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  • Driver not deprived of right to consult with counsel before taking blood-alcohol test, appeals court rules

    A suspect charged with driving under the influence of alcohol cannot keep the results of a blood-alcohol test out of court because he did not have an opportunity to consult with an attorney before taking the test, a state appeals court in Brooklyn has ruled.

    Whether to suppress evidence of a blood-alcohol test because the suspect was deprived of his right to counsel depends on whether the attorney “entered” the case before the test was given, the Appellate Division’s Second Department ruled on Jan. 11.

    An attorney enters a criminal matter and triggers the right to counsel when either a suspect asks to speak with an attorney or the attorney or his or her professional associate notifies police that the suspect is represented by counsel, Judge Randall Eng noted on behalf of the four-judge panel.

    “Because the record does not establish that counsel ‘entered’ the case before the test was given, the [trial court] erred in finding that the blood-alcohol test was given in violation of the defendant’s limited right… to consult with counsel,” he wrote. “Notification given to the police by a third party, such as a member of the defendant’s family, is not sufficient to establish counsel’s entry into the case.”

    The appeal arose from a prosecution that began on August 26, 2013, when the defendant allegedly got into a fight with a friend at late-night party in North Massapequa. The friend drove away and the defendant got into a car and chased him, before allegedly ramming his car into the back of his friend’s car.

    The police arrived, arrested the defendant and took him to the hospital. At 2:35 a.m. the suspect consented to a blood-alcohol test. Three minutes later, the police learned the name and telephone number of an attorney for the suspect, but the record did not establish how they obtained the information. (A police officer testified he did not remember how he learned it.)

    At 2:49 a.m., police administered the test. At 3:30 a.m., the suspect was advised of his rights and made a statement to police that implicated him in several crimes arising from the incident.

    At trial, the defendant asked the court to suppress both the result of the blood-alcohol test and his statement. The trial court sided with the defendant, holding that police violated his right to consult with an attorney about whether to take the test.

    The Appellate Division, disagreed, noting that by law, any person who operates a motor vehicle in New York “shall be deemed to have given consent” to a test of his or her breath, blood or urine to determine the driver’s blood alcohol level. Drivers who refuse the test face automatic revocation of their license to drive and admissibility at trial of evidence that the driver refused to take the test, provided that the police have warned the driver in advance of the consequences of his or her refusal.

    When deciding whether to refuse to take the test, a defendant may wish to consult with counsel, said the court, adding that by law police have no duty to warn a defendant of this limited right before asking the defendant to submit to the test.

    Still, “when an attorney has actually entered the case, a defendant who had not asked to speak with an attorney must be made aware of the attorney’s entry into the case so that he or she may decide whether to consult with counsel before making a refusal decision,” Eng wrote.

    Criminal defendants in New York have an indelible right to counsel, which the state’s highest court has held to mean that a defendant in custody in connection with a matter for which he is represented by counsel may not be questioned by police in the absence of his attorney with respect to that matter or an unrelated matter unless he waives the right to counsel in the presence of his attorney.

  • ‘I want a president’

    ‘I want a president,’ Zoe Leonard (1992), The High Line

  • The Trump dossier differs from an indictment

    BuzzFeed itself made news Tuesday when it published a 35-page dossier detailing Donald Trump’s alleged relationship with Russia.

    Most news outlets, including the Times, The Washington Post and CNN, refrained from publishing the document, which as far as I know remains unverified. Dean Baquet, executive editor of the Times, said his organization would not publish “totally unsubstantiated” allegations.

    BuzzFeed said it published the dossier “so that Americans can make up their own minds about allegations about the president-elect that have circulated at the highest levels of the US government.”

    But how can readers make up their minds about the truth of the charges, which include claims of meetings between Trump aides and Russian operatives, as well as sexual acts? As Erik Wemple wrote in The Washington Post, “Americans can only ‘make up their own minds’ if they build their own intelligence agencies, with a heavy concentration of operatives in Russia and Eastern Europe.”

