We Are Not The Land Of The Free Until We Stop The Nanny State Bull Hockey

I don't have the time for a long post today. I love America. I believe in its promise. I get frustrated however when I see that we refuse to trust our people with their own money and their own bodies. There are natural consequences from every act, but legal consequences must not be based on someone Else's subjective test of right and wrong.

My test for right and wrong in a law is simple: Does this law seek to prohibit an act that hurts no one but the doer of the act? If so then it should not be illegal. It is said that "the freedom to move one's arm ends at the tip of the nose on the next guys face." If it doesn't hit him, then his discomfort at the fact that I move my arm is not illegal.

Ok I don't have the time to go into all of it, but look at this story about a federal prosecution of a Doctor who asked two girls to come across state lines to "service" him. Not minors, not Sex Slaves or Human Traffic, 2 adult willing women who wanted to have sex w/ this guy and to get money for their effort.


Then look at this YouTube Video of Rep Barney Frank one of the US Congress' most liberal members and Rep Peter King, one of its most conservative members. They are on the same side of the fight to restore the rights of Americans to spend their money and time the way they want. Only a question about Liberty could get these two on the same side of an issue.

Now do something about this. Let your Senators and Congressmen know that these types of Nanny-State laws are unacceptable. Tell them to stay out of our bedrooms and our pockets. Do it for Freedom, Liberty and the American way. Do it today.
Happy 4th of July.

Madoff's Fools Get Vengeance at Taxpayer's Expense...Why the Madoff Sentence is Unfair to the Rest of US

Denny Chin an otherwise pretty good judge really screwed the rest of the people that Wall Street cheat Bernie Madoff didn't screw over. By sentencing Madoff to 150 years, Madoff now spends the rest of his life living off the public. We take care of his room and board not to mention his health till he eventually meets the true God of Justice. How is this fair???

Look. Madoff was one of the worst (or best I guess) swindlers in history. However, the people he swindled, wanted to be swindled. They did nothing to investigate his "success" they only wanted his big gains.

The more he delivered, the more they delivered. While the market was tanking, Bernie was paying off. Didn't they wonder how? Did they really believe he was infallible?? Why should their bad investment now cost the rest of us over 50K a year?

Look I am not advocating for a soft sentence for Madoff, but it costs thousands more to imprison an older person than a young one. Health care being what it is, he will be treated better than 15% of Americans, on our dime!! Couldn't a message have been just as well sent to senior citizens who commit crimes that we will take back all your money and stick you in jail for your last few decent years and then throw you back on your family when you are about to rot over?

Why do I and most of my friends and colleagues have to worry about taking care of our elderly parents when his kids besot with illegally gained funds since their early years get to know they won't have to part with a freaking penny to take care of the old cheat who helped them get their money??


Lest you think I am alone in this thought, none other than Professor Steven Bainbridge appears to agrees.

Sorry Judge, you made a bad error. First, no one is deterred from crime by jail, criminals do not think they are ever going to get caught. (By the by, most investors who get into scams also do not believe that their scam is a scam and that they will be ripped off...)

Second, you sentenced the rest of the taxpaying part of America all because a bunch of supposedly savvy investors weren't so savvy and made a bad deal. Maybe all these so called investors who now feel that they are somewhat vindicated ought to pay for his stay in the Federal prison. After all, if putting him in jail for the rest of his life is supposed to vindicate them, they ought to pay for it.

I have been cheated, more than once. Mostly by people who promise to pay bills and then don't or can't. The government doesn't bail me out nor does it go around and claw back money for my fees. No one puts those that cheat me in jail for the theft of service. Why do Madoff's fools get some money back and get their vengeance on the taxpayer's expense?

Image Hattip: Mario Piperni dot Com

Freedom of Speech Does Not Permit You To Break The Law

Ian Barry is a Seventeen year old who knowingly broke the law to make a point. Ian gave a speech as to why Marijuana ought to be legal to a High School class. During the speech, he lit a joint and by the end of the speech, ingested the joint. Police arrested him. He has been charged locally. He says in this article that he accepts responsibility for his actions and that he is ready to pay a penalty for his actions.

Ian points out that he had to break the law to bring any real attention to his cause. There he may be right. Many are calling his act a act of civil disobedience and claim that it ought to be protected from prosecution as freedom of speech. I think the kid understands free speech better than many lawyers do.

His act was not an act of free speech though it was an act of civil disobedience. He broke the law to prove a point; that the law is wrong. He may get attention to his cause, he may even earn jury nullification, which would go far in getting his point even more attention, but he is not protected from arrest prosecution and conviction for his act.

It is oft said that one's rights come to an end at the tip of another's nose. In other words, you are free to do what you like until you interfere with someone else's right to do the same. In Ian's case, he is not free to break the law, only to criticize it. He moved on from that when he carried the joint to/or in school. Given the SCOTUS recent decision in the "Bong hits for Jesus" case, Ian is headed for a criminal record assuming he doesn't go to trial and convince a jury to nullify the law. He is also garnering a lot of attention for his cause.

I am not sure this is a call I'd like a teenager to make. He has no idea, despite his bravado, of the trouble he has caused himself in the future. He has however made the decision and will have to live with the consequences until the law catches up with the rest of the society's view of marijuana.

