Thursday, September 28, 2017

Belief In Systemic Bias Does Not Disqualify Juror

The District of Columbia Court of Appeals reversed a tampering conviction because of the exclusion of a potential juror who had expressed concern about the treatment of black men in the criminal justice system

During jury selection, the trial court asked the potential jurors if they, their immediate family, or their close friends had been arrested for, charged with, or convicted of a crime within the past ten years. Juror 7575-B was among the potential jurors who answered in the affirmative. During follow-up questioning, she explained that her half-brother had been jailed for assault in Texas, and her family suspected that racial profiling had been involved. She also said that her brother had been “treated unfairly” by the justice system as “a black man in Texas.” When asked if her views about her brother would affect her ability to be impartial in this case, she responded:

 I mean I think I can be impartial. I mean I think it‟s shaped my view of the world. But I don‟t know the details of this case. I don‟t think I would see my brother in it. His situation is different. But I definitely, that‟s my experience with the system.

The prosecutor then asked Juror 7575-B if she thought that “black men in DC are treated fairly or unfairly by the criminal justice system,” and she responded that she thought they were treated unfairly and that “things are tilted in the wrong direction.”

The prosecutor's motion to strike the juror was granted.

Key language

Under these principles, we hold that the exclusion for cause of Juror 7575-B was erroneous. The trial court disqualified Juror 7575-B because Juror 7575-B believed that the criminal-justice system reflects a systemic bias against black men. According to statistics cited by Mr. Mason, that belief is far from uncommon: research conducted in 2013 indicated that 35% of all adults and 68% of blacks believed that blacks are treated less fairly than whites in the courts...

Standing alone, the belief that the criminal-justice system is systemically unfair to blacks is not a basis to disqualify a juror. Rather, that belief is neither uncommon nor irrational. Moreover, there is no basis for an inference that potential jurors holding that belief are necessarily unable to be impartial. To the contrary, potential jurors who hold that belief might well be particularly attentive to making sure that they perform their function impartially. The United States does not cite, and we have not found, any case upholding a trial court‟s removal of a potential juror for cause based solely on the potential juror‟s belief that the criminal-justice system was unfair to blacks...

Turning back to the present case, the erroneous disqualification of Juror 7575-B is of particular concern for several reasons: (1) the disqualification rested on Juror 7575-B‟s beliefs about the criminal-justice system and race, which are important matters of legitimate public debate; (2) Juror 7575-B‟s beliefs are neither uncommon nor irrational; (3) Juror 7575-B‟s beliefs also might have a beneficial effect on Juror 7575-B‟s performance of her duties as a juror; (4) Juror 7575-B‟s beliefs would naturally make her an appropriately desirable juror for a criminal defendant; and (5) because black potential jurors are more likely to doubt the racial fairness of the criminal-justice system, exclusion of potential jurors holding such beliefs would have a disparate impact on black potential jurors.

The court (Associate Judge McLeese joined by Associate Judge Glickman and Senior Judges Ruiz) found sufficient evidence of the crime to permit a new trial. (Mike Frisch)

September 28, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, September 20, 2017

Breach Of "Shiduch" Lawsuit Sees A New Year

The New York Appellate Division for the Second Judicial Department agreed with the trial court's denial of a motion to dismiss a civil action 

The plaintiff commenced this action to recover damages for breach of contract and fraud, alleging that she made several payments to the defendants totaling $214,000 for the purchase of three torah books, and for the defendants to find her a husband pursuant to the Jewish custom of “shiduch.” The plaintiff alleged that the defendants made false statements to induce her to make the payments, and had not performed pursuant to their agreement. The defendants Rabbi Haim Yosef Sharabi and Michal Hadad (hereinafter together the defendants) moved pursuant to CPLR 3211(a)(2) to dismiss the complaint insofar as asserted against them for lack of subject matter jurisdiction, arguing, inter alia, that courts are prohibited from resolving controversies that require consideration of religious doctrine. The Supreme Court denied the motion, and we affirm.

“The First Amendment forbids civil courts from interfering in or determining religious disputes, because there is substantial danger that the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrines or beliefs” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d 282, 286; see Serbian Eastern Orthodox Diocese for United States and Canada v Milivojevich, 426 US 696). However, “[c]ivil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution” (Matter of Congregation Yetev Lev D’Satmar, Inc. v Kahana, 9 NY3d at 286;see Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d 1017, 1017; Drake v Moulton Mem. Baptist Church of Newburgh, 93 AD3d 685, 686; Merkos L’Inyonei Chinuch, Inc. v Sharf, 59 AD3d 403, 406).

Here, the defendants failed to demonstrate that the plaintiff’s causes of action cannot be determined solely upon the application of neutral principles of law, without reference to religious principles (cf. Hafif v Rabbinical Council of Syrian & Near E. Jewish Communities in Am., 140 AD3d at 1017). Accordingly, the Supreme Court properly denied the defendants’ motion to dismiss the complaint insofar as asserted against them.

The New York Post had a story about the case.

A lonely Brooklyn woman got her heartstrings played by a grifting Jewish mystic, who promised to find her a husband and three lucky magic Torahs for a payment of $214,000, a new lawsuit claims.

Cecilia Lifschitz says she handed over the huge sum to controversial Borough Park mystic Rabbi Chaim Sharabi in a desperate bid to find a life mate — but the hustling holy man never came through with what he promised.

“Plaintiff was an easy target for defendants and defendants were aware of this,” her suit says.

The woman claims that Sharabi and two collaborators — his daughter-in-law, Michal Hadad, and Alon Jacobi — promised they would quickly find her a husband in exchange for the money.

“Defendants had every reason to know Plaintiff would do anything, including paying a large sum of money, to get married,” the suit states.

Sharabi apparently told the woman he’d secure the lucky holy texts for the woman, and that they would be housed in synagogues in Israel and Brooklyn.

“Plaintiffs made these knowingly false statements about her finding a husband and the existence of the Torah books when she paid them $214,000,” the suit says, adding: “Purchasing a Torah book is considered a very significant good deed in the Jewish religion, one which brings a person good luck.”

Lifschitz noted that parties are typically held after someone buys a new handwritten Torah and that the purchaser is invited to attend. But she never got any proof that he bought the books.

Sharabi, however, disputed the woman’s claims — saying he really did set up Lifschitz with a man, named Alon. They even went on a trip to Brazil, he said.

“When things didn’t work out with her and Alon, she got upset,” he told The Post on Tuesday.

Sharabi also claimed he got the Torahs for her. He showed The Post a Torah that he said had her name written in it in Hebrew. He said it cost $42,000 and that the other two were in Israel.

“Sometimes you don’t get what you want and you have to say thank you to God because he knows best,” he told The Post. “I love her, I want to help her, she’s a good person.”

According to published reports, Sharabi has successfully styled himself as a clairvoyant in the Borough Park community, selling everything from promises of wealth and marriage to lucky amulets.

A 2009 story in The Forward reported that Sharabi received clients in the back of a Borough Park optician and occasionally kept people waiting for six hours to bask in his wisdom.

Lifschitz and her attorney declined to comment on the case.

(Mike Frisch)

September 20, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, August 31, 2017

Wrongful Death Case Filed For Late Spouse Not Null And Void As Unauthorized Practice

A decision summarized on the web page of the Tennessee Supreme Court

The Tennessee Supreme Court has rejected a defendant hospital’s argument that a wrongful death lawsuit filed by a surviving spouse was null and void because the spouse was not represented by a lawyer when the lawsuit was filed.   

In September 2004, Ruth Hartley was admitted to Trinity Hospital in Erin, Houston County, Tennessee, for elective colon surgery.  She developed complications from the surgery and died.  After her death, Mrs. Hartley’s husband, Denver Hartley, filed a wrongful death lawsuit against several defendants, including Trinity Hospital, claiming that their negligent treatment caused Mrs. Hartley’s death.  Mr. Hartley was not represented by a lawyer when he filed the lawsuit.

The defendants filed motions to dismiss Mr. Hartley’s lawsuit.  They argued that, although a person can represent himself in his own lawsuit, no one can file a lawsuit on behalf of another person unless they have a law license.  The defendants claimed that, in filing the wrongful death lawsuit, Mr. Hartley was representing either Mrs. Hartley or their adult children, so he was practicing law without a license. For that reason, they argued, Mr. Hartley’s lawsuit must be dismissed.

