Getting it all backward...

In Florida each judicial district has a "Public Defender," which is the title given to the person who is the head of the Public Defender's office in each district. What's fairly bizarre about this is the "Public Defenders" in Florida are elected, not appointed. One of the obvious problems with having an elected official be responsible for protecting the legal rights of the poor is that a public defender's job is not to satisfy the public, its to zealously represent people accused of crimes regardless of how hideous are the crimes they're accused of.

Well, in the judicial district that includes Jacksonville this strange arrangement has resulted in someone winning an election for Public Defender who campaigned on a platform that consisted of being less confrontational with the police and even promising to no longer have PD attorneys question the credibiliity of the police. This campaign platform was so successful that the local police union actually endorsed the candidate making the promise.

Once the election was over the new "police/prosecution friendly" Public Defender promptly announced that he was going to fire the 10 most experienced attorneys in the office. Those being fired include two very experienced PD's who lead an effort to overturn the wrongful conviction of a 15 year old beaten and scared into confessing to a murder he didn't commit (this became the subject of an HBO film called "Murder on a Sunday Morning," for more info go to: http://www.hbo.com/docs/programs/murder_sunday/).

So, the bottom line is that the role of the Public Defender in Jacksonville has been turned upside down, with the office now being controlled by someone who is close friends the with State's Attorney who prosecutes cases and is partially beholding to the police union for getting into office. There's a lot more to the story and for anyone interested I highly recommend this article:
http://www.folioweekly.com/documents/editorialtemplate_001.pdf.

Jail Time For A Speeding Ticket? Yup...

For those who regularly drive Route 17 through Sullivan County a word of warning is in order. Local courts in Sullivan have been cracking down hard on what they call "high speed violators"....i.e., those ticketed with speeds over 90 mph. Plea bargaining these tickets down has become very difficult in many towns and downright impossible if the speed is over 95 mph. The risk is not just an "8 point" or "11 point" ticket, in one town called Mamakating the local justice regularly sentences people ticketed for speeds over 95 mph to 7-10 days in the county jail!!

So, not only can you get rapped with a hefty fine (as much as $655 for 41+ mph over the limit) and huge increases in your auto insurance, you can, and will, spend a week or more in the lovely Sullivan County jail. To top it all off, if your point total reaches 11 in 18 months, the DMV will suspend your license and charge you a "Driver Safety Assessment" that can reach $225/year for 3 years... And that can all happen even if you have a perfect driving record!

On one level this is hard to believe because even someone convicted of first-time DWI almost never gets jail time, can get a "conditional license" and keep driving to work or school. I'm not condoning driving at 100 mph, but I sure think that someone driving drunk is a bigger danger than a speeder on an open road...

Even minor drug convictions can have lasting impact

The "war on drugs" has gone on for nearly 40 years and there's no victory in sight. But, there's plenty of victims...sadly some of the victims aren't aware of some of the scariest consequences that a drug conviction can result in. For example, in New York State possession of less than an ounce of marijuana isn't a criminal offense, its simply a "violation" called "Unlawful Possession of Marijuana"(UPM). On paper its a pretty innocent sounding offense, roughly the equivalent of a traffic ticket. You pay a fine and go your way...well, not quite!

For first time offenders caught with more than an ounce of pot (a misdemeanor) the typical resolution is a plea bargain down to a UPM violation. Sounds good, right? Well, what most people don't know (and a lot of attorneys don't either) is that even a conviction for a violation like UPM can deprive you of college financial aid for ONE YEAR! Yep, its right there in the 1998 Higher Education Act passed by Congress. So, if you're in college or about to go to college are are relying on either Federal or State tuition aid, be careful about accepting any pleas to minor pot (or other drug offenses). It could really cost you down the road...

Town and Village Justice Courts-NYT Article

Ummm....long time no post (from me). It was a busy summer with several cases that really dragged on. If anyone hasn't seen the terrific series of articles in the New York Times about the village and town justice court system in NYS, you really should check it out. Here's a link:

http://www.nytimes.com/2006/09/26/nyregion/26courts.html

It's some very good reporting about a situation that's a total mess in some places. The Times largely focused on upstate T&V courts, many of which have non-lawyer justices handling a variety of criminal and civil cases. From personal experience I can say that working in a court where the judge isn't a lawyer (and doesn't know a whole lot about the law) is scary, frustrating and sometimes, painful. The sad thing is that it's not like the vast majority of these judges don't want to do the "right thing". They do!! The trouble is they don't understand that our criminal law system (as much of a mess as it is) hangs by a thread...and that thread is insuring that every defendent gets at least a bare minimum of due process. All too often, that's what's missing in these courts.

