Continue reading »]]> In today’s op-ed section of the NY Times, Brooklyn Supreme Court Judge Gustin Reichbach writes a poignant letter of love in support of medical marijuana. He recounts his own personal and ongoing battle against pancreatic cancer. He has fought the disease for more than three and half years despite being only given four months to live when he was first diagnosed. He painstakingly recounts how he tried Marinol, the legal marijuana substitute in pill form given to him by his doctors at Memorial Sloan Kettering Hospital, but that it did nothing to soothe his nausea, or allow him to sleep.

With no other recourse, His Honor turned to friends to score him some weed:

Rather than watch the agony of my suffering, friends have chosen, at some personal risk, to provide the substance. I find a few puffs of marijuana before dinner gives me ammunition in the battle to eat. A few more puffs at bedtime permits desperately needed sleep.. . .I did not foresee that after having dedicated myself for 40 years to a life of the law, including more than two decades as a New York State judge, my quest for ameliorative and palliative care would lead me to marijuana.

He goes on to conclude the letter with a plea for legalization:

Because criminalizing an effective medical technique affects the fair administration of justice, I feel obliged to speak out as both a judge and a cancer patient suffering with a fatal disease. I implore the governor and the Legislature of New York, always considered a leader among states, to join the forward and humane thinking of 16 other states and pass the medical marijuana bill this year. Medical science has not yet found a cure, but it is barbaric to deny us access to one substance that has proved to ameliorate our suffering.

That’s great for Judge Reichbach and I certainly applaud his courage and efforts to make marijuana available to cancer patients, but I am not surprised that it took his getting cancer to see this side of the issue. Too often judges,lawmakers and chief executives are utterly blind to issues that people confront every day and do nothing more than look to the letter of the law before meting out “justice” or passing laws that sound good on paper but end up costing people their freedom, family and jobs when they are applied in ways that no one foresaw.

Take a look at the Republican legislators across the country who have come out in favor of gay marriage. Almost 100% of them have cited a personal connection to a gay family member or gay fellow legislator as the reason why they are voting for gay marriage. Even President Obama claimed it was his interaction with his wife and daughters that made him allegedly come around on the issue. Hey, whatever it takes for them to see the light is fine with me, but you have to wonder why intelligent folks who are called upon to preside over others’ lives cannot have this empathic ability without a direct personal connection. Isn’t that why we elected them in the first place? To represent all of us not just those of us that are like them?

But more importantly, Judge Reichbach’s willingness to openly confess to crime reminds me as a trial lawyer that the best way to get a judge or juror to rule in my client’s favor is to personalize the client and the client’s case to them. Find some way to make your cause their cause; use jury selection to find out as much as you can about the issues that jurors deal with on a daily basis to fins those who are most likely to see things your client’s way. This idea is borne out by the fact. Dr. Sean Overland, a trial consultant who specializes in jury selection and who has written a well-received book on the subject called The Juror Factor , has stated that while studies consistently show that “the most powerful determinant of a juror’s verdict in both civil and criminal cases is the strength of the competing evidence. . jurors must rely to a greater degree on their own intuitions, experiences and personal judgments when reaching a verdict, [and] their personal beliefs will have the greatest impact on verdicts.”

When dealing with a judge, the same argument holds. While overt emotional appeals to a judge almost never succeed, more than anything judges still want to “Do justice.” Appeal to their sense of fairness and never allow them to rule without your putting forth and making clear the impact the ruling will have on your client’s life, business, etc. It’s critical for the lawyer to force the court to see the person before them as someone who could be a member of their family.

To paraphrase a quote attributed to politics “All law is personal”

Here’s a link to Judge Reichbach’s NY Times article:

http://www.nytimes.com/2012/05/17/opinion/a-judges-plea-for-medical-marijuana.html

Continue reading »]]> Shoe designer Karen Kell (KK) issued a “cease and desist” letter through her lawyers today to national retailer Urban Outfitters (UO) accusing them of stealing her latest shoe design. The letter demands that UO immediately pull the shoes off the shelf or face litigation. A copy of the letter accompanies this press release.

KK first developed the design for the shoe in April 2011 and has been marketing it ever since through the Etsy website as well as her own website. She claims that UO then put out its own replica version of the shoe in March 2012. The shoes are shown below:

Urban Outfitters “Multi-Loop Shoe:

The Karen Kell Collection Candy Link Shoe:

Oscar Michelen, who is representing The Karen Kell Collection, states “It’s a clear and wholesale copying of Ms. Kell’s trademarked design. We are confident that a court will agree with our position should litigation become necessary.”