Mr. Hartley soon hired an attorney, and he amended his lawsuit to show that he was represented by a lawyer.  By that time, though, the statute of limitations for the wrongful death claim had run.  The defendants argued that the first complaint was null and void because Mr. Hartley was not represented by a lawyer, and the legal time limit had passed by the time Mr. Hartley hired a lawyer and filed an amended complaint, so his lawsuit had to be dismissed.

The trial court held that the fact that Mr. Hartley was not represented by a lawyer when he filed the lawsuit did not make it null and void, so it refused to dismiss the lawsuit.  While the lawsuit was pending, Mr. Hartley died, and his daughter, Linda Beard, was substituted in his place as the plaintiff. The case went to trial, and the jury awarded damages to Ms. Beard. 

The hospital appealed, and the Court of Appeals reversed.  It held that the claim belonged to the decedent, Mrs. Hartley, and that Mr. Hartley could not file a lawsuit on behalf of his deceased wife without a lawyer.  The Court of Appeals held that the first wrongful death complaint was null and void, and Mr. Hartley hired a lawyer after the statute of limitations had run, so it dismissed the case.  The Tennessee Supreme Court granted Ms. Beard permission to appeal.

The Supreme Court reversed the Court of Appeals.  It held that the wrongful death claim did not actually belong to the decedent; under Tennessee law, upon Mrs. Hartley’s death, the claim passed to her surviving spouse, Mr. Hartley.  Because Mr. Hartley had the right to represent himself in his own lawsuit, the Court held, the original complaint, filed without a lawyer, was at least partially proper.  The Supreme Court agreed with the trial court that the lawsuit was timely, so it reversed the Court of Appeals’ dismissal of the lawsuit.     

To read the unanimous opinion in Linda Beard v. James William Branson and Trinity Hospital, L.L.C., authored by Justice Holly Kirby, go to the opinions section of

(Mike Frisch)

August 31, 2017 in Clients, Current Affairs | Permalink | Comments (0)

Wednesday, August 30, 2017

A Crowded And Complex Relationship

In an 117-page opinion (with dissent) the Maryland Court of Appeals reversed a custody award to the child's paternal grandparents.

Not your average family situation per the majority

Natasha Burak (“Petitioner”) and Mark Burak (“Father”) were married in October 2006, and had a child (“the Child”) two years later. From early 2009 until December 2012, Petitioner, Father, and another woman – “M” – engaged in a polyamorous relationship and illicit drug use. The parties scheduled their activities on a calendar kept by Petitioner and, prior to engaging in any illicit activity, the parties would take the Child to his paternal grandparents’ house. In 2011, Petitioner and Father purchased a marital home in Silver Spring, Maryland with funds provided by Father’s parents – Gary and Martha Burak (“the Grandparents”) – and sometime in 2012, M moved into the basement of the marital home.

Beginning in September 2012 and continuing until February 2013, the triad attended couples counseling because Petitioner no longer wanted to engage in sexual relations with M and she wanted M to leave the marital home. In December 2012, the sexual relationship between Petitioner and M ended, but the two continued to have a non-sexual relationship that included cooking together and sleeping in the same bed. On May 31, 2013, in response to two violent incidents that occurred earlier in May 2013, Petitioner filed for and received a Temporary Restraining Order (“TRO”) against Father. Father subsequently moved out of the marital home and Petitioner filed a complaint for absolute divorce on July 11, 2013.

The court sets out at length the history of the failed marriage and the grandparents' primary role with the child

On May 24, 2013, Father, Petitioner and M went to King’s Dominion. Near the end of the day, an argument ensued between Petitioner and Father that involved screaming, and devolved into violent actions taken by both parties.

That altercation and a subsequent one resulted in a TRO against the father.

Father conceded that the two got into an “ugly and vicious[]” argument that morning [of the second incident] , but testified that “[i]t was no different from 10,000 other fights we’d had before[]” and he stated that he never threatened to kill Petitioner.

The court noted

At the time the polyamorous relationship began, Petitioner informed M that she had dissociative identity disorder (“DID”) and that, in addition to her main identity, she also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.

And footnoted

At the custody hearing, an email was produced that was sent from Petitioner to M with Father cc’ed on February 4, 2013. The email detailed the dates and times for introductory courses on bondage discipline submission and masochism (“BDSM”). Father testified that he, Petitioner, and M attended one of the introductory classes together and that he and M attended a separate class with just the two of them. M stated that Petitioner and Father were not really involved in BDSM activities together.

And the child had issues as well

Beginning in May 2014, at the end of the Child’s kindergarten year, the Child began exhibiting negative and disruptive behavior in class. The bad behavior continued through the summer and into the start of the Child’s first grade year, when the Child began to leave class without permission and exhibit bouts of anger. On September 4, 2014, the Child kicked the assistant school principal and threatened to blow up the school. The school contacted Petitioner and provided a referral to the Montgomery County Crisis Center (“Crisis Center”). The Child was subsequently allowed to return to school after the referral was completed.

The court here held that the grandparents could intervene in the custody case but overturned the finding of the mother's parental unfitness

We conclude that because the hearing judge’s factual findings in this case did not support his conclusions that Petitioner was unfit and that exceptional circumstances existed, the hearing judge, thereby, also abused his discretion in granting custody of the Child to the Grandparents because the presumption favoring Petitioner retaining custody of the Child was not rebutted by the facts in this case.

Because we hold that the circuit court abused its discretion in granting custody of the Child to the Grandparents, we also conclude that the circuit court erred in ordering Petitioner to pay child support to the Grandparents.

Judge Getty dissents  and would hold the unfitness issue unpreserved. 

Finally, even if the Majority is correct to consider the merits of the trial court’s rulings instead of simply vacating the decision and remanding for the trial court to apply its new standards, I disagree with its conclusions that the trial court abused its discretion in finding that Ms. Burak was unfit and that exceptional circumstances merited granting custody to the Grandparents. The Majority correctly recognizes that in a child custody case a trial court’s factual findings are scrutinized under the clearly erroneous standard, and its ultimate conclusions reached by applying the law to those factual findings are reviewed under an abuse of discretion standard. Majority Slip Op. at 45-46 (citing In re Yve S., 373 Md. 551, 585-86 (2003)). However, the Majority misapplies these standards, and has failed to afford proper deference to the decisions of the trial court.

He quotes the Court of Special Appeals

On the actual record that was developed, the court acted well within its discretion when it found the parents unfit. The record supports the court’s finding that Wife still takes or is ready to take drugs and that she has struggled with parenting and properly caring for Child. The court heard and considered testimony regarding Wife’s inability and uneasiness in caring for Child, and that her difficulties often resulted in her and Husband placing Child in the Grandparents’ care. And the record revealed real questions about Wife’s compliance with the parties’ agreed drug testing regiment. She failed to comply with the Child’s Best Interest Attorney’s (“BIA”) request for a random drug test on July 14, 2014. And although she eventually sent the results of a test the BIA requested about a month before the custody merits hearing, she refused to sign the release that would allow her results to be sent directly to the BIA. This meant that Wife received and could review her results before the BIA got them, which undermined the credibility of any negative results. Wife obviously disputes these findings and the factual premises underlying them, but the record contained ample evidence that could support the court’s finding that she and Husband (who doesn’t contest the finding) were unfit parents.

Judge McDonald joined the dissent.

The oral argument is linked here. (Mike Frisch)

August 30, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, August 22, 2017

Yoga Instructor Fired For Being "Too Cute" May Sue

Jealousy leading to termination is actionable under circumstances identified by the New York Appellate Division for the First Judicial Department.

Defendant Charles V. Nicolai is married to defendant Stephanie Adams. Nicolai and Adams are co-owners of Wall Street Chiropractic and Wellness (WSCW). Nicolai is the head chiropractor and oversees the medical operations, while Adams is the chief operating officer. In April of 2012, Nicolai hired plaintiff, Dilek Edwards, as a yoga and massage therapist, and thereafter was her direct supervisor.

The complaint alleges that the relationship between Nicolai and plaintiff was "purely professional" and that Nicolai "regularly praised Plaintiff's work performance throughout her period of employment." In June 2013, however, Nicolai allegedly "informed Plaintiff that his wife might become jealous of Plaintiff, because Plaintiff was too cute.'" Approximately four months later, on October 29, 2013, at 1:31 a.m., Adams sent Edwards a text message stating, "You are NOT welcome any longer at Wall Street Chiropractic, DO NOT ever step foot in there again, and stay the [expletive] away from my husband and family!!!!!!! And remember I warned you." A few hours later, at 8:53 a.m., plaintiff allegedly received an email from Nicolai stating, " You are fired and no longer welcome in our office. If you call or try to come back, we will call the police.'" The complaint further alleges that, on October 30, 2013, Adams filed a complaint with the New York City Police Department (NYPD) alleging - falsely - that Adams had received "threatening" phone calls from plaintiff that so frightened her as to cause her to change the locks at her home and business.

