The US Supreme Court yesterday heard arguments on whether a US citizen born in Jerusalem can list Israel on his passport. Historically, the US government had not listed Israel on the passport of Americans born in Jerusalem because it does not officially recognize Jerusalem as belonging to Israel. This is attested by the fact that the US, along with other countries, maintains its embassy in Tel-Aviv, as opposed to Israel’s capital, Jerusalem. However, the valid argument for listing Israel on a US passport stems from the implementation of a law passed by Congress in 2002, allowing passports to list Israel as the birthplace of Americans born in Jerusalem. On the other hand, the US State Department has argued that the congressional law is unconstitutional, as it infringes upon the President’s authority to recognize the sovereignty of foreign governments. The nine Supreme Court justices remain divided on the issue, with Justice Anthony Sclaia suggesting a peculiar proposal to enforce the 2002 Congressional law but with the insertion of a disclaimer on the passport that the US is not recognizing Jerusalem as part of Israel. A final court decision is expected next June.
On February 23rd, Samuel Sheinbein, a prisoner at Rimonim Prison in Israel, shot at prison guards with a gun he smuggled into the in the Israeli prison, Rimonim. The assault came to an end when Sheinbein was fatally shot by other prison guards. Sheinbein, born in the United States, had been serving a 24-year sentence in Israel for a murder he committed in the United States in 1997. After fleeing to the U.S., an Israeli court found Sheinbein guilty of the murder and sentenced him to the 24 years in prison. This case raises the question of how could an American citizen stand trial in Israel and serve time in an Israeli prison for a crime he committed in the United States.
As background to the case, Sheinbein was 17 years old and living in the United States when he fled to Israel in 1997 shortly after murdering Freddy Tello. As a suspect in the homicide investigation, American authorities requested Sheinbein’s extradition from Israel to the U.S. However, Israel’s Supreme Court rendered Sheinbein non-extraditable since he became eligible for Israeli citizenship due to his Israeli-born father. (S.Sheinbein v. State Attorney General, Criminal Appeal, 6182/98). At the time, no Israeli law existed to allow the extradition of Israeli citizens, but rather, expressly forbade it.
When Sheinbein’s case was before the court, the existing extradition laws were defined in Israel’s Extradition Law of 1954. Originally, this law did not address the issue of Israeli citizens abroad fleeing (to Israel) from criminal prosecution. It was only in 1978 that a new amendment to section 1 of the Extradition Law was enacted that prevented the extradition of Israeli citizens, regardless of whether they were Israeli residents. Then prime minister, Menachem Begin, was one of the primary advocates for the implementation of this amendment, aptly named, “Tikun Begin.”
Based on Tikun Begin, Sheinbein had a strong case to present against extradition, and ultimately, the Israeli Supreme Court held that Sheinbein was not extraditable. Although Sheinbein was not born in Israel and never lived in Israel, he was able to acquire Israeli citizenship because of his father’s Israeli origin. Further, another amendment to Israel’s criminal law, also issued in 1978, had broadened the Israeli Courts’ jurisdiction on crimes committed abroad by Israeli residents or citizens. (Section 15a of Israel’s Criminal Law of 1977). Hence, Israeli prosecutors were able to prosecute Sheinbein in an Israeli Court, where he was convicted and sentenced to prison for the murder he committed in another country.
The Sheinbein case opened an important discourse on Israel’s extradition laws and the State’s international responsibility. In 2001, Israel’s Extradition Law, section 1, was further amended to allow the extradition of Israeli citizens and/or residents, under special requirements, who have been accused of committing crimes abroad. The law appears to have been specially crafted so Israel would no longer became a refuge for Israeli criminals worldwide, who stand accused of committing heinous crimes, especially those such as Sheinbein, with a tenuous connection to Israel.
Chained and cuffed, and escorted by Israeli police, Itzhak Abergil, a known mafia druglord, arrived in Israel last week to serve the remainder of his 10 year U.S. prison sentence in an Israeli prison. Abergil is an Israeli citizen who was extradited from Israel to the U.S. in 2011 to stand trial for federal criminal offenses, including murder, money laundering, and drug trafficking.
