn park case, the three suspects specifically denied ever having a gun or seeing a gun among their group that night. Did the suspects commit these horrific acts? I have no idea. Only they and the complainant know for sure. All of them could very well be guilty; some of them could be guilty ; none of them could be guilty. The complainant could be 100% truthful; she could be partially accurate she could be making up material elements of the case. The point is we just don’t know right now and we should not rush to judgment. More videos might turn up adding details yet unknown; medical records could shed more light on the case; and of course the rape kits may yield DNA results. All I am saying is let’s not shoot first and ask questions later.

These past two years the country has seen an unprecedented wave of exonerations. As a lawyer who has been involved in the innocence community for nearly 15 years, it was heartening for me to see people open their eyes to the possibility that our beloved American system of justice sometimes gets it very wrong. Folks even began to understand that people – especially young people- sometimes confess to crimes they didn’t commit.Its emotionally rewarding to see exonerees receive settlements that acknowledge the harm done to them by this society. But it would be a tragedy if we don’t take these lessons learned and apply them to new allegations of crime. If we just convict those accused of crimes at the outset based on media or police accounts without a fair hearing what have we really learned? We need to value and apply the protections the Constitution affords those accused of crimes – the presumption of innocence; the right to remain silent the right to competent and effective counsel; the burden of proof beyond a reasonable doubt – at the front end of a criminal prosecution. That is the surest way to reduce the scourge of wrongful convictions – by avoiding them in the first place.

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Jan 07 2016

Monkey Can See, Monkey Can Do, But Monkey Can’t Own

On Wednesday, a federal judge said the macaque who famously snapped a picture of himself cannot be declared the owner of the image’s copyright. The photo in question was taken in 2011 on the Indonesian island of Sulawesi, with a camera owned by nature photographer David Slater. But Slater didn’t trip the shutter: the macaque did.

Some outlets — including Wikipedia — maintain that no one owns the copyright to the photo and they have been using it as an image in the public domain. The U.S. Copyright Office, since the dispute began, has specifically listed “a photograph taken by a monkey” as an example of an item that cannot be copyrighted. It says Slater cannot own the rights to the handful of images snapped by macaques in the Tangkoko reserve on the Indonesian island of Sulawesi in 2011. Works “produced by nature, animals, or plants” cannot be granted copyright protection, the US Copyright Office said in 2014. Slater maintains that his British copyright should be extend to the States. But either way, he said, one thing is clear – it does not belong to the monkey. He asked the court to dismiss PETA’s claim.

The People for the Ethical Treatment of Animals (PETA), joined by primatologist Antje Engelhardt,filed a lawsuit last year on behalf of the monkey — which it chooses to call Naruto — arguing that, because Naruto snapped the trigger Naruto owns the copyright (which PETA is then graciously offering to administer on the monkey’s behalf).

What I really like about the motion is that its main part consists of two pages and its total length is four pages. It goes right to the point. Here is a line from the introduction – it is the very first thing the judge would read after the boiler plate notice of motion preceding it:

A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey’s claimed copyright. What seems like the set up to a punchline is really happening. It should not be happening

The brevity with which his lawyers address the argument is in direct proportion to the merits of the claim. Per the Constitution, Congress is vested with writing laws to protect intellectual property rights. They did not give rights to animals to pursue copyright claims. Therefore Naruto and his handlers have no standing to bring the claim. It would be up to Congress to authorize claims on behalf of animals – which will never happen even under this current ridiculous Congress.

PETA and other animal rights organizations have previously tried to have courts recognize an animal’s individual right to bring a suit. But all those efforts have failed and will continue to fail and should fail for reasons I stated in this post http://www.courtroomstrategy.com/2015/04/sorry-but-ny-chimp-case-is-waste-of-time/. There are plenty of enforceable laws on the books to protect animals and make sure they are not abused or mistreated. But to confer legal standing on a non-human to bring their own lawsuit on their own behalf is wasteful, pointless and make a mockery of the courthouse. Kudos to Slater’s lawyer Andrew J. Dhuey for the making the point clearly and concisely:

“Monkey see, monkey do is not good law. . .The only pertinent fact in this case is that Plaintiff is a monkey suing for copyright infringement. [I]magining a monkey as the copyright ‘author’ in Title 17 of the United States Code is a farcical journey Dr. Seuss might have written.”