Facebook and DWI: A Defense Attorney's Nightmare.

Chicago IL. Criminal Defense Attorney Steve Komie is doing a bang up job in the case of an 18 year old who was allegedly drunk and killed a motorcyclist. Unfortunately the woman, now 20 can't get out of her own way long enough to help him out.

Komie has proved that Town of South Elgin Police destroyed the blood test prosecutors hoped would prove Erika Scoliere was drunk when she collided with motorcyclist Frank Ferraro. Without the test and sample, the defense cannot test the blood nor can it test the accuracy of the test at trial. That any evidence in an on going case is destroyed is a mystery, that the "best evidence" against a murder suspect is destroyed, right before trial, should lead potential jurors to wonder if the test actually showed ANY proof of alcohol at all.

The lead story in the news Friday should have been about how police malfeasance is causing Scoliere to get less than a fair trial. BUT NO!!

Seems that Scoliere or one of her inane "friends" posted asinine pictures of her on Facebook guzzling Tequila at a college party(in violation of her terms of release.)

Now first off, how did this young woman GET INTO a college to begin with? I mean what kind of brain damage do you have to have to realize that you killed someone and people are not happy with you? Prosecutors are looking for a reason, ANY REASON to convict you, and you decide it is a good idea to be in a place known for alcohol and stupid decisions (sorry Frat parties are Frat parties)?

Secondly, you are out on bail with an order to "call in" to probation while you are allowed to attend your "out of state" private college and go on vacations with your family. How do you "misunderstand" that Court Order?? ( I have to ask though why no one from probation notified Komie that his client was missing calls.)

The damage here is not that Scoliere now must wear a SCRAM (Secure Continuous Remote Alcohol Monitor.) It is that instead of being viewed as the victim of police, and a rush to judgment by an angry and hostile prosecution, she is seen as a ditzy, spoiled, bratty kid who needs to be taken down. She is the poster child for the over-indulged college student. She pushed the story of the lost evidence off of the headline and reinforced her image of being the "Paris Hilton" of Kane County. (Piece of unsolicited advice for Steve Komie, you may need to hire this client a PR consultant with a brain.)

We are now in the days of everyone, friends and foes, being able to record every waking moment of our lives. It is time to get smart. Ms. Scoliere's parents need to smarten up too. Get her into the house and keep her there until her trial takes place. How about considering placement into a rehab? It doesn't matter how unhappy she is. Drive her to Mr. Ferraro's cemetery plot every day, and remind her how unhappy his family must be. Have her leave a flower on the grave, a stone on his tombstone, and a prayer for his and her soul.

To my friend and colleague Steve Komie: Keep up the good work. You have a tough client there, but you represent all of us when you work to keep the government honest. Good Luck.

Hattip Avvo Legal News
Hey guys next time dig a little deeper, your article missed the "real story" the one about the Police destroying evidence!!

Judge to School District: "PISS OFF!!" & Let the Kids Play Chess!!

Sometimes I love writing the title of these pieces can you tell? :P

When has a school district "nanny stated" itself too far?? Well in California, it seems that when the Shasta Union High School District wanted to drug test kids on the CHESS TEAM, a court said, uh NO!!! (Emphasis added...)

The district wanted to know who was using drugs so that they could ban them from school trips and other activities. So if the kid was in the Band, played on the Chess Team or was raising a pig for the state fair, he had to pee in a cup first. The reasoning is that the school has to supervise these kids while they are on school trips and if they are in a club or in the band they are more likely to have to go on overnight trips and they might be harder to supervise if they use drugs or alcohol. Brilliant! So we will just keep them out of supervised activities so they can take part in unsupervised activities... (No wonder Johnny can't think. These people have no idea about teaching anything.)

Now I have had the pleasure of "chaperoning" a few Forensic overnight trips, and while they have the ability to get out of hand, they don't, because DEBATE CLUB KIDS CAN'T DO DRUGS AND STILL PERFORM WELL!!

I have a feeling the same goes for members of the CHESS CLUB! Not to mention, it is far harder to play classical flute music than to improvise a new riff while you are high. Nonetheless, these examples of student spirit were told "pee in the bottle or no Drama club."

Now the SCOTUS, which is filled by people so old they don't remember BEING in High School, ruled about a dozen years ago that you can force a kid to take a drug test if he is even attending your school. Justice Marlow the judge in the case at bar held that under the California State Constitution the right to privacy is protected. One can debate whether such a right is in the US Bill of Rights, but Californian's passed this right in 1972.

I think the court in this case is right. It is the good kid who must give up his or her right to privacy while the slacker who does nothing in school but shows up can come and go as he pleases. Moreover, it shouldn't be a rule that to participate you have to allow someone to watch you urinate in a cup. High school is hard enough without having to pass every adult test. I'd like to know what you think however.

I could not find a copy of the decision to post, so if you know of one, pass it to me ok?

Thanks, TLD.

Hattip: Raw Story

It's D-Day and That Lawyer Dude Returns... Again.

