Dec 07 2017

Judge Texts with Prosecutor Over Strategy on Trial: Same Old Song with New Twist

Judge Janine Barbera Dalli

Suffolk County, NY judge Janine Barbera Dalli sent text messages to Suffolk County prosecutors this week, guiding them on how to charge and try a case against a defendant, in clear violation of judicial ethics that bar judges from communicating privately with one side in a case. To their credit, prosecutors immediately disclosed the texts to defense attorney Juliann Ryan of the Suffolk County Legal Aid Society, shortly before a trial was to begin in Central Islip of a client charged with heroin possession and loitering. The judge texted the prosecutors that the defendant should also be charged with trafficking, not mere possession and then a few days later texted them that perhaps they can knock Legal Aid off the case right before trial because of a conflict in that Legal Aid may have represented one of the witnesses who the judge believed was the defendant’s human trafficking victim. Here is the contents of that last post:

Dec. 4, 8:44 a.m.: By the way, thinking if Legal Aid is representing [her] don’t they have a conflict representing [defendant]? FYI, picking a jury on that case this afternoon.

Forcing the defendant to get new counsel on the eve of jury selection would significantly impact his defense and certainly delay his trial. This one-sided communication on trial strategy is an egregious act by the judge but frankly, its not surprising to me. Awhile back, I wrote a blog post about a Texas judge caught texting strategy to a prosecutor in the middle of the trial. That prosecutor also alerted defense counsel and the judge was forced to resign. (Judge Dalli should face the same result – she needs to resign or to be removed from the bench).

What I said then applies to this case as well:

This is but a glaring, extreme example of something that is common in courthouses, particularly in suburban, smaller counties. There is a coziness between the bench and the DA’s office. I myself have caught judges having ex parte conversations with the DAs assigned to their parts about my case as I was walking into chambers. Many is the judge who has offered some trial advice to a struggling DA who I am opposing. Sometimes it is helping the DA with framing a question or by asking a number of questions that the DA should have asked on direct examination but failed to do. Other times (and this is one of my favorites) the judge will say “Objection Sustained” to a question I pose to a witness on cross even though the DA did not make any objection. I have made a record on that practice at least three or four times to my recollection. I always tell the judge not to do me the same favor, as I have a right to let a question go even though objectionable if I believe the answer will be favorable or of use to my client. I then remind the court that he or she is not a participant in the trial and should let the adversaries duke it out on their own. Counsel should also object if the court is taking a witness through a direct examination from the bench.

There are a number of reasons for this comfortable relationship: in those counties, former prosecutors make up a significant percentage of the bench. Another large chunk are former county attorneys or other government appointees. Rare is the seasoned criminal defense practitioner who becomes a judge.

There is also this perception that since both work for and are paid by the State, that they are somehow different arms of the same creature. They are “in it together.” DAs get assigned to judicial parts so they see the judge all day every day (or as much of the part of the day as the judge works). They know the judge’s habits, favorite foods, pet peeves, etc. But the judge also knows the DAs habits and when no case is pending, during a conference day for example, I have heard judges offer advice to the DA about a line of questioning or an issue that came up. I have rarely heard the same type of conversation between a judge and defense counsel. It is also not rare for a young ADA to visit a judge after a trial and ask for a critique of their performance or for advice on how to improve. Supervisors also call judges afterwards for the same thing. Finally, the plain fact is that the vast majority of folks brought to the criminal justice system are guilty in some form or another for what they are charged. So some judges get jaded and cynical and soon believe that everyone before them is guilty despite the presumption.”

One has to wonder if this happened before with Judge Dalli. I find it hard to believe that this would be the first time she attempted something as blatant as this. Dalli runs on the Conservative Party line, which has tremendous power and influence in Suffolk County politics and in the Suffolk County Courthouses in particular. She was the Chairwman of the Smithtown Conservative Party prior to taking the bench. Even though she got trounced in the recent election for Supreme Court, she was promoted to Acting County Court Judge and her salary bumped up to $179,000 – a $23,000 increase. This came after her husband, Bartolo Dalli, a CPA, was let go last October after six years as a $111,000-a-year deputy county comptroller for Suffolk. So by virtue of their Conservative Party connections, the Dallis were earning a cool $277,000 per year for six years ($1.62MM) from Suffolk County government.

That clout may keep her on the bench even after this stunt. Suffolk County is a cesspool of intertwined politics, backroom deals and cronyism. I hope the Legal Aid Society will not only file a complaint with the Commission on Judicial Conduct but demand a full investigation as to how many other ex parte, private,strategy sessions she has had with DAs. It must be made clear that this behavior will not be condoned. She has to go.

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Dec 03 2017

Colorado Gay Wedding Cake Case: Is Selling A Cake “Speech”?