The letter states that the timing of UO’s misappropriation of KK’s design was particularly damaging because KK is currently in factory production of the shoe, which was previously made exclusively by hand. Additionally, KK’s shoe was featured on The Martha Stewart Show on April 26, 2012. The shoes have gained tremendous popularity which KK may not now be able to capitalize upon, according to her lawyer.

Ms Kell, who sells some of her other products through UO’s Free People line, adds, “It’s incredibly frustrating to have put all this time, effort and energy into a creative design which became a signature mark of my shoe, only to have Urban Outfitters release a blatant copy of it just as I am about to expand the sale of the shoe on a much bigger level. I’d like to see them explain how and when they came up with this design when I created it over a year ago. Urban Outfitters totally broke the trust I had developed with them.”

The letter sets May 18, 2012 at 4PM as the deadline for UO to comply with the demands contained in the letter. It threatens litigation in Federal District Court if UP fails to comply.

Mr. Michelen can be reached through his law firm, Cuomo LLC, based in New York at 212-448-9393 or via email at omichelen@cuomollc.com

*******************************************************************

About Karen Kell:

4 years ago Karen Kell had an idea to make leather shoes and accessories so she moved to Mexico where she discovered a love of vegetable tan leather. She set up a workshop and experimented with molding and carving into leather making beautiful hand crafted shoes, bags, accessories and clothing. She now has her workshop in Los Angeles, California and sells her products as Karen Kell Collection. Her products can be seen on www.karenkellcollection.com

Continue reading »]]> Common sense is finally coming to copyright troll lawsuits. As I have reported on before here on this site, the adult film industry has been filing lawsuits all around the country against folks whose IP address was registered to them when that IP address was used to download a pornographic movie. Where the plaintiff did not have a name attached to the address, they would ask the court to issue a subpoena to the ISP that the IP address used for contact information of the IP address holder. The IP address holder would then be named in a federal copyright lawsuit seeking tens of thousands of dollars in damages where they would try to embarrass the defendant by listing the titles of the movies they allegedly downloaded.

But two federal judges have had enough and have issued rulings that could be the beginning of the end of these extortionate lawsuits. First on April 29, District Court Judge Harold Baker of the United States District Court for the Central District of Illinois (which covers Chicago) The plaintiff (an adult film company based in Canada) was looking for personal information connected to the IP addresses of the people who allegedly distributed adult videos. Baker said he was not going to support a “fishing expedition” for subscriber data without more evidence. He pointed out:

The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbor, or someone parked on the street at any given moment

A few days later, New York chimed in with a similar ruling in K-Beech, Inc. v. John Doe. Magistrate Judge Gary Brown of the Eastern District of NY (covering Brooklyn, Queens, Staten Island, Nassau, Suffolk, Westchester, Orange and Putnam Counties) did not pull any punches in his 28 page ruling. First he noted that this case was part of “a nationwide blizzard brought by purveyors of pornographic films alleging copyright infringement by individuals utilizing a computer protocol known as BitTorrent.” He then noted how when earlier courts had granted the subpoenas, the film companies used that information to pressure IP holders to settle by embarrassing and harassing them:

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.

What particularly troubled the judge was that one of the John Does who moved to quash the subpoena and dismiss the lawsuit had unequivocal proof that he was at work at the time the movie was allegedly downloaded from his home computer but the plaintiff was unwilling to see the evidence and rejected the Doe defendants offer to have unfettered access to his home computer, work computer and work records to establish his innocence. Instead, the plaintiff’s “negotiator” said he would accept $2,900 in settlement as the defendant would still have to hire a lawyer and face a lawsuit about downloading a film called GangBang Virgins. To his credit, he did not settle and instead filed the motion.

The court denied the plaintiffs request for the names, addresses, phone numbers and email addresses of the IP holders because it feared that it would only be used to continue the abusive litigation tactics described by the above defendant. It also said that by filing these massive actions naming hundreds upon hundreds on unconnected IP holders, the plaintiffs were avoiding paying the proper filing fees. Finally, noting that 61% of homes now used wireless routers, there was simply no evidence that the name attached to the IP address was the person who downloaded the video.

I have to say that counsel for the plaintiff did not help his clients’ position. Rather than just admitting what these lawsuits were all about -shaming people into paying – they filed a 62 page response to John Doe’s dismissal motion which did not address any of the points he raised about his attempts to prove his innocence. Instead the papers, which the judge described as “rambling papers that often lapse into the farcical,” tried to paint the plaintiff as artists who were merely trying to protect their works of art like another entertainment industry. The papers also said that the ultimate goal of the lawsuits was to protect children because if everyone paid every time a move was downloaded, then parents would know if their kids were downloading adult movies. The court noted that since the president of the plaintiff corporation K-Beech was Kevin Beechum, who in the 1990s testified as a witness for the Federal Government where he admitted firebombing adult entertainment shops to extort money from their owners and since his company sold many movies that involved “Teen porn” it was “difficult to give them the moral high ground.”