As noted, plaintiff alleges that her relationship with Nicolai was strictly professional and that she "has no idea what sparked . . . Adams' [sic] . . . suspicions" to the contrary. Plaintiff further alleges that Adams's complaint to the NYPD was false and was made for the purpose of harming her.

Based on the foregoing factual allegations, the amended complaint asserts a cause of action for gender discrimination in violation of the NYSHRL, a cause of action for gender discrimination in violation of the NYCHRL, and a cause of action for defamation. In lieu of answering, defendants moved to dismiss under CPLR 3016(a) and CPLR 3211(a)(7). Supreme Court granted the motion to the extent of dismissing the two gender discrimination claims, but sustained the defamation claims. Both sides have appealed.


[The] Supreme Court correctly determined that the complaint states a cause of action for defamation by alleging facts from which malice can be inferred and that would overcome the qualified privilege attaching to statements to the police (see Present v Avon Prods., 253 AD2d 183 [1st Dept 1999], lv dismissed 93 NY2d 1032 [1999]). The court erred, however, in dismissing the causes of action for gender discrimination under the NYSHRL and the NYCHRL. It is well established that adverse employment actions motivated by sexual attraction are gender-based and, therefore, constitute unlawful gender discrimination (see e.g. Williams v New York City Hous. Auth., 61 AD3d 62, 75 [1st Dept 2009], lv denied 13 NY3d 702 [2009] [sexual harassment is "one species of sex- or gender- based discrimination"]; see also Oncale v Sundowner Offshore Servs., Inc., 523 US 75, 80 [1998]; King v Board of Regents of Univ. of Wis. Sys., 898 F2d 533, 539 [7th Cir 1990]). Here, while plaintiff does not allege that she was ever subjected to sexual harassment at WSCW, she alleges facts from which it can be inferred that Nicolai was motivated to discharge her by his desire to appease his wife's unjustified jealousy, and that Adams was motivated to discharge plaintiff by that same jealousy. Thus, each defendant's motivation to terminate plaintiff's employment was sexual in nature.

Defendants' reliance on certain cases in the "spousal jealousy" context is misplaced. Because these cases involve admitted consensual sexual affairs between the employer and the employee, they are distinguishable (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 332 [2003]; see also Mauro v Orville, 259 AD2d 89, 92-93 [3d Dept 1999], lv denied 94 NY2d 759 [2000]; Tenge v Phillips Modern Ag Co., 446 F3d 903, 910 [8th Cir 2006])In such cases, it was the employee's behavior - not merely the employer's attraction to the employee or the perception of such an attraction by the employer's spouse - that prompted the termination. Here, assuming the truth of the allegations of the amended complaint, as we are required to do upon a motion to dismiss, plaintiff had always behaved appropriately in interacting with Nicolai, and was fired for no reason other than Adams's belief that Nicolai was sexually attracted to plaintiff. This states a cause of action for gender discrimination under the NYSHRL and the NYCHRL.

The Daily News has details.

The News reports that Ms. Adams was a Playboy Playmate.

More here on the lower court action from the New York Post with the money quote

When the suit was filed, Adams — the first openly lesbian woman to be a Playmate — told The Post she didn’t view Edwards as competition.

“No disrespect to anyone — but I’m a centerfold,” Miss November 1992 boasted.

(Mike Frisch)

August 22, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, August 8, 2017

Maryland Holds Battered Spouse Defense May Be Pursued Where Defendant Hired Third Party To Kill Spouse

The Maryland Court of Appeals has held that a battered spouse defense may be pursued where the defendant hired a thi,rd party to kill her husband

Battered spouse syndrome is a form of posttraumatic stress disorder that develops in victims of intimate partner violence. Maryland law allows a woman on trial for harming her abuser to present evidence explaining battered spouse syndrome and its psychological effects regardless of whether she was the first aggressor, used excessive force, or failed to retreat. Md. Code (1991, 2013 Repl. Vol.), § 10-916(b) of the Courts and Judicial Proceedings Article (“CJP”).  This case asks us to analyze how Maryland’s battered spouse syndrome statute interacts with the elements of imperfect self-defense. It presents the question of whether a defendant who contracted with a third-party to kill her abusive husband can present sufficient evidence that she felt as though she was in imminent danger to be entitled to an imperfect self-defense jury instruction.


We hold that [defendant] Porter presented sufficient evidence that she feared imminent harm to be entitled to an imperfect self-defense jury instruction. Additionally, we hold that the substantive error in the delivered instruction was not harmless and infected the verdict as to each of the charges against her. Thus, we remand for a new trial on all counts.

The evidence

After they were married in 1986, Ray began physically and verbally abusing Porter. At trial, Porter testified to numerous instances of violent abuse throughout their 24-year marriage, including that her husband had: beaten her with a belt; hit her with a wooden board; pushed her head into her mother’s headstone and told her that she “should be with [her] dead mother”; stabbed a drill into her stomach, leaving a large scar; hit her with a rake; smeared dog excrement across her back; hit her with a toolbox; kicked her in the side; shoved her head into leaking sewage; and given her a black eye. She also testified that on multiple occasions he had: told her that she was “worthless” and “should die”; threatened to kill her; and forced her to drink water until she urinated on herself. Porter testified that she did not call the police or leave Ray after any of these instances of abuse because she was afraid he would retaliate. When asked why she did not move out of their home, she testified, “I knew he would follow me. I knew that there was no getting away.”

...Beginning in mid-2009, Porter approached multiple people about killing her husband. That summer, she gave her daughter’s boyfriend, Daniel Blackwell, $1,000 to “take care of” her husband. The week before Christmas, she asked one of Ray’s coworkers, Tony Fails, to kill him. When asked why she solicited Fails to kill Ray, Porter testified, “It was getting so bad that I knew that Ray was going to kill me and I just wanted to kill him first.” Neither Blackwell nor Fails took any action against Ray. In January 2010, Porter asked an acquaintance, Paige Huemann, if she knew where she could get some potassium cyanide to poison Ray. Eventually, Porter’s nephew, Seamus Coyle, put her in touch with Walter Bishop, who agreed to kill her husband in exchange for $400. As to her mental state on the day her husband was shot, Porter testified, “In my mind, I knew he was going to kill me at any point.”

Bishop committed the murder.

On the morning of Ray’s death, March 1, 2010, Porter told him that the alarm had gone off at the gas station that they owned. Ray went to the station, and around 6:30 a.m., Bishop came in and shot Ray twice. Immediately afterwards, Porter called 911 and told the police that the gas station had been robbed and that the thief had shot her husband.

Porter was arrested a week later and admitted that she had paid Bishop to beat up Ray. 

The jury found Porter guilty of first-degree murder, conspiracy to commit first degree murder, three counts of solicitation to commit first-degree murder, and use of a handgun in commission of a crime of violence. She was sentenced to life plus 40 years in prison. Porter filed a motion for a new trial, arguing that the jury was not properly instructed “as to the definition of battered spouse syndrome and how to consider this type of evidence in the context of imperfect self[-]defense.” The court denied the motion, and Porter appealed.

Judge Greene dissented

I would adopt the reasoning of the Court of Special Appeals and hold that Ms. Porter was not entitled to an imperfect self-defense instruction and, therefore, the trial court’s error in issuing an improper imperfect self-defense instruction was harmless. The Majority opinion takes an unprecedented pivot in the area of imperfect self-defense by relaxing the requirement of an imminent and immediate threat for a battered spouse. And, a defendant who hires a third party to murder her spouse, even if she is suffering from battered spouse syndrome, should not be entitled to a perfect or imperfect self-defense instruction. This is so because a contract killing by its nature is more consistent with an act of retaliation for past abuse. Thus, respectfully, I dissent.

Two colleagues joined the dissent.

