System Failure

You ever have a client thank you for something you don't deserve to be thanked for? My client thanked me this morning and I wanted to thank him for not hating my guts. I think my client got screwed and I stood by him the whole time. Yes, there were many things involved that were out of my control, but I am not the business of making excuses. This kid just turned 22 and he spent five months in jail for violating an order of protection. Bail was nominal but none of his friends or family were willing to risk 3K on him.

My client, (let's call him Tyler) was ordered by the court to stay away from and refrain from contacting the home of his 18 year old girlfriend. The order was in favor of the girlfriend's mother who was aware that her daughter and Tyler were doing serious drugs together. Tyler never even came close to threatening violence against the mother or her home, but a judge signed the order nonetheless. One day, Tyler called the mother's home and left one phone message. He also went to the home when the mother was not around. He was arrested and charged with aggravated harassment and criminal contempt for violating the order of protection. He was arrested and sent to jail.

When I was assigned Tyler's case, I thought it was a very minor deal. One trip to court and I would get either an ACOD dismissal or a violation with a sentence of a fine and time served. Boy, was I mistaken. Turns out Tyler has a severe heroin addiction. This was his third arrest in six months. When I got his file at court, his criminal history revealed that this young man has serious problems. My intention was to argue for his release on recognizance at the bail hearing but suddenly, I realized that the street would be a dangerous place for Tyler. I really struggled in the few minutes I had before his case was called. Am I really going to argue that the court should release my heroin addicted, homeless client out on to the street? I had no idea what I was going to do as I approached the bench. Before I got in front of the judge, a bailiff handed me a piece of paper. It was a warrant for Tyler's arrest for an open case in Connecticut. Yes! even if I got him ROR'rd, he would still be stuck in the jail. Dilemma solved.

So I work out a deal that would get Tyler treatment for his addiction. Real treatment. In house and paid for by the taxpayer. If he cleans himself up, the charges will be dropped. At this point I feel good about this case. Problem is, the DA has a policy not to offer a Drug Court disposition for defendants with outstanding warrants.

I reached out to the prosecutor in CT. Tyler's warrant was issued because he failed to appear for a violation of probation charge that stemmed from his failure to get substance abuse treatment. I figured once I explained to the State Attorney in CT that we arranged for a bed in a treatment facility here in Saratoga, he would help me out and vacate the warrant. I tried. The public defender in CT tried. The Saratoga DA tried. We all failed.

Yesterday Tyler was sentenced to time served. My understanding was that he would be held until CT arranged to have him transported there. As I drove away from the courthouse, there was Tyler, in my rear view mirror, smoking a butt on the steps of the courthouse with his friends. I am afraid for him. He is homeless. He is an addict. I find it hard to believe that the first thing he will not want to do, is get high. I am praying I don't read a story about him in paper soon.

I Can Handle Your NY Traffic Case..and You Don't Have To Go To Court!

Well...not exactly. The vast majority of lawyers advertising services for traffic tickets in New York tout the fact that the defendant will not have to personally appear. This is generally true, sort of. Before I explain, a little story:

I had the dis-pleasure of appearing in the Milton Town Court a couple of months ago. My client was being charged with some traffic offenses. He lives and works in Vermont. He executed a document I call a "Waiver of Appearance". By doing so, he gave me legal authorization to act on his behalf in court without his personal appearance. This practice is generally accepted in the local courts in which I practice. When my case was called I approached the bench. The judge asked me where my client was. I explained he lives 5 hours away and that I had a proper waiver form. He glared at me. He then said in an angry loud voice, "I don't know why you guys think you can show up without your clients. Look around you. All these defendants are here. They have respect for this court!" It is not often that I get rudely lambasted in open court. My instinct was to argue but common sense dictated a better response. "My apologies to the court your honor", was what I said. Here is what I wanted to say:

"The reason I can be here without my client is that the Criminal Procedure Law in New York provides a procedure for lawyers to appear on behalf of their clients. Regardless of the fact that every other court in Saratoga County understands and accepts this legal practice, my client, by law can designate me, a lawyer, to represent him without his presence in court. This procedure is codified in Section 170.10 (b) which states in pertinent part: "In any case in which the defendant's appearance is required by a summons or an appearance ticket, the court in its discretion may, for good cause shown, permit the defendant to appear by counsel instead of in person". My client was issued an appearance ticket for speeding. In reference to the duly executed waiver of appearance document I have provided to the court, that document indicates that my client not only lives five hours from here, but due to his employment and family obligations he would suffer hardship should this court require a personal appearance. I understand the court is entitled to make a discretionary decision about this matter but I respectfully submit that we have demonstrated "good cause". Furthermore, this court routinely allows plea by mail, completely dispensing with the need for personal appearances in traffic matters and I am frankly a bit confused why you are taking issue with me".

