Tag Archive for 'new york'

Government Lawyer Convicted of Hate Crime in Harassment Case

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In a classic case of “he should have known better,” a lawyer (or, more likely, a soon-to-be-former lawyer) in New York has been convicted of a felony for making harassing phone calls to his African-American neighbors, which included threats and the use of racial slurs. He tried to make it look like members of the Ku Klux Klan were responsible for the calls, and routed the calls through an Internet service that prevented the source of the calls from being identified through caller I.D. However, the police were able to track the calls back to him.

This lawyer also happened to work for the government of the state of New York. The calls were made in 2010, and after being charged, he resigned from his $104,000/year job in Albany.

And now, finding new employment in a job market that’s notoriously bad for legal professionals is the least of his worries: the defendant has been sentenced to 1-3 years in state prison for criminal harassment, with a felony hate crime enhancement. The prison term is the maximum allowed for the crimes he was convicted of.

I predict that, on some quarters of the Internet, there will be the predictable howling about how this case is another example of “political correctness” run amok, and how hate-crime laws are chipping away at free speech, they give racial minorities special protection, etc., etc.

I should make a few things clear at the outset: hate crimes laws do not give any particular racial group “special” protection. Hate crime laws do not actually create any new crimes. They do not enhance punishments because of the race of the victim. Rather, they enhance punishments for crimes that were motivated by the victim’s race (or other classification, such as religion, gender, or sexual orientation). So, in theory, a white person who robs, assaults, murders, or commits any other crime against another white person specifically because of the victim’s race, could be charged with a hate crime.

Furthermore, hate crime laws do not have any impact of free speech. They don’t make it illegal to express racist, sexist, or homophobic sentiments, if one is so inclined. However, the First Amendment right to free speech has never been interpreted to allow harassment or credible threats of violence against individuals. So, this man’s conduct would have been a crime even without the racial element.

And the fact that he made racist statements in the phone calls was not, in itself, a source of criminal liability. Rather, it was simply used to prove the fact that his actions were motivated by the race of his victims, therefore warranting the hate crime enhancement.

Reasonable minds can differ on whether or not hate crime laws are a good idea. However, there’s a lot of confusion around about what these laws actually do. And when any high-profile hate crime case enters the public discussion, these misconceptions are often repeated by pundits as if they’re fact, which further increases the public’s misunderstanding of the nature and purpose of these laws.

For example, in 2009, Congress passed, and President Obama signed, a law that extended federal hate crimes laws to apply to crimes committed against individuals based on their sexual orientation.

Conservatives in Congress opposed this, because they claimed it might end up being applied in ways that limit free speech and freedom of religion. Presumably, they were concerned that it could be used against religious leaders who speak out against homosexuality.

Predictably, these fears proved to be groundless. Of course, anyone who knew about how hate crime laws actually work could have told them this, because criticizing homosexuality is not, never has been, and never will be, a crime.

After all, hate crime laws that cover crimes motivated by race have been around, in various forms, for decades. Yet groups such as the KKK and neo-Nazi organizations are still around (and, sadly, have shown signs of growing in recent years). I don’t like those groups, nor do I like homophobia. I do, however, love the fact that such groups are allowed to freely express their views, no matter how repugnant I find them.

And I would strongly oppose hate-crime laws if I believed, even for a second, that they would have any impact on our constitutional right to free speech.

However, I believe that crimes motivated by something as irrational as hatred are particularly egregious, and should be subject to heightened punishment. And it’s not as if there isn’t precedent for enhancing the punishment for certain crimes based on their motivation. For example, in every state, murder is illegal (obviously). However, many states have heightened penalties for certain types of murder. For example, in states that have capital punishment, a murder committed primarily for financial gain (such as contract-killing) is often one of the aggravating factors that can make a homicide eligible for the death penalty.

Now, some would say that we shouldn’t care why a particular crime was committed. Rather, we should simply focus on the result of the criminal’s actions when considering a punishment. This, in my view, is a terribly shallow view of culpability and justice. If criminal punishment is, at least in part, about casting moral blame onto the perpetrators of criminal acts, we should look at their actual culpability. And a person’s mental state when committing a crime is obviously an element of that.

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Should Stephen Glass Be Allowed to Practice Law?

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Stephen Glass was a journalist for the highly-respected news magazine The New Republic. This would be an incredibly coveted position for any young journalist. So, it was to the surprise of many when it was revealed that Glass had completely fabricated several of the articles he wrote for the magazine. He was caught in 1998, and immediately fired. Obviously, he was completely disgraced as a journalist, and these days he probably couldn’t get a job sweeping the floors at a newspaper.