ABC News covered the arrest. WBLT TV reported on  the sentencing. (Mike Frisch)

August 8, 2017 in Current Affairs | Permalink | Comments (0)

Friday, August 4, 2017

Blackwater Decision Out: Sentences Cruel And Unusual (With Dissent)

The United States Court of Appeals for the District of Columbia Circuit has decided the criminal case involving Blackwater employees involved in the 2007 shootings in Baghdad

Nicholas Slatten, Paul Slough, Evan Liberty and Dustin Heard (“defendants”) were contractors with Blackwater Worldwide Security (ABlackwater@), which in 2007  was providing security services to the United States State Department in Iraq. As a result of Baghdad shootings that injured or killed at least 31 Iraqi civilians, Slough, Liberty and Heard were convicted by a jury of voluntary manslaughter, attempted manslaughter and using and discharging a firearm in relation to a crime of violence (or aiding-and-abetting the commission of those crimes); Slatten was convicted of first degree murder. They now challenge their convictions on jurisdictional, procedural and several substantive grounds.

For the following reasons, we hold that the Court has jurisdiction pursuant to the Military Extraterritorial Jurisdiction Act (“MEJA”), 18 U.S.C. §§ 3261 et seq., and that venue in the District of Columbia was proper. We further hold that the district court did not abuse its discretion in denying the defendants= motion for a new trial based on post-trial statements of a government witness. Regarding the challenges to the sufficiency of the evidence, we hold that the evidence was sufficient as to all except one of Liberty’s attempted manslaughter convictions, and that the evidence was sufficient as to Slatten. We further hold that Slatten's indictment charging first-degree murder did not constitute vindictive prosecution.

The Court concludes, however, that statements made by a co-defendant shortly following the attack, statements asserting that he—not Slatten—fired the first shots on the day in
question, were admissible. Accordingly, the Court concludes that the district court abused its discretion in denying Slatten’s motion to sever his trial from that of his co-defendants and therefore vacates his conviction and remands for a new trial. Moreover, the Court concludes that imposition of the mandatory thirty-year minimum under 18 U.S.C. § 924(c), as applied here, violates the Eighth Amendment prohibition against cruel and unusual punishment, a holding from which Judge Rogers dissents. The Court therefore remands for the resentencing of Slough, Liberty and Heard.

On the Eighth Amendment issue

 The sentences are cruel in that they impose a 30-year sentence based on the fact that private security contractors in a war zone were armed with government-issued automatic rifles and explosives. They are unusual because they apply Section 924(c) in a manner it has never been applied before to a situation which Congress never contemplated. We again emphasize these defendants can and should be held accountable for the death and destruction they unleashed on the innocent Iraqi civilians who were harmed by their actions. But instead of using the sledgehammer of a mandatory 30-year sentence, the sentencing court should instead use more nuanced tools to impose sentences proportionally tailored to the culpability of each defendant. 

Circuit Judge Rogers concurred and dissented

First, in accordance with the Supreme Court’s instruction, portions of a co-defendant’s statements to investigators should have been admitted in Slatten’s defense,  but not as a result of unduly expanding a narrow residual hearsay exception when the statements are covered by an established exception. Second, defendants’ Eighth Amendment challenge lacks any merit whatsoever, especially in view of the district court judge’s express assessment, which my colleagues ignore, that the sentences were an appropriate response to the human carnage for which these defendants were convicted by a jury...

Paul Slough was convicted by a jury of killing thirteen (13) people and attempting to kill seventeen (17) others. Evan Liberty was convicted by a jury of killing eight (8) people and attempting to kill twelve (12) others. Dustin Heard was convicted by a jury of killing six (6) people and attempting to kill eleven (11) others.

Circuit Judge Brown concurred and dissented on other grounds

The question of how our criminal justice system should treat private contractors who commit crimes overseas in war time is a difficult one. However, Congress has made the determination that such individuals should be held responsible for their actions in federal courts if they either work for the military or commit a crime during the performance of a task related to supporting the military, such as the atrocities committed at Abu Ghraib. Today’s opinion expands MEJA beyond the limits defined by this history and clearly laid out  in the text. Because it is not possible to conclude, beyond a reasonable doubt, that the erroneous instruction did not improperly influence the ultimate outcome of the case, I respectfully dissent from this portion of the Court’s decision.

(Mike Frisch)

August 4, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, August 3, 2017

A Bridgegate Too Far

The New Jersey Appellate Division reversed a decision denying access to records involving the so-called Bridgegate affair

In these consolidated appeals arising out of two complaints seeking production of public records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, and the common law right of access to public records, we consider whether the Superior Court has the authority under N.J.S.A. 47:1A-11 to impose civil penalties for knowing and willful violations of OPRA, and whether the court erred in denying plaintiff's request for relief in aid of litigants' rights under Rule 1:10-3. We conclude the court erred in finding it lacked the authority to impose civil penalties under N.J.S.A. 47:1A-11, and that plaintiff was entitled to relief in aid of litigants' rights. We reverse and remand for further proceedings.

North Jersey Media Group had sought the records

The lawsuits arose from plaintiff's requests that defendant State of New Jersey Office of the Governor produce records concerning the Port Authority of New York and New Jersey's September 9 to 13, 2013 closures of local traffic lanes from Fort Lee to the George Washington Bridge. The closures caused significant traffic delays in Fort Lee, and led to an investigation by the New Jersey Legislature, and criminal prosecutions of Port Authority employees William Baroni and David Wildstein, and Governor Chris Christie's deputy chief of staff Bridget Kelly.

Key conclusion

Because we are convinced the court could not properly rely on Southwell's certification to support its conclusion defendant's search was compliant with OPRA and the common law, there was insufficient credible evidence supporting the court's finding that defendant's search for records was reasonable. We therefore vacate the order dismissing plaintiff's complaint in the May action, and remand for further proceedings based on competent evidence.

The Southwell certification came from a partner in the law firm that represented the defendants in the action.

As to civil penalties

N.J.S.A. 47:1A-11 provides a valuable means to compel compliance with OPRA by public officials, officers, employees and records custodians who might otherwise flout OPRA's requirements and willfully and knowingly deprive the public of access to government records. The civil penalties permitted under N.J.S.A. 47:1A-11 help ensure that records at all levels of government, including the highest levels of our State government, are not willfully and knowingly withheld in an effort to shroud possible wrongdoing from the public's view or deny access to government records to which every citizen is entitled. It is inconsistent with the plain language of N.J.S.A. 47:1A-11 and OPRA's purpose to shield the recalcitrance and obfuscation of public officials, officers, custodians and employees from the imposition of a civil penalty simply because a requester opted to seek redress in a court of law rather than with the GRC. We are convinced the motion court erred by concluding otherwise, and by dismissing plaintiff's claims for the imposition of a civil penalty in the February and May actions.

(Mike Frisch)

August 3, 2017 in Current Affairs | Permalink | Comments (0)

Saturday, July 22, 2017

Up In Not Smoking

A divided United States Court of Appeals for the District of Columbia Circuit upheld an interpretation of the airplane smoking ban prohibiting inflight use of electronic cigarettes. 

Underlying petitioners’ arguments and those of the dissent is the point that e-cigarettes did not exist in 1987 when Congress first made it unlawful “to smoke” on certain flights under two hours, nor did e-cigarettes exist in 2000 when Congress extended the prohibition. Although this means the legislators did not have e-cigarettes in mind when passing those statutes, that does not resolve the interpretive question. The text itself, rather than the subjective intentions of legislators, governs our review. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998). We must ask whether the term “smoking” in a statute enacted before modern e-cigarettes existed covers these devices.

Petitioners maintain that “smoking” in § 41706 requires lighting or burning and does not encompass the heating that occurs with e-cigarettes. The statutory text alone offers no support for that position.

The majority delves into what "smoking" means

So here is where we are. Although the statute does not define “smoke,” some dictionary definitions, some state laws, and some characterizations of smoking by the e-cigarette industry itself support the Department. But other dictionary definitions and other state laws support petitioners. We therefore cannot say that Congress spoke to the precise question at issue.

The application of the ban was not arbitrary.

Circuit Judge Kavanaugh concurred

I join the majority opinion and add these brief comments. Even without affording Chevron deference to the Department’s interpretation of the statute, I would still reach the same result in this case. In my view, although it is a close call, the better interpretation of the term “smoking” in this statute covers ecigarettes as well as conventional tobacco cigarettes. Judge Ginsburg’s fine dissent rests in part on the notion that those who drafted or read the statute in 1987 would not have understood the term “smoking” to encompass e-cigarettes because e-cigarettes did not exist at that time. I am not convinced by that line of analysis, for reasons that the majority opinion persuasively explains.

