Thrice this week I was chastised by others for my blawg defying easy pigeonholing.

“Yutz,” I was called (by someone obviously misinformed that yutz was a Yiddish term of endearment).

“Don’t you know that you can’t market yourself through your blog unless you keep it consistent!”

Why yes, I’ve heard that.  But then my blog was not created as an exercise in marketing.  Shocking but true.  It’s not that I do not appreciate the inquiries from people who have happened upon my work and sought me out, but that’s not why I write.  Cogito ergo sum.  And I write because I think.

I could limit my blawg to New York criminal law issues, or criminal law issues in general.  But my interests are not so limited.  Some of my work is deadly serious, while I include many humorous elements in my blawg.  For me, there’s room for both.  And if your gestalt needs compel you to demand an explanation, jurisprudence is the product of all influences of society, whether popular, political, legal or historical.  Why stop at one when you can have them all?

So read what you want.  If you like it, read more.  If you hate it, tell me why.  I don’t mind being told I’m wrong.  My best thoughts come from being challenged, and I am proud to say that I’ve learned as a result.  But don’t bitch because I my world tends to expand in unpredictable ways.  If I had the time, I would write about 100 things a day, likely more.  There is so much of interest happening around us that I cannot fathom how any thinking person could do less.

UPDATE:  I just found out that Jamie Spencer in his Austin Criminal Defense Lawyer blog has just posted the results of his highly scientific poll of favorite criminal defense blawgs of all time, and this blog has made the top 10 (actually, 11, but we’re lawyers, not accountants, so who’s counting).  I am, of course, humbled by this honor.  So who’s the yutz now!

Newsday has been running a series of articles about a Muttontown couple accused of enslaving 2 Indonesian women.  You don’t get too many slavery cases these days, though some might argue that its purely a matter of poor enforcement. 

Today, Newsday reports that US District Court Judge Thomas Platt has given up on releasing the couple on any bail conditions.  Despite their offer to put up $3.5 Million in cash, and pay $15,000 a day to turn their home into a prison, prosecutors have not agreed to the terms.  According to the article, significant doubts have arisen from the couple’s possibly deceptive information about their financial resources, particularly those held outside the country.  This suggests, of course, that the couple would flee and live quite nicely elsewhere. 

What today’s story doesn’t mention is that the couple’s attorneys today, Stephen Scaring and Jeffrey Hoffman, were not their lawyers yesterday.  And their lawyers yesterday were different from the ones the day before. 


Flavor of the Day: Defense Attorneys Scaring and Hoffman

It’s impossible to point the finger of blame at any attorney involved in this case, even though an earlier one apparently got into a bit of a pissing contest with Judge Platt, causing the judge to publicly shut him down.  Not generally considered to be a wise move given that Judge Platt gets to make the decision.  But what emits an unpleasant odor about this situation is that the “wealthy Muttontown couple,” as they are invariably referred to, have dug themselves into a legal hole (aside from any issue of guilt or innocence) from which they will never emerge.

Short and sweet:  Don’t change lawyers more often than socks.  Recently, I wrote about getting it right the first time, and the impact of half-baked initial choices as to defense counsel.  Of course I realize that it isn’t easy to select the best quality defense lawyer available, but knee-jerk resort to some guy “who used to be a DA” as referred by your real estate lawyer just doesn’t cut it.  Quick and easy, just foolishly wrong.

And so the couple, with their first set of lawyers in hand, provide financial disclosure that has permanently tainted the efforts of their current set of lawyers.  That was a mistake.  And the fact that a new lawyer shows up every time the case comes before Judge Platt creates a sense of, oh what to call this, instability?  That was a mistake.  This couple hasn’t figured out yet that they are walking into court as criminal defendants, no matter how important they are in their own minds (an inherent North Shore  curse).  No doubt they know better than any lawyer, and as they are absolutely entitled to get whatever they want (another inherent North Shore curse), the failure to secure release means that the lawyer must suck.  It certainly couldn’t have anything to do with the couple’s choices.

