Tuesday, June 30, 2009

N.Y. Court of Appeals Today: Summary Judgment, Life Settlement Providers, Stun Belt, Inventory Search

The New York Court of Appeals handed down six decisions today covering a wide range of issues.

Personal Injury and Expert Witness: in Butler v. City of Gloversville, a young girl fractured her clavicle and femur after falling off a playground slide on property owned and maintained by the defendant city. The plaintiff alleged that the proximate cause of her injuries was the failure of the city to use protective energy-absorbing ground covering as recommended in public and industry guidelines. A divided Appellate Division concluded that based on the affidavit of its expert, the city was entitled to summary judgment.

Reversing the Appellate Division, a unanimous Court of Appeals concluded that the city was not entitled to summary judgment regarding proximate cause because the expert did not provide a "scientific or mathematical foundation" for his conclusion that the plaintiff would have been injured even if the protective ground covering had been installed by the defendant. The case provides a caution on the close scrutiny which must be given to the affidavit of an expert before summary judgment can be granted.

Life Settlement Providers: "life settlement providers" buy life insurance policies from policy owners for cash, ultimately receiving the benefits of the policies when the insureds die. The New York State Attorney General brought suit against a group of life settlement provider companies alleging they engaged in bid-rigging by paying hidden commissions to life settlement brokers who in turn persuaded their clients to accept the defendant companies' offers, rather than higher bids from competing settlement providers.

In what appears to be a matter of first impression, the Court concludes in The People of the State of New York v. Coventry First LLC, that settlement brokers owe a fiduciary duty to their clients to obtain the highest possible offer for the clients' life insurance policies. The Attorney General, therefore, states a cause of action when he alleges that the defendant companies' hidden commissions aided, abetted, and induced the brokers to breach their fiduciary duty to their clients.

Stun Belt: it is rare for the Court of Appeals to conclude that certain conduct by a trial judge is per se reversible error in a criminal case, even in the absence of demonstrable prejudice to the defendant. People v. Buchanan is such a case.

Presiding over the trial of a defendant charged with strangling a 14-year old girl, the judge directed that a stun belt be placed on the defendant. The judge stated that the belt "can deliver a shock should there be a problem." The defendant and his counsel objected that the defendant had done nothing to require the belt; the judge agreed, but stated it was his policy to require the belt in a murder case "in the interest of being overly cautious for security." The belt was worn under the defendant's clothing, and was not visible to the jury. The defendant was convicted of second degree murder.

The Court of Appeals reversed the conviction, concluding "as a matter of New York law that it is unacceptable to make a stun belt a routine adjunct of every murder trial, without a specifically identified security reason....[W]e adopt the rule that a stun belt may not be required unless the trial court makes findings on the record showing that the particular defendant before him needs such a restraint." Judge Read dissented from reversal of the conviction on the grounds that because the belt was not visible to the jury, the defendant suffered no prejudice when he was required to wear it.

Inventory Search: in People v. Gomez a unanimous Court concludes that the inventory search an arrestee's car was unlawful because the prosecutor failed to offer any evidence that the search was conducted in accordance with a standard protocol as required by the case law, and because the police failed to provide an inventory of the contents of the car.

Finally, in Matter of Anderson v. Town of Chili Planning Board the Court annuls a determination of a town planning board for the reasons stated by the dissenting Justice in the Appellate Division, and in Buffalo Crushed Stone Inc. v. Town of Cheektowaga, a divided Court addressed a nonconforming use under a town's zoning ordinance.

Monday, June 29, 2009

Supreme Court to Consider Sotomayor Dissent

While Judge Sonia Sotomayor's Second Circuit ruling in Ricci v. DeStefano undoubtedly will draw much attention at her Senate confirmation hearings, the United States Supreme Court today granted a writ of certiorari in Abbott v. Abbott, the case I discussed on June 1 in which the the Solicitor General of the United States, in an amicus brief urging the Court to grant a writ of certiorari, argued that Judge Sotomayor's reasoning in a dissenting opinion is the correct view of the law.

Abbott raises a question of the correct interpretation of an important clause of the Hague Convention on the Civil Aspects International Child Abduction. The federal circuit courts of appeals have divided on the question, and Judge Sotomayor dissented from the interpretation of the majority on the Second Circuit. Croll v, Croll, 229 F.3d 133.

In a case which brings up for review a decision of the Fifth Circuit, the Solicitor General argued that Judge Sotomayor's interpretation in Croll is correct, and that the Supreme Court should grant the writ of certiorari and adopt Judge Sotomayor's reasoning. See, Abbott v. Abbott.

The Supreme Court Today: Promotion Exams and Race; Preemption

In the much awaited ruling on promotion examinations for the New Haven Fire Department, the United States Supreme Court ruled today that the City violated federal civil rights law by refusing to certify the examination results "solely because the higher scoring candidates were white." Ricci v. DeStefano.