On Tuesday The Supreme Court will hear oral argument on one of the most anticipated cases on the docket for this term: Masterpiece Cakeshop v. Colorado Civil Rights Commission Back in 2012, Charlie Craig and David Mullins were set to celebrate their wedding in Denver, after having been married in Massachusetts. Jack Phillips, a well known, creative, custom cake baker who owns and operates Masterpiece Cakes, turned them down, citing his Christian faith’s opposition to gay marriage.

The couple filed a complaint with the Colorado Civil Rights Commission charging Phillips with violating Colorado’s Human Rights Law, which prohibits discrimination in commerce based on sexual orientation. Interestingly, and somewhat hypocritically, the State of Colorado at that time did not allow gay marriage which is why the couple had to go to Massachusetts for the actual marriage and hold the reception in Colorado – a little bit of “Do as I say not as I do” if you ask me, but I stray. The Commission ruled that Phillips had violated the law and Phillips sued to overturn the decision.

His argument is not that he did not violate the law – his argument is that the law compels him to speak positively about gay marriage when he does not condone it. The First Amendment not only protects speech, it protects us from being forced to say something we don’t want to say – which is why Jehovah’s Witnesses, for example, have won cases allowing them to sit during the Pledge of Allegiance at school and to cover over the phrase “Live Free or Die” on their New Hampshire license plates. Phillips’ argument is strengthened by the couple wanting one of his elaborate custom cakes which he personally decorates as opposed to one of his already-created standard cakes, which he was willing to sell them. The Commission did not buy the argument he was selling, finding that selling a custom cake to a straight couple but denying a sale of one to a gay couple violates the law.

The couple is on the left, the baker is on the right – no pun intended

So in a nutshell the case presents a question of whether the selling of a custom cake is speech. Like all SCOTUS cases, the case is not just about the facts of the actual case itself. It has far-reaching implications however particularly if SCOTUS agrees with Phillips and determines that his First Amendment rights trump the couple’s rights under the State anti-discrimination law. Many businesses opposed to gay marriage – or whatever else they may be opposed to – may be able to find a way to turn the sale of their merchandise into “speech”

I think that selling a cake is not pure speech. At most, selling a cake is “expressive conduct” which is different than “expressive speech.”
My friend Constitutional law professor Eugene Volokh, a national expert of free speech, has noted in his brief in support of the gay couple, no one looks at a cake and thinks ” The baker has condoned this union.” Expressive conduct, like the burning of a Vietnam War draft card, may be regulated so long as the government’s regulation targets the conduct component (the destroying a draft card) not the speech component (the desire to express anti-war sentiment). It why it is illegal to burn a draft card but not a flag – the draft card belongs to the government technically while the flag is private property so its owner can use it for speech. A regulation on expressive conduct is permissible if the law (1) furthers an important interest, (2) that is unrelated to the suppression of expression, and (3) the restriction on any First Amendment freedoms is no greater than essential to further the important interest. The problem here as how one views these factors will likely depend on one’s view of the world. The first two factors will likely go the way of the Commission. A State has determined that it wants to pass laws to fight discrimination against sexual orientation. Clearly that is an important interest. As to the second factor, the law appears speech neutral so it is facially not related to the suppression of expression. The struggle here, in formulating any rule, will be whether the government’s interest is unrelated to the suppression of expression.The Commission has a good argument that its anti-discrimination laws foster economic equality, an interest unrelated to compelling expression. However, to the extent the Commission argues that public accommodations laws preserve the dignity of a minority community, public accommodations laws are essentially forcing a message of acceptance that may burden Masterpiece Cakeshop’s expressive rights. This factor however I think goes to the Commission due to the purely commercial nature of the law and the conduct involved. So its the last factor that is particularly subject to interpretation: Is forcing the baker to do the custom cake too much when there are other options for the customer? Are the seller’s free speech rights greater than the State’s right to fight discrimination?

The Court will have to walk a tightrope in drafting this decision. After all, religious leaders could well be concerned that a ruling against the baker could force them to conduct ceremonies prohibited by their religion. That is highly unlikely though as performing a religious ceremony is far more “Speech” than selling a custom cake. And of course, the clergy also have the First Amendment’s protects of Freedom of Religion on their side.
But its the extension of the law to other businesses that I think will cause the Court to rule in favor of the Commission. Any rule that provides First Amendment protection to escape an anti-discrimination law would invalidate as unconstitutional much of civil rights law. A Christian baker could deny service to a Muslim couple because he doesn’t wish to express pro-Islam sentiment. Any minority group’s civil rights could then be overridden by free speech rights. Anti-discrimination laws have a long history in this country of accommodations allowing vulnerable minority groups equal access to the economy, and protect them from “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

Mitch McConnell’s blocking of Merrick Garland, along with the Senate’s confirmation of Neil Gorsuch (on majority vote as opposed to the usual “advice and consent” 60-vote margin)means that it will all come down to Justice Kennedy, who recently held gay marriage bans unconstitutional, but who is also a staunch defender of free speech. The court is an almost certain 5-4 on this issue so all eyes will once again be on Kennedy. I think that he will side with the couple and rule that the conduct here is too commercial to be expressive conduct and that deciding otherwise could lead to a slippery slope.