The judge is set to issue his written decision soon. In the meantime here is the famous image:

Macque Selfie

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Dec 15 2015

Making Jurors Understand the Bill of Rights

On this the 224th Anniversary of the ratification of the Bill of Rights, I was thinking about what to write about the document that defines our country as much as the Constitution does. It such a grand document covering so many broad issues I was thinking about to narrow my focus. Originally I thought about writing about how it seems that modern society doesn’t value privacy as much anymore – not only don’t they value it, they don’t cherish it, they don’t hold it dear as a right held by them to simply be free from government intrusion. How many times have you heard someone say about all this surveillance currently going on -“I don’t care if they listen to my cell phone calls or video tape me on the street, I’m not doing anything wrong. What are you worried about? If you’re not doing anything wrong what do you care?” I care because one of the main premises of this country is that the government cannot intrude on your privacy without fitting into certain exceptions.

I then thought about how I saw this mentality showing up and filtering its way into potential jurors. And in doing jury selection, I am often marveled at how little folks understand the relationship between what they tar doing as jurors and the Bill of Rights. Remembering that the main focus of this blog is about how law fits into society and about lawyering itself, I decided to write about how lawyers need to use and invoke the Bill of Rights in their jury selection. While I do this in all my cases, I will focus on criminal trials for this article.

This “what do I care” attitude about surveillance, etc is dangerous for defense attorneys trying criminal cases; even those cases that don’t involve surveillance. Because if jurors have this belief then you can be sure they also hold the belief that a person should take the stand in their own defense. After all, if you didn’t do anything wrong, why not say so, right? It is usually at this point in my jury selection that I take a quick detour to give jurors a civic lesson by asking them about their feelings about the importance of the rights granted to us by the Bill of Rights. Through a series of questions, I get them to talk about why these rights given to us are so important. I usually focus first on First Amendment rights because those are ones that folks usually think about and almost universally agree upon. I give a one or two line explanation about how those Founding Fathers of ours were not happy with the final version of the original Constitution because there was not enough language about the rights the citizens of the country had. The framers of the Constitution felt that the document only needed to say what the government was authorized to do and since it didn’t authorize restriction of individual rights, the people maintained all of their rights. That was not good enough for some folks and they insisted on listing those rights upon which the government could not intrude.

Happy birthday Bill!

Happy birthday Bill!

Talking about the rights in general and their importance then leads to the discussion about the right to remain silent and the presumption of innocence. NOTE: While the presumption of innocence is not specifically set forth in the Constitution or the Bill of Rights, it is seen as a direct corollary of the Fifth Amendment’s protection against self-incrimination). I challenge jurors to think about that right and hold that right as valuable as the right to a jury trial and freedom of the press. In a discussion format we talk about how jurors are their to serve and protect those rights – just as soldiers overseas are doing. I remind them that when we talk about the military protecting “our values” and “our American way of life” these issues – the rights granted to the criminally accused – are central. Fully half of the Bill of Rights deal with the legal system and when you consider that 9 and 10 are basically catch-all provision that don’t specifically enumerate any rights, then 5 out of 7 of the Amendments that give rights deal with the legal system. What does that tell you about their importance to the Founding Fathers?