    That intelligence agencies briefed both the president and president-elect about the allegations did not sway me either. I imagine the agencies brief the president about all sorts of unsubstantiated information – possible terrorist plots, for example – that I would be in no position to assess if I learned of them.

    At the same time, the existence of the dossier was known throughout official Washington. Mother Jones reported the information in October. Senator John McCain said he passed the dossier to the FBI.

    As Jack Shafer argued in Politico, “… when such a report is flung about by people in power, as this one was, and its allegations are beginning to inform governance, more damage is done to trust in government and confidence in journalism by withholding it from public scrutiny.”

    Ben Smith, BuzzFeed’s editor-in-chief,  appeared Sunday on CNN to defend the decision to publish. “Our job is not to be gatekeepers,” he told host Brian Stelter. Smith compared the dossier to an indictment – a charge of a serious crime – which news outlets report on all the time, usually by prefacing the allegations with the word alleged. As Smith sees it:

    We are I think well within the tradition of American journalism, which is every time you use the world ‘alleged’ on your air, every time you see the word ‘alleged’ in print or on the web, that is saying we are repeating a claim we can’t verify. That is totally, within the standard particularly of covering law enforcement.

    The dossier reportedly originated as opposition research commissioned by one of Trump’s Republican rivals for the White House. It was later championed by a Democrat, though not necessarily the Hillary Clinton campaign.

    To bring criminal charges, prosecutors generally must have probable cause, which courts have construed as meaning they must have a reasonable basis for believing that a crime has been committed.

    According to the Justice Department’s charging guidelines, the requirement of probable cause merely begins the inquiry and does not alone automatically warrant prosecution.

    “On the other hand, failure to meet the minimal requirement of probable cause is an absolute bar to initiating a federal prosecution, and in some circumstances may preclude reference to other prosecuting authorities or recourse to non-criminal sanctions as well,” the guidelines instruct.

    Opposition researchers do not need to worry whether an allegation will hold up in court.

    That’s not to suggest that criminal charges necessarily have merit because prosecutors have assessed probable cause or that charges do not need to be substantiated. But they reflect a calculation by prosecutors, as the guidelines put it, “that the admissible evidence will probably be sufficient to obtain and sustain” a conviction.

    Of course, journalists are not prosecutors. And I share the instinct to want to provide readers with primary sources. But the dossier differs from an indictment.

  • The investigation into Eric Garner’s death passes to Jeff Sessions

    The investigation into the death of Eric Garner at the hands of the NYPD will pass to Jeff Sessions, the incoming attorney general who has criticized efforts by the Justice Department to end discriminatory policing and the use of excessive force in poor, mainly black communities.

    Attorney General Loretta Lynch, who is overseeing the probe, is expected to step down before prosecutors reach a resolution in the case, The Washington Post reported Friday.

    In December, Lynch shifted the investigation to Washington from Brooklyn following a disagreement between prosecutors there and at headquarters, with prosecutors in Brooklyn doubting whether they could prove in court that the use of force by Daniel Pantaleo, the NYPD officer whose chokehold of Garner, a black man, led to the latter’s death on Staten Island almost three years ago, was unreasonable based on the circumstances. Their colleagues in Washington reportedly thought the record contained enough evidence to proceed.

    At a hearing of the Senate Judiciary Committee in November 2015, Sessions, a senior member of the panel, called the Black Lives Matter movement, which campaigns to end anti-black racism and police abuses, “really radical” and said that “police officers all over America are concerned” about legal actions by the Justice Department against police departments and officers.

    As attorney general, Sessions will inherit DOJ’s oversight of agreements with the cities of Chicago, Cleveland and Baltimore that commit police in each of those cities to refrain from unconstitutional stops, searches and arrests of African-Americans, as well as from using excessive force. In an introduction to a paper published in 2008 by the Alabama Police Institute, Sessions denounced the use of such agreements as “an end run around the democratic process.”