Over the last 10 years or so, he’s largely kept out of the public eye. While working at The New Republic, he attended law school at Georgetown University. He graduated, and passed the New York bar exam in 2000. However, because of his history of pathological lying, the New York bar refused to grant him a license, on the grounds that he lacked the moral character necessary to practice law in that state. He has spent most of the last 10 years working as a paralegal and performing in a comedy troupe, of all things.

After petitioning the New York bar for several years, he gave up on his attempts to get a law license there. He then took and passed the California bar exam, and is now facing the exact same obstacles to getting admitted to the State Bar of California.

I should note that Glass was not convicted of any crime in connection with his inglorious tenure at TNR. He was never even charged with a crime, as far as I can tell. Indeed, making up a bunch of news stories is not a criminal act.

However, a criminal conviction is not a necessary precondition for a finding that an applicant lacks the moral character necessary to practice law. State agencies tasked with licensing and regulating lawyers are free to look into every aspect of an applicant’s background, searching for conduct that reflects poorly on their character. And they should be free to do this, in my opinion.

Based on his history, the State Bar of California refused to give him a law license. So far, however, Glass has fared better in his efforts to challenge this decision than he did in New York: after a 10-day trial, California’s State Bar Court ruled in Glass’s favor, overruling the State Bar’s initial decision. The Bar Court’s appellate division upheld the trial court’s ruling in a 2-1 decision, agreeing that Glass proved, at the trial, that he had rehabilitated himself, and should be given an opportunity to practice law.

However, the Supreme Court of California has accepted the State Bar’s petition to review the decision. While the state Supreme Court is technically the final arbiter of questions relating to a California attorney’s fitness to practice law, it rarely gets directly involved in these cases, having delegated most of those duties to the State Bar, and the specialized courts it has at its disposal. This is the first time the Supreme Court of California has agreed to review a prospective attorney’s moral character in 11 years.

This indicates that the Court has serious doubts about the decision of the lower courts and, by extension, the issue of Glass’s moral character.

While I haven’t reviewed the entire transcript from Glass’s trial in the lower court, and obviously can’t see into his soul, I think the Supreme Court made the right decision in deciding to take this case, even though I haven’t formed an opinion on how it should ultimately decide.

California’s rules governing the moral character of attorneys are meant to be flexible. There are few offenses that are an absolute bar to becoming admitted to practice law in that state. Instead, the State Bar is given broad discretion, allowing it to view an applicant’s history in the most complete context possible. This also allows them to consider events that took place after the applicant engaged in some type of suspect conduct, to determine if he or she has been rehabilitated.

As I mentioned earlier, the fact that the California Supreme Court took this case (a type of case it rarely accepts) indicates that it has very serious reservations about letting Stephen Glass practice law. And while it may ultimately uphold the decisions of the lower courts, and allow Glass to practice law, I think it’s correct to take a very close look at this case.

Honesty and loyalty are very important in the legal profession, and Stephen Glass has shown in the past that he is (or was) a pathological liar. He may have some type of mental illness or personality disorder that caused his pathological lying. If that’s the case, it’s sad, and he should seek help. But that would not change the fact that a pathological liar is unfit to practice law, regardless of the root cause of their lying.

While I’m not going to second-guess the court’s ultimate decision, my gut tells me that Glass should probably not be admitted to practice law. Regardless of his subsequent actions, he’s shown that he’s capable of telling huge lies to advance his career in journalism, and that he will go to extreme lengths to cover them up. This demonstrates serious issues with his character and/or psychology.

While I think the legal profession should be open to as many people as possible, that doesn’t mean I think it should be open to everyone. Habitual liars are one group that I’m not too worried about excluding from the practice of law.

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Renter’s Woe: The Nightmare of Tenant Eviction Litigation Lists

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Having just moved into a new apartment this weekend, I couldn’t help but think how many wonderful and interesting things there are to do in this world that beats the hell out of the mind-numbing mundanity of moving.  It sucks so much, in fact the only thing that sucks more than the process of moving is finding a place.  It’s a task that I’m sure takes its toll on everyone who has to do it, so I’m sure as heck glad that as far as I know, California doesn’t keep a list of renters involved in eviction litigation like New York.

Not that I’ve ever been sued in a landlord-tenant case before.  Seriously, I haven’t.  To all potential landlords out there who I may have to rent from one day, know that I’m not joking.  Because I don’t want to end up like James Whelan, the tenant who is suing in the link above.

This was news to me, but apparently in some states, like the aforementioned New York, the government keeps a running tally of all tenants that have been sued for eviction.  The list is open for viewing to the public and, in theory, may sound like a good idea.  Landlords are given notice of potentially bad tenants so that they can avoid renting to people who habitually cannot make their rent.  These “professional tenants” can often end up causing landlords to lose thousands of dollars in uncollectable rent.  The rub is that the list includes all tenants who have been sued for eviction, even the ones who won their eviction cases against their landlords.