The court dismissed the lawsuits, denied the subpoenas and then went one step beyond – requiring the plaintiffs that all future actions be filed against only ONE John Doe at a time by payment of the $350 filing fee. IT was this ruling that signaled the death knell to these lawsuits. Since very few adult film makers bother to register their films with the copyright office, they cannot get legal fees as a result of winning the lawsuit. So forcing them to spend $350 per defendant is going to be sufficiently cost-prohibitive to continuing these abusive tactics.

It is very hopeful that these rulings, particularly Judge Brown’s latest decision, will send a clear message to the copyright trolls out there who have been using litigation and the threat of litigation to get innocent folks to pay exorbitant amounts in settlement. Hopefully folks who receive these lawsuits will do a little research and find out how courts have been treating the claims before forking over thousands of dollars unnecessarily.

Continue reading »]]> NY Court of Appeals Judge Jonathan Lippman and his blue-ribbon panel appointed by him have decreed yesterday that new lawyers seeking admission to the Bar in the State of NY will have to do 50 hours of free legal services for the needy. Its’ a wrong and bad idea. There I said it. What is it about our profession that we occasionally need to lash ourselves in public in order to make us feel good about the fact that we are lawyers. Did I miss the announcement that doctors are now mandated to do pro bono services as well? They at least have Medicaid to give them some payment for the services they render for the indigent. And frankly the poor would more likely benefit from having mechanics, accountants, plumbers, and electricians render free services than lawyers. But of course none of those professions are being forced to do free work.

The real issue is that new lawyers will be forced to render this service at a time when the job market is at its lowest for new lawyers. So in addition to trying to find a way to earn a living, they will have to devote 50 hours of forced labor. Has anyone wondered whether having a lawyer forced to work for free will really benefit the litigant? Most of the hours will be put into landlord tenant matters (where as anyone knows, the court already bends over backwards to assist the unrepresented and indigent) since the poor already get free representation for the two most common forms of legal issues – criminal and accident cases. What if the new lawyer has no experience in landlord tenant law? Will the 50 hours be reduced by anytime the lawyer spends in training and education in the subject matter? Will it increase unnecessary litigation against landlords and others? Can the new lawyer be sued for malpractice if he makes an error during this 50 hour time period? Can he acquire insurance to cover this work?

While this altruistic idea sounds nice on paper, it is just another unfair burden placed upon a group of new professionals who already have huge debt and a miniscule market facing them. Most new law school grads will go to work at either small firms or as sole practitioners for salaries far below $75,000 per year. This is the last thing they need thrown on their plates. The only folks I see clamoring for this are Judge Lippman and BigLaw (who comprised a large part of his panel of experts). With all due respect to Judge Lippman, he has never practiced law. A pure administrator his entire career, he has never tried a case or even presided over a jury trial as judge before being elevated to the top position in NY. I wonder whether a little time out of the ivory tower might have benefited to understand the real pressures facing young lawyers in today’s market. As for the large firms that are the biggest supporters of mandatory pro bono, there are several reasons behind their support. It makes them feel somewhat cleansed from the regular day to day work they do to justify their mega-salaries by having their young underlings do some free legal work for the indigent. It allows those law puppies to get training in courtrooms on the poor’s time and legal cases. And with diminishing work it at least gives them something to do. But scholars have argued that giving free legal services to the indigent will also increase the amount of civil litigation brought against banks, hospitals, and real estate developers. And who represents those institutions? BigLaw of course!

It is just a fact that with the internet and sites that let folks print out basic legal documents for little cost; the glut of lawyers willing to perform services for far below what they used to cost years ago; and the protection of the court system that I do not feel that the poor or lower middle class have difficulty finding access to the court system and legal representation. At best, this burden should be placed on firms with 50 lawyers or more or scrapped entirely until the market for legal services changes significantly.

Continue reading »]]> Hollywood and the music industry have been on a rampage railing against copyright abuse, sending cease and desist letters with outrageous monetary demands to little girls, schoolteachers, and yes repeat hackers who illegally download and distribute their films and albums. Yet, right there on Page 1 of the NY Times, is a story about one of the most prolific and unapologetic copyright thieves in America. A man who buys $5 DVD knockoffs from his barbershop and then spends all day -everyday- copying them on a professional DVD copier that produces 7 copies at a time. He then packs them up and ships them out for distribution. According to him, sending out 1,500 in a month is “a slow month.” So why will he never be prosecuted?

