It's already the middle of a short work week, and time for the round up of interesting New York law-related headlines from the past week:
This week's Daily Record column is entitled "Is justice obtained if not consistently applied?"
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
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Is justice obtained if not consistently applied?
The death penalty is one of the few issues with which I have difficulty reconciling my rather liberal criminal defense tendencies.
While the concept of the state executing another human being is repugnant to me, I find that on rare occasions the sordid facts of a highly disturbing case cause a little voice inside
my head to whisper convincingly, “if ever a case merited such a severe penalty, it’s this one.”
The recently decided U.S. Supreme Court opinion, Kennedy v. Louisiana, No. 07-343, is just such a case.
As a mother of two children, I am particularly repulsed by allegations of a rape committed against a defenseless and helpless child. The underlying facts of this case are heart wrenching. The victim was just eight years old when she was brutally raped by her stepfather, resulting in injuries so severe that she required emergency reparative surgery.
Of all the non-fatal cases that might warrant the death penalty, this reprehensible crime most certainly fits the bill. This poor child’s life will never be the same.
Not surprisingly, my feelings were mixed when I learned the court held that imposing the death penalty in child rape cases violated the Constitution. Specifically, the majority of the court concluded that the Eighth Amendment prevented Louisiana from imposing the death penalty for the rape of a child in cases where the crime did not result, nor was intended to result, in the death of the victim.
However, I began to experience an overwhelming sense of relief as I read the majority opinion. The decision was well grounded, both in policy and legal precedent. Despite the horrendous facts of the
case, the court made the correct determination and spared us, as a society, of the burden of attempting to navigate an untraversable slippery slope.
The crux of the issue was not of retribution, but rather, one of practical application. The court focused on the severity and finality of the death penalty and the likelihood that its application would prove to be anything but consistent in child rape cases:
“We find it difficult to identify standards that would guide the decision maker so the penalty is reserved for the most severe cases of child rape and yet not imposed in an arbitrary way… In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakis[h].’ … We cannot sanction this result when the harm to the victim, though grave, cannot be quantified in the same way as death of the victim. … Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”
The potential for the arbitrary application of the death penalty in child rape cases is extraordinary. The lack of uniform implementation of such an irrevocable and final sentence would be anything but just. And justice simply cannot be assured in the absence of consistency.
It's Monday, Monday, Monday! And, it's time for the weekly round up of interesting posts from my fellow New York blawgers:
A Buffalo Lawyer:
Coverage Counsel:
Indignant Indigent:
New York Civil Law:
New York Federal Criminal Practice:
Simple Justice:
Wait a Second!:
Last week's term was genericide, which is defined as:
Loss of trademark protection that occurs when a specific brand name becomes identified with the entire type of product or service. For example, Xerox was in danger of losing the trademark on its name when "to Xerox" something was equivalent to copying it.
Edward Wiest got it right!
Today's term is:
usufruct.
Never heard of it. Have you?
And, as always, educated guesses are welcome--dictionaries are not.
It's time for the weekly round up of New York law-related news headlines:
This week's Daily Record column is entitled "Offensive Criticism Trumps First Amendment Rights"
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
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Offensive Criticism Trumps First Amendment Rights
I was disappointed to learn of the recent decision by the U.S. Court of Appeals for the Second Circuit in Doninger v. Niehoff, No. 07-3885-cv, a case I last discussed in March.
At the time, I disagreed with the district court’s determination that the penalty imposed by the school district did not implicate the First Amendment rights of the plaintiff, a high school student.
Unfortunately, the Second Circuit upheld the lower court’s decision, purporting to limit the holding to the
specific facts of the case, but opening the door to the conclusion that any off-campus criticism of school administrators having the potential to cause a disruption on campus may result in school discipline.
In this case, the plaintiff, a 17-year-old high school senior, alleged the officials at her high school violated her First Amendment rights by preventing her from serving on the student council as a result of statements she wrote regarding the school’s administration from her home computer, on a blog not affiliated with the school.
Specifically, she expressed her disappointment with the likely cancellation of the annual “Jamfest,” a musical event she helped to organize:
jamfest is cancelled due to douchebags in central office. here is an email that we sent to a ton of people and asked them to forward to everyone in their address book to help get support for jamfest. basically, because we sent it out, Paula Schwartz is getting a TON of phone calls and emails and such. we have so much support and we really appriciate it. however, she got pissed off and decided to just cancel the whole thing all together. anddd so basi-cally we aren’t going to have it at all, but in the slightest chance we do it is going to be after the talent show on may 18th. andd..here is
the letter we sent out to parents…And here is a letter my mom sent to Paula [Schwartz] and cc’d Karissa [Niehoff] to get an idea of what to write if you want to write something or call her to piss her off more. im down.
The school administrators learned of the comment two weeks later, and subsequently barred her from serving on the student council as a direct result of the blog post.
Despite noting at the outset that the Supreme Court’s holding in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) — that offensive forms of expression on school grounds may be prohibited under the First Amendment — was inapplicable since the comments at issue were not made on school grounds, the Second Circuit spent an inordinate amount of time focusing on the specific “vulgar, lewd, and sexually
explicit language” used by Doninger in her blog post.
In fact, the specific nature of her comments was discussed on 11 pages of the 21-page decision.
The word “offensive” was used on nine occasions and appeared on five pages in the opinion; the word “vulgar” was used seven times and appeared on five pages; the word “civility” was used 4 times and appeared on four pages; the word “values” was used five times and appeared on four pages; and the specific “offensive” phrases used by Doninger, “douchebag” and “pissed off”, were reiterated on nine separate occasions, appearing on six pages of the opinion.