The Court divided along liberal/conservative lines. Justice Kennedy wrote the majority opinion. Justice Ginsburg wrote the dissent for herself and Justices Stevens, Souter and Breyer, and maintained that New Haven did not act solely because the higher scoring candidates were white.

The political impact will be immediate. Judge Sonia Sotomayor sat on the panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, had upheld New Haven's decision not to certify the promotion examination. Her Senate confirmation hearings begin on July 13, and Ricci undoubtedly will be the focus of much of the questioning and political posturing.

New Haven had declined to certify the promotion examination on the grounds the examination results had a disparate impact on racial minorities, and because it believed it would be subject to liability under federal civil rights law if it did certify the results. While the majority of the Court recognized the disparate impact, it concluded that because there was not "a strong basis in the evidence" to conclude that it would be liable if it certified the test results, New Haven had no grounds to refuse the certification.

The majority noted that even if a test result has a disparate racial impact, an employer would be liable under federal civi rights law only if a promotion examination is not job related, or if there existed an equally valid less discriminatory alternative promotion process that the City refused to adopt. The majority concluded that the New Haven test was fair and job related, and that there was no extant testing alternative the City could have adopted. In the view of the dissent, if New Haven had certified the test results it would have faced "formidable obstacles" in defending itself in a civil rights action brought by those who did not receive a promotion.

Preeemption: to determine whether various national banks had violated New York's fair-lending laws, the State's Attorney General sent them letters "in lieu of subpoena" requesting that they provide certain nonpublic information about their lending practices. The federal Office of the Comptroller of the Currency brought suit to enjoin the request on the grounds that the National Banking Act prohibits the states from taking such actions against national banks.

In Cuomo v, Clearing House Association a divided Court concluded that principles of federal preemption do not prohibit a state from bringing judicial proceedings to enforce state laws against national banks. The majority opinion by Justice Scalia was joined by the liberal members of the Court (Ginsburg, Stevens, Souter, and Breyer).

Finally, the Court was expected to decide a third case today, Citizens United v. Federal Election Commission. Instead, the Court directed reargument in September. The Court will decide whether a feature length documentary movie which was critical of presidential hopeful Hillary Clinton was an advertisement subject to federal electioneering regulations.

Friday, June 26, 2009

U.S. Supreme Court: What's Ahead

With yesterday's release of four opinions by the United States Supreme Court, three cases remain for decision in the Court's current Term. Those decisions presumably will be released on Monday.

The ruling with the most immediate political significance will be Ricci v. DeStefano. This is the case in which Judge Sonia Sotomayor sat on a panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, upheld New Haven's decision not to certify a fire department promotion examination on the grounds the examination results had a disparate impact on racial minorities. The ruling will attract enormous public attention, and we can expect that Ricci will be Judge Sotomayor's most discussed decision at the Senate confirmation hearings which are scheduled to begin July 13.

The ruling relevant to the financial downturn will be Cuomo v. The Clearing House Association, in which the Court must decide whether the National Bank Act preempts state enforcement of state laws against national banks. The downturn has exposed deep flaws in the federal regulation of banks, and the question is to what extent, if any, will this affect the Court's determination of the preemption question.

Finally, in Citizens United v. Federal Election Commission the Court will decide whether a feature length documentary movie which was critical of presidential hopeful Hillary Clinton was an advertisement subject to federal electioneering regulations.

Thursday, June 25, 2009

Supreme Court: Right of Confrontation, Searches of Students

The United States Supreme Court handed down four decisions today.

The Right of Confrontation: in the most awaited criminal procedure case of the Term, a divided Supreme Court ruled that affidavits reporting that the forensic analysis of a substance seized from a defendant show the substance is cocaine, are not admissible in a criminal trial unless the defendant has an opportunity to cross-examine the analyst. Melendez-Diaz v. Massachusetts.

In Crawford v. Washington, 541 U.S. 36 (2004), the Court reformulated the Right of Confrontation by concluding that all "testimonial" statements are covered by the Sixth Amendment's Confrontation Clause, and that these statements are not admissible at a trial unless the defendant has the opportunity to cross-examine the declarant. Crawford gave "affidavits" as one example of a testimonial statement.

Justice Scalia was the author of the Crawford opinion, and as author of today's ruling he concludes that Melendez-Diaz "involves little more than the application of our holding" in Crawford.

The decision will have broad application to all criminal trials in which there is drug-test, ballistic-test, or other forensic evidence, and fundamentally changes the ease with which this evidence has been admitted in many states although not subject to cross-examination.

Notably, Justice Scalia's opinion indicates it would be constitutional for states to have a "notice-and-demand" statute: the prosecution informs the defense that it intends to offer forensic test results in evidence, and the defense would have a period of time to indicate whether it wants the analyst to testify at the trial. Such statutes do not constitute a waiver of the Right of Confrontation; they only govern the time within which the defense must assert the right.

Searches of Students: in a decision which will receive enormous press attention, the Court concludes that a strip search of a 13-year old student was constitutionally unreasonable. Safford Unified School District # 1 v. Redding.