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Dec 01 2017

Prosecutor Overreach and Actual Facts Led to Kate Steinle Case Acquittal

Some cases take on a bigger life. Some cases get caught up in a political firestorm. Sacco and Vanzetti, The Scopes trial, The Rosenbergs, Willie Horton, Rodney King to name a few. They end up being not about what actually happened but about some larger societal issue that is reflected in the case. Anarchists, Evolution, Communism, Parole, Police Brutality in the above examples. Few recent cases have been more manipulated than the murder of San Franciscan Kate Steinle. It was central mantra of the Trump Campaign. As her mother described it in the NY Times, Kate was beautiful, from the sanctuary city of San Francisco, the accused was an illegal immigrant with a lengthy criminal past who had been deported and returned illegally into the US, “a perfect storm for that man” Ms. Steinle said, referring to POTUS. So the acquittal of Jose Garcia Zarate has naturally prompted many, including the President of the United States, to vilify the jury and the verdict and call for a border wall. But if anyone is to blame in this case its the prosecution, who perhaps fearing being labeled “soft” responded to the hysteria surrounding the case by pushing for a charge of intentional murder even though the facts would never support such a charge.

The two facts no one disputes are that (1) Ms. Steinle was hit in the back of the head by a single bullet while she walked on the San Fran pier; and (2) The bullet that killed her was fired from a Sig Sauer handgun that was held by Mr. Garcia Zarate at the time of the discharge. But here are ten key facts most folks don’t know about the case that more than explain why the jury voted as it did:

1. To begin with, Ms. Steinle was not shot directly. The bullet from the gun hit the concrete ground first and ricocheted up striking Ms. Steinle;
2. The gun was stolen four days earlier from a Federal agent’s car that was parked in the area – none of the other items missing from the car was found on Mr. Garica Zarate, a homeless man living on the streets;
3. There was a video shown of a group of men suspiciously huddling around just a few hours before the shooting in the exact spot where Garcia Zarate told police he found the gun; the defns argued they could very well have wrapped and placed the gun at the location;
4.The Sig Sauer has a history of accidental firings.It’s an elite handgun intended for law enforcement and military personnel who may need to fire it with split second notice. It has a hair trigger in single-action mode. Even among well-trained users, it has a lengthy history of accidental discharges. In a four-year period (2012-2015), the New York City Police Department reported 10 accidental firings by officers involving SIG Sauers. Los Angeles County reported five involving SIG Sauers. From 2005 to January 2011, the San Francisco Police Department reported 29 accidental discharges (at the time SIG Sauers were its primary sidearm). If trained law enforcement officers are experiencing accidental misfires, Mr. Garcia Zarate’s claim that the gun accidentally fired when he picked up a cloth bundle containing the weapon is more credible;
5.The SIG Sauer in Lopez Sanchez’s case has three features prone to accidents:
A. No safety lever, making it perpetually ready for firing.
B. Manufacturer-issued trigger pull of 4.4 pounds of force (in single-action mode), which is among the lightest on the market.
C. An unlabeled de-cocking lever despite being essential to disengage the single-action mode. (The SIG Sauer safety manual urges “DO NOT THUMB THE HAMMER DOWN the consequences can be serious injury or death — only and ALWAYS use the de-cocking lever.”)The NYPD requires officers using SIG Sauers to disable its single-action function because the hair trigger is too dangerous. Those using the gun can only do so in double-action mode, which has a 10-pound trigger pull. The gun in this case as in single action mode.
6. While Garcia Zarate had a long criminal record, none of it was for violent crimes or robberies – they were mostly drug and vagrancy related;
7. San Francisco does not provide “sanctuary” to violent offenders; (And for the record “sanctuary” is in quotes because it is a misnomer – all so-called sanctuary cities do is not actively pursue deportation of non-violent illegal immigrants. They do not impede any law enforcement by the Federal agencies who of course have the sole exclusive jurisdiction to deport;
8. In accordance with the above, since Garcia Zarate was found guilty of being in illegal possession of a firearm, he will be detained and deported.
9. In his four hour long interrogation, Mr. Garcia Zarate appeared disoriented, rambling, confused and repeatedly intimidated by police strengthening the dense position that their client was just a fool who picked up a gun that was dangerous to handle and caused a terrible and horrific accident;
10. But most importantly – the prosecution inexplicably tried this case as an intentional murder case. They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand). In their summation and arguments they did not mention to the jury that the jury could vote for a lesser-included offense of criminal negligence. The prosecution was afraid to suggest the lesser included offense because they lknew teh jury woudl likely have voted for it. But what would be wrong with that? After all criminal negligence fits the facts!

