A few days ago, I was thrilled to post about Gov. Spitzer’s push to address the ineffective, archaic and very expensive sentencing scheme that has burdened New York for decades.  Hooray!  A bold step into the future!  NOT.  I should have realize that something was awry when the enthusiastic NYLJ article was written by Alan Vinegrad.

As with all things political, the devil is in the details.  So who has Gov. Spitzer tapped to lead this charge toward rational and effective sentencing.  We now know the identities of the  appointees.  First, there are the official people, the heads of the various departments whose continued existence relies upon the existing sentence structure.  And then comes our font of imaginative, innovative and progressive thought:

Anthony Bergamo is Vice Chairman of MB Real Estate, Chief Executive Officer of Niagara Falls Redevelopment LLC, and Managing Director of the Milstein Hotel Group. He also serves as Special Counsel to the New Jersey State Association of Chiefs of Police, Passaic County Sheriff’s Office, New Jersey State PBA Local 123, and the New York Organization of Narcotics Enforcers. From 1991 to 1996, Mr. Bergamo served as the Independent Fiduciary for the Southern District, Federal District Court, and President and Chief Operating Officer of Custom Shop Shirtmaker from 1979 to 1991.* He received his J.D. from New York Law School.

            * Editorial Note:  I have some ties from the Custom Shop.  At least this guy might know something about committing sartorial crimes against humanity. If memory serves, the Custom Shop was permanently closed after a raid in 1991 by the NY/NJ Fashion Task Force.

Michael C. Green currently serves as Monroe County District Attorney. Prior to being elected District Attorney in 2003, Mr. Green served as an Assistant District Attorney for 17 years. For the three years before his election, he served as the First Deputy District Attorney, responsible for homicide prosecutions in Monroe County. He has served in numerous other capacities in the office, including the Capital Crimes Prosecutor, Deputy Chief of the Major Felony Bureau, Chief of the DWI Bureau and trial attorney in the Major Felony Bureau.

Michael P. McDermott is currently Of Counsel to the Albany law firm of O’Connell and Aronowitz. From 2002 to 2006, Mr. McDermott served as the Chief Assistant District Attorney in the Albany County District Attorney’s Office. Prior to that, he served as a Senior Associate and ultimately Partner at the Albany law firm of Bouck, Holloway, Kiernan and Casey. Mr. McDermott also served as Chief Assistant District Attorney in the Rensselaer County District Attorney’s Office and Assistant District Attorney in the Albany County District Attorney’s Office. He received his J.D. from Albany Law School of Union University, where he was Editor of the Albany Law Review.

Judge Juanita Bing Newton has served as Administrative Judge of the Criminal Court of the City of New York since 2003 and as the New York State Deputy Chief Administrative Judge for Justice Initiatives since 1999. After serving eight years as the Acting Justice of the New York State Supreme Court Criminal Branch, First District, Judge Newton was appointed to the position of Administrative Judge of New York County Supreme Court in 1995, becoming the first African American woman in New York State to hold this high level position. From 1995 to 2000, Judge Newton served on the New York State Commission on Judicial Conduct. Previously, Judge Newton was Executive Director and General Counsel of the New York State Sentencing Guidelines Committee. She received her B.A. from Northwestern University and her J.D. from the Columbus School of Law of the Catholic University of America.

Cyrus Vance, Jr., is currently a principal at the law firm of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer, P.C. Originally from New York City, Mr. Vance co-founded a Seattle, Washington law firm, McNaul Ebel Helgren & Vance, one of the pre-eminent litigation firms in the Northwest. During this time he also served as an adjunct professor of law at Seattle University School of Law teaching trial advocacy. By gubernatorial appointment, he served on the Washington State Sentencing Guidelines Commission, advising the Governor and legislature on issues pertaining to state sentencing policies. He was also appointed as a Special Assistant Attorney General to represent the state in investigations and litigation. Prior to moving to Seattle, Mr. Vance served as an Assistant District Attorney with the Manhattan District Attorney’s Office.

A veritable who’s who of the status quo.  Coming from our former AG governor, whose love of all things prosecutorial (or at least formerly prosecutorial) continues unabated, I cannot begin to express my great joy at knowing that nothing, but nothing, will change for the better.  If anything changes at all.



The vision is coming to me now.  It’s getting clearer.  Clearer.  Ah, now I can see it.  It’s a grid.  A sentencing grid.  Well, at least we had a few days of exuberance believing that a change for the better was in the air.  Now back to reality.

