Aug 29 2016

Top Six Things the Public Should Take Away From HBO’s “The Night Of”

HBO’s excellent short series “the Night Of” concluded last night. If you haven’t seen it all I warn you that this post may contain spoilers. Lots of my friends in the legal community are complaining about many inaccuracies in the way trial, prosecutors and criminal defense were portrayed. My answer to them has generally been – its a TV show not a documentary. Are lawyers allowed to lean on the witness stand and get so close to the witness? No, but the director needs the tight two-shot so that’s how its always been done. Do lawyers start their cross-examination sitting down and then rise after a few questions for effect? Depends – in some states I believe lawyers must do their exams sitting down. In NY, you must stand when questioning a witness and addressing the court or jury. So this style of the sitting then standing is a TV creation done for dramatic effect (though the effect is lost on me frankly). Is Riker’s Island so lawless and corrupt that an inmate can have a suite of cells for him and his crew to openly do drugs and run an empire with impunity? Close but no. Sure guards get paid off to allow drugs. Every day heroin, cocaine and marijuana enter the prison and are used by inmates Yes gangs run protection rackets on newcomers. But it still has not reached the blatant level portrayed by the always excellent Michael Kenneth Williams.

Not perfect, but insightful

Not perfect, but insightful

I could go on but the point is the show was not made for lawyers. And I think the producers tried to encapsulate in 8 episodes numerous broad, sweeping issues within the criminal justice system so of course they had to take some liberties to raise those issues in eight hour-long episodes. But what should non-lawyers take away from the show? What are the main themes addressed by the program that people should think about?
Here’s my top six list:

6. A trial is not a ‘search for the truth’:This is the common language used to describe a trial but any practicing trial lawyer will tell you that’s for law school classrooms. You are not litigating against what actually happened – you are litigating against what the government says happened. And the government is litigating what they feel is the best case they can prove beyond a reasonable doubt. Evidence is nuanced, exaggerated, downplayed or sometimes wholly ignored if it doesn’t fit the narrative your side is presenting to the jury.

5. Some lawyers trawl (or troll) for clients It was eye-opening to see a TV show reflect on how John Turturro’s John Stone character got clients. He would hang around the police precinct and try to pick them up. That happens in just about every jurisdiction – in Nassau County there’s at least one practitioner whose whole career is based on the practice. And if you have a sharp eye you can see it happening most nights in the arraignment parts of 100 Centre Street in Manhattan (Where The Night Of takes place). But what was truly eye-opening and refreshing was the portrayal of the high-profile lawyer with the big expensive office also trawling to get the case. Most lawyers in big firms would look down their noses at what John Stone does even though they and their own firms do pretty much the same thing except in more expensive suits to get big cases away from small lawyers. Many of my high-profile clients and cases have had larger, allegedly more prestigious firms, contact them to try and get the case away from me. Most times they are not successful, but now and again they are. It was great to see that shown on the TV screen.

4.You gotta go to the locus quo One of the first things John Stone does is go with a camera to the crime scene and take his own pictures. Now I would normally bring a third party to take the pictures to not make sure I won’t have to be a witness but Stone got it right. You need to visit where it happened for yourself. Its one of my Top Ten Tips For Young Lawyers You cannot rely on pictures and you certainly can’t rely on pictures taken by the other side. Stone then went back with his expert as well, which is also the right course of action. So often, its detailed investigation and not fancy lawyering that shows the way to a client’s freedom. Also, you can show the jury and a witness that you know the detail s of the case by asking questions that reflect that you’ve been to the scene of the crime (or accident). The show overall really emphasized how these cases are won or lost on tough, boring, repetitive work analyzing the details and leaving no stone unturned. Detective Fox exemplified that by his continued pursuit of evidence and his repeatedly going over the minutiae of paperwork that he got from subpoenas (and other not so legal) sources. I wish there was a substitute in trial work for over-preparation but after more than 30 years I still haven’t found it.

3.Getting wrapped up in the criminal justice system is a nightmare One of the best things the show did is portray the ripple-effect of having a person close to you be accused of a crime. Obviously, the defendant is the most directly impacted by the process – he gets manhandled by the police; thrown into the lion’s den that is Riker’s Island; exposed to drugs and violence to which he has to adapt to survive; loses his job and standing in his school and his community; faces the stress of losing his liberty; dealing with stigma of being accused even after he is releasd;etc etc. But its not just the defendant whose life is turned upside down. His family suffers as well; his parents are bankrupted; they face the indignity and unknown of the process; his father’s business partners suffer; his brother is attacked. The victim’s family is also deeply effected: constantly having to go over the events leading up to the crime or having to explain their conduct or behavior; having the victim’s life put on display including whatever sordid details the defense may come up with to help their cause. Everyone’s life gets put on hold and their focus has to turn on “the night of” the crime its as if time stops and you have no capacity to think or plan about anything else.