Upon his extradition to the U.S., federal prosecutors prepared to put Abergil on trial in a United States District courthouse in Los Angeles, where Abergil would be facing at least 20 years in prison. Instead, in a January 2012 plea agreement, Abergil pled guilty to charges including racketeering conspiracy to commit extortion and murder and conspiracy to import ecstasy into the United States, and he was sentenced to the 10 years in prison. This past Thursday, Abergil returned back to Israel to serve the remainder of his sentence.
Such an arrangement – the return of an extradited person back to Israel - is not unique to Abergil. Under Israel’s extradition law, Israel requires a number of conditions for extradition, among them including a special requirement pertaining to Israeli citizens who are also residents at the time they allegedly committed the extraditable offenses. The special requirement demands that the requesting country make a commitment to allow the extradited person to return to Israel if convicted and if sentenced to prison, should the person subsequently request to be so transferred.
At the time Abergil committed the extraditable offenses, Abergil was also considered an Israeli resident. These factors, his residency and nationality status, likely contributed to the circumstances of Abergil’s extradition and prisoner transfer agreements, which also likely facilitated his return to Israel to serve the remainder of his prison sentence in Israel.
Last Friday the United States submitted a request to Hong Kong for the extradition of Edward Snowden, a former NSA contractor who disclosed details related to NSA's (National Security Agency) Surveillance program. U.S. authorities had charged Snowden with offenses of espionage and theft of government property. However, now this specific request to Hong Kong appears to be null and void since Snowden left Hong Kong for Moscow. Some sources (i.e.Snowden proponent, Wikileaks) claim that Snowden's final destination will be Ecuador, where he will be seeking asylum. No doubt, the U.S. will seek Snowden's extradition from whichever country he visits, though no guarantee exists that the requested country will accede to the request.
Background to the Snowden Extradition story:
First, I read that the Verizon phone and wireless company publicized its customers’ personal identifying information to government authorities. This alarmed me because I had been a Verizon customer close to ten years, and my family in the United States still uses Verizon on a daily basis. My first inclination was as follows: I have a right to privacy and why should any individual or even government agency be entitled to my personal information without any justification?! My second thought was that perhaps this was part of some top secret operation, so why and how did it become uncovered?
Then – flash – came the Edward Snowden story and NSA Surveillance. Edward Snowden disclosed the fact that the government had been retrieving personal information of millions of individuals by gaining access to their phone, email, and other communications’ accounts with different companies and institutions. Snowden was privy to this information because of his position as an analyst in a private company contracted to work for NSA. In a recent Q& A session with Snowden, he specified the very reason why he felt compelled to disclose the government’s “hacking” activities, stating:
Second, let's be clear: I did not reveal any US operations against legitimate military targets. I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. These nakedly, aggressively criminal acts are wrong no matter the target. Not only that, when NSA makes a technical mistake during an exploitation operation, critical systems crash. Congress hasn't declared war on the countries - the majority of them are our allies - but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we're not even fighting? So we can potentially reveal a potential terrorist with the potential to kill fewer Americans than our own Police? No, the public needs to know the kinds of things a government does in its name, or the "consent of the governed" is meaningless.
Thus, apparently, Snowden was bothered by the same question I asked earlier and sparked a debate on issues of privacy & civil liberties and national security. Why should government agencies be entitled to personal and confidential information in which people have a reasonable expectation of privacy?
The legal authority actually enabling government access to individuals’ confidential information lies in the FISA Act, the Foreign Intelligence Surveillance Act, which was enacted to allow physical and electronic surveillance of individuals in order to collect foreign intelligence information on those suspected of espionage and terrorism. The Act, originally enacted in 1978, went through various amendments, one of which allowed the government to obtain personal identifying information of citizens without the use of a warrant for the purposes of anti-terrorism.
The Snowden saga leaves one once again pondering, under what circumstances can a government agency infringe upon one’s reasonable expectation of privacy right? On the one hand, one can argue that under an amendment to the FISA Act, the government’s actions for retrieving personal information without a warrant is legitimate today in order to target suspected terrorists. On the other hand, others, aside from Snowden, (i.e. ACLU) have argued that even such programs violate fundamental constitutional rights.