Because he is 92 year old Hyman Strachman: WWII vet, widower, retired window and shade manufacturer and serial movie bootlegger. Hyman heard a little while ago that American service personnel in Iraq and Afghanistan always had “current movies” on the top of the wish list for care packages. When he looked into whether Hollywood would provide these movies to GIs, he found out that the film industry generally sent one or two movies on reel-to reel to be watched communally at Army bases. And while they were relatively new features, they were not the ones currently in movie theaters.

So “Big HY,” as he is known to the countless servicemen and women who have received his movies due to his generosity not his 5 foot 5 stature, did something about it. He bought the bootleg DVDs, started copying them, packaging them and shipping them to Army Chaplains abroad. Why chaplains? “Chaplains don’t sell them and they fan out. The distribution is great,” he says in the article.

Photo -Todd Heisler/NY Times

It’s not the right thing to do, but I did it. If I were younger, maybe I’d be spending time in the hoosegow.

The hoosegow? You gotta love this guy. Capt. Bryan Curran who returned from Afghanistan in 2010 felt the same way and had to meet Hy personally because between 2008 and 2010 when he was abroad, Big Hy sent more than 2,000 DVDs to his unit. He was shocked to find the white-haired, stoop shouldered vet with spindly hands responsible for shipping 80,000 discs a year. The Times article also interviews Jenna Gordon, a medic with the 883rd Medical Company near Kandahar, where soldiers would gather for movie nights around personal computers, many not even knowing where the movies came from. Lest you think Hy’s work is no big deal, she called it “Pretty big stuff – its reconnecting you to everything you miss.”

Hy has no problem that soon he will be put out of business when all the troops are removed from combat operations abroad, happier to have an end put to his hobby than for their to be a need for its continuation. Until then though, he vows to continue to plug away and ship DVDs. The question is Why does Big HY have to do this? Why doesn’t Hollywood step up and do this for Armed Forces. They are well aware of Hy’s “hobby.” An industry spokesperson only told the Times “We are grateful that the entertainment we produce can bring some enjoyment to them while they are away from home.” That’s it? The folks putting their lives in harm’s way will have to watch copies of bootlegged DVDs, shipped by some guy in Massapequa? You would think the industry wold say OK, we’ll get original theater quality DVDs to our guys and gals so Hy can stop stealing them. Nope, shame on them. Me? I’m sending a check to the NY Times to forward to Hy to help defray his costs as he continues his illegal labor of love. Does that make me an accomplice?

Here’s a link to the article:

http://www.ndtv.com/article/world/at-92-bandit-to-hollywood-but-hero-to-soldiers-203364

Continue reading »]]> The then Mayor of the Village of Freeport was vindicated by the Second Department (a NY Appeals court covering Brooklyn, Queens, Staten Island, Nassau, Suffolk, and parts of Upstate NY), for remarks he made in a public election debate during which he called the plaintiff, a commercial real estate developer, “an extortionist” who was “trying to extort money” by filing a lawsuit seeking $25 Million in damages against the Village. The case, called Melius v. Glacken was handed down on April 17, 2012 and published today.

The mayor’s comments led to the developer Gary Melius filing a defamation action in Nassau County Supreme Court against the mayor and other officials in attendance at the debate. Melius claimed that by calling him an extortionist, the mayor had falsely accused him of a crime – an act which could indeed amount to defamation of character. The mayor had sought dismissal of the lawsuit by arguing that the statements were matters of opinion and therefore protected. The mayor also argued that everyone in attendance knew he meant that by filing a lawsuit far in excess of the true value of any potential claim, the plaintiff was forcing the Village to either pay something towards the lawsuit or force the cash-strapped Village to expend time and money to defend the lawsuit.

The lower court disagreed and ordered the case to proceed to trial. Instead, the mayor took an immediate appeal and the court issued its decision last week which agreed completely with the mayor’s position:

Considering the immediate context, a reasonable listener would have believed that calling the plaintiff an “extortionist” who is seeking “to extort money” was conveying the defendant’s opinion as to the merits of the plaintiff’s lawsuit and was not a factual accusation of criminal conduct. . .. Looking at the broader social context, the statement was made in the midst of a heated political debate, a forum where the audience would “anticipate the use of epithets, fiery rhetoric or hyperbole” . . . and would “arrive with an appropriate amount of skepticism,” “with the expectation that they are, in all probability, going to hear opinion,” and with a reluctance “to conclude—absent clear clues to the contrary from the words or context—that the statements made are to be heard as objective fact”

Righteous Indignation

In other words, any reasonable person would know that the mayor didn’t really mean that the plaintiff was actually extorting money from the Village.” It went further to state that in this context “the defendant recited a true fact forming the basis of his belief that the plaintiff was an “extortionist” who was seeking “to extort money,” i.e., the plaintiff’s lawsuit was seeking an amount “far in excess of the appraised value” of the property.”Since the mayor believed that the suit sought in excess of the potential damages, his use of these terms was an expression of his honest opinion and not actionable defamation.