In New Jersey v. T.L.O., 469 U.S. 325 (1985), the Court ruled that while police officers require probable cause to conduct a search, the standard of "reasonable suspicion" should be applied to determine whether searches by school officials are constitutional. While recognizing that "reasonable suspicion" is difficult to define, in today's ruling Justice Souter's opinion indicates that for school officials it means "a moderate chance of finding evidence of wrongdoing."

In this case the school officials were looking for prescription and over-the-counter pills. The Court concludes that there was reasonable suspicion to search the student's backpack and outer clothing. But the school officials went further. They asked the student to remove all her outer clothing and to then pull out her bra, and to pull out the elastic on her underpants, so that her breasts and pelvic area were exposed. No pills were found.

This sort of search is "categorically distinct" from a search of a student's outer clothing: it is embarrassing, frightening, humiliating, and degrading. While the indignity of a search does not outlaw it, its reasonableness must be measured in light of the age and sex of the student, and the nature of the alleged wrongdoing.

Here, there was neither the information nor a known danger that would require such an intrusive search. "[A] reasonable search that extensive calls for suspicion that it will pay off."

"In sum, what was missing from the suspected facts that pointed to [this student] was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that [this student] was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable."

The case was the culmination of a civil rights suit brought by the student's parents. While concluding that the search was unreasonable, the Court concluded that considering the state of the law at the time of the search, the school officials involved are entitled to qualified immunity. Justices Stevens and Ginsburg concluded that the officials should not be entitled to qualified immunity. Only Justice Thomas found the search of the student constitutionally reasonable.

Punitive Damages: in Atlantic Sounding Co., Inc. v. Townsend, a divided Court rules that injured seamen can seek punitive damages when they sue for maintenance and care under federal maritime law and claim that maintenance and care were wrongfully withheld.

English Language School Instruction: in Horne v. Flores a divided Court addresses whether Arizona has met its obligations under the Equal Educational Opportunities Act, 20 U.S.C. § 1703(f), which requires States to "take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

Wednesday, June 24, 2009

Second Circuit: State Defendant Denied the Effective Assistance of Counsel

State inmates who file federal writs of habeas corpus claiming they were denied their constitutional right to the effective assistance of counsel at their state trial do not often succeed.

Today, however, the United States Court of Appeals for the Second Circuit concluded that the federal writ must issue because the defendant was denied the effective assistance of counsel in his 1995 Queens County robbery trial. Wilson v. Mazzuca.

The Circuit Court's 25 page opinion sets forth in detail trial counsel's constitutional failures. What is most disturbing for me is the response of the New York State courts to the defendant's claims.

To his credit, the trial judge during the trial sua sponte raised serious constitutional concerns about defense counsel's performance. On appeal, however, the Appellate Division concluded without explanation that the claim of ineffective assistance of counsel was "without merit." The Court of Appeals denied leave to appeal.

I have long maintained that the New York courts do not adequately address claims of ineffective assistance of counsel. Only last month (May 5) I bemoaned a New York Court of Appeals decision regarding the ineffective assistance of appellate counsel. The Second Circuit's decision today only serves to reinforce my concerns about the state courts.

Court of Appeals: Statute of Limitations for Doctors Conducting Independent Medical Examinations

In a decision of enormous importance to personal injury plaintiffs, their attorneys, and to doctors who conduct independent medical examinations (IME) for defendants, a divided New York Court of Appeals ruled today that an action for injuries caused during an IME is governed by the 2 years, 6 months statute of limitations for malpractice, and not the three year statute of limitations for ordinary negligence. Bazakos v. Lewis.

Plaintiff Bazakos brought an action for personal injuries sustained in an automobile accident. Pursuant to CPLR § 3121 he was required to undergo an IME by a doctor designated by the defendant. During the IME, Bazakos claimed, the doctor injured him. Two years and eleven months later, Bazakos sued the doctor. Malpractice actions in New York are governed by a 2 years, 6 months statute of limitations, CPLR § 214-a, whereas ordinary negligence claims for personal injury are governed by a 3 year statute of limitations. CPLR § 214.

In an opinion by Judge Smith, four members of the Court concluded that an IME creates a "limited physician-patient relationship" and that claims that the IME was conducted negligently are governed by the 2 years, 6 months statute of limitations. Citing a Michigan case, the majority concluded that the claim here is that the doctor "breached his duty 'to perform the examination in a manner not to cause physical harm to the examinee.' That is a claim for medical malpractice." Bazakos' suit is, therefore, untimely, and must be dismissed.

In an angry dissent for himself and Judges Pigott and Jones, Chief Judge Lippman maintained that the essence of a malpractice claim is the rendition of medical treatment. Because an IME does not involve medical treatment, a claim for injuries sustained during an IME is governed by the 3 year statute of limitations for ordinary negligence:

"Here, although [the doctor] may have employed medical techniques in examining plaintiff, it is plain that no medical treatment was intended or in fact provided. The exam was conducted simply as a disclosure device in litigation and, indeed, one whose benefit inured not to the examinee but to the examinee's adversary. Bereft of any medical treatment rationale or application, [the doctor's] conduct during his examination of plaintiff is not amenable to description as medical malpractice within the meaning of CPLR 214-a."