On June 3, 2013, the US Supreme Court, in Maryland v. King, ruled that the DNA Swab testing of an individual, under arrest, did not violate the fourth amendmenat right to privacy. Writing for the majority, Justice Kennedy stated that getting a DNA swab is a “reasonable search” and a “legitimate police booking procedure.” The Court essentially compared it with fingerprinting, claiming DNA swabs are like fingerprinting, just a more accurate form of identification. Though, dissenting, Justice Scalia, pointed out that DNA could not possibly be used as identification pursuant to an arrest since the DNA testing results ordinarily takes months to receive. Rather, DNA testing is used to solve crimes.
This case has major implications because now anyone who gets arrested could be subject to a DNA swab. On the one hand, I see it is a positive move in that the actual perpetrators of crimes may be more easily located and prosecuted. Hence, victims can find some sense of peace in that their aggressors will face justice. Likewise, those wrongfully accused of crimes can be exonerated through new DNA findings.
On the other hand, it is a setback, especially for civil rights advocates, as it can be viewed as a violation of an individual’s privacy rights under the Fourth Amendment. Individuals should have a reasonable expectation of privacy surrounding their own DNA. I do acknowledge that individuals’ privacy rights have been limited under certain circumstances, such as those of prisoners convicted of crimes. However, this ruling doesn’t merely allow for swabs of those not yet convicted, rather it is an open invitation for DNA swabs of all arrested, including unlawfully arrested (checkout Scalia's dissenting opinion on page 33). That is a scary thing. So, I think the question to still consider is at what point do we really think it is legitimate to limit one’s fourth amendment privacy rights and to what extent?
For more on this case and a quick three minute film clips, view the NBC News Clips, which also features attorney Barry Scheck, co-founder of the Innocence Project.
What's the Consequence of a Prosecutor Neglecting to Submit prior Witness Statements to the Defense?
On January 10, 2012, the United States Supreme Court reversed Juan Smith's conviction for murder in the first degree because prosecutors failed to submit prior witness statements to the defense and to the court. Under the famous 1963 case, Brady v. Maryland, prosecutors are required to hand over any material and favorable evidence to the defense prior to trial. In this recent Supreme Court case, the single eye-witness, whose in court testimony represented the key and sole evidence linking Smith to the crime, had made prior statements indicating that he never actually saw Smith's face at the scene of the crime. These statements were not presented before the jury, as they were never disclosed to Smith or Smith's attorneys, a clear Brady violation.
In 1995, a New Orleans, Louisiana jury convicted Smith of the killings of five individuals during an armed robbery, and Smith was subsequently sentenced to death row. At the trial, the district attorney’s case against Smith primarily relied on the sole testimony of Mr. Boatner, who stated before the jury that he “had no doubt that Smith was the gunman he stood face to face with on the night of the crime.” However, while Boatner swore to this testimony in court, it was later revealed – after Smith's conviction – that he initially told the police that “he couldn't ID anyone because he couldn't see faces” and “would not know if he saw them.” The US Supreme Court held that Boatner’s statements were both favorable and material to the defense and should have been disclosed to the defense under the Brady rule.
By not disclosing these particular contradictory statements to the defense, the prosecution basically eliminated one certain way that the defense could have impeached Boatner. This type of impeachment could have likely raised reasonable doubts among the jurors as to whether the witness in fact correctly identified Smith as the perpetrator, resulting in a non-guilty verdict.
The Smith case and other cases where district attorneys’ offices have withheld evidence favorable to the defense compel questions on prosecutorial ethics. Did the prosecution purposefully neglect to submit this evidence or was it reckless neglect? For example, in March 2011, in the case of Connick v. Thompson, the US Supreme Court noted that a detective intentionally neglected to submit DNA evidence that later exonerated the defendant as the murderer of the crime. Still, if in the case of Smith, it was an issue of not discovering these contradictory witness statements, rather than purposefully withholding evidence, what is the excuse for not exercising meticulous caution and thoroughness, especially in a case where the defendant is facing the death sentence? Spending one day in jail when a person is not guilty beyond a reasonable doubt is an injustice, not to mention 17 years on death row.
Can a Private Individual sue a Debt Collector in Federal Court for Receiving too Many Unwanted Calls?