Senior Circuit Judge Ginsberg in dissent

Today this Court departs from this principle to redefine “smoking” from conventional tobacco consumption, as it was commonly understood in 1987, to prohibit the use of electronic cigarettes, a new technology with a substantially different nicotine delivery process and likely different secondhand effects as well. Just as some people will, no doubt, “find ambiguity even in a ‘No Smoking’ sign,” Int’l Union v. Gen. Dynamics Land Sys. Div., 815 F.2d 1570, 1575 (D.C. Cir. 1987), the Court manufactures ambiguity from the lack of a statutory definition and some abstract dictionary definitions of “smoking” even though the Congress that adopted the statute and the public it represented would have found the term unambiguous when relating to passenger aviation...

I cannot accept the Court’s ahistorical reinterpretation of a purportedly ambiguous statutory term that was well-understood when enacted in 1987.

The challenge was brought by The Competitive Enterprise Institute, the Consumer Advocates for Smoke-Free Alternatives Association, and Gordon Cummings. (Mike Frisch)

July 22, 2017 in Current Affairs | Permalink | Comments (0)

Friday, July 21, 2017

Is Accepting A Pardon A Confession Of Guilt?

Well, it would appear that the nature and extent of the Presidential power to pardon has become somewhat newsworthy.

I had the opportunity to delve into the issue when President George H.W. Bush pardoned Elliott Abrams a few days after a disciplinary hearing that I prosecuted was held based upon his guilty plea to charges brought by Independent Counsel Lawrence Walsh. 

A divided District of Columbia Court of Appeals held that the pardon did not preclude professional discipline for the underlying conduct, although a bar prosecutor may no longer rely on the fact of the conviction itself.

Mr. Abrams (through his counsel Charles Cooper) sought certiorari review and did not garner a single vote.

One of the cases I came across was a 1915 Supreme Court decision in United States v. Burdick, where the court stated

Indeed, the grace of a pardon, though good its intention, may be only in pretense or seeming; in pretense, as having purpose not moving from the individual to whom it is offered; in seeming, as involving consequences of even greater disgrace than those from which it purports to relieve. Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.

Acceptance of a pardon thus would appear to at least "imply" a confession of guilt. (Mike Frisch)

July 21, 2017 in Current Affairs | Permalink | Comments (1)

Wednesday, July 19, 2017

Quicken Loans Not Engaging In Unauthorized South Carolina Practice

The South Carolina Supreme Court absolved Quicken Loan on civil allegations of unauthorized law practice

We accepted this declaratory judgment matter in our original jurisdiction to determine if Respondents/Petitioners Quicken Loans, Inc. (Quicken Loans) and Title Source, Inc. (Title Source) have engaged in the unauthorized practice of law (UPL). In their complaint, Petitioners/Respondents Vance L. and Thelma Boone, Travis G. and Theresa S. Messex, and Brian and Kelli Johnson (collectively "Homeowners"), alleged the residential mortgage refinancing model implemented by Quicken Loans and Title Source in refinancing the Homeowners' mortgage loans constitutes UPL. In addition to seeking declaratory relief, Homeowners' complaint also sought class certification and requested class relief.

We referred this matter to a Special Referee to take evidence and issue a report containing proposed findings of fact and recommendations to the Court regarding the UPL issue, as well as on the issues of class certification and class relief. Following an evidentiary proceeding during which the parties submitted extensive testimony and documentary evidence, the Special Referee issued a report proposing various factual findings and recommending this Court declare that Quicken Loans and Title Source engaged in UPL but opining that neither class certification nor class relief were appropriate under the circumstances. Quicken Loans and Title Source took exception to the Special Referee's proposed findings of fact and UPL recommendation. Homeowners took exception to Special Referee's recommendation that class certification and class relief were unwarranted under the circumstances.


We find the record in this case shows licensed South Carolina attorneys were involved at every critical step of these refinancing transactions, as required by our precedents. We also find that requiring more attorney involvement would not effectively further our stated goal of protecting the public from the dangers of UPL. We therefore respectfully reject the Special Referee's conclusion that Quicken Loans and Title Source committed UPL. Because we reject the finding of UPL, we need not address the parties' ,remaining exceptions, including Homeowners' request that we declare their mortgages void and certify this case as a class action.

...we believe requiring more attorney involvement in cases such as this would belie the Court's oft-stated assertion that UPL rules exist to protect the public, not lawyers...we do not believe requiring more attorney involvement would appreciably benefit the public or justify the concomitant increase in costs and reduction in consumer choice or access to affordable legal services. Cf. In re Unauthorized Practice of Law Rules, 309 S.C. at 306, 422 S.E.2d at 124–25 (recognizing the strict licensing requirements for becoming a Certified Public Accountant (CPA) and holding "that allowing CPAs to practice in their areas of expertise, subject to their own professional regulation, will best serve to both
protect and promote the public interest").

(Mike Frisch)

July 19, 2017 in Bar Discipline & Process, Current Affairs | Permalink | Comments (0)

Federal Appeals Court Holds "Significant Romantic Relationship" Unduly Vague; Overturns Penile Test As Release Condition

The United States Court of Appeals for the District of Columbia Circuit has held that certain conditions cannot be imposed on a released convicted sex offender.

The opinion was authored by Senior Circuit Judge Sentelle

Appellant Brandon Rock was sentenced to 172 months’ imprisonment and 10 years of supervised release after pleading guilty to distribution of child pornography. He appeals the length of his sentence and the conditions of his supervised release. For the reasons stated below, we affirm his sentence length but vacate two of the release conditions.

Prior to June 2011, appellant Brandon Rock was involved in a romantic relationship with a woman who had an 11-year-old daughter. Rock installed a hidden camera in the child’s bedroom at the woman’s house. Over the course of six months, Rock captured numerous video segments of the child in her bedroom, some of which showed the child completely naked from the front and back. From these videos Rock made still pornographic images. Subsequently, Rock entered an internet chat room where, unbeknownst to him, he began communicating with undercover Metropolitan Police Department Detective Timothy Palchak. Palchak was posing as an individual who had access to a fictional 12-year-old girl.

He was arrested and his computer searched after he sent images to the officer.

He is properly prohibited from computer use but

Another imposed condition of supervised release, the only preserved objection in the district court, under the heading “Additional Standard Conditions of Supervision,” states that Rock “shall notify the U.S. Probation Office when he establishes a significant romantic relationship and then shall inform the other party of his prior criminal history concerning the sex offenses.” Rock argues that this condition should be vacated because such a condition is unconstitutionally vague, not reasonably related to the goals of sentencing, and constitutes a greater restriction on liberty than necessary.

The condition was vague in light of the difficulty in quantifying matters of the heart

We cannot agree with the government’s proposition that people of common intelligence would share a conclusion as to whether the affairs of two people constituted a “significant romantic relationship.” Indeed, we think it likely that in many cases, the two persons involved might not agree as to whether they had such a relationship. In short, we agree with Rock that the vagueness of this condition is problematic.


Another condition of supervised release imposed upon Rock is that he “shall submit to penile plethysmograph testing as directed by the United States probation office as part of your sexual offender therapeutic treatment.” Rock contends that when the district court ordered him to submit to penile plethysmograph, there was no demonstration of what such testing actually required or if it is effective, and no discussion of why it is necessary.

The court concluded that the testing was not appropriate

The dissenter [in an earlier case] would have stricken the penile plethysmograph testing condition on the grounds that the procedure “implicates significant liberty interests and would require, at a minimum, a more substantial justification than other typical conditions of supervised release.” Id. at 566. We agree with the Malenya dissent and order this condition vacated as well.

The Malenya decision is linked here. 

Wikipedia describes the test. (Mike Frisch)

July 19, 2017 in Current Affairs | Permalink | Comments (0)

Monday, July 17, 2017

Claims When Employee Terminated For Lawful Use Of Medical Marijuana

The Massachusetts Supreme Judicial Court holds

In 2012, Massachusetts voters approved the initiative petition entitled, "An Act for the humanitarian medical use of marijuana," St. 2012, c. 369 (medical marijuana act or act), whose stated purpose is "that there should be no punishment under state law for qualifying patients . . . for the medical use of marijuana." Id. at § 1. The issue on appeal is whether a qualifying patient who has been terminated from her employment because she tested positive for marijuana as a result of her lawful medical use of marijuana has a civil remedy against her employer. We conclude that the plaintiff may seek a remedy through claims of handicap discrimination in violation of G. L. c. 151B, and therefore reverse the dismissal of the plaintiff's discrimination claims. We also conclude that there is no implied statutory private cause of action under the medical marijuana act and that the plaintiff has failed to state a claim for wrongful termination in violation of public policy, and therefore affirm the dismissal of those claims.