The majority's view to the contrary, the Chief Judge writes, is a "novel and highly problematic notion," and the concept of a "limited physician-patient relationship" is "no more than a device to avail a litigant of a statutory bar....What is involved then is simply the arbitrary creation of an exception for a group of practitioners who, as a group, neither seek nor are entitled to the protection properly afforded and reserved to those engaged in the delivery of medical care and treatment."

Tuesday, June 23, 2009

The Rule Against Perpetuities

If you thought you had seen the last of the Rule Against Perpetuities after you finished law school and passed the bar exam, think again.

Today in Bleecker Street Tenants Corp. v. Bleecker Jones, LLC, the Appellate Division, First Department, addresses the applicability of the Rule to a clause in a commercial lease providing for nine options to renew for consecutive 10-year periods. In an opinion by Justice Saxe, the Court reverses Supreme Court, New York County, and concludes that the option clause violates the Rule.

Supreme Court: Another Look at Miranda

MIranda v. Arizona, 384 U.S. 436 (1966), is back in the United States Supreme Court.

In State v. Powell, 998 So.2d 531 (2008), the Supreme Court of Florida ruled that Miranda warnings which do not expressly state that a defendant has the right to have an attorney present during an interrogation violate the Fifth Amendment, and any statements made by the defendant must be suppressed.

Yesterday, the United States Supreme Court granted a writ of certiorari to review the Florida ruling. In Powell the defendant was told the following:

"You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

In the view of the Florida Supreme Court the statement, "You have the right to talk to a lawyer before answering any of our questions," does not convey the information required by Miranda: that the defendant has the right to have counsel present during the interrogation. Nor, said the court, does the statement, "You have the right to use any of these rights at any time you want during this interview," clarify the matter because the right he was advised he could use was the right to speak to a lawyer before answering questions.

Federal courts of appeal have divided on whether a defendant must expressly be told he has the right to the presence of counsel during the interrogation.

The case will be argued in the 2009 Term of the Court which begins in October.

Monday, June 22, 2009

The Supreme Court Today: Voting Rights, Special Education, the Environment

The Supreme Court handed down three decisions today.

Voting Rights: many predicted (too hastily I thought) that the Supreme Court would declare key provisions of the 1965 Voting Rights Act unconstitutional. Today, in Northwest Austin Municipal Utility District Number One v. Holder, the Court avoided the constitutional issue and instead ruled that the appellant Texas utility district fell within the words of the statute and is eligible for an exemption from voting oversight by the federal government.

In an opinion for eight members of the Court (Justice Thomas dissented), Chief Justice Roberts noted the "ardent briefs from dozens of interested parties" which addressed the constitutional claim, but concluded that "the importance of the question does not justify our rushing to decide it."

Section 2 of the Act prohibits any "standard, practice, or procedure" which "results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color." Section 5 of the Act suspends all changes in state election procedures until they are submitted to and approved by a three-judge Federal District Court in Washington, D.C. The Act incorporates two measures to prevent § 5 from casting too broad a net.

First, the Act initially applied only to states which had less than 50% voter registration or turnout in the 1964 Presidential election. Later amendments changed the baseline year to 1972. Second, the Act allows states and their political subdivisions to file a "bailout suit" in which they contend they should not be subject to § 5 because, inter alia, they have not been engaged in any forbidden voting practice for the previous ten years.

Section 5 was intended to be temporary, but Congress has repeatedly extended it, most recently in 2006 for 25 years. Because § 5 suspends all changes to state election law--however innocuous--until they have been precleared in Washington, the procedure raises constitutional questions of federalism because the discriminatory voting conditions of 1964 are not, in most instances, extant.

The Texas utility district brought a bailout suit and maintained it should be relieved of the requirements of § 5 because it did not engage in discriminatory voting practices. In the alternative, it maintained that § 5 is unconstitutional. The three-judge district court concluded that the bailout provision did not apply to the utility district because, while it held elections, it did not register the voters. The district court also upheld the constitutionality of § 5.

Avoiding the constitutional question, the Supreme Court overruled the district court and held that the utility district is, under the Act, a political subdivision which can be eligible for a bailout from the § 5 provisions. The case was remanded to the district court to now determine whether the utility district has established facts which entitle it to a bailout.

This plainly will not foreclose further challenges to the constitutionality of § 5. The intense interest in the case by state and local election officials across the country, and the "ardent briefs from dozens of interested parties," assure continued litigation.

Special Education: the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., requires that a State receiving federal funding make a "free appropriate public education" (FAPE) available to all children with disabilities who reside in the State.