The US Supreme Court recently ruled that under the Telephone Consumer Protection Act of 1991 (TCPA) Marcus Mimms could sue Arrow Financial Services, LLC in federal court for sending him unwanted pre-recorded messages to collect a debt. The TCPA, an FCC regulated law, limits telemarketers and other businesses from continuously making the typical telemarketing call that people often despise – recorded messages. Although States have a similar law, the FCC established this statute to enable States to sue companies in federal court on behalf of its residents. The statute also includes a provision to allow a private individual to sue companies in state courts. In this case, Arrow Financial Services argued that private individual Mimms could not bring his action in federal court because the TCPA gave exclusive jurisdiction to state courts. However, the Supreme Court held that the TCPA’s language did not explicitly exclude federal courts, and therefore, Mimms could sue the company in federal court.
This is a crucial case for every individual in the United States who receives unwanted telemarketing calls, not to mention debt-collector phone calls. Know that you too have a cause of action because FCC has rules protecting citizens from such an invasion of privacy.
FOURTH AMENDMENT RIGHTS
Whether Government Tracking of an Individual’s Movement via a GPS Device is a 4th Amendment Violation?
On January 23, 2012, the US Supreme Court held that placing a GPS tracking device in one’s vehicle constitutes an illegal search in violation of the Fourth Amendment right to privacy. In U.S v. Jones, Mr. Jones had been convicted of drug trafficking and conspiracy offenses based partially on information the police acquired from the GPS device that was installed in Jones’ vehicle without Jones’ knowledge and with an expired warrant. That conviction ultimately resulted in a life sentence for Jones. The lower court had ruled that Jones had “no reasonable expectation of privacy” while the vehicle was on public streets, and hence, the seized data from the GPS was used against him. However, the the appeals court reversed Jones’ conviction, and the U.S. Supreme Court affirmed, because evidence was obtained through the warrantless use of a GPS device and impinged upon Jones’ reasonable expectation of privacy rights.
FAMILY LAW/INTELLECTUAL PROPERTY
Legal Controversy over the “Theft” of the Biblical Story of Joseph in a Divorce Matter?
In this matter, the Plaintiff husband brought an action to divorce his wife for abandonment. In answer to the divorce papers, the wife also sought divorce but brought an additional counter-claim for theft of an academic article. Specifically, the wife seeks damages in the amount of $1 million dollars for the theft of an academic paper on the biblical story of Joseph that the wife alleges she co-wrote with her husband prior to marriage. The husband seeks dismissal of the wife's action to sue for any theft of the academic paper. A Brooklyn Supreme Court Justice, in Herskovitz v. Klein, 54828/09, (March 21, 2011), held that the action may be brought to sue the husband for the theft of an academic paper, but such action must be separated from the matrimonial, divorce action.
The article in question concerns a paper that the two parties co-authored, prior to their marriage, on the leadership of biblical Joseph, and which had then been rejected for publication by a journal. Subsequently, the parties married but then separated a few years later. The same year that the parties separated, the husband co-authored another article with a third party entitled, “The Biblical Story of Joseph: Lessons in Servant Leadership,” which was accepted for publication by another journal. In their divorce papers, the wife alleges theft of intellectual property, as she maintains the published article is identical to the article she wrote with her husband. The husband, on the other hand, submits that the two articles posit different thesis on the leadership of Joseph and represent different and distinct works. The husband also points to the wife's failure to continue to list the unpublished article as a “work in progress,” as evidence that she had no intent to make any advancements based on the unpublished article. The husband further argues that because neither article has commercial value, there is no basis to the wife's claim for one million dollars in damages.
The Court held that the two articles are not so “distinct,” as the husband claims, to warrant dismissal of the action; yet, the two articles are not “identical,” as the wife claims. Rather, the Court points out that “substantial similarities” do exist between the two articles – namely, the use of the biblical character of Joseph for a study in leadership qualities. However, the Court maintained that the divorce proceeding is not the proper forum for which to litigate this particular matter concerning the academic paper. The claim may proceed, but it must be severed from the divorce action.
Whether Women Qualify as a “Class” in a Class Action Suit Based on Discrimination?