    According to Ames Grawert, counsel for the Brennan Center for Justice, Sessions’ comments “call into question” whether he would continue the department’s probes intro police practices.

    Sessions also will be charged with implementing the criminal justice agenda of the president-elect, who campaigned on a platform of law and order. Though Sessions pushed for passage of a 2010 law that reduced the disparity in sentences between crimes for crack and powder cocaine, he has opposed reform of federal sentencing laws despite bipartisan support for ending mass incarceration without compromising public safety.

    Pantaleo and his partner arrested Garner, a father of six, for allegedly selling untaxed cigarettes. Video from a cellphone camera recorded the encounter, which ended with Garner telling the officers 11 times he could not breathe as they pinned him to the ground.

    In a letter last Tuesday to Lynch, Rep. Hakeem Jeffries of Brooklyn and five of his fellow New York-area lawmakers called on the attorney general to prosecute Pantaleo. “In approximately two weeks, there will be a new DOJ less committed to civil rights enforcement,” they wrote. “Consequently, the investigation into Mr. Gamer’s death may itself be suffocated and die.”

  • President Obama writes about the president’s role in advancing criminal justice reform and the significance of second chances

    In its investigation of the police department in Ferguson, Missouri, the U.S. Department of Justice found that the city relied heavily for revenue from fines for such minor offenses as jaywalking or untended lawns that it enforced most often against members of African-American communities. The city issued arrest warrants not based on public safety needs, but as a routine response to fine payments, investigators found.

    We are reminded of that more recently by President Obama, who in an article for the Harvard Law Review discusses the president’s role in advancing criminal justice reform. The 50-page article summarizes many of the statistics that may be all too familiar to people in communities of color.

    Roughly 2.2 million U.S. adults were housed in federal, state or local jails at the end of 2015 (the most recent year for such data), down about 2% from a year earlier. While blacks and Hispanics constitute roughly 30% of the population, they comprise half the prison population. As the president notes, though evidence suggests no statistically significant difference in drug use across races and ethnicities, the arrest and conviction rate for African-Americans is much higher.

    For similar offenses, the president writes, “members of African American and Hispanic communities are more likely to be stopped, searched, arrested, convicted, and sentenced to harsher penalties.”

    The U.S. has 5% of the world’s population but incarcerates nearly 35% of the world’s prisoners. That’s four times the world average and more than the 35 largest European countries combined. About one-third of adults – an estimated 70 million Americans – have a criminal record, which brings with it barriers to voting, employment, housing and the safety net.

    “We simply cannot afford to spend $80 billion annually on incarceration, to write off… one in three adults… to release 600,000 inmates each year without a better program to reintegrate them into society, or to ignore the humanity of… men and women currently in U.S. jails and prisons,” Obama writes. “In addition, we cannot deny the legacy of racism that continues to drive inequality in how the justice system is experienced by so many Americans.”

    The president outlines a series of changes that would make the criminal justice system fairer and more effective. They range from reform of sentencing laws and improvements in the system of public education and juvenile justice, to curtailing use of solitary confinement, reducing gun violence and restoring rights of those who have paid their debts to society.

    He also notes his commuting the sentences of more than 1,000 people, the vast majority of whom had already served much more time than the sentence they would receive today and each of whom had obtained a GED, addressed substance abuse that led to their conviction or learned skills for future employment.

    “This is an effort that has touched me personally, and not just because I could have been caught up in the system myself had I not gotten some breaks as a kid,” the president writes.

    In 1990, Barack Obama, then 28, was elected the first black president in the 104-year history of the Harvard Law Review. The law review’s current president, Michael Zuckerman, along with its articles chair, invited Obama to contribute the article.

    As it happens, Zuckerman was arrested and pleaded guilty to criminal trespass 16 years ago, at age 13, for trying to steal alcohol from a family he knew was away. The court assigned him to community service, which included doing art projects with homeless children who lived in motels.