(Mike Frisch)

July 17, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, July 16, 2017

Attorney's Whistleblower Suit Against Virgin Islands Governor Survives

The Supreme Court of the Virgin Islands affirmed and reversed in part in a suit brought by an attorney against the Governor

After Governor Mapp assumed office in January 2015, he hired Randolph Knight as his  Chief of Staff and Emile Henderson, Esq., as his Chief Counsel. Shortly after the election, Henderson recruited [plaintiff] Mills-Williams to join his staff as a Deputy Attorney. Purportedly, Henderson told Mills-Williams that the Mapp administration “was going to be unlike other administrations and that it was going to be ethical, do all actions by the book and be a reputable administration.” Mills-Williams accepted the job offer, and began her employment in the Office of the Governor, where Henderson served as her supervisor.

At some point, the St. Croix Avis newspaper submitted a request to the Government of the Virgin Islands under the territory’s Freedom of Information Act, title 3, sections 881-884 of the Virgin Islands Code, for information related to Knight, Henderson, and Governor Mapp. The matter was assigned to Mills-Williams, who determined that Governor Mapp, Knight, and Henderson must be “walled off” from the request because it concerned them. (J.A. 181). However, after learning that Governor Mapp wished to review the documents before they were sent to the St. Croix Avis, Mills-Williams told her supervisor, Henderson, that doing so would be unlawful. Henderson indicated that he would advise the Governor.

Mills-Williams provided the documents to the St. Croix Avis on September 14, 2015. Afterward, Henderson informed her that Governor Mapp and Knight were upset that the documents were transmitted without providing them with an opportunity to review and redact them. It was also made clear to Mills-Williams that she was to stonewall any further Freedom of Information Act requests and not produce any more documents. (J.A. 182). On September 30, 2015, Henderson advised Mills-Williams that Governor Mapp had decided to transfer her from the Office of the Governor to the Virgin Islands Department of Justice, and that she should report to work there beginning on October 5, 2015. Mills-Williams received an official letter of termination from the Office of the Governor on October 7, 2015. After becoming informed that she was being transferred to the Virgin Islands Department of Justice, Mills-Williams was directed to report to the Department of Property and Procurement, Office of the Solicitor General, and the Department of Labor. No Notice of Personnel Action (“NOPA”) was ever received or signed reflecting any of the assignments to the various executive agencies nor was Mills-Williams ever paid for work performed since October 2, 2015. (J.A. 183).

Mills-Williams was transferred and sued as a whistleblower and on other grounds

On November 13, 2015, Governor Mapp published a press release stating that Mills-Williams associated with a convicted criminal—her attorney—and as being untrustworthy with confidential information. Around the same time, Governor Mapp also appeared on local radio talk shows and repeated the same information. Governor Mapp also terminated Mills-Williams’s employment with the Department of Justice. 

She appealed from the Superior Court's dismissal of the suit

The court

The Superior Court correctly applied the plausibility standard, and committed no error when it dismissed the misrepresentation cause of action in the November 4, 2015 second amended complaint and denied leave to plead a defamation claim in the proposed third amended complaint. While the Superior Court committed no error when it dismissed the whistleblower claims against Knight and Walker and denied leave to raise a whistleblower claim against Henderson, it erred when it dismissed the whistleblower claim against Governor Mapp and the Office of the Governor and denied leave to amend to assert the claim against the Office of the Attorney General. Accordingly, we affirm in part and reverse in part the Superior Court’s August 31, 2016 opinion, and remand the case to the Superior Court for further proceedings with respect to the whistleblower claims against Governor Mapp, the Office of the Governor, and—if properly served and found to have legal capacity to be sued—the Office of the Attorney General.

The Virgin Islands Consortium  had this earlier coverage of the controversy. (Mike Frisch)

July 16, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, July 11, 2017

Dash Cam Footage Is A Public Record

The New Jersey Supreme Court has held that a police dash-cam recording is a  public records under the circumstances of the case

The Attorney General’s interest in the integrity of investigations is strongest when it comes to the disclosure of investigative reports, witness statements, and other comparably detailed documents. In those areas, the State’s interest outweighs NJMG’s. The balance can tip in favor of disclosure, however, for materials that do not contain narrative summaries and are less revealing. Footage of an incident captured by a police dashboard camera, for example, can inform the public’s strong interest in a police shooting that killed a civilian. It can do so without placing potential witnesses and informants at risk and without undermining the integrity of an investigation. Based on its in camera review of the certifications the State submitted in this case, the Court notes that the State advanced only generic safety concerns. Under the circumstances of this case, the public’s substantial interest in disclosure of dash-cam recordings warranted the release of those materials under the common law right of access. 

The case

On September 16, 2014, a North Arlington resident called 9-1-1 to report an attempt to break into a car. The police tried to stop the suspect’s car, but the driver—later identified as Kashad Ashford—eluded them and led police on a high-speed chase. At one point, Ashford tried to ram a patrol car head-on. Ashford ultimately lost control of his vehicle and crashed it into a guardrail at an overpass. According to the Attorney General’s press release, Ashford tried to get free of the barrier by accelerating, which caused the car to “jerk[] in a rear and forward motion.” An unidentified officer said that he thought the SUV might strike and possibly kill him and another officer. Both of those officers—as well as others fired at Ashford, who was pronounced dead hours later.

Within days of the shooting, a reporter from The Record and another from the South Bergenite filed requests for records under OPRA and the common law right of access. The records custodians gave varied responses. None of them produced any materials before plaintiff North Jersey Media Group, Inc. (NJMG) filed a complaint and order to show cause. At the time, NJMG owned The Record and the South Bergenite. The two-count complaint alleged violations of OPRA and the common law right of access. NJMG sought release of the requested records, or their review in camera, along with fees and costs.

(Mike Frisch)

July 11, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, July 4, 2017

The Fourth Of July

I have been a citizen of this nation for 67 years. My parents generation fought for freedom against the fascists. As Jews, my parents always felt that America was the last best hope for the future.

I never thought I would live to see the day when people would have to consider leaving this country due to racial and religious discrimination as well as unrestrained violence.

This to me is a day for reflection and renewed dedication to the principle of equal justice under law, not celebration.

 Mike Frisch

July 4, 2017 in Current Affairs | Permalink | Comments (1)

Thursday, June 15, 2017

Hail To The Chief

It's not every day that a former student and present colleague of mine becomes a Bar President

Today attorney Matt Kaiser, founding partner of KaiserDillon, PLLC, was formally sworn in as President of the Bar of the District of Columbia (BADC), the oldest private voluntary association representing lawyers practicing in the nation’s capital.

“It is my honor to be elected as President of the Bar Association of the District of Columbia,” said Kaiser. “Washington, D.C. is a lawyers’ town. We have the nation’s highest density of courts, and the largest and most diverse body of practicing attorneys of any city in the world. I look forward to continuing my work with BADC’s officers, staff, and committees as we work to serve the needs of the lawyers in this city.”

Kaiser continued, “This year’s theme is ‘The Role of Lawyers in a Constitutional Democracy.’ We will recognize and celebrate that role, as we foster and promote relationships among members of the bar.”

In his private practice, Matt Kaiser focuses on white collar defense and legal ethics. He has represented companies and individuals in white-collar criminal matters, and in connection with claims against their prior lawyers, advised lawyers on how to comply with their ethical obligations, and litigated law firm dissolutions.

Kaiser also teaches legal ethics at Georgetown University Law Center as an adjunct professor. He serves on the Board on Professional Responsibility, a nine-member board appointed by the D.C. Court of Appeals that adjudicates cases of attorney misconduct and is responsible for administering D.C.’s disciplinary system for attorneys. Prior to being elected President of BADC, Kaiser served the organization in various capacities.

Founded in 1871, the Bar Association of the District of Columbia is one of the oldest bar associations in the nation. The BADC and its members have a proud history of working closely with the judiciary, courts, the D.C. Council, and the U.S. Congress on the administration of justice. As D.C.’s voluntary bar it lobbies on behalf of its members, provides the only lawyer referral service in D.C., and mentors young lawyers. This year marks the 146th year the BADC has promoted civility, justice, and collegiality among members of the legal profession in the capital through advocacy, education, and social events.

