Five Borough Defense

by Cynthia H. Conti-Cook
Associate, Stoll, Glickman & Bellina, LLP

The NY Times today reported that “actual innocence” is squeezing in next to “harmless error” and “ineffective assistance” as something for judges to consider when considering a conviction on appeal.

“I find the due process clause of our state Constitution requires a procedural mechanism be provided for an incarcerated defendant to bring a post-conviction motion upon a claim of actual innocence,” the judge wrote.

After developing our justice system for 200 plus years, this is a new idea? We have systems of justice that we all agree are human systems and therefore fallible. The system does its best, at least in theory, through rules of evidence and procedure, and even constitutional rights, to ensure that the right evidence is allowed in and weak evidence is kept out, that jurors with no predisposition will hear and decide. But every decision maker involved is a human and therefore we can all acknowledge that juries will make mistakes. But when we’re staring “actual innocence” in the face, we are just now coming to a place where judges can legally dismiss their convictions?

This seems odd.

Shannon P. Duffy
The Legal Intelligencer
March 2, 2009

A pair of recent pleadings in a personal injury case have taken on a life of their own as lawyers coast to coast have e-mailed them to friends and colleagues for their sheer entertainment value.

So what’s causing all the belly laughs? It’s a fight over whether a lawyer who also happens to be a magician should be allowed to perform magic tricks for the jury.

In a motion in limine in Blash v. ABA Construction Group, the plaintiff’s lawyers begged the judge to forbid their opponent, Steven G. Leventhal of Reger Rizzo & Darnall, from performing magic tricks or even mentioning that he is a professional magician.

Leventhal’s response (the cause of most of the laughter) asked the judge to use his or her own sleight of hand to make the plaintiff’s motion disappear — with prejudice.

Now that the case has settled for $1.2 million, the motion will never be ruled on by a judge.

But, like a viral video for lawyers, the pleadings have become popular as e-mail entertainment for legal professionals, often being sent to large lists and then forwarded again and again to an exponentially larger audience.

In the motion, plaintiffs attorneys William J. Coppol and John T. Dooley complained that a lawyer performing magic tricks is “highly prejudicial, confusing, misleading for the jury” and has “absolutely nothing to do with the substantive issues.”

In his response, Leventhal called the plaintiff’s motion in limine “the most insane, silly and frivolous pleading the undersigned counsel has ever seen.”

Although Leventhal conceded in his brief that he does perform magic tricks regularly in trials, during his opening and closing speeches, he insisted that there’s nothing wrong with doing so.

Every trial judge, Leventhal noted, has a standard jury instruction that makes that point.

And innovative lawyers, Leventhal argued, know that they must “hammer their trial themes home” by using tactics that illustrate and entertain such as anecdotal stories or references to pop culture icons.

“That the undersigned counsel opted to travel the globe to learn a special set of performance skills rather than wasting his brain cells drinking his summers away at the Jersey Shore should not be held against him,” Leventhal wrote.

“No degree of showmanship can change the facts,” Leventhal argued, and juries are “smart enough to understand that the facts make or break a case.”

Dooley, in an interview, said that he and Coppol decided to file the motion to “bust his [Leventhal's] stones,” and to throw Leventhal off his game.

But Dooley also said he believed the law was on his side and that a judge would likely agree that performing magic tricks during a trial is improper.

“You can’t get up there and do something to make the jurors say, ‘I’m going to vote for him because he entertained us,’” Dooley said.

But Leventhal, in an interview, said he has been doing magic for decades as a trial lawyer and that his illusions are designed to illuminate his arguments. Most often, he said, the tricks accompany portions of his closing that accuse the other side of hiding the truth or trying to use smoke and mirrors to create a false reality.

In one trick, Leventhal, who works exclusively for defendants, said he slowly folds a $1 bill while explaining to the jury that the parts of the plaintiff’s case just don’t tie together. When he unfolds the bill, he said, the astonished jury sees a bizarre bill that appears to have been cut apart and pasted together the wrong way, with the corners in the middle.

In another trick, Leventhal said, the slowly folded $1 bill is revealed to be a $100 bill and then, to the jury’s collective amazement, changes back to a $1 bill.

Leventhal said his interest in magic started in his childhood when he would perform tricks for guests of his parents’ hotel in Bucks County.

The interest has clearly grown to the level of an obsession for Leventhal, whose nameplate outside his office on the 13th floor of the Cira Centre identifies him simply as “Magic.”

Leventhal said he has performed in more than 65 countries for audiences that have included Quincy Jones, Arnold Schwarzenegger and a prime minister of Israel.

As an adjunct professor at Temple University’s Beasley School of Law, Leventhal said he had nearly perfect attendance at his night class because he would demonstrate the weekly themes of his lectures with Vegas-quality head scratching illusions.