2. Despite our great Constitution, the system is broken The show highlighted so many of the failings of our system. How hard it is for poor defendants to get quality representation. The way that police can form a quick opinion on guilt and then never be moved off of that opinion regardless of the evidence to the contrary. (In almost all of the wrongful conviction cases I have been involved with, that initial bias formed by law enforcement – itself usually based on some shoddy or mistaken premise – is the main cause of the conviction of an innocent person.) The way judges and courts are more concerned with finality and expediency than the rights of the accused. John Stone’s summation was a great reminder of the founding principles of this nation and how important it was to the Founding Fathers that our criminal justice system be fair and be geared not toward convicting the guilty but rather toward protecting the innocent. Look at how much of the Bill of Rights is focused on providing protection to the accused. Yet, somewhere along the way we got overwhelmed by the numbers and the cost and lost that focus. And many folks- some guilty, some innocent, some somewhere in between – are paying the price for that. Which leads me to the number one take away from the show:

1. Don’t dodge jury service Every month or so some friend of mine calls me or emails me or sends me a message asking “Oscar how can I get out of jury service?” My usual reply is to ask why they are trying to get out of jury service. Most of the people who cal me also regularly ask me to comment about lawyer and crime shows they watch and to which they are addicted. So why not do it in real life – here is your chance! While not every case will be nearly as interesting as The Night Of case, every criminal trial is important because every criminal trial (as John Stone reminded us) involves those important concepts referred to in the previous paragraph. We need jurors to serve who are committed to upholding those values and making sure that the government is kept to its burden. Hopefully this show raised the level of awareness of the role a jury plays in upholding those Constitutional rights that we supposedly care so much about. Most of the time we don’t think about them once we graduate high school and then pay general lip service to them. At least until someone we know and love is accused of a crime.

Kudos to HBO and the entire cast who were all excellent. John Turturro as John Stone, the everyman version of Atticus Finch, was simply incredible and is sure to get an Emmy nod.

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Aug 24 2016

Judge Dismisses Suit Against Starbucks Over Iced Drinks

A lawsuit brought against Starbucks in Federal Court in California over the amount of liquid in their iced drinks has been dismissed by the court as baseless. A plaintiff claiming to be a Starbucks consumer brought a class action lawsuit against the coffee giant alleging that its iced drinks contain less liquid in it than advertised because of the presence of ice. Of course, in reality, the claim was not brought because the consumer was upset that he missed out on an ounce or two of iced coffee; the case was brought in the hope that it would be certified as a class action, meaning big bucks for the lawyers who brought it and perhaps a Starbucks coupon for a few free drinks for the class plaintiffs.

starbucksBut Judge Percy Anderson made quick work of the case throwing it out at the pleading stage. The plaintiffs had claimed that due to the presence of ice the cups did not contain the amount of liquid they were supposed to contain. For example, the “Venti” did not actually contain 24 ounces of liquid it contained about 14 ounces and the “Grande” did not have 16 ounces, it had 12. In order to win, they would have to prove that a reasonable consumer would be fooled or defrauded by the cup size and amount of liquid received. After noting that most children know that if they want more liquid in their cups, they simply ask for “No Ice” Judge Anderson stated:

If children have figured out that including ice in a cold beverage decreases the amount of liquid they will receive, the Court has no difficulty concluding that a reasonable consumer would not be deceived into thinking that when they order an iced tea, that the drink they receive will
include both ice and tea and that for a given size cup, some portion of the drink will be ice rather than whatever liquid beverage the consumer ordered.

After all, he went on – its called iced coffee. You get it in a clear cup. You can see that it has ice and if it has too much ice you need only ask the barista to make you another one with less ice. The Starbucks menu does not say you get 24oz of liquid in a Venti, the court stated, but rather is a referral to the overall cup size whose content is clearly visible when you receive the product. He even mocked the claims noting: Plaintiff also appears to ignore that a reasonable consumer understands that depending on how warm the liquid is when it is mixed with the ice, and how long it takes to drink the beverage, some portion of the ice will melt and be drinkable. For all of these reasons, the court stated, the complaint has no merit and must be dismissed.