The reason why this case is important enough for me to write about is that since 2008 I have been the legal commentator on a site called www.extortionletterinfo.com. The site deals with the practice of digital image companies like Getty Images, Masterfile, Corbis, Hawaiian Art Network and others, of sending demand letters to unwitting businesses who have used the companies’ images to decorate their websites. In the vast majority of cases, the company had no idea that anyone owned the image and either had a web developer put the image on their website for them or got the image themselves from a “free image site.” Imagine their surprise when they get a letter from the image company or their lawyer demanding thousands of dollars for use of a thumbnail low-res picture on their site.

Just this morning – before I read this case, I was contacted by a person who received a demand for $35,000 for the use of two low-res images on his company’s site. He was panicked, believing the letter from a person who calls herself “the Photo Attorney” (this scheme has created a cottage industry of lawyers who do nothing more than handle these cases for the image companies) was merely the first step on the road to massive judgment that would put his small company out of business. Of course, had he called the attorney, the settlement offer would have dropped down dramatically and he would have likely have agreed to pay $5,000 to $10,000 – thinking he got a break. So the company gets something like 1,000 times what the image is actually worth and the target thinks he dodges a bullet. That’s extortionist as are many of the other trolling methods I discuss on the site.

Over the years I and publisher Matt Chan (who started the site with me) have been threatened with lawsuits ourselves over the use of the term “extortion” and “extortionist.” Lawyers have threatened to report me to the Bar Association; file grievance complaints against me; file a claim against my malpractice insurance; they have even called the managing partner of my law firm to complain about my use of the terms. Of course, I responded with much of the same arguments that the court in the Melius case put forth and as it turned out, they never followed through on any of their threats anyway. But this case now gives me a firm foundation to continue the use of the term and will hopefully put to bed that I am not actually accusing anyone of the criminal act of extortion but rather using the terms colloquially to mean seeking more money than you are entitled to by seeking to place someone in fear of a large judgment.

Continue reading »]]> Looks like upscale NYC Chinese restaurant, Chin Chin, may be headed for an “X” rating instead of its current “A” from the NYC Dept. of Health if a former worker’s allegations are borne out! A former bartender filed a Federal lawsuit last week alleging that kitchen workers repeatedly harassed her by flashing penis-shaped dumplings at her during her work shift. The complaint is still not available online but I am sure it is alleging a “hostile workplace” and sexual harassment. According to the NY Daily News, Yvonne Diaz, 30, accuses kitchen staff at Chin Chin of harassing her with the dumplings three times a week from the time she was hired in 2007 until her departure in October. They would put the penis-shaped dumplings by their crotch and make lewd comments to her, she claims. The question arises: Who would put up with this serial pastry flashing for so long? If my math is right, three times a week for four years is over 600 incidents!

She also alleges that the workers would watch porn in the kitchen every Sunday and even put the dumpling phalluses on CUSTOMER’S PLATES after holding them by their crotch to harass Ms. Diaz! It may be time for restauranteur Jimmy Chin to take these off the menu! Other allegations include that the workers would make sexual comments about the celebrities that dined there including Jennifer Lopez. This case will turn on whether Ms. Diaz has any evidence of this conduct to back up her claims and some explanation for why it was allowed to go on for so long.

Let’s see how this pans out.

Read more: http://www.nydailynews.com/new-york/co-workers-flashed-penis-shaped-dumplings-chinese-restaurant-bartender-alleges-lawsuit-article-1.1060416#ixzz1rwVOFxgK

Continue reading »]]> A long time ago, I wrote an article entitled “The Constitution is Overrated” and friends and colleagues of mine who knew the admiration and passion that I have for this country’s grand document were surprised at the piece which faulted, not the document itself, but how courts have applied it; rarely, do courts give those who face unconstitutional prosecutions, searches, seizures the fullest remedy available under the law – suppression of the evidence or dismissal of the charges.

Today’s NY Law Journal published a decision that shows how far prosecutors can go and still not cause a dismissal of criminal charges. In People v. Benjamin Waters the defendant was charged with stabbing Carolyn Vargas to death in her apartment. The only evidence against Mr. Waters was the testimony of Ronald Baker, who told police that he was asleep in a bedroom in Ms. Vargas’ apartment when at 2AM, he heard aloud thump coming from the living room, ran out to see what it was and saw the defendant running out of the apartment. The defendant was arrested and indicted for Murder in the Second Degree. Mr. Baker testified to essentially the same facts before the Grand Jury. In several interviews with defense counsel, Daniel Mentzer, Mr. Baker consistently informed Mr. Mentzer that he did not witness the incident but merely heard a thump while inside the bedroom and arose to find Ms. Vargas lying on the floor and defendant fleeing the apartment.