I may revive this blog more often than Pop Tart Britney Spears revives her career, but I am back. It has been a while. I know that most of you who stop by here come to see me rant on something or just to see if I am alive (thanks for those of you who stop by to see if I am alive). I am. I am also ready to take on a few people places and things.

Where to start?

Hmmm. Let's see it is June 6th, a foreign nut job is trying to rub out the free world, our troops are dying oversees, Our Democrat president is trying to bring us out of a depression by spending more and more money, and the NY Yankees are over .500 It must be the year.... 1944. That's right it is D-day. Imagine how history repeats itself?

To our Veterans of that war and that day, I salute you. I also thank you for a service well done.

To our Veterans of today, I salute you as well. I celebrate your return from war, I pray for those of you who are still there, and I thank you for agreeing to take on the task of keeping us free.

I also do not want to let today go by without remembering, Robert F. Kennedy who was killed by an assasins bullets on June 5th 1968 some 41 years ago. He was a man who whether I would agree with his politics, asked the question "Why can we not be better than we are?"
It is an important question to ask of ourselves everyday.

Tomorrow's post: The Case of the Chess Club Urinalysis and other stories about governments over-reaching.

Response to the Ridiculous: A Measured Rant in Resonse to an Idiotic Argument Against the DREAM ACT

The DREAM ACT was reintroduced last month followed by President Barack Obama stating his intention to begin debating true immigration reform.

A twitter tweet lead me to this ridiculous commentary by a blogger on "BloggerBase.com" I would normally just leave a comment there but the idiot who wrote the piece didn't want anonymous comments (which is OK by me, I sign my work) and the site won't let you use your name unless you join. I do not see the reason to join, at least for now. So here Mr.J Malmberg is my response to your drivel. Your sad and embarrassing post on what is "wrong" with the DREAM ACT.


Sadly this is a ridiculous response to a real problem. Your arguments are no more than a dismissal of the Dream Act proponent's position. You offer nothing.

You misstate the facts. A kid can't just "come here at 15" & stay. He must be here for years before he qualifies. He must arrive before he is 15.

1. Kids do not come on their own. You suggest the reason this argument doesn't hold water is that it "rewards the parent who broke the law." WRONG. This law doesn't punish the child who is here through no fault of their own. The parent's wish is of no consequence. We do not punish children for the sins of their parents.
Which leads us to straw dog argument number 2:

"When people commit crimes the family is often hurt as much as their direct victims."

There is no US law that punishes a child for a parent's crime. What we do have is a situation where a kid may be the only one punished. That's right, mom and dad may be citizens but the kid might not be & will be sent back to a country where he knows no one & may not speak the language. The child will have no home or any way to survive there.

Your cavalier attitude shows a complete lack of understanding of law or compassion. In America, when we act in child cases, even juvenile crime cases, courts must always consider the best interest of the child. The DREAM act codifies that theory for immigration law as well.

3. Your final argument is a tautology. DREAM ACT kids will be offered in-state tuition in the states in which they reside. It is no different than it is for everyone else. Thousands are not being turned away. Nearly no one who wants to go to college is being kept out because of money. Cite a reputable study for gosh sakes.

Your xenophobic attitude towards these kids is an embarrassment. Your lack of candor is worse. We gave you your stupid fence. It isn't working. Now give us a workable immigration policy that secures our borders, guarantees our security & our economy too. PASS THE DREAM ACT.

Seems We White Collar Criminal Defense Attorneys Are a Hot Date Commodity. Why? Cause we are IN DEMAND. Who Knew? You Should!!

I found this little tidbit about finding wealthy guys for "gold digging" girls. It says that if you want to find wealthy guys hang out with lawyers...But not just any lawyers. No only Bankruptcy and White Collar Criminal Defense Lawyers. I just told my wife I am a hot commodity... she seems somewhat shall we say nonplussed...

Whether of not you are a "golddigger" White collar criminal defense lawyers are a good group with which to hang out. They are bright tough, and if you get one that is not afraid to try a case, interesting. The best of us know that the most important thing we can do is keep our clients out of the paper and unindicted. Hence the time to find a White Collar Criminal Defense Lawyer here on Long Island or in New York City, is as soon as you realize you could be (not may be or are) in trouble. Often you will be surprised to learn how few Nassau and Suffolk County Criminal Defense Lawyers are really White Collar Criminal Defense Lawyers. You need a Criminal Lawyer who is just as comfortable in State as in Federal court and you need one who knows how to conduct a money investigation as well as handle the criminal courtroom and the public.

I have taken on Ponzi scheme cases, as well as stock frauds. wire and mail frauds, and of course their by-product money laundering cases. I know that handling the press and getting a good face on the client in the court of public opinion is very important. Hence we work with our own Public Relation staff, media people and social workers to present our client well in the media and to the court. Judicious use of jury selection experts and a team approach to investigation and trial is another key aspect of what I think makes my firm different from most other Long Island (and even many New York City) White Collar Criminal Defense firms.

An additional worry for many White Collar Defendants is that even if they survive the criminal prosecution, they face lower standards for losing their licenses. Lawyers, Brokers, CPA's and even Notaries need to look for lawyers who have handled not only criminal cases, not only White Collar Criminal cases but also lawyers who have appeared before Grievance committees, NASD and SEC boards and the state education department. They need to find attorneys who have helped others hold onto the licenses after those individuals have been accused or even investigated for crimes.