Its nice to see that common sense prevailed and that this attempt to troll money out of Starbucks failed miserably. A similar case is pending in Chicago and one can expect the same result there as well. But a Federal judge in San Francisco recently allowed a case to move forward that alleges that Starbucks’ lattes are also ripping off consumers because they contain only about half the amount of liquid reflected in the cup size with the rest filled with foam. The complaint also argues that Starbucks changed its recipe in 2009 specifically to add more foam to its lattes to save money on milk. The lattes are also not served in clear cups so this lawsuit has a better chance of succeeding since consumers would not be able tell how much product and how much foam is in each cup and since Starbucks purposefully increased the foam amount to reduce the latte amount. Expect Starbucks to begin changing how its menu reflects its drink sizes to avoid problems in the future. I would not be surprised to see a disclaimer saying that size values are estimates and may not necessarily reflect the amount of liquid in your cup. Yeah, its come to that.

Aug 23 2016

Of Mice and Men and Death in Texas: SCOTUS to Review Use of “Lennie” Standard in Death Penalty Cases

In 2002, the Supreme Court of the United States in Atkins v. Virginia ruled that executing an intellectually disabled person was a violation of the Eighth Amendment to the Constitution which prohibits “cruel and unusual punishment.” Here’s what Justice John Paul Stevens wrote in his opinion:”Construing and applying the Eighth Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender.” But the Court refused to define “mentally retarded” or “intellectually disabled” leaving it to the States to decide.

So when the first case wound its way to the Texas in 2004, the trial court ruled that a man with an IQ of 70 who met the definition for “intellectually disabled” used by the American Psychiatry Association should not receive the death penalty. It went up to the Texas Court of Appeals and landed on the desk of Judge Cathy Cochran to write the opinion, and she came up with a doozy. It seems Judge Cochran was a huge fan of John Steinbeck, having lived in Monterey, California for a spell and even above the Cannery Row building which became the title for one of Steinbeck’s novels. She said that the medical community’s opinion was a factor, but that it was always evolving and subject to change. She agreed with Supreme Court Justice Alito who has written that it should be left to juries to decided who is intellectually capable enough to be killed by the State. But she knew that SCOTUS wanted States to set the standard so she decide to invoke one of Steinbeck’s most famous characters – Lennie, the slow-witted farmhand in the classic novella Of Mice and Men. Published in 1937, it tells the story of George Milton and Lennie Small, two displaced migrant ranch workers and best friends who move from place to place in California in search of new job opportunities during the Great Depression in the United States. George is a clever, sharp man and Lennie is his dull-witted companion who is a gentle giant but occasionally harms the things he holds due to his strength and mental incapacity. I won’t spoil it in case you haven’t read it(and you should)but let’s just say it doesn’t end well for poor Lennie. Citing Lennie, Judge Cochran came up with seven factors a jury should use to determine if a person should be killed once it was already determined that they met the clinical definition of intellectually disabled. Here they are in plain English:

[1.] Did those who knew the person best during the developmental
stage—his family, friends, teachers, employers, authorities—
think he was mentally retarded at that time, and, if so, act in
accordance with that determination?
[2.] Has the person formulated plans and carried them through or is
his conduct impulsive?
[3.] Does his conduct show leadership or does it show that he is led
around by others?
[4.] Is his conduct in response to external stimuli rational and appropriate,
regardless of whether it is socially acceptable?
[5.] Does he respond coherently, rationally, and on point to oral or
written questions or do his responses wander from subject to
[6.] Can the person hide facts or lie effectively in his own or others’
[7.] Putting aside any heinousness or gruesomeness surrounding the
capital offense, did the commission of that offense require forethought,
planning, and complex execution of purpose?

Should fiction ever be how we  choose who we kill?

Should fiction ever be how we choose who we kill?

While Texas courts call these factors Briseno factors for the case in which Judge Cochran set them forth, they are better known as the “Lennie factors” or the “Lennie standard.” And Texas has regularly applied the Lennie Standard in ruling that intellectually disabled people could nevertheless be killed by the State. Three examples: (1)Texas killed Marvin Wilson in 2012. Wilson was a man who sucked his thumb and who couldn’t make change or use a phone book. His IQ was 61, but he had also held a job, married and had a child. Despite his low IQ the court system found that he should be executed using the Lennie test since he was able to hold a job and marry. An IQ level of 71 is defined as Borderline Intellectual Functioning and 61 rates as Mental Retardation. (2)Just last year Texas killed Robert Ladd, with an IQ of 67, whose last words were “It stings my arm, man” as the lethal injection entered his body. The court found he had sufficiently planned his assault to make him fit to die under the Lennie test. (3)Juan Lizcano had IQ scores ranging from 48 to 62 and had been removed from school at age 15 because he had not advanced past the sixth grade. He could not read a clock, dress himself appropriately or perform simple jobs. The state relied on the testimony of Lizcano’s ex-girlfriend and a used-car salesman who had sold Lizcano a car, both of whom stated that Lizcano did not seem that impaired to them. The jury voted to execute him.