On one occasion, Mr. Mentzer even went with Mr. Baker to the apartment where the incident occurred and Mr. Baker showed Mr. Mentzer where he was in the bedroom when the incident happened. When the case was marked ready for hearings and trial, the prosecutor provided Mr. Mentzer with an additional statement made by Mr. Baker to his probation officer wherein Mr. Baker again stated that on the night of the incident he was in his bedroom when he heard a thump, whereupon he left his bedroom and observed Ms. Vargas lying on the kitchen floor. Clearly, the defense was getting ready for a trial based on opportunity to observe; unlikelihood of how Baker could have heard the thump, gotten up and ran into the living room all in time to see the defendant. The picked a jury and made an opening statement based upon that defense.

The case continued to move forward with the prosecution finally turning over the record of prior convictions of Mr. Baker, which included a prior manslaughter conviction form Virginia. When the time came for the prosecution to seek admission of the 911 call made by Mr. Baker, a hearing was called for the court to determine its admissibility.

At that hearing, Mr. Baker was called by the prosecution, identified his voice on the recording and then stated on cross-examination that he had actually seen Mr. Waters stab Ms. Vargas. When defense counsel pressed him on why he changed his story now, the witness said that the defendant “had to take responsibility for what he had done.”

A lengthy colloquy then took place during which the prosecutor acknowledged that he had been aware for several weeks that Mr. Baker had changed his story and would testify at trial that he actually saw the defendant stab and kill Ms. Vargas. Mr. Mentzer stated that he had no idea that Mr. Baker would testify that he saw defendant stab Ms. Vargas and that, had he known of this change in Mr. Baker’s version of events, he would have conducted jury selection and his opening statement in a different manner. Over the prosecution’s objection, the Court granted defendant’s request for a mistrial. Defendant moved for dismissal of the indictment based citing a Brady violation.

Brady v. Maryland, 373 U.S. 83, a landmark United States Supreme Court case, requires the prosecution to disclose, in advance of trial, evidence which is favorable to the accused. While most prosecutors seem to believe it only applies to actually exculpatory evidence, that is not the case. It requires the disclosure of favorable evidence in time for the defense to use it effectively. People v. White, 178 A.D.2d 674. Evidence that the defendant is entitled to is not limited solely to evidence which supports the defendant’s trial theory but also includes evidence which would bear on trial strategy. United States v. Bagley, 473 U.S. 667. When the reliability of a given witness may be dispositive of guilt or innocence, material evidence affecting that witness’s credibility constitutes exculpatory evidence. Giglio v. United States, 405 U.S.150.

The court in this case, correctly found that the sole witness doing a complete 180 degree turn in his story about the central issue in the case was the kind of “favorable” evidence the prosecution was required to disclose. The prosecution did not help itself any when it began to answer the court’s inquiry about this constitutional lapse.

The ADA stated that his failure to disclose was “motivated by an intent to secure defendant’s conviction.” The court found that this revelation “clearly indicates that he believed that the information would be favorable to the accused.” When the court asked the ADA if he had advised Mr. Baker that he might need counsel since he intended to admit he perjured himself before the Grand Jury, the prosecution admitted that it had given Mr. Baker IMMUNITY FROM PERJURY in exchange for his trial testimony! I had to use ALL CAPS because I have been involved in litigation for over 25 years and have never seen immunity from perjury being given. Neither has Judge Walker who stated that this grant of immunity was “something heretofore unheard of by this Court.”

The court was also particularly distressed by the government having disclosed Mr. Baker’s consistent statement to his probation officer at a time when the prosecutor knew that Mr. Baker intended to testify that he saw Waters stab the victim. Judge Edgar Walker, who wrote the opinion, stated, that this disclosure:

“can only be taken as an attempt to mislead the defendant. The prosecutor’s conduct constitutes more than a mere failure to disclose; it amounts to an affirmative act of deceit.”

Judge Walker then took great pains to remind the government that the role of a prosecutor is not to win at all costs, but to do substantial justice, citing the oft quoted case of Berger v. untied States, 295 US 78:

[The prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones.

The court then went on to also state the main ethical rules, professional canons of ethics, and governing standards that forebid this type of behavior on the part of a prosecutor. Judge Walker continued to admonish the prosecution reminding them that while the system is adversarial, “the trial of a criminal charge should not be a sporting event where each side remains ignorant of the facts in the hands of the adversary until events unfold at trial.” But Judge Walker did not even stop there:

Even more troubling in this case is that the prosecutor had every reason to believe that Mr. Baker would make perjurious statements at trial given that his changed version of events was inconsistent with every prior statement made by him to the police, his probation officer and Mr. Mentzer, as well as his sworn testimony before the grand jury. On the other hand, if the prosecutor actually believed Mr. Baker’s changed story to be true, then he would have known that Mr. Baker committed perjury before the grand jury since he admits that this changed testimony contradicts Mr. Baker’s grand jury testimony.In either case, the prosecutor’s failure to disclose this information is inexcusable.