What will be interesting after today’s ruling by Judge Platt, shutting down efforts to turn their home into a fortress, will be what happens to the couple’s current lawyers.  Certainly the couple has better lawyers now then they deserve.  But will there be new lawyers defending them tomorrow?  I bet that will impress the judge.  Given this history of compounding one stupid move with another, I have but one piece of advice for lawyers in the game.  Get a big retainer up front, because the chances of actually seeing this case through to its conclusion seem mighty slim.  As for the “wealthy Muttontown couple,” Varsha Mahender Sabhnani, 45, and her husband, Mahender Murlidhar Sabhnani, 51, bear in mind that America is the land of opportunity for everyone.  Not just you.

New York Legal Update asks Who’s Acronym Is It Anyway?  In Matter of Fireman’s Assn. of State of New York v French Am. School of N. Y., 2007 NY Slip Op 04745, the FASNY firefighters duke it out with the FASNY French School.   FASNY. Man, what a catchy acronym.  No wonder they are all over each other.

What took me by surprise was this bit of info about the volunteer fireman’s FASNY:

It has a membership of 43,000 volunteer firefighters and an annual operating budget of $11,000,000.

Excuse me?  These are the vollys that are so desperate that they need pensions for retention, race cars for fun, and have a piece of fire apparatus for every member (okay, I’m exaggerating on the last one, but if you’ve ever been to a parade, it certainly looks that way.)  And they have an association with an annual operating budge of $11 Mil!  Who’s paying for this, and what do they do that they need $11 Mil that isn’t already being done with my tax dollars the first time around?  Holy Smoke!  Volunteers cost a bundle!

Apparently, part of that $11 Mil is needed for legal fees to keep those French students from glomming their good name.  When I first saw the decision, I thought to myself, this is a tempest in a teapot.  But now I realize, if only 10% of that $11 Mil gets mistakenly shuffled over to the French FASNY instead of the fireman’s FASNY, that could cost them 3 Las Vegas conventions.  This is serious business.

Turning now to my other reason for taking note of this nonsense, the New York State Association of Criminal Defense Lawyers, or NYSACDL as its called by almost every New Yorker, was looking for a new name.  The problem was that the name was too long for the media, such that its was either left out entirely or routinely butchered into some shortened version.  So, we tried to come up with a new, more media friendly name. 

One of the choices was Defense Attorneys of New York, or DANY.  Catchy, right?  Except for one tiny hitch.  DANY is used by the District Attorney of New York County, Bob Morgenthau’s gang.  Potential for confusion?  Perhaps, but think of the fun we would have litigating the issue.  I wanted to go for it.  Others, less inclined to tussle with the DA when not being paid to do so, thought it ill-advised.  Still others thought that the original name was so deeply etched in the public’s consciousness that a change would be unwise. 

What about the Feisty Attorneys of the State of New York.  Catchy, right?

The entire City of New York was officially closed so that everyone could watch the series finale of The Sopranos.  I leave to the TV critics the reviews, as I have no better idea than you of whether it was brilliant or unsatisfying.  But this HBO series, like the Fox series 24, gives rise to certain questions.

Let’s first admit that the American public is fascinated by these shows.  Next, that most American’s do not watch for the symbolism (Cappo Phil being crushed by a Ford truck), but for the well done story.  And finally, that we associate with the lead characters.  Doest that mean that we want to be Tony Soprano?

The mob has long held fascination for Americans.  Certainly the Godfather, one of the greatest movies ever made, gripped our imagination.  But why?  As a society, we’re about as anti-crime as we could possibly be.  People want the death penalty as punishment for everything heavier than a speeding ticket.  No matter how good the show was, people should have been shutting off The Sopranos in disgust after the first curse/whack in drove.  That didn’t happen.

Perhaps this is a harmless outlet for our hostility toward others and the government, with Tony, that cuddly and sweet ambivalent killer, representing our secret lust for might over right.  In his own peculiar way, Tony represented some sort of primitive justice, if you were able to overlook the little details like his income coming from crime bolstered by violence.  You have to admit, David Chase did a great job of presenting Tony Soprano as a man of moral ambiguity, where you could almost justify the occasional leg-breaking as necessary to keep people in line.  After all, they had to pay off the vig, right?