    The experience, Zuckerman told The Washington Post, underscored for him his privilege and taught him to redirect his energy into more productive things than stealing liquor. “So being able to publish a piece in which the president of the United States talks about the importance of second chances is very meaningful to me personally,” Zuckerman said.

  • Skin color provides a basis to challenge the peremptory strike of a juror: Court of Appeals

    A Queen’s man charged with robbery will receive a new trial because the judge erred in allowing prosecutors to discriminate in the selection of jurors in violation of federal and state law, New York’s highest court has ruled.

    During jury selection, the prosecutor in the trial of Joseph Bridgeforth dismissed five prospective jurors, all black or dark-complexioned women, including an Indian-American woman. Attorneys for Bridgeforth challenged the strikes, asserting that the state discriminated against dark-colored women. The prosecutor supplied non-discriminatory explanations for four of the exclusions but failed to provide a reason for striking the juror at issue. Still, the juror was not seated.

    Bridgeforth, who is African-American, charged that the strikes violated the Equal Protection Clause of the U.S. Constitution, which forbids a prosecutor to challenge potential jurors on the basis of their race, sex or ethnicity. The move, Bridgeforth charged, also contravened the New York Constitution, which forbids denying someone his or her civil rights because of race, color, creed or religion.

    The Court of Appeals agreed. “Persons with similar skin tones are often perceived to be of a certain race and discriminated against as a result, even if they are of a different race or ethnicity,” Judge Sheila Abdus-Salaam wrote on behalf of five of her colleagues in a ruling dated Dec. 22. “That is why color must be distinguished from race.”

    According to the court, the distinction between color and race is necessary to serve the purpose of Batson v. Kentucky, a 1986 ruling by the U.S. Supreme Court that provides a framework for challenging use of peremptory strikes, which allow lawyers to dismiss prospective jurors without saying why. Lawyers have used such strikes to get rid of jurors based on their race or ethnicity even though such discrimination is unconstitutional.

    In Batson, a black man in Kentucky was convicted of burglary and receipt of stolen goods. At trial, the prosecutor used his peremptory to strike all black persons in the pool of prospective jurors, and a jury composed solely of white people was selected.

    In an opinion by Justice Powell, the court in Batson outlined a three-step protocol for such situations. First, the defendant must show that the prosecutor used the strike the discriminate. If that showing is made, the burden shifts to the state to articulate a non-discriminatory reason for striking the juror. Third, the trial court must determine whether the reason proffered for the strike constitutes an excuse to discriminate, and whether party challenging the strike has shown purposeful discrimination.

    At Bridgeforth’s trial, the discussion during jury selection proceeded as follows, according to the record before the court:

    The district attorney has now preempted all the female black women and I don’t believe that there are valid reasons other than their face and their gender that they have been challenged,” [defense counsel said]. The People responded, ‘Well, Judge, we are either going to do Guyanese or African American, can’t do black or skin color, Judge.’

    “Where individuals are excluded from jury service on the basis of their skin color, the defendant is denied the right to a trial by a jury of his or her peers, which is meant to reflect the community in which the defendant lives,” Judge Abdus-Salaam noted.

  • Along the Second Avenue subway

    One of the first things you notice aboard an uptown Q train above 63rd Street is the quiet. The Second Avenue subway doesn’t sound like any other train you’ll ride in the city. You read later that’s because the subway is constructed with low vibration track along its 22,000 feet.

    The men and women in their navy sweatshirts and orange reflective vests stenciled NYC Transit are the heroes of the Second Avenue line. At 86th Street, at 72nd Street, people with smartphones photograph the stations. If you need proof that public works lift us, ride the Second Avenue subway.

    Alighting from the Second Avenue subway at 86th Street, the Upper East Side feels like a city visited for the first time. The light, the apartments, the grocers and the theaters. Third Avenue seems relieved to have regained its place as just one of the avenues that travel uptown, and not a border of the eastern edge of Manhattan. Now you can ride between the Upper East Side of Manhattan and Coney Island in Brooklyn.

