FAMILY LAW
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.
CRIMINAL PRACTICE
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.
INTELLECTUAL PROPERTY
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.
HEALTH LAW
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.
EMPLOYMENT LAW
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.
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.
CRIMINAL PRACTICE
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.
INTELLECTUAL PROPERTY
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.
HEALTH LAW
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.
EMPLOYMENT LAW
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.
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