In its recent June 20, 2011 decision, the majority of the U.S. Supreme Court justices held that approximately 1.5 million women employees of Wal Mart did not qualify as a “class” in their class action suit against Wal Mart for discrimination. The plaintiffs were three women who represented approximately 1.5 million women employees, either current or former, of Wal Mart, alleging discrimination against women under Title VII of the Civil Rights Act of 1964. They claimed that Wal Mart discriminated against women in that local managers exercised their discretion over pay and promotions disproportionately in favor of men. The Court, however, ruled that the women did not qualify as a class that could bring this lawsuit because they did not prove any “common question of law or fact” among the 1.5 women employees. (Wal-Mart Stores, Inc. v. Dukes et.al, 10-277).
The Court pointed to Federal Rules of Civil Procedure, Rule 23 (a) in support of its decision. Rule 23(a) outlines the requirements to satisfy a “class,” including the commonality requirement, existing questions of law or fact common to the class. The Court maintained that proof of common questions of law or fact showing an existence of a class of persons who have suffered the same injury was absent here. Plaintiffs' statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist about Wal Mart's “culture” and personnel practices, was deemed as insufficient.
Although the Supreme Court's decision denied women the opportunity to sue Wal Mart for discrimination as a class, it never actually ruled on the issue of whether any gender discrimination actually took place. Thus, the decision does not preclude individual women employees from bringing forth actions against Wal Mart for discrimination.
Exonerated from Murder Charges After Serving 14 Years on Death Row, Can Former Inmate Now Sue District Attorney?
Mr. Thompson, a former inmate who spent a total of eighteen years in prison, fourteen on death row, due to robbery and murder convictions, initiated an action to sue a New Orleans District Attorney under 42 U.S.C. §1983 for deprivation of his rights by a person acting under a State, based on the D.A.'s failure to train his Assistant District Attorneys. Mr. Thompson claimed that prosecutors failed to produce and hand over certain exculpatory evidence to the defense in his robbery, criminal case, which further pointed to such failure to train A.D.A.s. The failure to produce the exculpatory evidence resulted in a constitutional violation, known as the Brady violation. Because of the Brady violation, Mr. Thompson's criminal convictions were overturned, and he was released from prison and exonerated, as he was found “not guilty” in the murder retrial. In the subsequent lawsuit against the D.A. in a district court, a jury rendered a verdict in favor of Mr. Thompson, indicating that the D.A. is liable to Mr. Thompson because of the failure to train his assistants. An appeals court affirmed the verdict. However, the United States Supreme Court, on March 29, 2011, reversed the district court and appellate court's decisions, holding that the District Attorney cannot be held liable for failing to train his assistants based on a single Brady violation.
The United States Supreme Court, in this case of Connick, District Attorney, et. al. v. Thompson (March 29, 2011), acknowledges that prosecutors in Mr.Thompson's criminal case did commit a Brady Violation. Law enforcers had been in possession of a lab report, results from the testing of the perpetrator's blood that was retrieved from the victim's pants, in the initial robbery case. These results, which actually exculpated Mr. Thompson, had never been handed over to the defense, but should have been turned over, a clear Brady violation. Nevertheless, the Court held that this does not made the District Attorney liable because only a single constitutional violation was at issue in this case, as opposed to a pattern of constitutional violations. Furthermore, the Court stated that even a string of constitutional violations by assistant district attorneys does not prove a failure by the D.A. to trains his assistants (“recurring constitutional violations are not the 'obvious consequence' of failing to provide prosecutors with formal in-house training about how to obey the law”).
The outcome of the Thompson case is significant. It leaves one to question how will citizens, such as Thompson, who have been wrongly accused and wrongfully incarcerated for over a decade, redress the wrong committed against them?
How Serious is Insider Trading by a Company Executive?
Insider trading is serious enough that Mr. Rajaratnam, founder and hedge fund manager of Galleon Group, is currently facing up to 19 ½ years in prison due to his convictions on 14 counts of conspiracy and securities fraud for insider trading. Specifically, the jury found that Mr. Rajaratnam was guilty of making tens of millions of dollars illegally through secrets he obtained from hedge fund professionals and other employees of public companies. Prosecutors had presented evidence that the defendant made over $63 million in illegal trades based on non-public information on several companies, including, Goldman Sachs, Intel, Akamai, and others. Mr. Rajaratnum, who was convicted on May 11, 2011, will be sentenced on July 29, 2011 (United States v. Rajaratnum, 1:09-cr-01184, S.D.N.Y.)