  • Owner of calf liable for motorist’s death, New York’s highest court rules

    A farm whose calf strayed onto a road can be sued for the death of a woman who was struck by a car and died while trying to help the animal, New York’s highest court has ruled in a case that illustrates the concept of legal causation.

    Holly Hain stopped her car late one night on the southbound lane of a road in upstate Steuben County to assist a calf that had escaped its closure. Leah Jamison, driving north, collided with Hain, killing her. Hain’s husband sued both Jamison’s mother, who owned the vehicle, and the Drumm Family Farm, which owned the calf, for negligence.

    The trial court refused a request by Drumm to dismiss the lawsuit, finding that it could not conclude that the woman’s leaving her car in the road was sufficiently removed from the calf’s escape as to rule out the farm as a cause of the accident. The Appellate Division overturned the ruling, finding that the farm did not cause the accident.

    But the Court of Appeals disagreed. “The very same risk that rendered negligent the farm’s alleged failure to restrain or retrieve its farm animal – namely, that the wandering calf would enter a roadway and cause a collision – was, in fact, the risk that came to fruition,” Judge Leslie Stein wrote on behalf of six of her colleagues in a ruling decided Dec. 22. “That the Farm could not predict the exact manner in which the calf would cause injury to a motorist does not preclude liability because the general risk and character of injuries was foreseeable.”

    At issue before the court was the concept of so-called proximate causation. Even if Hain’s husband could show that Drumm had a responsibility to prevent the calf from entering the road and that the farm failed to uphold that responsibility, the husband still needed to establish that the Drumm’s negligence caused his wife’s injury.

    The requirement of proximate causation promotes fairness. In short, would it be fair to make the Drumm’s pay for the injury to Holly Hain? The answer, as the Court of Appeals explained, turns on whether the harm is foreseeable and, in cases like this one, whether the intervening act – Jamison’s driving her car into Hain – is itself a foreseeable consequence of the conditions created by Drumm’s negligence.

    An injury with more than one cause requires the judges to determine whether the intervening act has severed the chain of causation. As Stein explained, factors that inform the determination include the foreseeability of the event resulting in injury; the passage of time between the originally negligent act and the intervening act; whether the original act of negligence was completed or ongoing at the time of the intervening act; and what, if any, other forces combined to produce the harm.

    Cases in which the intervening acts are said to sever the chain of causation have one of two distinguishing features, the court noted. First, the risk created by the original negligence did not produce the harm. (A bus driver who hits a wheelchair-bound plaintiff does not cause the injuries that arise form the plaintiff’s use of a defective replacement wheelchair.) Or second, the initial act of negligence has ceased, such as when a defendant negligently causes a vehicular accident, and the plaintiff has reached a position of safety only to be injured in a second accident.

    In the case of Holly Hain, a jury “could reasonably conclude decedent’s actions in exiting her vehicle and entering the roadway were an entirely ‘normal or foreseeable consequence of the situation created by the defendant’s [Drumm’s] negligence,’” the court noted (citations omitted).

  • Carrie Fisher

  • To learn how to take on Trump, study Ted Kennedy

    In the midterm elections of 1994, Republicans swept both houses of Congress in a victory that ended 40 years of Democratic control of the House of Representatives. The GOP touted as its charter a “Contract with America,” a 10-point plan that called for, among other things, a balanced budget, welfare reform, a pullback on military support for U.N. peacekeeping, a 50% cut in tax on capital gains, and term limits for representatives and senators.

    Newt Gingrich, the GOP leader and co-author of the contract, pronounced the results a revolution. “I think I am a transformational figure,” Gingrich said before the election. “I think I am trying to effect a change so large that the people who would be hurt by the change, the liberal Democratic machine, have a natural reaction – which gets wearying.”