Now a sentencing expert is not going to help Bernie Madoff too much. But when a White Collar Criminal Defendant is looking for a criminal defense team, especially in the federal Second Circuit (which encompasses New York Brooklyn Queens Nassau and Suffolk Counties), they should also be concerned with how much that trial lawyer knows about the Federal and State Sentencing guidelines. Working the guidelines and understanding the cases (such as Booker and FanFan and their progeny) is a key to avoiding lengthy prison sentences.

In all, I really enjoy working on White Collar Criminal Defense cases in New York and on Long Island. They provide a tremendous legal challenge and a personal challenge too. They require I reinforce to the jury that the clients are not bad people and that they are the same as those before whom they are called. They are just men and women who were trying to make an honest buck when a roof caved in.

It is also important to keep before the jury, that it is not the job of the white collar defendant to stop people from making mistakes with their money, it is their job to offer legitimate opportunities, explain the risks accurately and then let the chips fall where they may.

If you or someone you love is charged with a White Collar Crime whether in New York City or in Nassau or Suffolk counties, I would love to consult with you, or them, about it to see if we may help.
You can call us at 516-741-3400 24/7or reach out to us on this blog.

What is Manly?

Mars US Snackfood Division and Spearling's Best Places announced that it had chosen America's Most Manly Cities. In it, Nashville came in First, and New York came in last.

I know this little contest was meant in fun. It got a lot of attention in the press (I heard it on 880 WCBS an all News radio station in NY) which was the point. It was based on a number of "values" that show manliness, such as the number of Monster-Truck Rallies and Drag Races. The number (or lack of)Sports teams in a city or home furnishing stores, the number of Home Depot type stores and how many men fish or bowl or hunt, how many salty snacks are purchased, etc. All allegedly manly activities (except for the home furnishing stores...evidently it is manly to build a home but not to put furniture in it???)

Now this got me thinking, how would I chose a manly city. I have to admit, I am a big fan of men's codes. I love reading Robert Parker novels because his protagonists are people who live by a code and sometimes have to deal with moral dilemmas stemming from those "codes". I thought about the attributes that make men heroes, to me.

I wish Mars and Spearling had used these ideas:

How many men:
Work in the same job for more than 10 years?
What is the incident's of divorce?
What percentage of Families are headed by a father?
What percentage of divorced men are behind or do not pay child support?
How many men, who have wives that are partially or fully disabled, stay married to, and support those sick spouses?
What is the rate of domestic violence?
What percentage cheat on their spouse or significant other?
What percentage cheat regularly (i.e. an affair?)
What percentage of men in relationships over 10 years say they are still in love with the person they were with? 20 years? 30?

What percentage of men, cook, clean, help with infant care (change diapers...)?

How many men participate in youth sports as coaches, referees, league officials? How many do so even if they do not have children who participate in the sport?

What percentage of Men have been convicted of a crime?
What percentage have served in the armed forces?
What percentage vote?
What percentage have graduated High school, College?
What percentage of men have been arrested for DWI?
What percentage has given charitable contributions?
What percentage has given TIME to a charity?

What number of men are involved in Breach of Contract law suits or better what is the overall percentage of these types of law suits?
How many men, employ females? What percentage of those females are employed at high level jobs?

What is the percentage of male owned businesses that have pro-family benefits paid by the company such as maternity, bereavement , family leave. Medical benefits, for a family?

What percentage of Men have put away IRA's or 401K'S How many of those are left to the mother's of the man's child or the child themselves?
How many carry life insurance and what percentage is properly insured so that if they should die, their families will not be impoverished?
How many men carry Disability insurance?

What percentage of men have spoken to their kids about drugs, alcohol, sex, violence, and especially violence toward women?

What percentage would describe themselves as Homophobic?

What percentage has a good driving record? How many speed per capita?

How many men, spend at least an hour a day working with the kids on homework?

How many read the front and back of a newspaper?
How many read magazines that are news oriented?
How many are actively involved in politics by giving BOTH money and time to candidates and/or organizations that they politically ascribe to?

How many men spend at least 7 hours a week playing with the children?
What percentage of dinners are taken together with the whole family?
What percentage have gone bankrupt? What percentage are behind in their debt? What percentage has a credit rating considered excellent? what percent has a rating that is poor?

What percent of men, with elderly parents, visit with those parents for at least 3 hours a week, or speak to them by phone for at least 3 hours a week?

What percentage of men spend at least a half hour a day exercising?
What percentage smoke?
What percentage use illegal drugs or abuse prescription drugs?
What percentage is obese?
How many go regularly to Religious services?

Being a man has nothing to do with eating salty food, consuming beer, leering at women and drooling over them like they were a Peter Luger's steak. It has nothing to do with Speed contests or Women conquests.

Being a man is not telling everyone how brave you are. It is being brave. It is not in beating up another man, or worse a woman or child, it is in knowing how to get your way by persuading them, or walking away from the violence even though you want to and could kick the crap out of the other party. It is in not kissing and telling.