After public high school officials determined that a student was not in need of special education services, his parents had him tested by a private specialist who diagnosed him with a number of disorders relating to learning and memory. After the specialist advised that the student would do best in a structured, residential learning environment, his parents enrolled him at a private academy which focuses on educating children with special needs. The question before the Supreme Court was whether under IDEA parents are entitled to state reimbursement for private special education services if the child has not previously received those services from a public school.

In a case watched with keen interest by public school boards across the country, a divided Supreme Court ruled today in Forest Grove School District v. T.A., that IDEA authorizes state reimbursement to parents for the cost of private special-education services when the public school fails to provide a FAPE, although the child has not previously received special education services from a public school. The case turned on the meaning of a 1997 amendment to IDEA. Justice Souter's dissent was joined by Justices Scalia and Thomas.

Environment: in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, a divided Court ruled that under the Clean Water Act the United States Army Corps of Engineers, and not the Environmental Protection Agency, has the authority to issue a permit for the discharge of mineral waste into a lake in Alaska.

Friday, June 19, 2009

Ahead in the Supreme Court

As the United States Supreme Court moves into the final days of its current Term, there are ten cases which have been argued and are not yet decided. Five of the cases will undoubtedly receive national press attention.

The most politically charged case is Ricci v. DeStefano. As I have discussed previously (May 27), this is the case in which Judge Sonia Sotomayor sat on a panel of the United States Court of Appeals for the Second Circuit which, in a brief opinion, upheld New Haven's decision not to certify a fire department promotion examination on the grounds the examination results had a disparate impact on racial minorities. However the Supreme Court decides the matter, we can expect that the case will be the Judge's most discussed decision at the Senate confirmation hearings which are scheduled to begin July 13.

The most awaited case involving governmental searches is Stafford United School District v. Redding, which involves the strip search of a young student by school officials.

For prosecutors and defense counsel Melendez-Diaz v. Massachusetts will be the much awaited ruling on whether forensic laboratory reports are admissible in criminal trials without being subject to the strict rules of cross-examination the Supreme Court has enunciated in recent years.

The most important case with respect to the financial downturn is Cuomo v. The Clearing House Association, in which the Court must decide whether the National Bank Act preempts state enforcement of state laws against national banks. The downturn has exposed deep flaws in the federal regulation of banks, and the question is to what extent, if any, will this affect the Court's determination of the preemption question.

Finally, some maintain that the Court's ruling in Northwest Austin Municipal Utility District Number One v. Holder will decide the continued viability of the federal Voting Rights Act.

Thursday, June 18, 2009

Trial by Jury Denied: England

I have always thought of England as the home of trial by jury, a principle inherited by the thirteen colonies and enshrined in Article III and the Sixth Amendment of the Constitution.

It therefore came as a great surprise to read in the BBC news that an English judge has ruled that four defendants charged with armed robbery at Heathrow Airport will not receive a trial by jury, but will be tried by a judge.

According to the BBC report, "First Trial Without Jury Approved," a statute which went into effect in 2007 permits a trial without a jury when there is evidence of a "real and present danger that jury tampering would take place," and measures to prevent the tampering would not succeed. The judge ruled that there is a "significant danger" of jury tampering in this case.

The United States Supreme Court has ruled that a defendant charged with an offense which carries a possible punishment of more than six months in prison, has a constitutional right to trial by jury. This covers all felonies and most misdemeanors. While the Court has addressed such questions as the size of the jury and whether the vote of the jury must be unanimous, I am not aware of any American case holding that the possibility of jury tampering can lead to the forfeiture of the right to trial by jury. The current debate focuses on whether individuals being held in Guantanamo Bay should be tried as criminal defendants before a jury, or some other system of tribunals should be used.

The Supreme Court Today: DNA Testing, Double Jeopardy, Age Discrimination

The United States Supreme Court handed down four decisions today, each a divided ruling.

DNA Testing: as the Supreme Court observed today, "DNA testing has an unparaelled ability both to exonerate the wrongly convicted and to identify the guilty." The question is whether a defendant has a constitutional due process right to DNA testing after he has been convicted and his conviction has been affirmed on appeal. In District Attorney's Office for the Third Judicial District v. Osborne, the Court decides 5-4 that such a constitutional right does not exist.

Osborne was convicted in Alaska of sexual assault and related crimes. A condom containing seman was found at the scene of the crime. At the time of the trial in the 1990s all DNA testing was not sophisticated enough to establish with certainty whether Osborne had or had not committed the crime, and it was this testing which was done. His attorney did not seek a more sophisticated test which "has a high degree of discrimination," apparently because she thought the test would show Osborne is guilty.The Alaska courts denied his claims for postconviction access to the more sophisticated test.

Osborne then brought a federal 42 U.S.C. § 1983 claim seeking at his own expense even newer "extremely discriminating" DNA testing which can "determine whether a biological tissue matches a suspect with near certainty."

In an opinion by Chief Justice Roberts the majority of the Court concludes, however, that the emergence of DNA testing does not mean "every criminal conviction involving biological evidence is suddenly in doubt. The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice."