I had similar issues with Jack Bauer in 24.  Sure, he was on the side of truth and justice, but that didn’t stop him from indulging in a bit of torture when he needed an answer fast.  Does that mean that we really think, in our heart of hearts, that torture is okay under circumstances that we find morally understandable?  Or does that mean that our issues are not about violence per se, but violence when its justification is in doubt.  After all, TV always let’s us know who the real bad guy is, so when the pain comes we don’t have to grapple with its righteousness.

As The Sopranos fades into American cultural history (at least until “Sopranos, The Movie” comes out), does it mean that there is a mobster wannabe inside all of us?  Frankly, I suspect it does.  Enough explaining and arguing, just shut up or I’ll break your knees.  Many, if not all, of us have this tiny voice inside our heads that wants to say this out loud. 

But we don’t, and we never will, because we aren’t Tony Soprano and we aren’t mobsters.  And the fact that we can control this little voice and keep it stuffed in the most inner reaches of our heads gives us a sense of moral superiority to those few who cannot.  And so it’s fun to watch a fictional character, who suffers the slings and arrows of outrageous fortune, say it for us since we know that no one will actually be harmed by the making of this television show.  But I will never be able to listen to the music of Bruce Springsteen again with thinking of Little Stevie Van Zandt’s hairdo. 

Brought to you by the Garden State’s finest at Overlawyered, the first lawsuit has been filed against new lawyer rating service Avvo.  I’m shocked.  Shocked!

As may be somewhat apparent, I have been less than impressed with Avvo’s concept and execution.  But that said, there are some meritorious aspects to their efforts.  And they have certainly not tried to hide from criticism, as one of Avvo’s founders, Paul Bloom, has even shown up here to face the music.  But of the many things that I find wrong with Avvo, actionably low ratings is not one.  And that has absolutely nothing to do with the fact that I am a well-deserved perfect 10.

One of the failings of Avvo is that every attorney, by simply claiming their profile, can update it to include as much positive information as they can muster to increase their rating.  In other words, your rating is largely in your own hands.  Take 5 minutes and you miraculously become a better lawyer.  With a little imagination, you’re a 10 too, unless you’re truly a miserable miscreant who has done nothing with your career, invoked the ire of your local disciplinary authority and been the poster child for client abuse.  With a lot less time and effort than it takes to prepare a complaint, the offended plaintiff could have upped his rating instead of becoming today’s headline at Overlawyered.

What slays me about lawyers is that we keep proving our critics right.  If you don’t like your Avvo rating, regardless of how material you believe it to be to your qualifications, change it be doing something that will increase it.  Write an article.  Give a speech.  Earn an award.  But don’t whine about it.  It’s unbecoming.

She can’t sing and clearly can’t act, but the Paris Hilton show, the hottest law show on all networks these days, has captured the attention of America.  Like all good series, it ends with a moral for our times.  Unfortunately, most people were so caught up in the visuals that they missed it.  So I’m here to help.

Judge Michael Sauer made a determination that the sentence he would impose would send a message about the law that would ring across the land.  The Order of a Court will not be ignored without consequences.  Whether 45 days, as opposed to 37, is the right consequence is hardly important (unless you happen to be Paris).  That the sentence was hard, if not harsh, was the message.  It generated a great deal of debate, which is precisely what it was meant to do.  The message was general deterrence, and it is a legitimate message.  Who better to be the messenger than someone like Paris Hilton?

The judge’s move was bold.  Whether he was right does not matter, and can be debated all you want.  He was the judge, and he used his lawful authority to serve a proper message.  We can disagree with judges all we want (I know I do from time to time), but as long as the Court acts within its lawful and legitimate parameters, it has done its job.

Enter Sheriff Lee Baca.  Somebody somewhere probably has a clue as to his motivation, but not me.  Is he a great humanitarian?  Is he Judge Sauer’s political enemy? Is he a celeb lover?  Is he on the take from Kathy Hilton?  I wouldn’t know.  But I do know that he cannot possibly be so stupid, so out of touch with reality, to think that releasing Paris Hilton would not cause a public firestorm within seconds.  And so, I am constrained to conclude that he intentionally chose to smack Judge Sauer in the face and show the Court who holds the real power in Los Angeles. 