Here’s a strange thing BTW: Lennie would have failed the Lennie test with flying colors. Lennie held a job, in fact he held several. He communicated easily with George and others. He was able to keep secrets.He tried to hide the body of his victim. He and George planned to buy a farm together and raise Lennie’s precious rabbits. And what of this twisted use of one of the greatest pieces of American fiction? Can you imagine what John Steinbeck would say about it? Well when his son Thomas learned of the Lennie standard he stated that his father was vehemently opposed to the death penalty adding “To judge anything based on a piece of fiction, I think, is a stretch. And I think it would’ve made my father extremely angry.The character of Lennie was never intended to be used to diagnose a medical condition like intellectual disability. I find the whole premise to be insulting, outrageous, ridiculous and profoundly tragic.” It’s not just a stretch, its too subjective and unclear and adds to the arbitrariness of the application of the death penalty. Why choose a fictional formula over a medically accepted definition? As Brian Stull, Ladd’s attorney stated, “Instead of sticking to the standards set by science, they refer to a character in Of Mice and Men. [My] client’s fate should not have depended on a novella.”

There are deeper problems with the Lennie test. For one thing, they turn the SCOTUS decision in Atkins on its ear. The Lennie factors can undo almost any legal acknowledgment of intellectual disability, making Atkins essentially worthless in preventing a mentally disabled person who may not entirely understand what they’ve done from being killed by the State. Then just last year, the Supreme Court made a more narrow decision on the issue in Hall v. Florida, directly ruling that states have to actually stick to the clinical definition of intellectual disability when measuring who can and can’t be executed. However, this ruling has had virtually no apparent effect on how judges in Texas handle these cases as they continue to apply the Lennie standard as shown above.

Judge Elsa Alcala

Judge Elsa Alcala

So this fall, SCOTUS will decide the fate of the Lennie Standard and one Bobbie J. Moore, a resident of Texas’ crowded death row. Moore was convicted of the murder of a grocery clerk. At his trial, it was established that his IQ ranged from 57 to 70. In addition to the scientific proof, the defense showed that Moore cannot tell time; doesn’t know the days of the week; or the relationship between addition and subtraction. The State proved he knew how to mow lawns and play pool. The trial judge, applying the IQ tests primarily, ruled him too incompetent to be executed. The Appeals Court disagreed and chided the judge for using only the psychological tests and not the Lennie standards. It cited that Moore had worn a wig during his crime and had tried to hide his shotgun which showed forethought and planning. Judge Elsa Alcala, alone dissented. She stated, “The Lennie standard does not meet the requirements of the federal Constitution. I would set forth a standard that does not include any reference to a fictional character.” Thank you Judge Alcala for stating what should be obvious

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Aug 16 2016

Can Posting a Spoiler Violate Copyright Law? AMC Says “Hell Yes!” and “We’ll Sue You If You Do!”

Everybody hates Internet spoilers. You know,those people who either binge-watch a fully-uploaded whole season before you get to Episode 3 or who feel the need to review the most recent episode of a weekly show immediately after it airs while you planned on watching it via your DVR two days later. Spoilers like that are likely protected from copyright infringement claims over their use of the plot twists, character reveals, etc by the doctrine of fair use. Fair use is a defense to copyright infringement claims and is mostly applicable to commentary, criticisms, parody and educational uses. So talking about already-aired material is likely to fall under the fair use categories of commentary or criticism.

walking deadBut what if the person is issuing spoilers based on inside information before the show even airs? That’s apparently AMC’s concerns over folks intent on revealing spoilers about Season Seven of their most popular show The Walking Dead. They have sent a cease and desist letter to the publishers of a Facebook page called The Spoiling Dead Fans that AMC will take legal action if TSDF reveal the biggest secret of the Season Six finale cliffhanger: which popular character gets hit in the head by Negan, the season’s villain. IT seems TSDF has been getting inside info during Season Six that made its “predictions” about plot twists eerily accurate. So with Season Seven filing under way and with its premier coming up on October 23, AMC is taking no chances. Its cease and desist letter argues that TSDF’s use of any plot information before it airs would constitute an infringement of AMC’s copyright in the material. Copyright protects not only the original version of the material but any derivative use of the material. AMC is claiming this would be a derivative use of their work.