You can probably see the problem here.  If a vindictive landlord wants a tenant out and wrongfully sues to evict him or her, the innocent tenant ends up on the list regardless of whether or not they were in the wrong.  Even if the tenant wins the case, chances are the landlord won’t be renewing the tenant’s lease and so when the tenant goes apartment hunting, he or she may find they’ve been blacklisted by landlords who see the tenant’s name on the list.  That’s the situation Whelan, a New York renter, was trying to avoid by preemptively suing to keep his name off the eviction litigation list.  Should he win his lawsuit, it would likely stop New York from continuing its practice of naming names.

But, for anyone renting in New York or any state with a similar practice, Whelan’s lawsuit probably does little to relieve your anxiety.  The fact of the matter is that the practice itself isn’t necessarily illegal or unconstitutional per se.  Every time anyone files any lawsuit in America, both parties’ names are listed for public viewing.  Such general docket information has always been public information and nowadays is even usually viewable online.  Certainly the details of people’s lawsuits can always be sealed with both parties and the court’s consent, but generally the names of the parties and indeed the existence of a lawsuit will still remain in public record.

However, this fact doesn’t make the tenant eviction litigation list from feeling any less sleazy and exploitative.  Most states that have such lists in place usually sell it to private companies who often resell it to members in the real estate industry who in turn use the list’s information for tenant screening purposes.  There’s definitely money to be made for states that have these tenant eviction litigation list, so it’s probably likely that the practice won’t be going away without a fight.

But for now, what can you do if you find yourself in an oh-so-precarious situation ala Whelan’s?  It’s sad to say, but short of trying to change the law like Whelan is doing, there’s probably not much you can do other than hope for the best and try to keep on your landlord’s good side.  It’s hard enough finding a good place to rent when you have good credit and a litigation-free record.  It took me a little over a month to finally find my new digs; I can only imagine how long it would’ve taken me if I had to deal with having to explain why my name was on a don’t-rent list (again, potential future landlords, please note I have a perfect credit rating and have never been evicted in my life).

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Judges Experimenting with Less Punitive Approach in Juvenile Cases

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During a recent debate between several candidates vying for the Republican presidential nomination, the moderator asked a question about the death penalty. When he pointed out that Texas Governor Rick Perry had presided over a very large number of executions, the audience burst into spontaneous applause.

Although public support for the death penalty is (very slowly) declining, a solid majority of Americans still support capital punishment. I’m going to go ahead and give the audience members the benefit of the doubt, and assume that they were not cheering out of bloodlust, but a belief that these executions represent a triumph of good over evil, law and order over criminality.

Anyway, most Americans consider themselves “law and order” types: in general, we believe that criminals should be punished, and punished harshly. We also pride ourselves on having a fair legal system, which gives most criminals at least one chance to prove that they’ve been rehabilitated.

However, the United States still has a fairly high recidivism rate for major criminals.

This fact has led to some judges experimenting with less punitive ways of dealing with crime, focusing instead on rehabilitation. This is becoming especially appealing when dealing with juvenile offenders, because most experts think that, the younger an offender is, the better their chances of being rehabilitated, if a serious effort is made.

The chief judge of New York State is seeking to completely overhaul the juvenile justice system for exactly that reason. The proposal involves transferring the jurisdiction over cases involving less serious crimes committed by teenagers to the state’s family court system. Unlike the criminal justice system, civil courts (including family law courts) usually have a much wider range of options when it comes to dealing with remedying legal wrongs that have been committed. His plan would make sure that more serious and violent offenders continue to be prosecuted as adults.

I’ve said before that the penal system, especially with respect to how it handles juvenile offenders, needs to be reformed.

The criminal justice system has, for generations, focused largely on punishment. This may appeal to our baser natures, but it may not be the most effective means of preventing crime. For example, after police arrested the perpetrator of the tragic bombing and mass shooting in Norway last July, news reports quickly began to gravitate towards the punishment that he is likely to face. They reported that many prisons in Norway resemble summer camps and college dorms more than correctional facilities. In the United States, and many other countries with more “traditional” prison systems, people who learned about this expressed confusion and outrage. This was compounded by the fact that Norway doesn’t even have life imprisonment as an option, let alone the death penalty. However, prison authorities do have the option to keep someone locked away indefinitely, if they’re deemed to still pose a threat to society, with reviews conducted every few years to make that determination.

However, Norway has a recidivism rate that’s far, far lower than that of the United States, with far fewer criminals re-offending after they’re released, despite the fact that their prisons seem luxurious by our standards.