Dooley, when asked to assess Leventhal as an adversary, offered some good-natured criticism, saying: “I like Steve. But let’s just say that it seems that he much more enjoys magic than practicing law.”

Attorney Jeffrey H. Quinn of Dickie McCamey & Chilcote, who represented other defendants in the suit and who filed no response to the in limine motion, could not be reached for comment.

January 31, 2009
By ADAM LIPTAK
WASHINGTON — In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

In Herring, Chief Justice Roberts seemed to be advocating those kinds of approaches. “To trigger the exclusionary rule,” he wrote, “police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

Constitutional adjudication is not a science experiment, and it is often hard to say for sure what difference a change in personnel makes. In the case of the exclusionary rule, though, you can get pretty close.

On Jan. 9, 2006, just months after Chief Justice Roberts joined the court, the justices heard arguments in Hudson v. Michigan. The police in Detroit had violated the constitutional requirement that they knock and announce themselves before storming the home of Booker T. Hudson, and the question in the case was whether the drugs they found should be suppressed under the exclusionary rule

Justice O’Connor, in her last weeks on the court while the Senate considered Justice Alito’s nomination, was almost certainly the swing vote, and she showed her cards.

“Is there no policy protecting the homeowner a little bit and the sanctity of the home from this immediate entry?” she asked a government lawyer, her tone sharp and flinty.

David A. Moran, who argued the case for Mr. Hudson, was feeling good after the argument. “I was pretty confident that I’d won,” he said in a recent interview. “O’Connor had pretty clearly spoken on my side.”

Three months later, the court called for reargument, signaling a 4-to-4 deadlock after Justice O’Connor’s departure. Justice Alito was on the court now, and the tenor of the second argument was entirely different.

Now Justice Stephen G. Breyer, who seemed to have been at work on a majority opinion in favor of Mr. Hudson, saw a looming catastrophe. The court, Justice Breyer said, was about to “let a kind of computer virus loose in the Fourth Amendment.”

Justice Breyer had reason to be wary. When the 5-to-4 decision was announced in June, the court not only ruled that violations of the knock-and-announce rule do not require the suppression of evidence but also called into question the exclusionary rule itself.

In a law review article later that year, Mr. Moran went even further. “My 5-4 loss in Hudson v. Michigan,” he wrote, “signals the end of the Fourth Amendment as we know it.”

Justice Scalia, writing for the majority, said that much had changed since the Mapp decision in 1961. People whose rights were violated may now sue police officers, and police departments are more professional. In light of these factors, he wrote, “resort to the massive remedy of suppressing evidence of guilt is unjustified.”

Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.

Justice Kennedy signed the majority decision, adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”

Another important Warren Court decision on criminal procedure, Miranda v. Arizona, appears to remain secure. Miranda, as anyone with a television set knows, protected a suspect’s right to remain silent and the right to a lawyer by requiring a warning not found in the Constitution. The decision, like Mapp, was the subject of much criticism in the Reagan years.

But in a pragmatic 7-to-2 decision in 2000, the Rehnquist Court refused to revisit the issue. Miranda warnings, Chief Justice William H. Rehnquist wrote for the majority, had “become embedded in routine police practice” and had “become part of the national culture.” Justices Scalia and Thomas dissented.

Defenders of the exclusionary rule breathed a sigh of relief in November

“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”

For now, said Pamela Karlan, a law professor at Stanford, “they don’t have five votes to disavow the exclusionary rule by name.”

At the same time, Professor Karlan said, “you are not going to see any dimension along which there is going to be an expansion of defendants’ rights in this court.”

By MICHAEL RUBINKAM
Associated Press Writer

From Scranton Times-Tribune

January 26, 2009

SCRANTON, Pa. (AP) — Two Pennsylvania judges agreed Monday to plead guilty to fraud charges accusing them of taking $2.6 million in kickbacks in return for placing juvenile offenders into certain detention facilities.

The plea agreements for Luzerne County President Judge Mark Ciavarella and Senior Judge Michael Conahan call for sentences of more than seven years in prison. Ciavarella resigned from the bench in a Jan. 23 letter to Gov. Ed Rendell. Conahan has agreed to resign within 10 days of a judge’s acceptance of the plea.

Authorities say the judges took kickbacks between 2003 and 2007 in exchange for guaranteeing the placement of juvenile offenders into facilities operated by PA Child Care and Western PA Child Care LLC. In some cases, Ciavarella ordered children into detention even when juvenile probation officers did not recommend it.

“They sold their oaths of offices to the highest bidders,” Deron Roberts, chief of the FBI’s Scranton office, said at a news conference Monday.

U.S. Attorney Martin Carlson stressed the charges were “the first developments in an ongoing investigation” into public corruption at the courthouse in Wilkes-Barre.

PA Child Care and Western PA Child Care have not been charged with wrongdoing.

Conahan’s lawyer, Philip Gelso, declined comment.