Are they right? Probably – copyright does not always attach to small snippets of material – even if original. But if the snippet is readily identifiable or if it is so connected to the overall work, then it can in fact be protected by copyright law. In music, courts have held that segments of two seconds and fifteen seconds long were protected under the law. The key is if the snippet is sufficiently original to be worthy of protection. Here, who (if anybody) was killed by Negan will be central to Season Seven of The Walking Dead. Now TSDF is still free to camp out near where Season Seven is being filmed to try and get pictures of the characters being filmed and so eliminate the visible ones from the list of suspected victims. But using inside information before it becomes public is likely to cause AMC to file suit and my prediction is that they would win under that scenario. TSDF apparently agrees since it stated publicly that it would not make use of any inside info passed to it. They admitted no liability in doing so and stated that the principal reason was lack of funds to take on a media giant. And that’s the simple truth – determining whether AMC has a valid claim would be an extremely expensive and time-consuming proposition. So right or wrong, AMC is the 800 pound gorilla in the room and TSDF is wise to not want to take that challenge on.

So it looks like we will all have to wait until October 23 to find out what happened at the end of Season Six.

Aug 03 2016

Ay Caramba! Fed Judge Rules Trump Must Stand Trial Over “Trump U” Fraud Case

It’s not what The Donald waned to hear I’m sure. Federal Judge Gonzalo Curiel — the same judge who Trump accused of being biased against him due to the Indiana native’s Mexican ancestry and Trump’s controversial positions on border security — is ordering Trump to stand trial in a Federal civil case field against him by former students of his on-line real estate education company called Trump University. Trump and his lawyers had moved to dismiss the case arguing that the claims had no merit and that it was improper for the plaintiffs to use the civil RICO statute against him.

While it is true that RICO was originally written to fight against organized crime, the statute has been broadly expanded and used to target corporations allegedly engaging in fraudulent behavior through the use of an enterprise. Not surprisingly, it was Trump’s own words and actions that the judge said requires the case to be heard by a jury.

The plaintiffs are claiming that they were defrauded because there was no promised teaching of Trump’s personal system and because they were led to believe that they were going to be getting a more serious, formal education because it was called Trump University. Trump had argued that he only had minimal involvement in the school and the using the term “university” was merely puffery and boasting and not any indication of the level or value of the education received by the students. But the judge quickly shot those arguments down by referring to an introductory video featuring the GOP Presidential candidate himself where he told the students:

We’re going to have professors and adjunct professors that are absolutely
terrific. Terrific people, terrific brains, successful. . . . The best. We are going
to have the best of the best and honestly if you don’t learn from them, if you don’t learn from me, if you don’t learn from the people that we’re going to be putting forward — and these are all people that are handpicked by me — then you’re just not going to make in terms of the world of success. . . . we’re going to teach you better than the business schools are going to teach you and I went to the best business school. … Newspaper advertisements displayed a large photograph of Mr. Trump,
stating “[l]earn from Donald Trump’s handpicked expert,” and quoted Mr. Trump as saying: “I can turn anyone into a successful real estate investor,including you.Similarly, other advertisements displayed large photographs of Mr. Trump and included statements such as “Learn from the Master,” “The next best thing to being his Apprentice,” and “Nobody on the planet can teach you how to make money in real estate better than I can.”

In addition, the plaintiffs presented evidence that Trump approved all marketing materials even micro-managing the work to the point of noting that a newspaper ad for Trump U should have appeared on an odd-numbered page in the newspaper as those tend to be in better viewing position for the reader. The court also scrutinized the marketing guides given to Trump U employees to try and make the sales which made them use terms and lingo common to universities:

[For example] See, TU Marketing Guidelines describing the “Trump University Community” as including “Staff,” “Faculty,” “Instructors,” and “Program Directors (Trump University’s Admissions Department)
including under “Catch Phrases/Buzz Words”: “Ivy League Quality” and under “Tone”: “Thinking of Trump University as a real University, with a real Admissions process—i.e., not everyone who applies, is accepted”; and encouraging TU employees to “[u]se terminology such as” “Enroll,” “Register,” and “Apply”

Judge Gonzalo Curiel

Judge Gonzalo Curiel

Judge Curiel said that it was for a jury to decide if this was an attempt to defraud students and that it was for a jury to determine if Trump played a significant role in running the operation. Both of those things will be hard for Trump to refute as he is on record in a number of places touting his involvement in Trump U and as he admitted that he approved all marketing materials that bore his name or picture. This case will not be tried before the November election, but it will likely be raised in debates and attack ads by the Clinton campaign. You can bet that Trump will downplay this decision and file an immediate appeal, but his time is running out on this case. The appeal is almost certainly going to be denied and Trump will have to hear from a jury whether they agree with him or the plaintiffs in the case. If he loses the damages could total in the millions of dollars. The question is What will a jury of Donald Trump’s peers look like?

You can read the entire decision HERE

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