The majority concludes that resolution of the "dilemma" is best left to the states, and that there is no federal constitutional right to postconviction DNA testing. The fact that 46 states have enacted statutes dealing with access to DNA evidence indicates to the majority that the states are paying serious attention to the matter and there is, therefore, no reason for the federal judiciary to intervene by "creating a new constitutional right and taking over responsibility for refining it."

Double Jeopardy: if a jury acquits a defendant on some counts of an indictment, but is hung on the remaining counts, can the acquittal bar a retrial of the defendant on the counts on which the jury was hung? In Yeager v. United States a 6-3 majority (this time Chief Justice Roberts joined his more liberal colleagues) concludes that principles of double jeopardy will bar the retrial when the issue resolved by the acquittal is the same issue which must be decided on the retrial of the counts on which the jury was hung.

Yeager was a senior vice president at Enron and the claim is that he made fraudulent public statements regarding Enron's plan to develop a fiber-optic telecommunications system. Based on his statements, it was alleged, the stock price of Enron rose, and Yeager sold his shares for a $19 million profit. The fiber-optic system was never developed.

At trial the jury acquitted Yeager of fraud, but could not reach a verdict on the counts charging insider trading--his alleged use of material non-public information. The Court concludes that if, based on the evidence at the trial, the acquittal of fraud means the jury found Yeager did not trade on insider information, then double jeopardy will bar his retrial on the separate insider trading counts.

The ruling is a significant one. Under traditional double jeopardy principles, a defendant can face a second trial for any charge on which a jury is unable to reach a verdict. For the first time the Court concludes that there can be a situation in which a defendant cannot be retried on counts on which a jury is hung.

Age Discrimination: The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq, prohibits an employer from taking an adverse action against an employee "because of such person's age." 29 U.S.C. § 623(a). In Gross v. FBL Financial Services, Inc. the majority of the Court concludes that "because of" means "but for"--that a jury must be told that in order to find the employer liable, it must find age was the central or decisive factor leading to the employer's action, not merely a contributing factor. The effect of the ruling is to make it more difficult for employees to prove ADEA claims.

Bankruptcy: in Travelers Indemnity Co. v. Bailey the Court addresses the injunctive powers of a Bankruptcy Court.

Monday, June 15, 2009

Defendants' Unsworn Testimony: Readers Respond

Last Friday I noted that newspaper accounts of the murder trial of an American in Italy reported that she gave unsworn testimony, apparently a usual occurrence in a civil law country like Italy, but plainly unusual from the point of view of the American legal system. I wondered what weight is given to the unsworn testimony of a defendant, when all other witnesses testify under oath, and I asked whether readers could provide any insight.

Lawrence W. Kessler, the Richard J. Cardali Distinguished Professor of Trial Advocacy at Hofstra Law School, writes that although the defendant's testimony is not under oath, she can still be believed. He draws the analogy to a trial in the United States in which the judge states "the court takes the testimony for what it is worth." He also notes with respect to civil litigation in a civil law country, that since the parties cannot testify under oath, the plaintiff cannot prove his case through his own testimony.

Walter Signorelli, assistant professor at the John Jay College of Criminal Justice, writes that one of the reasons defendants could not give sworn testimony under the common law was the concern that they would be tempted to lie and therefore face commitment to hell. He recommends James Whitman's book, The Origins of Reasonable Doubt (Yale University Press), which traces the history of the oath.

IN THE UNITED STATES SUPREME COURT TODAY: the Supreme Court released two decisions today. In Polar Tankers Inc. v. City of Valdez, Alaska, the Court ruled unconstitutional a municipal personal property tax imposed on large vessels which travel to and from Valdez.

Under federal immigration law an alien who is convicted of an "aggravated felony" is deportable. An aggravated felony includes a crime of fraud or deceit in which the loss to the victim exceeds $10,000. In Nijhawan v. Holder the Court rules on how an immigration judge is to determine whether the $10,000 threshold has been met.

Friday, June 12, 2009

The Unsworn Testimony of a Defendant

When reading today's account in the New York Times of the murder trial of an American in Italy, "American Murder Suspect Testifies at Trial in Italy," I was struck by the final paragraph of the article which reported that the defendant did not testify under oath because in Italy only witnesses, but not the defendant, testify under oath.

I should not have been surprised. Italy follows the civil law system, and it is my understanding that in civil law countries defendants give only unsworn testimony.

I suppose what struck me is that under the civil law system the status of a defendant as a witness is so different from all other witnesses. But I quickly realized that the roots of our common law system are no different.

Under the common law of England, which was adopted here, a defendant could not even testify in his own behalf on the theory that a person with an interest in the outcome of the case was disqualified from being a witness. Only in 1869 did New York enact a statute which for the first time gave the accused the right to testify, an event the New York Court of Appeals once characterized as "a milestone in the progress of criminal jurisprudence." People v. Rakiec, 289 N.Y. 306, 309 (1942).