Quick segue to the return to court.  The County Attorney hauls Paris back to Court, where the Judge sends her back to jail.  We watch weepy Paris crying “Mommy” as she is forced to garb herself in a jumpsuit.   We get off the couch and check the refrigerator for avocado dip.  EOS, right?

What the hell is everyone thinking?  What happened to Lee Baca?  He spit in the judge’s face and walked.  Yes, gentle readers, this is the real moral of the story.  Sheriff Less Baca made an intentional decision to ignore Judge Sauer’s order and walked away with impunity. Hey, wait a second.  Isn’t that the very message that Judge Sauer was trying to stop?  Isn’t that why Paris was sent to jail in the first place. 

Aha!  Now the message is clear.  Everyone in our society, including celebrities, must pay the piper if they ignore a court order.  Except law enforcement.  Paris went to jail; Baca went home.  Paris makes amends; Baca makes reservations at Spagos.    So let’s get this message straight, you cannot disobey a court order with impunity, unless you wear a shield.  And that is the moral of this sad and unfortunate story.

His third in a series of Op-Eds, Bob Herbert pens The School to Prison Pipeline.  In this piece, Bob draws the obvious conclusion that our society is treating its children as criminals, and no one seems terribly disturbed by this trend.  While the conclusion (for anyone who reads Bob’s work) is obvious, it was necessary.  We need to have our noses rubbed in this because the trend is that dangerous.

With 6 year olds in handcuffs in Florida, and 30 high school kids arrested in Brooklyn on their way to a wake, something is wrong.  Zero tolerance (like 3 strikes and you’re out) has become a mindless mantra, so wholly lacking in rational thought as to make anyone, except someone so blinded by recent personal tragedy, shudder.  And this is why we don’t leave decision-making up to someone blinded by recent personal tragedy.  We can forgive them the anger, frustration and hostility, but we realize that sound decisions are not made in moments of extreme anger.

One of the best quotes in the piece is:

  “What we see routinely,” said Dennis Parker, the program’s director, “is that behavior that in my time would have resulted in a trip to the principals office is now resulting in a trip to the police station.”

This is the point.  We’re talking about conduct where kids behave like kids.  Sometimes they through a tantrum.  Sometimes they have a schoolyard scuffle.  Kids do these things.  We did these things.  I did these things.  If it happened today, I feel certain that I would be a “3 times your out” juvenile delinquent because I used to be a kid.  And my parents, who executed the occasional corporal punishment behind the woodshed, would likely be in the jail cell next to me.  Today, this would be called family values.

As my practice does not regularly involve juveniles, my view of this was through the eyes of a parent and I found it horribly disturbing.  Recently, however, I have had the honor of representing a kid.  A really good kid, without an iota of delinquency in him.  He never should have come into the system.  He never should have been anywhere near the system.  His problem arose at the hands of the parent of an overly aggressive schoolmate.  The parent’s twisted reasoning was recognized by all, from the school to the cops.

And so they all put an end to before dragging a good kid into a place where he should never have been, right?  Not quite.  When the school demurred, the parent went to the cops.  He annoyed the cops enough that they shuffled the papers off their desk into that misnamed thing called the juvenile justice system.  All the while, the kid and his parents were dying.  Didn’t anyone care that a good boy, who had done nothing more than any other normal ordinary kid would do when struck by an overly aggressive schoolmate who refuse to stop, was being subjected to treatment as a criminal.  Short Answer: Nope.  Except me, but I don’t count.

This has got to stop.  We, the adults in this society, have got to stop supporting the criminalization and politicizing of children as criminals.  A few may be, but most are not.  And to have a knee-jerk reaction as has become pervasive is just plain sick.  We are the cause of child endangerment.  Heaven knows, if this had been done when we were kids, we would all be in juvy.  Think about that.  Are we all criminals?  If not, then our children today should not be treated as such.  As Bob Herbert wrote, we need to get a grip.

Justin Paul Caulfield.  Remember this name.