An insider trader violation exists when a person uses non-public, confidential information that was obtained in breach of a fiduciary duty or similar duty based on trust and confidence to sell or buy securities. In this case, defense claimed a “mosaic theory,” arguing that Rajaratnum used legitimate and non-public information to base his trades. However, U.S. Attorney prosecutors, on the other hand, in using evidence obtained from wiretaps and intercepted communications, proved that Rajaratnam traded illegally based on secret information that he knowingly possessed.
Notably, the case of Rajaratnam is one of the largest against inside trader and shows a recent government crack-down on inside trading. It also represents one of the first insider trading cases in which prosecutors heavily relied on wiretaps and recorded telephone conversations for the bulk of their evidence. Currently, there is also an ongoing case against trader, Zvi Goffer, also from the same hedge fund group as Rajaratnam, the Gallean Group. (Bloomberg News, May 11, 2011).
Will Abused Juvenile Mexican Face Deportation?
Daniel, a Mexican born juvenile immigrant, was almost deported back to Mexico days before his eighteenth birthday, until a New York family court judge refused to send him back to Mexico in the hands of an abusive father. According to Daniel's affidavit to a family court judge, In the Matter of Daniel T.H., Daniel suffered abuse at the hand of his Mexican father from the age of six, including beatings from a wooden stick and a chain, which motivated him to escape his home. And at age fourteen, Daniel entered the United States illegally and was deported a year later, only to re-enter illegally the same year at age fifteen. An appellate court (2nd Dept') (Feb. 22, 2011) confirmed that Daniel was at “imminent risk of harm,” and he was granted special juvenile temporary status and placed under the care and auspices of New York Social Services until he is age 21 (In the Matter of Daniel T.H., 2011 NY Slip Op 01481). Daniel is now applying for permanent resident status.
This case is important because it is one of the first cases that has extended New York child protection services to a child who was held in a juvenile immigration facility. Federal law allows unaccompanied immigrant children fleeing abuse to legally remain in the United States pursuant to a family court order that has declared the child as abandoned, abused, or neglected in his or her home country. In Daniel's case, both a family court judge and an appellate judge confirmed the abuse Daniel faced that entitled him to temporary juvenile resident status. (www.chatholiccharitiesny.org, “Catholic Charities win Landmark Legal Victory in Child Protection Case,” April 1, 2011).
Recent Court Decisions...
May a Child Be Interviewed without Parental Consent?
According to the U.S. Court of Appeals for the Ninth Circuit - no -a child cannot be interviewed without parental permission or seizure of a warrant unless exigent circumstances exist. Now, this very issue is being considered by the Justices of the Supreme Court after they heard arguments on March 2, 2011 in the case of Camreta v. Greene, 131 S.Ct. 456, on whether the Fourth Amendment requires government officials to obtain a search warrant or parental permission before interrogating a child suspected of being a victim of child abuse.
Government agencies have maintained they must investigate abuse without notifying the possible perpetrator, including a suspected parent. In the case of Camreta v. Green, child protective caseworker Bob Camreta removed a child from her classroom and interviewed her for two hours in the presence of an armed deputy sheriff about potential sexual abuse by her father.
Attorney Carolyn Kubitchek argued on behalf of the 9 year old child and her family that the same rules for seizing criminal suspects also apply to interviewing and detaining children. Criminal suspects may only be seized upon the obtainment of a warrant, and in the absence of a warrant, exigent circumstance must be demonstrated. The Ninth Circuit, a lower court, agreed with Ms. Kubitchek and held that the child's constitutional rights were violated.
Presented with a child welfare case for the first time in 21 years, the Supreme Court must decide whether to affirm or reverse the Ninth Circuit Court's decision. Ms. Kubitchek argued that the Supreme Court should affirm the lower court's ruling, whereas, attorneys for the caseworker and deputy sheriff argued that the Court should use a more flexible balancing approach because of the difficulty in investigating matters of child abuse and the child's temporary detention.