What is unclear to me is the probative value of the defendant's testimony in a civil law trial: in this Italian trial of an American what weight do the triers of fact give to her testimony if all the witnesses, except the defendant, testify under oath. Perhaps a reader can provide an answer.

Thursday, June 11, 2009

Suggestive Identifications by Private Individuals

The Federal and State constitutions, of course, protect against governmental misconduct, and when the police or prosecutors violate a defendant's constitutional rights to secure evidence against him, that evidence will, with some exceptions, be excluded from the defendant's criminal trial.

The courts, however, have wrestled with the question of whether evidence should be excluded from a criminal trial when the evidence is secured by a private person using means which would lead to exclusion of the evidence if they had been employed by the police or prosecutors.

Today in People v. Marte the New York Court of Appeals concludes that a suggestive pretrial identification of a defendant will not be excluded from a criminal trial when the procedure involves only private individuals and not the police.

For months the victim of a shooting looked at hundreds of photographs shown to him by the police and was unable to identify anyone. After the defendant told the victim's sister that he had shot someone, she showed the defendant's picture to her brother who then identified the defendant as his assailant. She also wrote a letter to her brother recounting the defendant's admission and saying that "everyone thinks [he] shot you." Brother and sister then went to the police who conducted a lineup, and the vicim selected the defendant.

Under the per se exclusionary rule adopted in People v. Adams, 53 N.Y.2d 241 (1981), the suggestive pretrial identification of the defendant would have been suppressed if the police had done what the victim's sister did. But the Court today concludes that a similar rule does not apply when the pretrial identification is solely the result of conduct by private persons.

The exclusionary rule of Adams, the Court explained, is designed to deter police from engaging in conduct which will produce flawed identifications. The rule has no practical application to private individuals: "The family, friends and acquaintances of crime victims, unlike police officers, are highly unlikely to regulate their conduct according to rules laid down by courts for the suppression of evidence. No imaginable rule of law could have discouraged [the sister] from showing [her brother] defendant's photograph, or from telling him her reason for doing so." Protection for the accused rests in his opportunity to cross examine at the time of trial.

The New York Court of Appeals has traditionally been a strong proponent of the exclusionary rule of evidence as a means of deterring governmental misconduct. Because Marte did not involve any role by the police, I do not think it should be viewed as a retreat from the Court's traditional approach.

Attorney Newsletters and Liability for Unwanted Faxes

The Telephone Consumer Protection Act (TCPA)(47 U.S.C. § 227) prohibits the use of "any telephone facsimile machine...to send...an unsolicited advertisement." The statute also creates a private right of action by the recipient of an "unsolicited advertisement."

The New York Court of Appeals ruled today that a newsletter or "informational message" from an attorney is not an unsolicited advertisement under TCPA. The fact that the attorney may be using the informational message to impress others with his legal expertise to gain referrals, does not turn this "incidental advertisement" into an unsolicited advertisement under the statute. Stern v. Bluestone.

Over a 16-month period, attorney Bluestone sent to attorney Stern 14 faxes entitled "Attorney Malpractice Report." Each fax consisted of a short essay on topics related to attorney malpractice, such as fee disputes with clients, common causes of attorney malpractice litigation, and the legal elements of attorney malpractice. Each fax contained contact information for Bluestone.

Taking guidance from a Federal Communications Commission explanation of what is an "unsolicited advertisement" under TCPA, the Court of Appeals concluded that Bluestone's faxes are not unsolicited advertisements because their purpose was informational: the faxes provided information about attorney malpractice, the substantive content varied from fax to fax, and the faxes did not promote a commercial product. The fact that Bluestone was implicitly promoting his expertise to other lawyers, did not convert the entire fax into an advertisement for which Bluestone could be liable under TCPA.

Wednesday, June 10, 2009

Sotomayor Confirmation Hearings Scheduled

The United States Senate Judiciary Committee and its chairman Patrick Leahy have announced that Committee hearings on whether the Senate should vote to confirm the nomination of Judge Sonia Sotomayor to the United States Supreme Court will begin on July 13. See, Senate Judiciary Committee and Senator Leahy.

Tuesday, June 9, 2009

Action for Attorney Fees: Proper Pleading

The Appellate Division, First Department, today reversed Supreme Court, New York County, and ordered the complaint dismissed in an action for unpaid attorney fees. Fulbright & Jaworski, LLP v. Carucci.

The law firm had sued a corporation and its president for legal fees, but the Appellate Division concluded that the complaint did not state a cause of action against the president because it failed to allege that he was personally responsible for the corporation's legal bills, or that he had retained the firm for himself and not the corporation. 

The decision lays out a useful road map for pleading a claim for unpaid attorney fees. The complaint must allege (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) the expectation of compensation for the services, and (4) the reasonable value of the services.  