Rarely does anyone come up with something truly innovative in the practice of law.  Paul Caulfield has done just that.  I had a drink with Paul yesterday, and he explained to me his concept.  Not only am I impressed with his ideas, but I am persuaded that he’s right. 

The idea of a lawyer without an office was an impossibility.  We needed our big desk, our library fully of books and our ego wall with all our certificates to prove our worthiness.  We needed a big office to impress our clients and adversaries alike.  It was de rigor, and its absence bespoke a struggling lawyer. But times change. 

Paul Caulfield has found a niche that fills a huge gap in the availability of legal services, while simultaneously enhancing the quality of life for attorneys.  How so?  By eliminating the concept of law office, and replacing it with the alternative concept of house counsel on an as-needed basis.

This new idea offers two major benefits:  First, businesses and individuals who neither need nor can afford full-time house counsel (meaning, a lawyer who can provide general legal services and who has an in-depth understanding of the business, the individual and their needs) can now have complete access to real legal services without the burdens that would otherwise force them to forgo legal advice unless the situation absolutely demanded it.  Think about how often a business could use a lawyer, but neglects to consult one because of cost, inside-knowledge and availability. 

Second, by eliminating the overhead associated with a typical law office, the lawyer can charge substantially less without sacrificing his net income.  The client saves.  The lawyer earns.  There’s nothing wrong with that.  Moreover, if one considers the expense needed to maintain the “Taj Mahal” that most medium to large law firms call home, this savings can be huge.  Thus, the client saves and the lawyer earns more than he was earning before.  There’s nothing wrong with that either.

But can a lawyer maintain his dignity with over-stuffed leather chairs and a big mahogany desk?  Inquiring minds want to know.  The reality is that these accouterments of our profession really aren’t absolutely necessary.  As it turns out, clients are really more concerned with the quality of legal services than with the paneling in your office.  With online research capabilities, cellphones, PDAs and the plethora of technological advancements that have changed the face of the law in the past decade, the concept of a law office may well be obsolete.  But being lawyers, most of us just haven’t figured that out yet.  We lawyers tend to get stuck in our ways.

Paul figured this out.  More importantly, Paul did the unthinkable.  He tried the concept, and found that there are many clients who are more than happy to trade off our fancy offices for their cost savings and access to a lawyer.  It turned out to be a win-win. 

So what about the quality of life issue?  By unchaining the lawyer from the desk, Paul found that his time was now his own.  No billable hours issue, nor time clock to punch.  He can schedule around his family, meaning that he actually has a family life.  How many of you can say that?  Be honest.  Nobody told you in law school that you would never be able to have dinner with your family again, now did they?  This no longer has to be the case.

So some day, when you tell your grandchildren about the good old days when lawyers had their own offices, remember the name Justin Paul Caulfield.  And remember that you heard it here first. 

UPDATE 2:  From the AP story :

Deputy city attorney, David Bozanich, declared: “This is a simple case. There was a court [order]. The Sheriff’s Department chose to violate that order. There is no ambiguity.”

And this is why LA County Sheriff Lee Baca was stripped of his weapon and shield and thrown into a protective custody wing of his own jail, where he had no one to talk to except his new roomate Bubba!  Oops.  Never mind.  They put Paris back in jail instead.  Me bad.

And now back to the original piece:

My good buddy Mike from my commuter train, totally absorbed in the Paris Hilton saga, is sitting on the edge of seat:  Paris, is she in or out?  I can’t bear to see Mike so tense, particularly given his advance years.

As noted yesterday, the whirling Paris story is back on the front page today, the Judge and County Attorney furious at the LA County Sheriff’s messing with their message.  And so Paris, now the pawn in this game, is ordered back to court.

I suspect that Paris, previously the object of ridicule and scorn for her haughty attitude and behavior, will soon by the object of sympathy in this intramural sparring between court and sheriff.  The real question will be whether the Judge has the cajones to hold LA County Sheriff Lee Baca in contempt and send him to the clink.  I hear there’s an open jail cell available.