Fortunately, most of the courts I regularly practice in do have attorneys serving as town justices. The major problem in those courts is the lack of a "record". There's no court stenographer or audio tape of proceedings in these courts and that makes it very hard to make an effective appeal of a mistaken judicial decision.

Misguided Traffic Enforcement

In the wake of four fatal accidents on the NYS Thruway a couple of months ago, the NYS police have embarked on a "speeding crackdown" along sections of the Thruway where the accidents occurred. Sadly, this ticket 'blitz' will likely have the same result that previous campaigns have...basically nothing will change.

Despite what the state police believe, the problem on the Thruway and other highways really isn't speeding. After all, in Germany there are NO SPEED LIMITS on large sections of the Autobahn. Yet, the fatality rate on the Autobahn is LOWER than the fatality rate on U.S. interstate highways! If speed were the major cause of fatal accidents certainly the fatality rate, in a country where 120mph is routine, should be higher than it is in the U.S., right?

Truth is, the real problem is reckless driving, not speeding. Drivers that routinely pass on the right, truckers that drive in the middle lane of a 3 lane highway and cause people to pass them on the right are what cause most accidents on our superhighways. But, state troopers sitting in their cars waiting for an isolated driver moving at over the speed limit don't discourage reckless driving at all! What they do accomplish is to rack up lots of revenues for the state on the townships where they issue tickets.

Question: has anyone ever seen a NYS trooper give a speeding ticket to a trucker?? Ever?? I've driven the Thruway almost every day for 20 years. I've never seen it happen. I've never seen a trucker get ticketed for tailgating, either. But, I see truckers both speed and tailgate every day. What's the deal? It's an important question because nearly 35% of all fatal highway accidents involve a truck. Maybe giving a few tickets to those guys would make things safer. Of course, that would mean enforcing the law in ways that might actually reduce fatalities.

Bottom line is this: if the NYS police really want to make our highways safer they need to get into their cars and actually PATROL! They need to enforce the laws we have against the kind of behavior that really causes accidents. Nailing the lone 'speeder' who isn't endangering anybody doesn't do a thing.

Sue Kelly Must Go...

Well, our intrepid Congress has gone and done it...changed the Medicaid eligibility rules so that it will be virtually impossible for the typical middle class family to protect any of their assets from being flushed down the drain if they're among the 40% of people that end up requiring nursing home care in their old age. The new rules are so harsh that unless one is truly wealthy, trying to protect assets and leave a little something for your kids is now so risky that most people won't even try. If you want to learn the details of what the changes in the law are you can read about them on my website, at: www.stormkinglaw.com.

What makes all this doubly frustrating is that the vote, in the House of Representatives, on the Deficit Reduction Act of 2005 (which contained these changes) was 216-214!!! That's right, one vote switching from being in favor to opposing and the bill would have failed.

So, guess who lined up to shoot down the hopes of middle class people that they might pass on something to their kids?? You've got it...Rep. Sue Kelly of the 19th Congressional District (northern Westchester, Putnam, Orange and Southern Dutchess counties). If "photo op Sue" had voted against it the bill would have failed. This is the same lady who tramps around the Hudson Valley going to every 'senior citizen' event she can get her picture taken at. This is also the same lady who votes against every gun control measure, every civil rights measure, every labor protection law she sees. But, "photo op Sue" manages to vote for every bill that will eliminate the estate tax on truly wealthy people.

So, if you're middle class and you live the Hudson Valley, realize that your congresswoman has done everything she can to make sure that you won't be able to leave anything to your kids...but, that people that are truly wealthy can leave virtually everything to their kids.

Bottom line: Sue Kelly must go. A rich woman from Westchester isn't what most of the people in the lower Hudson Valley need. Let her represent her friends in Katonah...on the school board, but let's get this woman out of Congress!!

Sad, but True...

Someone on one of the listserv's I belong to posted this today. It would be funny if it weren't basically true...

"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people." -Cynthia Rosenberry