View source version on

KaiserDillon, PLLC
Media Contact:
Penny Paul, 973-687-4830

Congratulations Matt. (Mike Frisch)

June 15, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, June 6, 2017

The Silence Of The Chickens

No mandamus lies for relief sought on behalf of slaughtered chickens, according to a decision today from the New York Appellate Division for the First Judicial Department

The individual plaintiffs reside, work or travel within Brooklyn neighborhoods where the non-City defendants engage in the Kaporos ritual every year before Yom Kippur. Plaintiff the Alliance to End Chickens as Kaporos, of which some individual plaintiffs are members, is associated with nonparty United Poultry Concerns, a non profit organization promoting compassionate and respectful treatment of domestic fowl. The non-City defendants are individual Orthodox Jewish rabbis, members of yeshivas or other Orthodox Jewish religious institutions, and several Orthodox Jewish religious institutions, all based in Kings County.

Kaporos is a customary Jewish ritual practiced by the non-City defendants, who are ultra Orthodox. It dates back to biblical times and occurs only once a year, the few days immediately preceding the holiday of Yom Kippur. Adherents of Kaporos believe this ritual is required by religious law and that it brings atonement and redemption. The ritual entails grasping a live chicken and swinging the bird three times overhead while saying a prayer that symbolically asks God to transfer the practitioners' sins to the birds. Upon completion of the prayer, the chicken is killed in accordance with the kosher dietary laws, by slitting the chicken's throat. Its meat is then required to be donated to the poor and others in the community. Each year thousands of chickens are sacrificed in furtherance of this ritual and the practice takes place outdoors, on public streets in Brooklyn, and in full public view.

Plaintiffs allege that the manner in which Kaporos is practiced is a health hazard and cruel to the animals. They decry the practice as "party-like" and having a "carnival" atmosphere. They contend the practice involves the erection of makeshift slaughter houses in which "[d]ead chickens, half dead chickens, chicken blood, chicken feathers chicken urine, chicken feces [and] other toxins . . . consume the public streets" (amended complaint ¶ 168). They also allege that there is blatant animal abuse and cruelty (id. at ¶ 174). It is plaintiffs' contention that Kaporos is a public nuisance to all those who, like them, pass through these locations for day to day activities, including going home, to work, or to shop. Their goal is to stop this practice. They argue that there are other, better ways for Kaporos adherents to practice their faith and express their devotion, including by using coins instead of live chickens. They denounce Kaporos as "a far cry from a solemn religious ritual." These claims are disputed by the non-City defendants, who otherwise claim that they have a constitutional right to practice Kaporos.


Mandamus is generally not available to compel government officials to enforce laws and rules or regulatory schemes that plaintiffs claim are not being adequately pursued (see e.g. Jones v Beame, 45 NY2d 402, 409 [1978], citing People ex rel. Clapp v Listman, 40 Misc 372 [Sup Ct, Onondaga Special Term 1903] [mandamus does not lie to compel enforcement of Sunday "blue" laws]; Matter of Walsh v LaGuardia, 269 NY 437 [1936] [no right to compel Mayor and Police Commissioner to prohibit operators of nonfranchised bus routes]; Matter of Perazzo v Lindsay, 30 AD2d 179 [1st Dept 1968], affd 23 NY2d 764 [1968] [no right to compel enforcement of laws governing operation hours of coffee houses]; Matter of Morrison v Hynes, 82 AD3d 772 [2d Dept 2011] [cannot compel the initiation of a prosecution]; Matter of Bullion v Safir, 249 AD2d 386 [2d Dept 1998] [no mandamus to compel police to make arrests]). This reflects the long-standing public policy prohibiting the courts from instructing public officials on how to act under circumstances in which judgment and discretion are necessarily required in the fair administration of their duties.

We hold that the laws which plaintiffs seek to compel the City defendants to enforce in this action involve the judgment and discretion of those defendants. This is because the laws themselves implicate the discretion of law enforcement and do not mandate an outcome in their application. With the exception of Agriculture and Markets Law § 371 (addressed separately below), there is nothing in the plain text of any of the laws and regulations relied upon by plaintiffs to suggest that they are mandatory. Nor is there anything in the legislative history supporting a conclusion that any of the implicated laws and regulations are mandatory. There is no express provision designating Kaporos as a prohibited act. There are disputes about whether the conduct complained of is in violation of the implicated laws and regulations. There are disputes about whether and to what extent the implicated laws can be enforced without violating constitutional rights belonging to the non-City defendants. Rituals involving animal sacrifice are present in some religions and although they may be upsetting to non adherents of such practice, the United States Supreme Court has recognized animal sacrifice as a religious sacrament and decided that it is protected under the Free Exercise Clause of the Constitution, as applied to the states through the Fourteenth Amendment.

Earlier coverage of this disagreement from the New York Daily News is linked here. (Mike Frisch)

June 6, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, May 24, 2017

Ohio Rules Ethnic Intimidation Charges Barred By Double Jeopardy

Dan Trevas on the web age of the Ohio Supreme Court

When two Portsmouth men accused of felony ethnic intimidation agreed to plead no contest to misdemeanor aggravated menacing crimes, the constitutional protection against double jeopardy barred the state from subsequently pursuing ethnic intimidation convictions, the Ohio Supreme Court ruled today.

Writing for the Supreme Court majority, Justice Sharon L. Kennedy concluded that the Scioto County Common Pleas Court was correct to dismiss charges against Melvin and Buddy Mutter after they were prosecuted in Portsmouth Municipal Court for misdemeanors, which were lesser included offenses of ethnic intimidation that stemmed from the same October 2014 incident.

The Court relied on a test developed by the U.S. Supreme Court in 1932 to determine if two separate crimes are essentially the same for the purpose of determining if the double jeopardy protection of U.S. and Ohio constitutions apply. Justice Kennedy noted the U.S. Supreme Court used “the Blockburger test” in a 1977 Ohio case, and the charges against the Mutters followed a similar pattern.

City Reduces Charges
The Mutters  originally were charged in Portsmouth Municipal Court with ethnic intimidation, a fifth-degree felony, and aggravating menacing, a first-degree misdemeanor. The city of Portsmouth dismissed Melvin Mutter’s ethnic intimidation charge and brought a new charge of “menacing by stalking” against him. Two weeks after the October 14 incident, Melvin Mutter pleaded no contest to both misdemeanor charges of aggravated menacing and menacing by stalking. He was sentenced to 180 days in jail with 150 days suspended, fined, and placed on probation.

In exchange for a guilty plea, Buddy Melvin’s charge of ethnic intimidation was reduced in municipal court to menacing by stalking. He pleaded no contest to both menacing by stalking and aggravated menacing, and  was sentenced to an entirely suspended 180-day jail sentence and placed on probation.

Less than a week after the Mutters concluded their municipal court cases, a Scioto County grand jury indicted the two for ethnic intimidation alleging they violated the aggravated menacing statute, R.C. 2903.21 “by reason of race, color, religion, or national origin of another person.”

The Mutters claimed the indictment violated their constitutional rights against double jeopardy. The common pleas court determined the misdemeanors the Mutters pleaded no contest to and felony charges brought by the state stem from the same incident and dismissed the case.

The Scioto County Prosecuting Attorney’s Office appealed the decision to the Fourth District Court of Appeals, which reversed the trial court’s ruling. The Fourth District ruled there was no evidence in the municipal court’s publicly available record to conclude the convictions for aggravated menacing and the indictments for ethnic intimidation arose from the same incident.

The Mutters appealed the decision to the Ohio Supreme Court, which agreed to hear the case.

No Second Prosecutions Allows After Convictions
The Mutters argue that the Fifth Amendment, applicable to the state’s charges through the Fourteenth Amendment, and the nearly identically worded double jeopardy clause in Article I, Section 10 of the Ohio Constitution, barred the felony indictment. The Mutters argue the state is attempting a second prosecution for the same offense after conviction.

They maintained they negotiated pleas of no contest because they believed their pleas in municipal court would eliminate the prosecution of a greater offense for the same incident in common pleas court.

The state argued that the Portsmouth Municipal Court did not have the right to reduce Buddy Mutter’s felony ethnic intimidation charge to a misdemeanor, and that under the Blockburger test, ethnic intimidation and aggravating menacing are distinct crimes that can be prosecuted separately even if they stem from the same incident.