The recent discussion around wrongful conviction has highlighted the danger of prosecutorial overreach and this case is a classic example. Normally, however the overreach results in a n undeserved conviction. What was the difference here? Great lawyering by assistant public defender Matt Gonzalez, who attacked the prosecution’s theory that “Garcia Zarate intentionally brought the gun to the pier that day with the intent of doing harm, aimed the gun toward Steinle and pulled the trigger,” as the San Francisco Chronicle reported. That theory was unprovable beyond a reasonable doubt- remember that the bullet ricocheted off of the ground- and Gonzalez’s research into the Sig Sauer; his discovery of the video; and his ability to make the argument to the jury that his client was just an unfortunate sad sack and not a murderer resulted in the acquittal.

This jury deliberated for six days. For conservative pundits and the President to label their effort “disgraceful” among other negative adjectives is itself disgraceful. This jury did what the Constitution required – they listened to the evidence, they deliberated in good faith and they held the prosecution to its burden of proof. That’s how our system works and it worked right in Kate Steinle’s case. If you have anyone to blame, blame those who sought to make this case about something it was not and whose inflammatory rhetoric pushed the prosecution to press for a level of offense they could never establish.

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Nov 21 2017

Defense Dep’t Says US Gov’t Not Guantanamo Detainees Own Art Detainees Created

The Dept of Defense changed a policy this month affecting the 41 remaining detainees at Guantanamo Bay Naval Base, known as Gitmo. The DOD ruled that detainees did not possess the artwork they created while detained and could not display it publicly or sell it. Art classes started at Gitmo “in the later years of the Bush administration as commanders explored ways to distract detainees who had spent years in single-cell lockups from getting into clashes with the guards,” according to Carol Rosenberg of the Miami Herald who along with Elena Goukassian of Hyperallergic.com first reported on the story. As the article reports, the program appeared successful, and even US military personnel were impressed. Detainees began sending works they’d created as presents to their lawyers and families — after close inspection and screening for subliminal messages, of course.

Rosenberg’s article sites an ongoing exhibition of Guantanamo artwork at CUNY’s John Jay College of Criminal Justice, Ode to the Sea (which has gotten international media attention), as the impetus to the Pentagon’s latest decision. On the exhibition’s website, there is an email address listed for those interested in purchasing work. Rosenberg cites a Pentagon spokesperson concerned about “where the money for the sales is going.”

Erin Thompson, associate professor of art crime at John Jay College and one of three curators who organized Ode to the Sea, told Hyperallergic that of the eight artists featured in the exhibition, four are former prisoners, and only their work is for sale. Furthermore, no one from the Pentagon even tried to contact her to ask about sales, even though her email address is plainly listed on the exhibition’s website.

Muhammad Ansi, “Untitled (Crying Eye)” (2016), work on paper


The Guantanamo Bay detention camp is a United States military prison located within the Guantanamo Bay Naval Base, in Cuba. The prison was established by President George W. Bush’s administration in 2002 during the “War on Terror.” During President Barack Obama’s administration, the number of inmates was reduced from about 245 to 41;most former detainees were freed and transferred to other countries. According to many including the ACLU, Amnesty International and this author, the prison is an affront to basic US Constitutional principles, with some individuals held without bail or trial for over a decade. The DOD and the DOJ argue of course that since it is outside the country and since these are “military detainees” and not criminally accused, the US Constitution does not apply to them.

Rabbani-Binoculars-Pointing-at-the-Moon

And that argument provides DOD justification for their policy change relating to the artwork created by detainees while detained. US Copyright laws do not apply in Guantanamo unfortunately and for inmates in the United States, the Federal Bureau of Prisons has an Art and Hobbycraft policy that permits prisoners to give away their art to authorized visitors; to mail artwork to relatives or certain approved visitors at the inmate’s expense; and to sell them through a hobbycraft sales program with prices set by a prison committee. But a US warden can limit the number of pieces and inmates are not allowed to take all of their art with them when they are released. The remaining pieces get destroyed.

This recent change in policy should not come as a surprise for observers of this Administration whose mean-spiritedness is evident in every corner and every decision. John Jay is home to the Prison-to College-Pipeline, a program where incarcerated men in NY State prisons get the opportunity to start college in their facilities and then get automatic admission to John Jay when they are released. The P2CP has been tremendously successful and has grown every year and is now spreading into various other countries. It has shown the value of giving those in prison an outlet for education, art and literature. The Art Program in Guantanamo serves a similar purpose and depriving the residents of the moral and intellectual property rights in their works and depriving them of the ability to create art and share it makes Gitmo and even darker place and serves no legitimate purpose.

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