How Does the Government Define a Marriage?
By declaring DOMA, the Defense of Marriage Act, as unconstitutional, on February 23, 2011, the Obama Administration no longer exclusively defines a marriage as “a legal union between one man and one woman as husband and wife.” DOMA was signed into law by former President Clinton in 1996 and excludes same sex couples from the definition of a marriage, as section 3 of DOMA defines “spouse” as a member of the opposite sex. It currently allows states not to recognize same sex marriages performed in other states.
The Obama administration's announcement on the unconstitutionality of DOMA does not nullify the Act. It would take steps by Congress and findings by the judicial branch (i.e. the feral courts) to repeal DOMA.
Although the Obama administration is withdrawing its defense in pending cases that challenge DOMA in two federal appeals courts, DOMA will continue to be defended, instead, by Congress. In fact, the House Speaker announced on March 4, 2011, that the House will defend the law and that “the constitutionality of this law should be determined by the courts – and not by the president unilaterally...”
The fate of DOMA is significant in part because an abolishment of Section 3 would require the federal government to extend hundreds of benefits to married same sex couples, including tax deductions, and federal law grants.
When do Police Officers have “Probable Cause” to make an Arrest?
On February 22, 2011, in the case of People v. Jacob Joseph, the New York Second Department Appellate Division held that Police officers need only sufficient proof to support a “reasonable belief” that an offense has been committed to make an arrest. Proof beyond a reasonable doubt is not required. Thus, it reversed a lower court's decision to suppress evidence seized based on an erroneous belief of an unlawful arrest.
In this case, Mr. Joseph was charged with operating a motor vehicle while under the influence of drugs. A police officer found Joseph in the driver's seat of a motor vehicle at the scene of an accident involving two other motor vehicles. At the scene, Joseph told the police officer that he “took some Xanax, and approximately 60 of them.” This information was relayed to a fellow officer who then arrested Joseph and seized physical evidence without actually witnessing Joseph's admission.
The lower court suppressed seizure of the evidence, holding the arrest was unlawful. The Appellate Court reversed, stating that “a police officer can make a lawful arrest even without personal knowledge sufficient to constitute probable cause for the arrest.”
Can a Blood Test be Admitted into Evidence at Trial?
Whether a defendant's blood test results can be admitted into evidence at trial without an opportunity to cross-examine the blood alcohol analyst and whether this violates the Sixth Amendment right to confront witnesses was the key issue that attorneys recently argued before the Supreme Court on March 2, 2011 in the case of Bullcoming v. New Mexico, Docket No. 09-10876. At trial, where Mr. Bullcoming was eventually convicted of Driving While Intoxicated, prosecutors admitted into evidence a two page report prepared by the blood alcohol analyst who examined Bullcoming's blood sample and determined that his blood alcohol content was .21, well over the legal limit. Attorneys for Bullcoming argue that the report's admission was a violation of their client's constitutional rights that warrant the Court to vacate his conviction.
The Fourth Amendment dictates that “the accused shall enjoy the right to...be confronted with the witnesses against him.” Further, under Crawford v. Washington, 541 U.S. 36, (2004), the Supreme Court held that “a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. “ In a later case, Melendez-Diaz v. Massachusetts, 129 S.Ct 2527 (2008), the U.S. Supreme Court held that a chemist's report presenting forensic analysis is “testimonial.”
In admitting the Blood test results into evidence, the prosecutors did not call upon the person who examined Bullcoming's blood sample. Defense counsel argue, therefore, that Bullcoming never had the opportunity to confront a key witness against him, the blood alcohol analyst. The blood test results prepared by the examiner are “testimonial statements” that should be inadmissible unless Bullcoming had the opportunity to cross-examine the examiner who prepared the results and produced the report. Instead, prosecutors maintain that Bullcoming's rights were not violated because the report was still introduced by a live witness. The prosecutors called upon a supervisor analyst familiar with the standard procedures involving blood testing from the same chemical laboratory as Bullcoming's examiner.