I understand that the Committee on Professional Standards has gone after some attorneys who advertise the fact that their traffic clients do not have to appear for being misleading. It might be wise to include language clarifying that appearances in absentia are permitted only when "good cause" is demonstrated to the court.

Unlawful Possession of Marijuana (UPM) and the ACOD

Thanks to the internet, I have noticed that people calling about UPM cases are pretty well informed about the law in advance of their call to me. Many of these people call simply to confirm what they think they already know. What many people know is that UPM (New York Penal Law Section 221.05) is punishable by a fine of no more than $100.00 for the first offense. What many people do not know is that a conviction for UPM requires a mandatory surcharge of $95.00 in addition to the fine, so a guilty plea for a first offense will cost a couple hundred bucks. My fee for handling a local UPM case starts around $300.00. Very often I can spare my client a trip to court (if certain conditions are met) and almost all of the time I can get the case dismissed. Clearly, hiring a marijuana lawyer is money well spent for a UPM case. Sadly, I see many UPM defendants plead guilty to the charge. They just don't think a lawyer is necessary and unfortunately, most judges do not encourage the defendant to find a lawyer and they accept the guilty plea. Unlike misdemeanor or felony cases, there is no statutory or constitutional right to a public defender for a UPM case (which is very unfortunate due to the seriousness of the collateral consequences of controlled substance convictions).

What many people also know is that many UPM cases are dismissed. It's called an ACOD "Adjournment in Contemplation of Dismissal", (New York Criminal Procedure Law Section 170.56) To avail yourself of the benefit of an ACOD, you generally will need a lawyer. It is not a simple matter of asking for it. And the judge will want to get the prosecutor involved. This is where you really need a lawyer to help you if you are thinking of going at it alone. This is not an outright dismissal. It is a conditional dismissal and the the case will not be dismissed until the conditions are met. The conditional period can last as long as twelve months. Usually, the only condition is that the defendant not get arrested during the conditional period. But sometimes things can go wrong, very wrong. For example, I spoke with someone the other day whose UPM case was resolved by an ACOD a couple of years ago. One of the conditions of the ACOD was that she attend group counseling. This recreational and responsible marijuana smoker soon found herself at weekly meetings with heroin addicts, crack heads, and a counselor who insisted this young lady was a serious drug abuser. Had she found a lawyer, this would not have happened.

If you find yourself charged with UPM in New York, you would be very wise to talk to an attorney. There are many things that can go wrong if you try to handle it yourself and there are many lawyers (like me!) whose fees are very reasonable for a UPM case.

Albany County Cyber Bullying Law

One of the ironic perspectives most criminal defense attorneys share is that almost every new criminal law passed by a legislative body in response to notorious (previously non-criminal) behavior, is a bad law. With incredible frequency, law makers are hastily drafting criminal statutes in response to often tragic events that garner wide publicity. You would think we defense attorneys would be happy. After all, the more laws we pass, the more criminals we create, creating more business for us. Unfortunately, most new criminal laws created in response to ever increasing social ills do nothing but exacerbate the problem. That is because the criminal justice system is the worst venue to address social and moral dysfunction. As defense attorneys, we see what happens in the court room. The aloof judge peers down at the defendant and advises him his rights. The bailiff stands guard with gun in holster. The tough prosecutor argues for excessive bail. This experience is traumatic. The scars left by prosecution are carried by the prosecuted for life. The defendant will never be the same. Society has passed judgment that there is something wrong with the defendant. When it comes to young people, this experience causes far more harm and good. It creates a distrust and fear of society. It creates a dark space in the psyche. The harm outweighs the purported good of the law's intent.

Back in November of 2010, the Albany County Legislature passed in to law a bill that makes so called cyber bullying a misdemeanor offense. The law was drafted in response to recent stories of young people taking their own lives in response to humiliating and malicious information disseminated through online social media such as facebook and my space. This story appeared in the TU yesterday. A couple of facebook pages were created publishing the pictures of high school girls with attendant information about their sexual activity. Nothing obscene, just pictures and information. So far, nobody has died but the local authorities are attempting to get facebook to reveal the content's creator. The authorities will presumably succeed and when the identity is revealed, the creator or creators will be the first to be prosecuted under the new statute.