    And yet with the exception of a reform of welfare that became law two years later, the revolution failed to achieve the reordering of society that Gingrich envisioned. For that, credit goes to an opposition led by Sen. Ted Kennedy, who countered Republicans and held Bill Clinton, who as president reacted to the GOP sweep with a strategy of accommodation, in check.

    I was reminded of all of this recently while reading a review by Jeff Madrick of “Lion of the Senate: When Ted Kennedy Rallied the Democrats in a GOP Congress,” a book by former Kennedy staffers Nick Littlefield and David Nexon. I plan to read it when I return to New York (there’s a copy on the shelf in the local branch of the public library), in part because Kennedy demonstrated how to curb the excesses of a majority. That may make the book a must-read for anyone who wonders how to function in a time of Trump.

    So what explained Kennedy’s effectiveness?

    He was tireless, according to Madrick (citing Littlefield and Nexon), who notes the intensity of preparation that the senator brought to issues. “He gathered groups of analysts and academics to debate the issues before he presented a new bill or had a meeting with the president, an opposition leader, or his fellow Democrats,” Madrick writes.

    The congressional scholar Norm Ornstein, in his own review of Littlefield’s and Nexon’s book, recalls Kennedy this way:

    Kennedy was a true workhorse who left the office every day with a huge, thick briefcase filled with bills and staff memos, and returned the next morning with all of them heavily annotated. He was genuinely passionate about social justice and indefatigable in trying to achieve results. He was a liberal ideologue but a supreme pragmatist, always seeking support across party lines and always willing to take a half, quarter or tenth of a loaf if that was necessary. He mastered the rules and norms of the Senate enough to use them to advantage in achieving his goals.

    The senator knew how to legislate, which as Madrick explains, required the ability to keep your friends close and your enemies closer. According to Madrick:

    Kennedy worked constantly, and if he had to make an intense effort to win over a senatorial colleague he did so. Sometimes he sang a song in a meeting, or he would memorize a thousand-word poem, as he did to win approval for federal funds to renovate the Longfellow House in Cambridge, Massachusetts. Mostly, he was a purposeful presence on the Senate floor or in the cloakroom, or he was visiting the offices of senators to form voting alliances to support his programs or defeat those of Republicans or right-wing Democrats.

    Compared with Clinton, whose tendency was to triangulate, Kennedy clung to his convictions. Madrick cites a speech by Kennedy on Jan. 11, 1995 at the National Press Club, as a call to arms by Kennedy to Democrats intimidated by the Republican landslide.

    Though Madrick quotes form the speech, I recommend watching it. Kennedy, addressing a capital that is in the thrall of a GOP takeover, startles you by beginning seemingly in medias res:

    I come here as a Democrat. I reject such qualifiers as New Democrat or Old Democrat or neo-Democrat. I am committed to the enduring principles of the Democratic Party, and I am proud of its great tradition of service to the people who are the heart and strength of this nation: working families and the middle class.

    Though Republicans presented their proposals as the product of a revolution, the contract, as Madrick notes, “boiled down to major tax cuts for the wealthy, paid for by sharply cutting social programs, including Medicare benefits, and reducing federal government expenditures on education by up to 25 percent, with the announced goal of balancing the budget.”

    With Kennedy in opposition, Democrats halted most of the Gingrich revolution, which would end four years later with Republicans losing seats and Gingrich resigning as speaker of the House (and his seat). In 1996, Kennedy helped pass an increase in the minimum wage. A year later, he co-sponsored legislation that expanded health insurance coverage for children.

    Ornstein recalls the shift that Kennedy helped bring about. “The political process went from one where Gingrich and his troops were on their way to establishing a parallel presidency, seizing control of the initiative and the agenda immediately after the 104th Congress convened, to one where they were back on their heels after the disastrous government shutdowns and threats over the debt ceiling at the end of 1995 and the beginning of 1996, to a period of bipartisan legislating that lasted into 1997 before collapsing into the morass of impeachment politics,” Ornstein writes.