Being a man, is choosing to put your own gratification aside for a while so that your family or community is better off. It is taking care of your family first, your nation second and then yourself. It is keeping your promise even when it is inconvenient.

Being a man is helping others grow. It is learning and teaching how to be a better person.

The list I have compiled here is not exclusive. If you have some thoughts or ideas, please leave them in the comments. Maybe you will help some guy be a better and more "manly" man.

Lessons I Learned This Month: Eat Less Calories ,Exercise More, Doodle When You Can, and Don't Mess Around With Pres. Obama!

I really envy the people who find something cool and interesting to say everyday. I blog in spurts A month here and a month there then a week off here and a month off there. Not much of a way to build a following. Nevertheless, I blog for the enjoyment so if it isn't fun I am not going to do it.

Now that I have found my way home again. I think I will start off light.

First off, Did you know doodling was good for you? Yup that's right. It HELPS you concentrate. Same with playing easy games like Brickbreaker on a Blackberry or Freecell. I am often guilty of this when I get board in an interview or on a phone call. Some clients find it quite distracting. I find if I don't do it I lose my concentration. Now I know why. Read about it here

As for diet and exercise, guess what, Eat less, move more, lose weight. It's all here in this study. NIH had to commission a study for this??
Eating less calories and moving more has never been a question. The reason for the various diets is that eating less and exercising more is not what calls to most obese people. Chocolate shakes and steaks call to us. Now I know you are saying just do that, it doesn't matter how you do it. That said, however, getting me to do this is not an easy undertaking. Food and the way we use is part of the answer. This study doesn't go into that. It repeats simple science. Put in less fuel, use more energy, you should need to get to surplus faster. Got it. Now tell me what, where and how. Keep me doing it and then you have something.

President Obama at least sounds like a President. He has issued a dare so to speak against lobbyist's who intend to stand in the way of his change platform on issues like energy and healthcare. I guess we will see if his bully pulpit is bigger than the soft campaign money of the special interests. So far I like the guy though not all of his programs.


I am not a big Rush Limbaugh kind of guy. Hey Rush, get a clue, the public threw you guys out. You sat there for 8 years as a bully pulpit for a President who took his marching orders from your playbook and it in part caused the greatest depression since the great depression. You aren't pulling for the President to succeed in putting us back on track? Screw you!! I don't like everything he is doing, but he is our guy and we need to give him a chance like we did Bush, and if his plan works, and works well, then the loyal (NOTE TO RUSH I SAID LOYAL) opposition is going to have to do some rethinking.

Personally I think we need to allow for a correction. We also need to get out of fixing markets and let them self correct. What we need to do better is recognize phony products (sub-prime loan credit default swaps or CDS)and not allow them to be traded to people who don't understand them. I think we need to roll back the bankruptcy rules too. By changing them, we let the banks loan out too much money to risky borrowers. The new laws encouraged banking officials to think they can't lose as borrowers could not just walk away from the loans anymore, they had to restructure and pay some of it back. Oh well...

There is one more thing I think we need to do. We need to start teaching, requiring state-wide teaching of economics in the schools starting with Micro-economics in the younger grades and Macro in the High School. It should be required of every kid to have at least 2 years of it in HS in order to graduate. Maybe then we will all understand the issues and how to read a public budget and a stock and shareholders report.

Okay that's it for tonight. It is nice to be back. See you all around.

Open Letter to Agape World Inc "Investors"

Readers, I have been attempting to communicate with Agape World Inc. investors who have been talking trash as well as debating the issues of whether the President of Agape World Inc. was able to run an alleged "Ponzi scheme" by himself or if others knew what he was doing.

Of course, many of the folks on the bulletin board service do not like what I have to say. Others did not believe it was me saying it. They pointed to poor sentences and other grammatical errors which plague my writing when I am in a hurry. Of course I did what I usually do. I typed out my thoughts before I forgot them all, then went back to try to edit these thoughts and hit the wrong key thereby printing the response instead, errors and all.

A couple of folks were worried my post was by an anonymous person acting like they were me. I set the record straight in the letter below. I re-read the letter and decided it was worth reprinting it here too. I also edited the post before I sent it...

To whom this may concern:

Thank you for taking the time to ask if I posted on "Fat Wallet."


I am the person who posted to the board. For those that felt that the post was poorly written, I hit the send button in error before I could edit the post. Nevertheless, I think I put the salient points across.


I understand people lost money. Some lost a lot of money, and they are justifiably upset. I also understand that it easy to lash out at people, especially when you can do it anonymously. I am responding as best I can, to investors where I can find them, and I am trying to do it in a non argumentative way. I use my real name because I think that the "anonymity" on the bulletin boards in part led to people not taking the warnings about Agape seriously.


Anthony Massaro is, in my opinion, a good man. He met a person who by all accounts was the consummate "con man." Any "con man" worth his salt slowly builds confidence in his "marks" (BTW I saw that you are having a discussion on what to call people who have been cheated. They are neither "investors", "losers", or "victims". They are "marks".) Cosmo started on his friends family and acquaintances. The more he kept promises, the more they believed in what he was doing. ( I noticed someone asked if Anthony ever told anyone where he met Nick. He told anyone who asked. Did any of you ask?)