Judge Walker had the prosecutor in the cross-hairs – he was aware that his key witness (his ONLY witness) had perjured himself either at the grand jury or at the 911 admissibility hearing. Of course, BOTH may be false, but at the very least, the 911 hearing testimony and the intended trial testimony are the most suspect as it is not believable that a witness would not tell detectives, 911 operators, Grand Jurors and prosecutors that he actually observed the killer stabbing the victim.

So what remedy did Judge Walker fashion for this unethical and “deplorable” (his own words) conduct?:

However deplorable the Court finds the prosecutor’s conduct, dismissal is not an appropriate sanction, as society should not be punished for the misconduct of the prosecutor. In addressing such violations, “the overriding concern must be to eliminate any prejudice to the defendant while protecting the interests of society.”
Balancing these concerns, the Court finds the following sanctions are appropriate: The People are directed to seek to obtain and turn over to defendant, as soon as possible, all police reports, DA write-ups, accusatory instruments and prison disciplinary records for all of Mr. Baker’s prior convictions, including but not limited to his manslaughter conviction in Virginia. While these documents are not technically discoverable under Article 240, this is an appropriate sanction to rectify the damage done to defendant by the prosecutor’s misconduct.

In addition, this matter shall be set down for a hearing before this Court to obtain, pre-trial, the testimony of Ronald Baker regarding the death of Carolyn Vargas as well as the underlying facts surrounding all of his prior convictions, including his manslaughter conviction in Virginia. Again, while pre-trial depositions are not normally available in criminal proceedings, given the conflicting accounts previously given by Mr. Baker under oath, and the egregious conduct of the prosecutor in suppressing this information, it is appropriate under these particular circumstances to ascertain exactly what this witness will testify to at trial.

OK, so prosecutor withholds Brady material; tries to mislead a defense attorney by disclosing a statement that he knows will be contradicted at trial; breaches ethical rules; suborns or supports perjured testimony; and then grants immunity form perjury all in order to obtain a conviction in a case that has reasonable doubt already written all over it and STILL the court lets the criminal case move forward.

What makes this more depressing is that Judge Walker is not one of those judges who went from the DA’s office right to the bench. He’s not some political appointee who became a judge because that’s the only way he can make a living as a lawyer. A graduate of Cornell University and Columbia Law, he was in private practice for 18 years before becoming a civil court judge and then served as administrative judge of the County of the Bronx for many years – no slouch. But he missed the boat here big time. Yes, judges must protect society from violent criminals and not just dismiss cases for mere technicalities when the defendant can still get a fair trial. But even the strong remedies he afforded Mr. Waters in this case sends a message to prosecutors everywhere that they can push the envelope right to the brink. Heck, they can rip the envelope to shreds in fact and it won’t matter.

Prosecutors who are so desperate to win that they will engage in this conduct, will only stop behaving unethically when cases get thrown out. Society has as much right to be protected from unethical, unconstitutional prosecutions as it does from violent criminals. Justice requires that courts treat both obligations to protect society with some measure of equality, or else, someone is likely to believe that our great document, the Constitution, is in fact very overrated.

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Infringement machine?

Owners of bars, nightclubs, restaurants and other venues that play background music or have live music at their establishments should take note of the Ninth Circuit’s decision last month in Range Road Music v. East Coast Foods where it held up a large award against a restaurant that refused to pay a licensing fee for the music it played in its business. Even more frightening than the $198,000.0 award for misuse of eight (8) songs, was the court’s decision that the owner and operator were personally liable for the fees and damages.

The case involved a jazz club named Roscoe’s in Long Beach California, which opened in 2001. Shortly after it opened, ASCAP contacted East Coast Foods, the operating company of the bar, to offer it a license to perform music by ASCAP members at the restaurant and lounge. ASCAP is a “performing rights society,” a nonprofit organization that licenses the music of its members and collects royalties whenever that music is performed publicly. BMI and Soundscape are the other two prominent ones that composers and musicians use to collect licensing fees for their works. East Coast did not purchase a license, and between 2001 and 2007 East
Coast ignored repeated requests from ASCAP to pay licensing fees.

In 2008, ASCAP sent a private investigator to visit Roscoe’s and write down some of the music he heard being performed there. (OK, so, how do you get THAT job?). The investigator went in one night and saw the band play four John Coltrane songs, and heard the DJ play four songs from a group called Hiroshima. The investigator testified that the band announced the names of the songs they played during their “Coltrane” set and that he jotted the names of the Hiroshima songs from the CD jewel case next to the DJ station. All eight songs are licensed through ASCAP. And that’s all the evidence it took for ASCAP to win.