There are many benefits to engaging in this conversation during jury selection. The accused’s decision to testify is always going to be in a juror’s mind no matter how much a judge tells them to ignore it. Too often, we pay lip service to these rights given to all of us – the right to a jury trial, the burden of proof, the right to be free from unreasonable searches and seizures – they are topics we learn in middle school and then don’t think about again unless we get arrested – OR we are asked to serve on a jury. Addressing this issue with jurors heightens their awareness of the meaning and importance of these rights which we usually take for granted. It also serves the benefit of something I call “Capturing the Flag.” Too often, prosecutors are seen by jurors as the protectors of the public good and as champions of law and order. This discussion about the Bill of Rights affords defense lawyers the opportunity to capture the flag back from the government and makes jurors understand that holding the prosecution to their proof and saying Not Guilty when that verdict is called for is as much a vindication of the American way of life as it is a vindication of the defendant. I know it sounds corny, and lawyers must adapt to their own personal style and personality but trust me -its important. If you just believe that most jurors will adopt and protect these rights just because they hear them once or twice from a judge during the trial you’re wrong. Jury research shows that most juror come into criminal trials believing the defendant is guilty and believing the defendant should testify. If defense lawyers don’t address those pre-conceived notions and don’t challenge jurors to be defenders of the Constitution (as amended) they are rolling the dice with their clients’ lives.

Here for your perusal is the full text of the Bill or Rights:

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people

Dec 10 2015

Trump’s Stance on Muslim Immigration Would Very Likely Be Legal

He’s rude; he’s divisive; he’s boorish; he’s bombastic. But under the current state of the law, if Donald Trump became President and he issued a ban on all Muslim immigration, it would likely get upheld by the Supreme Court. If anything, Trump’s statement highlights the importance of making sure everyone votes in the 2016 election because just because an idea is legal, doesn’t make it a good one.

Since Trump made his pronouncement, I have heard pundits on TV and even lawyers in courthouses say that it would be “unconstitutional” to ban an entire religion’s entry into the US. While this would be the first time such a sweeping immigration ban would be placed into effect, it would be very likely upheld due to the great amount of power and deference provided to the Executive on issues of immigration.

As many of my law students and criminal defense clients can attest, one of my favorite phrases is “The Constitution is overrated.” That does not mean that I don’t have the utmost respect for the founding document of our democracy – I certainly do. What I mean is that folks should not expect that the Constitution will protect them from every wrong under the sun or even from every bad idea.

Doesn't quite have the same ring to it

Doesn’t quite have the same ring to it

The Supreme Court has already upheld a ban on the immigration of all Chinese immigrants in 1889 and it even allowed the internment of the Japanese in this country during World War II. That case Korematsu v. United States has since been looked down upon and reparations paid to the families of those interred, but its still on the books having never been overturned or repealed. More recently, in the late 1970s, President Jimmy Carter banned all immigration from Iran, when radical Islam first came on the worldwide stage and the Ayatollah Khoumeini was made leader of that country. Recent administrations have temporarily banned immigration from Afghanistan as well. It all comes down to the separation of power and the great deference and latitude given to the Executive Branch on issues of foreign policy. In fact, before the 1970s, SCOTUS even refused to hear an argument against a Presidential immigration ban. Since then, when they agreed they had the authority to review such pronouncements, the Supremes have never overturned a Presidential immigration ban.

And Congress has given the Executive broad and sweeping powers under the immigration law which specifically authorizes the President to unilaterally issue a proclamation indefinitely blocking “the entry of any class of aliens into the United States.” All the President has to do is declare that he or she thinks allowing entry of that class would be “detrimental to the interests of the United States.” That is some serious power.

Trump has made clear that he would not ban re-entry of Muslims who were American citizens; that would certainly be unconstitutional. He said he would ban non-citizen Muslim immigration “until our government can figure out whats going on.” While I hope a Presidential proclamation banning an entire religion would be more artfully framed than that, a ban, let’s say, until the visa program was examined, investigated and reformed, would likely be upheld. A President Trump would seemingly only have to point to the evidence that one of the San Bernadino shooters came into this country through a fiancee visa and had apparently been radicalized well before her entry. He could also point to the 9-11 hijackers, some of whom were here on student visas to illustrate why he thinks Muslim immigration would be detrimental to the US. I can’t see the current Court undermining the power given to the President on this issue by Congress and by their own prior decisions.

I believe such a ban is hateful; divisive; ill-advised; antagonistic to our allies; and provides fuel for our enemies. But it would also likely be legal. All I’m saying here is that folks should not lightly brush off Trump’s comments believing that they would never pass legal muster. If you disagree with the ban, then your only recourse will be the voting booth.

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