No one can deny that Cosmo kept his books to himself. No one has come forward with a single shred of hard evidence that VPs or sub-brokers knew of, or saw, anything awry. All I have heard from marks, reporters and on the boards, is that the salesmen "Had to know". While it is a reasonable suspicion it is by far not proof. When it is held to the facts as we know them, it is no longer a reasonable suspicion.


I understand that this business had accountants lawyers and bookkeepers. It filed taxes. Why is it no one on Fat Wallet or in the press calling for these people to answer? Moreover, if done well (and I have no reason to think Cosmo didn't do it well) even these financial employees can be kept in the dark. Nevertheless can you see that their signing off on these documents gave the VP's and brokers even more to believe in?


I agree, Cosmo surrounded himself with men and women who could not challenge him. They knew little. They were mostly not business law educated. Some people on the floor of the NYSE and other exchanges do not have more than a HS education. If they go to the right firm however they learn. I doubt Agape was the right kind of firm. Agape employees had no idea what questions to ask. Even if they asked, they did not know enough to understand whether they were getting the right answers. If the answers sounded right, their belief level rose again. Nick Cosmo knows how to answer questions. (See the 22 "seminars" he held in December '08.)


Finally, belief in the company hit a pinnacle when Entrepreneur Inc. named the company one of the Top 100 Up and Coming Businesses. Imagine the pride these employees must have had. Imagine if you can, the belief and excitement they must have generated and what they told their friends and families. Instead of thinking they were "in on it", just for a moment, imagine they weren't, and think about how they felt about themselves and their company's accomplishments.


Now maybe you can imagine the betrayal they feel. If I am right, and again I have seen nothing hard showing me otherwise, you were betrayed by Nick Cosmo, a man who you barely or didn't know. They were betrayed by their boss. A person they came to believe in like a business "guru." A man who told them he was their friend and who it turned out cared as little for them as he does for you. Now imagine having to go home to tell your spouse that your whole life was built around a house of cards. On top of this, add people calling for your death or arrest etc. The same people, who only months before were inviting you to dinners, weddings, house warnings, and other parties that you helped make possible through Agape World Inc.


These employees have families and homes, They had savings accounts and retirement funds invested too. They thought they had found the goose that laid the golden egg, and they were giving that to other friends and family. Now they are alone, they are not able to speak to these same friends and families. They are despised and the people who heralded them just a few short months ago, have turned on them.

Maybe you are too angry to hear this, maybe you are so angry that you cannot imagine what I am saying. That doesn't make what I am saying not true. In fact, what I am saying is by far more provable than what some "marks" are suggesting.


That "They had to know" line is certainly convenient, and may make a few "marks" feel better that they were ripped off by a team of "con men" instead of by one guy, but it doesn't equal proof by even a preponderance of the evidence, much less beyond a reasonable doubt.


Someone had mentioned that the "brokers" had to have a Series 7. I do not agree. I do not think the law presently requires people who pool money to lend at a profit have to have any regulation at this time. This case may change that, but if it does, it does so at a great risk to legitimate lenders and moreover to needy borrowers. I do not however, wish to debate the issue now.


I would like to say one more thing however. Some of you have suggested that I must not be a very good lawyer because I have chosen to come on Fat Wallet and other websites to respond to some of the things I have seen written there. I guess I have a different way of practicing law than most people do. I think that it is important to have someone challenge, rationally, the proposition that where there is smoke there must always be fire. Sometimes when there is smoke, all it is, is smoke.


My client is sad, dazed, and right now, alone. If I am right, he did nothing more than any other mark has, but he has lost far more than they, he has lost not just money he had counted on, but a support and a belief system. While I understand the anger, it is a shame that others cannot withhold judgment until all the facts are aired. Until then, these men and women are entitled to be presumed innocent by each of you.

There you have it. I may be unconventional, but I think that people should hear both sides of things before they decide something as important as whether to charge a person based on nothing more than conjecture.

I will try to catch up with you all later this week.
TLD

Maybe You Are Wondering Where I Am.

I have not posted for nearly 10 days. I have a bad habit of going on "walkabout". I get the urge to write and then after a month or so, it goes away, I have little new to say or too little time to say it well.

I am in the second phase now. I have too little time to say what I want to say well. I am not sure who said it first, but I think it was Winston Churchill who said, " I am sorry for the long letter but I didn't have the time to write a short one." It takes time to write well. I do not write as well as others.

I have also been tied up with the case of the AGAPE WORLD INC. alleged Ponzi scheme. I am representing one of the Vice Presidents of the company and the man who called the authorities on behalf of his fellow VP's and employees of Agape World when he confirmed the President of Agape Nicholas Cosmo was stealing and running a Ponzi Scheme. I hope to have a lot to say on my blog this weekend on this matter. Meanwhile, I am thankful for the folks who follow me on Twitter and who call or send notes or e-mails wishing my client and I good fortune. I may add a few links later.

For anyone who is interested you can see me speak on Criminal Motion Practice at the Young Lawyer Section of the NYS Bar Association tomorrow from 9:30 to 10:30 in their CLE Bridge the Gap seminar. It is a highly attended seminar and I think you may enjoy it.