That’s an awful lot of time spent discussing that which was deemed legally irrelevant, or at the very least, peripheral to the underlying legal analysis.
I can’t help but wonder whether the disrespectful nature of the “vulgar, lewd, and sexually explicit” comments made by this young woman was the driving force behind the court’s decision in this matter. While the ever-present optimist in me hopes that I’m wrong, my pessimistic side insists that I’m right.
It's a beautiful Monday, summer is finally here--and it's time for the weekly round up of interesting posts from my fellow New York law bloggers:
Juz the Fax:
New York Attorney Malpractice Blog:
New York Federal Criminal Practice:
No-Fault Paradise:
Second Opinions:
Simple Justice:
Wait a Second!:
Last week's term was fieri facias, which is defined as:
Latin for "that you cause to be done." This is a court document that instructs a sheriff to seize and sell a defendant's property in order to satisfy a monetary judgment against the defendant.
No one guessed this time around.
Today's term is:
genericide.
As always, no dictionaries, please.
The ABA Legal Technology Resource Center recently explored a number of search engine options available for the legal practitioner, aside from the usual choices, such as Google or Yahoo.
PreCYdent, a fairly new legal search engine was one of the more notable mentions.
This post is worth a quick read, as are many of the posts on this useful blog.
It's a somewhat dreary Wednesday and time for the round up of New York law-related news headlines from the past week:
This week's Daily Record column is entitled "Unlikely Inferences Do Not a Felony Make."
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
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Unlikely Inferences Do Not a Felony Make
Last week the New York State Court of Appeals handed down its decision in People v. Finley,2008 WL 2338613.
At issue was whether small amounts of marijuana smuggled into New York correctional facilities by inmates constituted “dangerous contraband” pursuant to Penal Law §§ 205.00(4) and 205.25(2), thus rising to the level of a felony.
The court considered appeals from decisions of the Third and Fourth Departments, both of which concluded the possession of marijuana did, in fact, amount to felonious conduct, even though the amounts possessed were relatively small.
The Court of Appeals framed the issue as follows: “[W]hether the imposition of felony consequences, based upon possession of small amounts of marihuana, which would constitute a violation outside of prison (see Penal Law §§ 221.05, 221.10 [2] [absent aggravating circumstances, not present here, possession of 25 grams or less of marihuana is a non-criminal violation]), comports with the Legislature’s intent as codified in Penal Law §§ 205.00 (4) and 205.25 (2).”
In reaching its determination, the court first noted the Penal Law created a distinction between “contraband” and “dangerous contraband.”
The possession of ordinary contraband, simply a misdemeanor, is defined as “any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, rule, regulation or order.” Possession of “dangerous contraband,” on the other hand, is defined as that “which is capable of endanger[ing] the safety or security of a detention facility or any person therein.”
In the underlying cases, the Appellate Divisions concluded the inmates’ possession of a small amount of marijuana created a potentially dangerous condition, which could feasibly result in disobedience and altercations among inmates and with correctional officers.
The Court of Appeals disagreed, based in part on the legislative intent behind the passage of the Penal Law provisions at issue.
The court noted that, by enacting legislation creating levels of penalies for the possession of “contraband” as opposed to “dangerous contraband,” the Legislature obviously intended to differentiate between the two.
The court stated that: “Under the people’s view, the Legislature intended a definition of dangerous contraband so broad that it would capture any item that, when present in a detention facility, could lead to altercations and inmate disobedience. But the fatal flaw in the people’s argument is that their proposed construction would effectively nullify the misdemeanor crime of promoting contraband in the second degree. ... If, as the Appellate Divisions here held, testimony as to these possibly pernicious secondary effects were sufficient to establish the felony promoting contraband offense then every item of contraband could be classified as dangerous.”
Finally, the court concluded contraband is dangerous only if there is a substantial probability the item will be used in a manner likely to cause death or serious injury; facilitate an escape or pose a threat to institutional safety or security.
This is the only conclusion that makes sense.
I reviewed the Appellate Division decisions last year when preparing the supplement to “Criminal Law in New York, Fourth Edition,” a Thomson-West treatise that I co-author with Judge Karen Morris and Gary Muldoon.
I recall thinking the Appellate Divisions’ conclusions were somewhat attenuated from reality, given the possibility of institutional chaos resulting from possession of such a small amount of marijuana is remote, at best.
This latest decision, therefore, is a pleasant and unexpected surprise. After all, it’s not every day the highest court in New York agrees with the conclusions of a criminal defense attorney such as myself.
It's an absolutely beautiful Monday and time for the weekly round up of interesting posts from my fellow New York blawgers:
Indignant Indigent:
Judgment Day:
New York Civil Law:
New York Federal Criminal Practice:
New York Public Personnel Law:
Simple Justice:
Last week's term was res nova, which is defined as:
Latin for "a new thing," used by courts to describe an issue of law or case that has not previously been decided.
Once again, Edward Wiest got it right!
Today's term is:
fieri facias.
It's a new term for me. How about you?
As always, no dictionaries, please.
Here's the belated weekly round up of interesting posts from my fellow New York law bloggers:
Coverage Counsel:
Indignant Indigent:
New York Attorney Malpractice Blog:
New York Civil Law:
New York Federal Criminal Practice:
Second Opinions:
The Sienko Law Office Blog:
It's Wednesday and time for the weekly round up of interesting New York legal headlines:
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