Manhattan Supreme Court Justice Lewis Bart Stone has ruled that the NYC Department of Education’s ban on student cellphone possession (not use, possesion) is rational and lawful, upsetting a bunch o’ mommies and daddies who spent $9.99 to get junior on the family plan.

Thank god that somebody finally figured out that the Constitution does not guarantee every child the right to possess every expensive toy that comes out.  The DOE rationale was that cellphones are disruptive and could potentially aid in cheating.  True enough, but not the greatest excuse.  If they banned use, rather than mere possession, that would deal with both problems and still let junior flash his moto-krazer-choco-v978 cellphone/camera/MP3/videocam/browser/babysitter around the schoolyard.

This entry was posted in Uncategorized on May 8, 2007 by SHG.

Tom Liotti is the kind of criminal defense lawyer who tends to make waves.  Caveat: I have been friends with Tom for a long time.  Andrew Bluestone road one of these waves all the way to shore at his NY Legal Malpractice Blog, discussing Tom Liotti’s latest quandary in asking whether it is ever permissible for a lawyer to interview a represented person.

Liotti represented a criminal defense who also had a family court neglect proceeding pending.  In the course of his criminal defense, Liotti interviewed the “witnesses” who were parties, represented by assigned counsel, in the family court.  After submitting affidavits from these witnesses to the District Attorney in an effort to get the criminal case dismissed (the witnesses recanted), all hell broke loose.  The counsel assigned to represent the mother and child in family court, from whom Liotti neither sought nor obtained permission to speak with their clients, blew their stack.  And rightfully so.  But maybe not.  It’s all according to which side of the fence you’re on.

As lawyers, we view our clients as sacred.  Nobody gets to touch them but us.  We are the brick wall surrounding them, keeping all others outside unless we choose to let them in.  But that’s often more a matter of wishful thinking than reality. 

While this case is somewhat unusual, in that there are multiple proceedings in various courts pending at the same time, it’s really not all that odd.  In Liotti’s case, Tom owed his client zealous representation and his client had a constitutional right to mount a defense.  So far, no issue.  To accomplish these tasks, the least Liotti could do is interview the witnesses against his client, assuming they are willing to speak with him.  But, you say, the witnesses have lawyers.  Does that not impede the “willing to speak” with him prong, since they cannot be “willing” to do anything unless their lawyers allow it?

This is where the clash happens.  Tom Liotti decided that his duty to defend trumped the witnesses’ right to counsel.  He was treading on some very shaky turf here, and decided to put his client first.  That’s what good defense lawyers do, because that’s how good defense lawyers think.  You have to admit, it was a brave move.

So what happened?  After getting chewed out by Judge Susan Kluewer for doing what he knew he shouldn’t have done, she denied applications to remove Liotti from the case for being a bad boy and  refused to preclude admission of the statements.  Noting that the neglect proceeding was essentially civil, the Judge concluded that the right to confront witnesses in a criminal proceeding trumped the niceties of representation in a civil proceeding.

The aim of the criminal action was to determine if the defendant had committed a wrongful act and, if so, to assess blame and impose punishment, the judge said. In that context, a defense attorney is obliged to zealously represent his client and is authorized to conduct the “broadest possible range of pretrial investigation.”

Let that be a lesson.

United States District Judge James Robertson tossed a suit by Dr. Arthur Hoyte again Kentucky Fried Chicken, according to CNN.  Dr. Hoyte complained that KFC concealed from its customers that it’s chicken was fried in trans fat.  Apparently, in the world of fat, this is a particularly bad fat (suggesting that we should only associate with good fats). 

Can you imagine the pride on his mother’s face?  She thought all those years of med school were wasted.  Thankfully, we have Dr. Hoyte to protect us from the evils of fried chicken.

                This entry was posted in Uncategorized on May 7, 2007 by SHG.

Alan Vinegrad, former United States Attorney for the Eastern District of New York, writes in the New York Law Journal about the new Sentencing Reform Commission established by Gov. Spitzer.  Seizing the opportunity presented by a low crime rate coupled with the high costs of incarceration, New York is trying to find new ways to address the “lock-em-away-forever” theory that has proven to be a very costly failure.

The Commission on Sentencing Reform [in contrast to the USSC] does not appear to have been developed with any particular system in mind. Rather, it has been given the open-ended charge of recommending legislative fixes that include alternatives to incarceration and take into account the fiscal impact of the prison system. It appears that, beyond simple uniformity, the commission’s aim is to reduce prison populations while still maintaining public safety and the traditional goals of criminal punishment.