I will be back in a couple of days.

Our Sister Blog "Long Island (Criminal) Trial Law" : Why Wall Street White Collar Defendants Need Main Street Criminal Defense Lawyers

With the new administration, and the recent Drier and Madoff scandals leading the way, White Collar Prosecutions are sure to be on the rise. Over at Long Island (Criminal) Trial Law, we are discussing how Main Street Criminal Defense Lawyers are the right solution to Wall Street White Collar Defendant's problems.

The Start of a New World, The Week The Dream Comes True : Martin Luther King Jr. and Barack Hussein Obama

I have so little to add to all that is being said on the air, in the main stream media and in all the blogs. This is the start of a new world. A world that I am sure many in my lifetime feared, and many more doubted. A world, where finally the promise that any man woman or child can be President of the United States is fulfilled.

From the steps of the Lincoln Memorial, possibly the most revered land in the nation (other than a National Cemetery) Martin Luther King Jr. stood up to the powers that would liked never to see this week come and said:

"And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.
I have a dream that one day this nation will rise up and live out the true meaning of its creed: "We hold these truths to be self-evident, that all men are created equal."
I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.
I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; "and the glory of the Lord shall be revealed and all flesh shall see it together."
This is our hope, and this is the faith that I go back to the South with.
With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.
And this will be the day -- this will be the day when all of God's children will be able to sing with new meaning:

My country 'tis of thee, sweet land of liberty, of thee I sing.
Land where my fathers died, land of the Pilgrim's pride,
From every mountainside, let freedom ring!"

Tuesday is another huge step in achieving the MLK Dream. But it is not just his dream that is fulfilled this week. With the Inauguration of Barack Obama, we also fulfill the dreams of Ganhdi, and Lincoln, and Jesus Christ. King said in his speech:

"In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force."

On Tuesday, we have an opportunity to show the world, that the concepts of peaceful protest, advocacy, education, and persistence can change the way the world works. War and killing doesn't have to be the way. In fact, war and killing usually just leads to more war and killing. Peaceful respectful disagreement will bring about permanent change. Discipline and Dignity... If that isn't a good description of our President-elect, nothing is. I don't know what he will do, or if it will work, or even if I will agree with him, but I already see he is a man, who exudes dignity and discipline.

There is a different feel in Washington DC. It is one of hope and renewal. There is a return of class to the city. People even speak of trust. I haven't heard the word trust in the city since 1969.

Obama is reaching out to the Republicans. He is seeking to work with the men in the middle. He may be saving the Republican party from itself by doing so. Brave Republicans like McCain and Graham understand that working in a genial environment is the only way to accomplish anything. Failure to do so will reign down anger from the people on the main streets of every city and town in the country. We cannot have 4 more years of nothing being accomplished in Washington DC.

Of course, such bi-partisanship will bring about rage from the neo-con right (or are they really left?) because, they will claim they cannot take pot shots at the President and the Democratic leadership if the moderate Republicans give them cover. Too bad. Rush and the idiotic blond bimbo who wishes she were he, will have to just shoot at each other for a change. They have been shooting the Republicans in the foot long enough. Liberals of the far out persuasion will have the same difficulties. If they want to accomplish anything in Washington DC without making their re-elections impossible, they will have to come to the middle with their social agenda, and maybe their economic agenda as well.

On the other hand, we all could go to a tax program allowing Americans to keep 90% of what they earn. I bet that stimulates the economy right away.

Finally, maybe the dreams of the man we honor on Monday, become fulfilled with the Inauguration he made possible of the man we entrust with our nation's well being on Tuesday. With great challenge, comes great opportunity. But with great opportunity, comes great responsibility not to squander that opportunity. The last eight years have been squandered opportunity. As a nation we have tired of that waste.

It will be an historic week. I will pray, it is an historic Presidency.Congratulations Dr. King, and welcome Mr. Obama, Mr. President. Welcome, and good luck.

Man Bites Dog: Victim Seeks Dismissal of Statutory Rape Charges Against Director Roman Polanski. Should It Matter?

The alleged victim in the Roman Polanski Statutory Rape case, joins with Polanski in seeking dismissal of the charges against him. Filing a separate affidavit, the victim accuses the former Judge and Prosecutor in her case of failures and misdeeds. She also claims that the prosecutors in the case now are seeking to cover up those misdeeds and that their failures are causing her unnecessary grief and embarrassment.

Ms. Geimer now 45 years old and a mother herself wants the case dismissed. Though not denying the facts behind the allegations, she feels that too much time has passed and that she has moved on in her life. She asserts that Prosecutors, who earlier this month used Grand Jury excerpts that gave vivid detail to the media about the accusations leveled at the Oscar winning director, are trudging the whole thing up to protect their office's good name at her expense.

Polanski was allegedly at the home of actor Jack Nicholson when he attacked the girl who was there alone to meet the famed director. Polanski lost his wife Sharon Tate a young actress and their yet to be born child in the Manson Murder spree.

Geimer's petition is an interesting one. Under her theory, as a victim she should have a say as to how the prosecution is handled and what should happen to the outcome of the case. This is essentially giving her veto power over the prosecutors office.