This is largely believed to be caused by the fact that Norway’s prison system focuses heavily on rehabilitation, investing in psychological treatment and job training. Obviously, if the underlying cause of a person’s crime was mental illness and/or financial desperation (as is often the case), both of these measures would prevent people from re-offending.

While it may not have the same emotional appeal as punishing criminals just for the sake of punishing them, it seems to be better for society.

Adopting a similar system in the United States, quite frankly, isn’t going to happen anytime soon. First of all, the vast majority of criminal justice functions are handled by individual states. And while there are basic constitutional standards that, in theory, govern prison conditions, there’s a huge variation between individual states in philosophies about how criminals should be treated.

However, I think we should all be able to agree that juvenile offenders, should, with a few exceptions for the most violent and obviously-incorrigible offenders, be rehabilitated as opposed to simply locked away and forgotten.

However, a single judge in New York cannot do this alone. While he may be able to help set up a pilot program, to prove to policymakers that such a system can work, it will ultimately be up to state legislatures to create such a system, and, just as importantly, to fund it.

But with government budgets being cut across the board, it’s unlikely that wholesale reform of our juvenile justice system is likely to happen anytime soon.

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Will New York Same-Sex Marriage be a Bonanza for Family Law Attorneys?

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As you’ve probably heard, the state of New York has legalized same-sex marriage, and the law will officially go into effect in late July 2011. New York is the sixth state, and by far the largest, to legalize same-sex marriage. In doing so, it more than doubled the number of Americans living in states that recognize such unions.

Not surprisingly, gay-rights advocates are celebrating this major victory for their cause, hoping that it will breathe new life into their movement. With a very large state legalizing same-sex marriage, with one house of the state legislature being controlled by Republicans, and the state as a whole being more politically moderate than most of the other states that have legalized same-sex marriage, advocates for marriage equality certainly have cause for optimism.

However, there’s another group who might be popping champagne corks because of this legislation: New York family law attorneys.  First of all, modern marriage is a bit more complicated than it used to be. Some people, especially professionals, tend to get married a little later in life (late 20s or early 30s, for example). Secondly, in today’s economy, it’s extremely common for both spouses to have careers.

This means that it’s normal for both spouses to go into a marriage with a significant amount of assets. This means that prenuptial agreements are becoming far more acceptable than they were even a few years ago. And, as one might imagine, a family lawyer is essential in negotiating and drafting these agreements. With perhaps tens of thousands of same-sex couples getting married in New York over the next few years, family law attorneys in New York are probably going to have their work cut out for them.

Prenuptial agreements usually lay out how property is to be distributed in the event that a marriage ends in divorce. They are often made when one spouse goes into a marriage with something that means a great deal to them, such as a business, and wants to ensure that they will be able to keep full ownership and control of it, and its profits, in the event that the marriage fails.

And, with marriage, comes divorce.  With thousands of people getting married who previously couldn’t, at least some of those marriages are going to end in divorce. This is, of course, not an indictment of same-sex marriage. It’s simply a fact of life that not every marriage works out. In any case, same-sex couples who get divorced will face all the same legal issues that opposite-sex couples face, and possibly more.

This is because the federal government does not recognize same-sex marriage, and there are many federal rights and benefits that come with marriage, some of which are affected by divorce. They include the right to jointly file federal tax returns, spousal benefits for federal employees, military spousal benefits, and many others. Because of this conflict with federal law, same-sex marriage (in the states where it’s legal) is significantly more complicated than “traditional” marriage.

Of course, I don’t want to sound like a cynical legal professional, viewing this historic civil rights victory as merely an opportunity for lawyers to make more money. However, it does illustrate the connection between increased freedom, and increased economic opportunity and vitality, for everyone.

Since laws barring discrimination in employment based on race and gender went into effect, historic wealth inequality between whites and minorities, and between men and women, has narrowed significantly. Of course, we still have a long way to go on that front, but we’ve made a lot of progress over the last few decades.

Also, same-sex marriage is likely to improve the economy of New York in other ways: New York does not have strict residency requirements for marriage. This means that same-sex couples from all over the country may end up traveling to New York in order to get married.

With most states facing serious budget deficits, any new source of revenue will likely be welcome. Same-sex couples getting married in New York, both from within and outside the state, will bring administrative fees to the state government, and the weddings themselves will likely generate a great deal of sales tax revenue, because of all the goods and services that will have to be purchased in the state.

Indeed, every state that has legalized same-sex marriage has seen an increase in government revenue, even if only a small one.

Of course, I don’t think that that’s the primary justification for legalizing same-sex marriage. The primary reason is that it’s the right thing to do, in the name of freedom and equality. However, perhaps at least some might be persuaded by the economic facts, especially in these difficult economic times. And if that changes them from a vote against to a vote for same-sex marriage, so much the better.

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