N.Y. Court of Appeals Invalidates Curfew Law for Minors

A divided New York Court of Appeals today ruled unconstitutional the curfew law established by the City of Rochester for minors. Jiovan Anonymous v. City of Rochester.

The ordinance passed by the Rochester City Council defines a "minor" as a person under the age of 17. It prohibits minors from being in any public place in the city from midnight to 5 a.m. on Friday and Saturday, and from 11 p.m. to 5 a.m. the other days of the week. There are certain exceptions, such as when the minor is accompanied by his parent and guardian. There is, however, no parental consent exception. 

Judge Jones' opinion identifies two constitutional rights which are at stake: a minor's constitutional right to freely move about in public, and a parent's due process right to raise his children as he thinks best. 

A minor's freedom of movement, however, can be curtailed in ways that would be unconstitutional if applied to an adult, and a parent's right to raise his children in a manner he thinks best can be curtailed by the state's legitimate interest in reducing juvenile crime and preventing the victimization of minors during nighttime hours.

But to curtail these constitutional rights Rochester must demonstrate that the curfew ordinance is "substantially related" to these governmental goals. "Quite simply, the proof offered by the City fails to support the aims of the curfew in this case." 

The Court noted that while the city ordinance was motivated by the killings of three minors, two of these deaths actually occurred outside the curfew hours, and the third - a minor adjudicated a person in need of supervision - was already under an individualized curfew. Nor did the crime statistics support the curfew law: they actually show that minors are far more likely to commit or be victims of crime outside the curfew hours. This evidence, therefore, provided no justification for curtailing a minor's constitutional right to freedom of movement. 

The ordinance also unconstitutionally burdens a parent's due process right to raise his children because "the curfew fails to offer parents enough flexibility or autonomy in supervising their children....Indeed, an exception allowing for parental consent to the activities of minors during curfew hours is of paramount importance to the due process rights of parents." The Rochester law has no parental consent exception. If a parental consent exception were included in the curfew law, "it would be a closer case."  

While Judge Pigott in dissent would uphold the law in the absence of a parental consent exception, he did note, "Equipped with a parental consent exception, I think it might have been a model city curfew." 

Monday, June 8, 2009

Supreme Court: Recusal and Due Process

Under Judiciary Law § 14 a New York judge must recuse himself from a case in which he is party, has been an attorney, in which he is interested, or "if he is related by consanguinity or affinity to any party to the controversy within the sixth degree." In the absence of such relationships, it is long established in both civil and criminal cases that whether a judge will disqualify himself is "within the personal conscience of the court." People v. MacShane, 11 N.Y.3d 841 (2008).

Today, a majority of the United States Supreme Court ruled that there is an objective Due Process of Law consideration to recusal which goes beyond questions of personal conscience or soul searching by a judge: even when there is no proof of actual bias by a judge, and a judge states he is not biased, due process requires that a judge recuse himself when, under all the circumstances of the case, there is a serious risk of actual bias. Caperton v. A.T. Massey Coal Co. Inc

After a jury awarded the plaintiffs $50 million against defendant A.T. Massey Coal Co., the company appealed. West Virginia was holding its judicial elections and the chairman and chief executive officer of the coal company, Don Blankenship, spent over $3 million to support the candidacy of Brent Benjamin for the West Virginia Supreme Court of Appeals. Benjamin was elected and eventually a divided appeals court voted to reverse the judgment against the coal company. Benjamin cast the decisive vote with the majority.

The majority on the United States Supreme Court concluded there was an objective probability of actual bias for two reasons. First, the size of Blankenship's contributions to the judge's election had a significant and disproportionate influence in placing Benjamin on the bench. Second, there was a clear temporal relationship between the campaign contributions, Benjamin's election, and the pendency of the case. "It was reasonably foreseeable, when the campaign contributions were made, that the pending case would be before the newly elected justice." Because the probability of actual bias was too great, due process requires that Benjamin recuse himself.

In response to motions asking him to disqualify himself, Judge Benjamin had written that he was not biased in the case. Caperton states that this personal determination does not meet the objective standard required by due process of law. I have long believed that the "personal conscience" standard in New York is inadequate to protect against the risk of bias, and in some instances actually brings the judiciary into disrepute. The Caperton majority acknowledges that the case presents "extreme facts." Whether New York will limit Caperton to its facts, and adhere solely to "personal conscience," remains to be seen. I hope not. 

Today's Other Decisions: The Supreme Court handed down four other decisions today. In Republic of Iraq v. Beaty a unanimous Court ruled that the current Iraqi government is not liable under the Foreign Services Immunities Act for the actions of the Saddam Hussein regime; in United States v. Denedo the Court upheld the power of the Navy-Marine Corps Court of Criminal Appeals to entertain coram nobis petitions; in Boyle v. United States the Court addresses what is an association-in-fact enterprise under the Racketeer Influenced and Corrupt Organizations Act (RICO); and in United States ex rel Eisenstein v. City of New York the Court addresses the timeliness of the filing of a notice of appeal under the Federal Rules of Appellate Procedure.