The decision in this case will have significant ramifications for future cases involving any reports prepared by an examiner, including autopsy reports and DNA analyses. Whether the prosecution, for example, can proceed on a homicide case without producing the medical examiner at trial or, as in Bullcoming's DWI case, the blood alcohol analyst, may depend on the outcome of this case.
Will the Courts Block the Sale of One of Schindler's Lists?
On December 21, 2010, in the case of Rosenberg v. Zimet, 30 Misc 3d 592, the New York Supreme Court held that it would not block Gary Zimet from selling one of Schindler's Lists, on behalf of one of its owners, Nathan Stern, because no intent to publish the List's contents exist. Zimet only intends to sell the list on behalf of Stern, which would not violate any copyrights entitled to Erika Rosenberg, an owner of one of Schindler's Lists.
“Schindler's List” became known as the list of 1,100 Jewish employees that Oskar Schindler submitted to the German army during the Holocaust, stating that these workers were essential to the German war effort. One List is currently housed at the Yad Vashem Museum in Israel. However, two other known existing Lists made their way to the hands of Erika Rosenberg and Nathan Stern. Ms. Rosenberg received the List as part of an inheritance from the estate of Oskar Schindler's wife, Emilie. Mr. Stern claimed to receive a copy of the List, almost identical to that of Ms. Rosenberg's, from his uncle, Itzhak Stern, Schindler's accountant. Nathan Stern decided to sell his List and hired Gary Zimet, a dealer in historical items, to represent him to potential buyers. Ms. Rosenberg sought a preliminary injunction to prevent the sale of the List on the grounds that she holds the ownership of copyright to the List and not Nathan Stern.
The Court explained “copyright” as the right to publication and never contested the notion that Stern does not hold copyrights to the List he wishes to sell. In its decision, the Court points out that a sale of all rights to an artistic work by the owner will ordinarily include the right not only of ownership, but also the common-law copyright. However, in Stern's case, no record of a sale exists, and thus, it remains unclear whether Stern maintains any rights to publication. Nevertheless, the Court allowed the sale to move forward because it relied upon the affidavit of Zimet that he had no intention to publicize the contents of the list, but only to sell it on behalf of Stern.
250K as the Maximum Award in a Medical Malpractice Case for Pain and Suffering?
Governor Andrew Cuomo recommended a cap of $250,000 on medical malpractice awards for non-economic losses. The Governor's Medicaid reform task force made the initial recommendation, which Governor Cuomo accepted and incorporated in the Budget Plan for the fiscal year of 2011-2012. The New York State Assembly, as well as the New York State Bar Association, oppose such a cap for non-economic losses for pain and suffering, stating that it is an “anathema to equal protections/access to justice.” NYLJ, March 1 and March 17 2011; NYSBA Memo in Opposition, Feb. 23, 2011
The Governor's chief Medicaid strategist maintained that projected annual savings from the cap would amount to $419 million. The Assembly Democrats, on the other hand, plans savings through improving hospital care and raising practice and safety standards for physicians. Likewise, the NYSBA President advocates saving costs through improved medical care that would avoid malpractice suits. NYLJ, March 1 and March 17 2011.
Whether a Former Employee's Disparaging Remarks Crosses the Line?
The Nassau County Supreme Court in the case of Cambridge Who's Who Publishing v. Sethi, 009175/10,in a January 25, 2011 decision, held that former Employee Harsharan Sethi's remarks against his former Employee is protected speech under the First Amendment of the Constitution. Thus, the Court denied former Employer Cambridge Who's Who Publishing's request for an injunction to prevent Mr. Sethi from publicizing disparaging comments about the company on his website.
Cambridge Who's Who, a company providing networking and marketing services, fired Mr. Sethi, its manager of information management systems. Shortly thereafter Mr. Sethi created a blog on the internet where he allegedly referred to the company as having “threatening and harassing tactics,” and he also claimed that the company lost personal data of consumers.
The Court maintained, “the freedom of speech guaranteed by the Constitution embraces at the least the liberty [to] discuss publicly and truthfully all matter of public concern without previous restraint or fear of subsequent punishment.” In the case of Mr. Sethi, the Court concluded that the content of his communication is a matter of public concern where the claimed data loss, involving social security numbers and credit card information,which implicates the economic interests of a large number of people.