Ciavarella attorney Al Flora told The Citizen’s Voice of Wilkes-Barre that the charges are just “allegations.” He added that the plea agreement is conditional on the defendants accepting the facts prosecutors present at the plea hearing, which has not yet been scheduled.

“Everything could fall apart,” he told the paper.

Luzerne County District Attorney Jackie Musto Carroll said her office would review cases in which offenders might have been improperly placed into juvenile detention.

The Juvenile Law Center, a Philadelphia-based advocacy group, complained last year to the state Supreme Court about the treatment of children in Luzerne County juvenile court, asking for the nullification of decisions in hundreds of cases. Juveniles were often denied their constitutional right to lawyers and were disproportionately sentenced to ill-advised, out-of-home placements, the group said.

“We feel that it’s a great day for the young people and the youth of this area to see the system really does work, the system really isn’t rigged against them,” said Jack Van Reeth, whose daughter was ordered detained in 2007 by Ciavarella. “It’s just wonderful to see that the scheme of jailing for dollars has come to an end.”

Jessica Van Reeth, then 16, was sent to a juvenile wilderness camp for three months after admitting that she had possessed a cigarette lighter and pipe in school. She told The Associated Press last year that the items were found in a purse she agreed to hold for a friend. The family, expecting probation, waived her right to a lawyer, unaware of the potential consequences.

Jack Van Reeth said Monday his daughter is “extremely happy. She said that this is better than Christmas.”

Decided November 24, 2008

US v. Odeh: a US citizen who was convicted for a role in the 1998 bombings of the US Embassy in Kenya had his phone tapped and his house searched. He lost the suppression motion.

The Second Circuit decided today that the warrant requirement does not apply to overseas searches unless the primary purpose of the search is targeting foreign powers. And, without the warrant requirement, the reasonableness requirement falls gently by the way, looking up from the gutter with chapped lips and swollen, bloodshot eyes, mouthing, “I love you,” just as some US Attorney in a Mazerati drives through a puddle and drenches the reasonableness requirement in a short history of filth.

Read the hot, wet, exciting opinion right here:
http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDAxLTE1MzUtY3IgKDR0aCBBKV9vcG4ucGRm/01-1535-cr%20(4th%20A)_opn.pdf

Decided: November 13, 2008

In Brinson v. Walker, the court held that the trial court erred in precluding a defendant from inquiring in to the racial bias of the complaining witness. The trial court ruled that the defendant could not ask about an incident after the arrest where the complainant allegedly said that he would not serve “any fucking niggers,” because inquiry in to the event, which took place after the arrest, was not relevant. Also the trial court held that the defense could not put on a witness to show racial bias evinced before the arrest, because it showed only “general ill will,” not “specific hostility toward the defendant.”

The opinion can be found here:
http://caselaw.lp.findlaw.com/data2/circs/2nd/060618p.pdf

Steven Lynch, one of our own, brought this case to light.

October 14, 2008

Chicago Public Radio

Link to audio interview:

http://www.wbez.org/Content.aspx?audioID=29524

Devine says innocent people who confess to crimes may have personalities where they just want to please people so they simply repeat details they’ve heard from investigators. Devine says there are others who are just playing the odds.

DEVINE: Someone might think I’m going to go down for something. I’d better work out the best deal I can and I can do that by confessing to a limited role in this thing and testifying against others.

Devine says police and prosecutors always need to withhold crucial details to corroborate the truthfulness of confessions. It’s well documented that Chicago Police have tortured some suspects into giving false confessions though Devine didn’t address that. He made his comments today at the Chicago Bar Association in a speech on 12 things he’s learned during his 12 years as the State’s Attorney. It was a farewell speech of sorts for Devine, who leaves office at the end of November.

I’m Robert Wildeboer, Chicago Public Radio.

October 9, 2008

Arraignment Report

District Attorney’s offices across the nation are watching closely as the Bronx refuses to lose any ground against an old lady who was snapped up in a three-card-monte bust because she stopped for a second to watch. Mike Nifong, the formerly disgraced DA who prosecuted the Duke Lacrosse team, feeling vindicated, proclaimed, “Now - THAT is how the game is played.” Throwing back a bud light tall boy then slamming the can down on the bar top worn thin from a ceaseless parade of broken dreams at Shotz, out by the airport, Nifong sighed, “Goddamn it feels good to see a DA growing some fucking balls.” The Bronx DA’s office was unfazed by the fact that another defendant, who previously plead guilty, came forward, “Why are you doing this to this old lady? She didn’t do anything. I am telling you. She was not involved.  It was me.  I was not her.” Holding his chin high, eyes on the smoldering remains of the world trade center, the prosecutor proclaimed, “It is not the policy of the DA’s office to dismiss cases at arraignment.” Well done, sir. Well done.