The Court ruled the U.S. Supreme Court has stated the double jeopardy clause protects against three abuses: 1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

The opinion stated the Blockburger test determines if two crimes contain the same “elements” and that a person’s conviction for the lesser included offense bars prosecution for the greater offense.

Ethnic intimidation, R.C. 2927.12, contains two elements, the Court explained. A person must be found to have violated one of five state laws: aggravated menacing, menacing, criminal damaging, criminal mischief, or telecommunications harassment. The second element is that one of those crimes was committed “by reason of race, color, religion, or national origin of another person.”

The opinion found that regardless of a lack of information in the municipal court records, the state conceded at oral argument before the court that the ethnic intimidation and aggravated menacing charges arose from the same incident.

Under the Blockburger test, a lesser included offense is considered to be the same as the greater offense if the lesser offense had no additional element that required additional proof for a conviction. The proof required to charge and convict a person with ethnic intimidation is enough to charge and convict someone of aggravated menacing. As a result, in this case, ethnic intimidation and aggravated menacing are the same crime when considering double jeopardy, the Court concluded.

The opinion explains the U.S. Supreme Court applied Blockburger in the 1977 Brown v. Ohio case in which Ohio attempted to prosecute a defendant for the greater offense of auto theft after he had already pleaded guilty to the lesser offense of joyriding. All the proof gathered to charge the defendant for auto theft could be used to convict for joyriding and no additional proof was needed to convict for joyriding, making them the same crime for the purposes of double jeopardy.

The Ohio Supreme Court found the facts in the Mutters claim closely mirror those in Brown. It concluded the same way joyriding was the lesser included offense of auto theft, aggravated menacing and ethnic intimidation are the same crime.

“Relying on the analysis in Blockburger and Brown, we conclude that in this case, aggravated menacing is a lesser included offense of ethnic intimidation as charged in the indictments. Therefore, we find that the Mutters’ aggravated-menacing convictions are the same offenses as those charged in the indictments brought against them in the Scioto County Court of Common Pleas.”

The Court reinstated the trial court’s ruling to dismiss the charges.

Justices Terrence O’Donnell, Judith L. French, William M. O’Neill, Patrick F. Fischer, and R. Patrick DeWine joined the majority opinion.

Chief Justice Maureen O’Connor concurred in judgment only.

2016-0440 and 2016-0441. Sate v. Mutter, Slip Opinion No. 2017-Ohio-2928.

Video camera icon View oral argument video of this case.

(Mike Frisch)

May 24, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, May 17, 2017

Former Firm May Sue Successor Firm For Failure To Honor Lien

The New Hampshire Supreme Court has reversed and remanded the dismissal of a claim of one law firm against another alleging conversion

The plaintiff was retained by a client to pursue a personal injury action. In connection with the representation, the client signed the plaintiff’s standard engagement contract, which states, in relevant part:

If I discharge my attorney or he withdraws from representation, I agree to pay him at the rate of $350.00 per hour, $175.00 per hour for his legal assistant(s), quantum meruit, or thirty-three and one-third percent (33-1/3%) of the last settlement offer, whichever is greater, from any recovery obtained on my behalf. I do further agree that my attorney will be entitled to the full contingency fee identified in this contract if he substantially performs under the contract. I grant my attorney a lien for his fees and costs on any recovery I receive in my case.

The plaintiff worked for the client for two years before being discharged without cause. The client subsequently hired the defendants, who filed an action (underlying action) on behalf of the client. The defendants ultimately settled the underlying action on the client's behalf.

Prior to settlement, the plaintiff filed a motion to intervene in the underlying action, asserting that he possessed a contractual lien for fees and costs incurred during his representation of the client. The client objected to the motion, claiming, among other things, that: (1) intervention would be inappropriate because of the possibility of juror confusion and because the plaintiff retained the ability to bring a separate quantum meruit claim; and (2) the plaintiff had "neither a lien nor a contractual claim" and was limited to recovery in quantum meruit. The court denied the plaintiff’s motion "for the reasons stated in the [client’s] objection," without further elaboration. According to the defendants, the plaintiff subsequently filed a motion to vacate the court’s order, which the court denied, ruling that it was "an untimely motion to reconsider."

After the settlement of the underlying action, the client filed a motion to order that the settlement check be made "payable solely to [the client] and her counsel, R. James Steiner." The court granted the motion.

On the same day, the plaintiff filed a series of motions in the underlying action, including a second motion to intervene wherein he again asserted that he possessed a contractual lien, a motion for interpleader, and a motion to foreclose lien. The client objected to all these motions, and the court denied all of them without explanation.

The plaintiff then initiated this action against the defendants, again alleging that he had an enforceable contractual lien for fees against the defendants. The defendants moved to dismiss the action for failure to state a claim. In its order granting the motion, the court noted that the plaintiff’s contractual lien claim was "arguably barred by the doctrine of collateral estoppel." Nonetheless, the court found that the plaintiff’s claim failed on the merits because he had not submitted any evidence of his contract with the client, and, thus, failed to allege "facts that c[ould] be reasonably construed to meet the elements of an enforceable contract containing the lien term."

On the merits

 Having thus established that the plaintiff may have a valid lien for the reasonable value of his services, we next consider whether that lien is enforceable against the defendants. The plaintiff asserts that the contract signed by the client is enforceable against the defendants because the defendants were aware of the lien at the time they were retained, and because the client should not be required to pay both lawyers’ fees. The defendants’ position is that, if the plaintiff has any claim for fees, the claim lies only against the client. Under the particular circumstances of this case, we are persuaded by the plaintiff’s argument.

Because the defendants do not argue that they were unaware that the client had discharged a prior attorney before retaining their services, we conclude that the lien for fees claimed by the plaintiff may be enforceable against the defendants. In so holding, we follow the view espoused by the Indiana Supreme Court in Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. 1999). As that court aptly explained:

In a system of professional responsibility that stresses clients’ rights, it is incumbent upon the lawyer who enters a contingent fee contract with knowledge of a previous lawyer’s work to explain fully any obligation of the client to pay a previous lawyer and explicitly contract away liability for those fees. If this is not done the successor assumes the obligation to pay the first lawyer’s fee out of his or her contingent fee. [The successor lawyer] was in the best position to evaluate and to reach an agreement as to a reasonable fee for the value of the work already done in [the client’s] case. "Lawyers almost always possess the more sophisticated understanding of fee arrangements. It is therefore appropriate to place the balance of the burden of fair dealing and the allotment of risk in the hands of the lawyer in regard to fee arrangements with clients." In the Matter of Myers, 663 N.E.2d 771, 774-75 (Ind. 1996). [The successor lawyer] also had the option to discuss with [the client] the need for someone to pay [the prior lawyer’s] fee and to refuse to accept the case if [the client] could not resolve any open issues with [the prior lawyer]. [The successor lawyer] neither advised [the client] of the need to pay the fee nor contracted away that responsibility for himself. Under these circumstances, [the successor lawyer], not [the client], should bear the burden of his silence. Accordingly, [the prior lawyer] is entitled to recover the compensation due [him] from [the successor lawyer’s] contingent fee...

We find the Galanis court’s reasoning persuasive, and, therefore, hold that the trial court erred in dismissing the plaintiff’s amended complaint. Accordingly, we reverse the trial court’s judgment and remand for further proceedings consistent with this opinion. In so doing, we emphasize that, for purposes of this appeal, we have accepted the plaintiff’s allegations as true. See Coyle, 147 N.H. at 100. On remand, the plaintiff will bear the burden of establishing the reasonable value of his services, which, as the Galanis court observed, is to be measured by the benefit conferred upon the client –– an amount that may or may not be commensurate with the time or effort expended by the plaintiff. See Galanis, 715 N.E.2d at 862. Also relevant to the plaintiff’s entitlement to fees will be the issue of whether he was, as he alleges, discharged without cause. See First National Bank of Cincinnati v. Pepper, 454 F.2d 626, 633 (2d Cir. 1972) (stating that "attorney discharged for cause. . . has no right to payment of fees"); cf. People ex rel. MacFarlane v. Harthun, 581 P.2d 716, 718 (Colo. 1978) (en banc) (stating that attorney discharged or removed "for professional misconduct in the handling of his client’s affairs" has no right to assert a statutory attorney’s lien).

 (Mike Frisch)

May 17, 2017 in Current Affairs, Law & Business, Law Firms | Permalink | Comments (0)