From a lawyer's perspective, this is very intriguing stuff. One of my first reactions was to wonder if what was posted is true. I mean, it's no secret that high schools are full of permiscuous girls. If the information is true there is that whole free speech thing to consider. Keep in mind the American version of freedom includes the right to speak the truth whether it hurts people's feelings or not. Yet, because there have been a few notorious suicides connected to online disgrace (true or not), our wise leaders believe they will save lives by prosecuting offenders of the new law because it will deter future conduct. Guess what morons, kids are smart and they probably know how to remain anonymous on the internet better than most adults. And furthermore, anyone who commits suicide has an absolute mental health issue. The problem is not cyberbullying but sick children. Maybe we should pass a law prohibiting stories on TV about suicide. I mean, where in god's name do suicidal people get the idea in the first place? I think suicide will be around with current frequency regardless of the internet. Look, the internet is here to stay. If you want to control it with laws then hop in the sled and get ready for a ride down the slippery slope and wave goodbye to freedom. Here is an idea for a new law, abolish the internet.

Here is the law making this conduct punishable as a misdemeanor:

"engaging in a course of conduct or repeatedly committing acts of abusive behavior over a period of time by communicating or causing a communication to be sent by mechanical or electronic means, posting statements on the internet or through a computer network, acts of abusive behavior shall include, but not be limited to, taunting; threatening; intimidating; insulting; tormenting; humiliating; disseminating embarrassing or sexually explicit photographs; disseminating private, personal, false or sexual information; or sending hate mail."

Wow. Does anybody see a problem with this pathetically drafted statute? There are some Albany bloggers out there who might have a reason to be concerned. I hope that anyone prosecuted under this statute finds a lawyer who will beat the shit out of this waste of words. And to Albany county taxpayers, you will pay for this nonsense.

BAD Prosecutors

There is no shortage these days about stories of law enforcement getting busted for DWI. As a DWI lawyer these stories of course attract my attention. Anytime a prosecutor, judge, or cop gets arrested, criminal defense attorneys will laugh about it. Heck, everyone will laugh because you can't beat the irony. Maybe we won't laugh out loud, but we will laugh. I used to think it was significant enough when local cops, judges, or prosecutors got arrested to keep track. I used to keep a file labeled the "Folder of Shame". Everyday, I would add another newspaper clipping related to the arrest of a local prosecutor, cop, judge, or anyone working the other side of the fence. I wonder today why I engaged in that practice. I think it may have been a bit on the immature side. But I also think it made me feel better about the work I was doing. Prosecutors, criminal defense attorneys, judges...we are all humans and we all make bad decisions at some point in our lives.

I have been following the discussion regarding the arrest of Harris County Texas Prosecutor Lester Blizzard for DWI. Lester's buddy, Murray Newman, recently started practicing criminal defense in Houston after backing the wrong horse in a contested election for DA in Harris County. He lost his prosecutor job and did what every other fired or laid off prosecutor does..he hung out the criminal defense shingle.

I think that prosecutors turn criminal defense lawyers do pretty well in business. After all, isn't criminal defense all about connections? In addition to learning all the "tricks" we criminal defense attorneys have up our sleeves, they know people and have been around the court house long enough to know how to do a good job. Apparently Murray Newman is such a good trial lawyer that he got two not guilty verdicts at trial on the same day. I must say I am impressed.

For some lawyers, the transition between criminal defense and prosecution is easy. I know a few lawyers who prosecute in one county and defend in another. At this point in my life I can honestly say I could never be a prosecutor. Maybe that makes me un-professional. Maybe this post will disqualify me from employment when I may desperately need it someday. But today, I will say that I don't think I could ever work for the executive branch unless I could pick and choose my cases. But prosecutors don't have that luxury. The law is the law, whether you think it is stupid or not. If you believe certain laws are fundamentally wrong, than you have to sell your soul to prosecute them. I often hear judges and prosecutors lament about the unfairness of laws only to follow up with the fact that they have a duty to enforce all laws, bad or not. That is where my problem lies. I am passionate about what I do. Most of my time is spent defending people against the prosecution of laws that I think are offensive to humanity.