Oct 8, 2008

Wall Street Journal Blog

http://blogs.wsj.com/law/2008/10/08/t-shirts-at-school-and-the-law-reprised-again/

A school in Tennessee can prohibit students from wearing clothing that depicts the confederate flag. A high school in San Diego cannot force a teacher to take down religiously-themed banners in the classroom. But a school in Pennsylvania can suspend an eighth-grader for creating a fake MySpace page depicting her principal as a pedophile and a sex addict.

Another week, another ’school & free speech’ case. This time we head back to Pennsylvania, where a federal judge has sided with a school district in a dispute over whether a high school student should have been barred from wearing a T-shirt with images of guns on it.

“Students have no constitutional right to promote violence in our public schools,” U.S. District Judge James Knoll Gardner wrote in this opinion. Here are reports from the First Amendment Center and the Lancaster newspapers.

Donald Miller III, now a 15-year-old sophomore at Penn Manor High School, wore a black T-shirt to school with two gun images printed on it. One, on a front pocket, is overprinted with the words “Volunteer, Homeland Security.” The other, on the back, is overprinted with the words “Special Issue — Resident — Lifetime License — United States Terrorist Hunting Permit . . . No Bag Limit.” In December, Miller was given detention after defying an order to turn the shirt inside-out.

Judge Gardner disagreed with Millers’ parents’ assertion that his First Amendment rights had been trampled. Why? Interestingly, the judge noted that schools have been forced to become increasingly vigilant about potential warning signs of violence following massacres at such places as Columbine, Virginia Tech, and an Amish school in Nickel Mines. Also, he wrote: “There is no constitutionally protected political message contained in Donald’s shirt but there is a message of use of force, violence and violation of law in the form of illegal vigilante behavior.”

A lawyer for Miller’s parents, Leonard G. Brown III (pictured), a shareholder at the Lancaster law firm Clymer & Musser, told the First Amendment Center: “Most Americans would agree that wearing the T-shirt was a political statement. His teacher said he wasn’t the kind of student they ever thought would do something violent.”

LB Readers: Two weeks ago, if you remember, 11-year-old Daxx Dalton was suspended for refusing to remove a t-shirt that read: “Obama is a terrorist’s best friend.” Does Judge Gardner’s ruling give any indication of how a judge might rule in young Daxx’s case?

New York Post

September 21, 2008

http://www.nypost.com/seven/09212008/news/nationalnews/clueless_crime_labs_130091.htm

A federal panel of experts looking into the reliability of CSI tests has heard damning evidence against some of the most common techniques used to convict killers, rapists and other criminals, The Post has learned.

The analysis of fingerprints, tire tracks and bite marks isn’t nearly as reliable as researchers once believed, crime-scene specialists told the panel. Some even called it junk science.

Many said major changes would be necessary if crime labs want to continue using the evidence.

The National Academy of Sciences report isn’t due out until December, but forensic expert Barry Scheck predicted the study could have blockbuster implications.

“The testimony before them was very compelling,” the former O.J. Simpson “Dream Team” lawyer said.

“There were some serious questions raised about the reliability of certain disciplines - bite impressions, tire tracks and automatic fingerprint identification.

“I’m assuming they’re going to make some big recommendations about how standards are set. A lot of people are anticipating a fairly far-reaching examination of forensic science.”

Peter Neufeld, Scheck’s partner at the Innocence Project, which works to clear the wrongfully convicted by using DNA evidence, was among dozens of experts who spoke before the panel, a blue-ribbon gathering of 17 evaluators who began their work in 2006.

The $1 million effort to assess forensic work is not final; the academy’s report is undergoing a peer review now.

But it’s already being viewed as a major potential challenge to the fundamentals of crime-scene investigation.

“If the rules change, it could open a Pandora’s box for defense lawyers to challenge what would be considered junk science,” said New York attorney Jeffrey Lichtman, who helped John “Junior” Gotti beat murder charges.

“All these cases would be susceptible to a second look. It certainly happened with DNA. You could end up having thousands of people being released.”

Dr. Michael Baden, a former New York City medical examiner, said the forensic community has long been aware of problems with the techniques under question.

But an official report undermining their validity from a group as prestigious as the National Academy of Sciences would have “great implications for guilt and innocence,” he said.

Panel member Dr. Robert Shaler said there was no consensus among experts who testified on whether the science could be trusted.

“Some people didn’t think there were problems, and some did,” he said. “Their opinions are theirs, not necessarily those of the committee.”

The matching of bite marks, which involves using putty to preserve impressions and making molds to reproduce suspects’ teeth, has been decried as unreliable.

Examiners in one study falsely identified an innocent person as the biter 63 percent of the time.

“I think bite marks probably ought to be the poster child for bad forensic science,” said expert David Faigman.

Additional reporting by Susan Edelman, Janon Fisher and Reuven Blau

brad.hamilton@nypost.com