Th court set damages at $4,500 per song. This number was likely so high because the bar was making revenue off the music and was not just using it for personal use. The court also likely took into consideration the size and business volume of the venue to determine what would be an appropriate penalty. But the real whammy came when the judge concluded that because the defendants had ignored repeated attempts by ASCAP to have the bar pay its licensing fees, the infringement was willful and therefore the plaintiffs were entitled to their attorney’s fees, which came to $162,000.00. Moving on to the bar owner, the court said that since he had direct control and managerial authority over the venue, bought the liquor for the place, signed the liquor license, etc., he was personally responsible for the infringement as well.(ASCAP could have also sued the band that played the four Coltrane songs but did not do so).

ASCAP generally charges around $900 per year to play its licensed music. Multiply that by 3 (for BMI and Soundscape ) and bars are looking at $2,700 per year in licensing fees. Occasionally, they may also want 10% of the gate if you are regularly charging entrance fees and live music is played. Venues all around the country have been receiving demand letters from one of the three (or all three). In the cases I have been involved in, I have always recommended reaching an amicable resolution of an appropriate annual fee to pay and be done with the issue. It is impossible to claim that you had no idea that music was copyrighted and protected by licensing agencies, especially when you are in the business of providing music at your venue and you get letters from the agencies demanding fees!

Pay a little now, or pay a lot later. Hardly music to a bar owner’s ears.

Continue reading »]]> Last Friday, Judge John Koetl of the Southern District of NY threw out a purported $105 million lawsuit brought against the Huffington Post by a class of unpaid bloggers. The lead plaintiff was political gadfly Jonathan Tasini who has mounted several unsuccessful campaigns for federal office, against Hillary Clinton, Charles Rangel and Kirsten Gillibrand.

Having not done so well in the political arena, Mr. Tasini found some lawyers willing to bring what can only be described as a silly lawsuit against the popular e-magazine. Tasini and the other plaintiffs are a group of bloggers who regularly contribute content to the Huffington Post. When they agreed to do so, they were explicitly told three things: (1) You will not be paid; (2) We will not tell you how many people are looking at your content or any other content on the site; (3)In return, you will get free publicity and the right to re-post your blog on your own Facebook, MySpace(remember MySpace?) and Twitter accounts.

When the Huffington Post was sold to AOL for a cool $315 million this lawsuit was brought to say “What about our share?” Figuring it would be difficult to make a claim for breach of contract, when their contact clearly says they would get no compensation or information, counsel for plaintiffs decided to sue under NY’s General Business Law section 349, which protects consumers from fraudulent claims.

Judge Koetl found two minor flaws with this argument: plaintiffs are not consumers and plaintiffs were not defrauded:

The plaintiffs are not “consumers” in any reasonable
interpretation of the word; rather, they participate in
producing the content that is consumed by visitors to The
Huffington Post. Those who produce content for others to
consume cannot be said to be “purchas[ers of] goods and
services.” Med. Soc’y of State of New York, 790 N.Y.S.2d at 80.
Thus, the Complaint fails to state facts indicating that
the defendants’ alleged misleading conduct was consumer oriented.

Additionally, the plaintiffs knew that they
were not going to be compensated, and there was no materially
misleading statement as to that essential fact. Rather, the
plaintiffs were explicitly made aware that they would receive
“exposure . . . in lieu of monies.” (FAC ¶ 215.) Finally, it
is unclear how The Huffington Post’s presenting itself as a
“free forum or platform for ideas” is inconsistent with the fact
that The Huffington Post generated profit. (FAC ¶ 214.) The
plaintiffs have thus failed to allege that the defendants
misrepresented the for-profit status of The Huffington Post in
any way.

I read this decision and the motion several times because frankly , I could not believe it was that straightforward. These folks signed an agreement to blog for the HuffPo and were told upfront and in writing they wouldn’t get paid. How could they not know that HuffPo was generated massive amounts of advertising dollars and page views? Are they blogging from some cave in the Siberian Hinterlands? Did they not actually ever read the Huffington Post? I suspect this was another attempt to grab some attention, maybe score some quick bucks should AOL’s lawyers decide to put up nuisance value. The plaintiffs and their lawyers are lucky that the court did not award attorney’s fees for filing of a frivolous action.

Hopefully the HuffPo will tell the plaintiffs that their content is no longer needed and they can go try and find some other outlet for their blog posts that generates 26 Million page views a month. If they were unable to turn that kind of exposure into profit, the fault lies not in the HuffPo but in themselves and the content they are posting.