UPDATE:  Just finished watching the Today show, where some gal named Susan Filan did the legal commentary on the post-Paris fallout.   Quick piece of advice, Sue.  If you have no clue what you’re talking about, then don’t talk. There are a ton of competent lawyers out there.  Can’t they use one of them?  The only “analyst” who is invariably worse is Kimberly Guilfoyle Newsom

These people make Nancy Grace look contemplative.  No wonder the public’s understanding of the legal system is so bizarrely skewed.  Danny Abrams, what are you doing?  Enough with using women because of their looks; shoot for the ocassional intelligent analyst.  You have got to be able to do better.

No, not Bush, but George Washington.  Having spent the past week helping my daughter to study for her US History Regents Exam (for you non-New Yorkers, kids take a test called Regents because they don’t trust local teachers enough to let them prepare their own finals), I’ve had the opportunity to give some thought to the genius of our founding fathers.  I shudder to think what we would have if our “leaders” had to reinvent this country today.

The brilliance of the Constitution is well known.  How many documents endure the way the Constitution has, addressing situations never dreamed of in a way that holds our principals dear to the extent that modern pandering and transitory convenience will allow.

But even the smaller choices, that are now so ingrained in our government, demonstrated a level of foresight that amazes.  Consider George Washington’s choice that he be called Mr. President rather than Your Majesty.  the impact of this on the tone of our public officials is pervasive, though many today would have much preferred the latter, and indeed act as though their election has elevated them to the status of beatification.

What of the tradition (later to be embodied in the 22nd Amendment) of serving no more than 2 terms.  Washington could have been President for life, but he chose to end it after 2 terms, recognizing that any further service would make this budding nation a prisoner of his persona rather than a nation apart from any man.  Would any politician today, filled with his popularity and self-importance, be willing to walk away for the good of the nation.  What self-aggrandizing benefit would they be willing to walk away from today?

And, of course, consider the creation of the cabinet.  The recognition that one man cannot know it all or do it all.  The admission of human frailty and limitation.  The acknowledgment that every man needs the aid of others to make better decisions.  It would be unthinkable today to not have a cabinet, but it would probably be far more desiresable for the purpose of having more plum positions to give away to supporters than to truly seek the advice and counsel of others for the benefit of the nation.

One does not have to agree with all, or any particular one, of our founding fathers to appreciate the miracle that gave birth to this nation.  And so when I read this morning that archaeologists discovered a slave passage at George Washington’s home in Philadelphia, used during his presidency when Philly was the capital, I cringed.  As the discovery of Jefferson’s liaison with Sally Hemmings was used by some to besmirch his memory, I wondered how this piece of news will impact Washington.

While the Constitution and political decisions made by our founding fathers remain as alive and vital to our government today as they did in 1789, their personal lives cannot be taken out of context.  Such matters as slavery, a blight on the founding of our country and a 3/5s disgrace in our Constitution, was still a fundamental element of their society.  They were not perfect in terms of our understanding today.  Of course, it would do well to remember that it took until 1964 to pass the Civil Rights Act, and the impact is still readily apparent to anyone who has the pleasure of driving through any neighborhood where de facto segregation is very much alive and well.  So who are we to be critical, when we still can’t find a way to eliminate the vestiges of slavery.

Remembering the genius of our founding fathers is critical to our appreciating why the United States has a reason to exist.  We were created to be shining light of democracy and fundamental fairness.  Today, we spend far too much time arguing about the exceptions and forgetting the rule.  While lawyers and judges mouth the rhetoric, the basic principals are given little more than lip service as the power of government and intrusion into the lives of citizens grows daily. 

There are always good arguments against allowing basic freedoms as protected by the Constitution, as these nasty little freedoms get in the way of effective government.  But that was exactly why our forefathers deliberately decided to protect them.  Federal judges tend to be quite expert at citing cases in support of their decisions, but I wonder how many reread the Constitution and Bill of Rights from time to time so that they can remember the big rules. Nowhere in the 4th Amendment does it state that people shall be free from unreasonable searches and seizures, unless that would make it inconvenient for the government to arrest, convict and imprison them, in which case the court shall find or create an exception that will render the warrant clause a nullity. 

I hope all judges have children taking the Regents exams in US History, so that they can relive and remember what George Washington, Thomas Jefferson and their contemporaries did for them.