Wow.  Whenever the words “sentencing” and “commission” are used together, we immediately envision the dreaded grid used by the Feds to turn judges into grocery clerks, prosecutors into sentencing control freaks and disconnect humanity from the process.  While Booker and Fanfan were supposed to change all that, it has largely proven to be nothing more than a cruel hoax.

This entry was posted in Uncategorized on May 7, 2007 by SHG.

From Above The Law : 

Martin Garbus Calls Les Moonves A Nappy-Headed Ho


Les Moonves showing off recent haircut

So there.

When someone with the high profile of a Paris Hilton gets herself in trouble, it invariably separates people into two (at least) camps.  Ironically, both have the same slogan:  It’s because she’s Paris Hilton.  The difference is that one camp applauds the action while the other slams it. 


Paris Hilton’s “Driving for Dummies”
Editor’s Note:  See drink in hand while
within vehicle.  Driving Attire optional.

A 45 day sentence is fairly steep for ignoring a license suspension.  Was she contemptuous of the Court, and more importantly, the rule of law it represents?  Uh, yeah.  Did she need 45 days in the slammer to learn a lesson.  Probably, one night with Big Bertha would have done the trick. Bertha’s a little lonely, you see.

But that’s not what this is about.  Individual deterrence is one legitimate purpose of sentencing, but not the only purpose.  Another purpose is general deterrence, the message to the rest of the world that there’s a price to pay if you think you can ignore the law and the court. 

When an ordinary Joe gets nailed, maybe his family and a few close friends get the message that they shouldn’t screw up like Joe.  But when Paris is the perp, the whole world gets the message, including a whole bunch of young men and women who would otherwise never hear or care about the news.  This is a huge platform to send a message to a group who otherwise hears nothing and believes itself immune to consequences of misconduct.  This is general deterrence at its best.

So, this is a good thing, right?  A legitimate use of the sentencing power to serve the interests of society.  Well, let’s not jump the gun just yet.  While general deterrence is a legitimate purpose, there is yet another interest at stake that has to be factored into the equation.  Proportionality.  Though Paris makes a great conduit to send the rest of us a message, she is still a human being (no, don’t go there) and as such worthy of the same consideration as our other buddy, ordinary Joe.  The court is therefore supposed to find a balance, a tipping point if you will, between the message and the individual.  The sentence must still be limited to no more than is necessary to teach Paris the lesson that it’s not good to mess with the criminal justice system.

So we find ourselves back at the starting point:  Was 45 days necessary to get Paris to appreciate the severity of her offense?  Being one of the few people in America who does not know Paris intimately, I can’t answer this question.  Then again, I also can’t figure out why Kathy Hilton named her daughter Paris.

By now, everybody has seen the video of the woman racing to the hospital who is stopped and slammed against her car after she stops and is removed by 29 year old Florida Sheriff’s Deputy Kevin Stabins.  So now, let’s play name that tune!

This entry was posted in Uncategorized on May 4, 2007 by SHG.

In a press release dated April 27th, the United States Sentencing Commission reports that it will promulgate new guidelines to change the 100:1 ratio for crack cocaine.  It states:

The Commission also voted today to promulgate an amendment that modifies the penalties for crack cocaine offenses. The Commission described the problems associated with the 100-to-1 drug quantity ratio as so urgent and compelling that it promulgated the guideline amendment as a measure to alleviate some of those problems.

So urgent and compelling?  Where have you guys been for the past decade?  On the one hand, at least they finally realized what everyone else has known forever.  On the other hand, what in the world took them so long to gleen the obvious. 


Internet Photo of wild USSC Party?

But, the USSC gives, and the USSC takes away.  In the same press release, they include:

– an amendment implementing provisions of the USA PATRIOT Improvement and Reauthorization Act of 2005 and the Department of Homeland Security Appropriations Act of 2007. The amendment establishes new guideline penalties for offenses created by the PATRIOT Reauthorization Act relating to (1) narco-terrorism,

Add the word “terrorism” to any other word in the criminal lexicon and, voila, you have an enhanced sentence.  Mind you, the sneaky part is that all those silly constitutional safeguards that the USA Patriot Act is designed to circumvent no longer apply.  Can you say “jaywalking-terrorism?”

Di tells us her hubby, Mike Nichols’, favorite joke:

If a man is in the woods and his wife’s not there, is he still wrong?