Nonetheless, Prosecutors and victim's rights advocates have been leading the charge to give victims more say in sentencing and other matters that, in the not so distant past have been the sole discretion of judges and lawyers. This would be fair turnaround. Often victims of crimes want to drop charges but are told that since they are not the prosecutor they have no say in what or how a case is handled. In cases where there are mandatory minimums, such as in many statutory rape situations, the victim's will is defeated.

If that were to happen in cases where a judge refused to go along with the victim, prosecutors rally to the victim's side and decry the jurist and often blame defense counsel as well. It feels like fair game to burn the prosecution at its own game. In fact, in Polanski's case it is even more than fair as the prosecutor went so far as to have ex-parte conversations with the court and it seems made a fair sentence for Polansky impossible. Griemer has a case it seems where the malfeasense of Prosecutors and the court now causes her more pain and suffering after the fact.

I suppose that I should look at this as a positive effect of Victim's rights. I don't. I see it as a furthering weakening of the criminal justice system and a further step away from what we should be properly doing, that is, establishing guilt and if there is guilt finding an appropriate sentence that will deter further misbehavior by the accused and return that person to society as soon as correction and rehabilitation has been established. It has nothing to do with victims. It isn't about their feelings or lack thereof. It isn't about vengence or hearing the victim's voice.
I am not against those things in the proper forum (ie a parole hearing or civil proceeding) I am against it when it comes to the job or the elected official and when it gets in the way of the goals of the system.

Whether Polansky should be allowed to attack his conviction while remaining in France is not my issue. Whether his conviction or plea should be allowed to be withdrawn is not my care now. Whether that decision should be left up to his victim, anymore than his sentence should be is the issue. I do not feel that it she has any say in this matter. It is for the District Attorney to decide how to enforce the laws of his state. I just think that it also has to be a two way street. If a victim cannot help an accused by being heard on her decision to prosecute, neither should she be able to assert her will on other issues in the criminal prosecurtion of the case in which she is not a party, but is a witness.

What are your thoughts on the role of victims in the Criminal Justice System? Let me know in the comments or by send them to me via Twitter

Govenor Palin Attacks Katie Couric: Sarah Still Doesn't Get Why She Cost McCain the Election.

Sarah Palin is the main subject of an upcoming documentary about the election. It is a documentary by John Zeigler, a Neo-conservative film maker who, from what I can see on the YouTube outtake from the movie, was tossing Palin softballs to hit out of the stadium. Unfortunately, Sarah struck out...again.

Palin acts snarky toward and jealous of Caroline Kennedy. Lets see, yes Caroline is wealthy. No Sarah, you do not go after a woman who is trying to enter public service (like you), whose family, whether you like them or not, has dedicated their lives to public service. Never forget Sarah that Caroline's father and Godfather were both assassinated on national television while she was a child because of their decision to serve the nation. She is a victim. You are not.

You also do not get to say you were being "flip" and were not taking questions seriously when you were asked what newspapers you read by Katie Couric.

(Paliin, when asked about Katie Couric's question in their disastrous interview about what newspapers she read, said that she thought Couric was trying to figure out what "they did up there" and that her answer was somewhat flippant and was meant to convey that she did all the same things and read all the same things as those of us in the lower 48.)

You said of Couric, "Katie, the world does not revolve around you." You are right, "the world" doesn't revolve around Couric, but on that day at that time, being the first time you had an opportunity to make an impression on the American electorate, your world should have "revolved" around Couric. What in the world made you think you could blow off a question because you thought it was flippant? What level of self importance do you harbor to think it was all about you? What it was about was showing the American people that you were a serious candidate who could step into the shoes of the President at a moments notice.

Palin also complained that McCain's handlers made her continue the interview after it was clear it went poorly. First off Ms. Palin, you are an adult. You could have said no. As for your decision to continue, it was said you couldn't get your act together, but you cannot cut and run when you are in charge of the free world. You could have prepared better. You could have even taken out those alleged pit bull teeth and polar bear nails and gone after Couric when she was being "unfair" to you. You cannot, however, cut and run. Not if you want to be our President. This is just further proof of your abject inabliity to be President.

As for the Tina Fey statements, who are you kidding? Of course it exploited you. That is what comedians do. You felt that the jokes and statements about your daughter's pregnancy were unfair? Too bad. You chose to thrust that child and her poor decision into the public view. You made her pregnancy an issue. You made her decision to keep the child and marry a boy who didn't want to get married seem shotgun-like. Here Boyfriend made the statements on Facebook that said he didn't want to get married. You announced their engagement. Fey's comment about unwilling children getting married because they got pregnant was vicious but it had a ring of truth to it. That is what made it funny. Your abject failure to recognize your complicity in the situation makes me question your judgement.

Here is the thing. You put yourself out there as a potential President. You decided you hate the intelligent, you are jealous of the successful and you act like a victim.

You are right, Ms. Palin, you are a victim. You are a victim of your own ego, lack of self esteem, petty jealousy, niavite, and, sadly, lack of "smarts". You keep trying to tell me how tough you are. Here is a lesson for you, Sarah. Tough guys don't have to tell people they are tough. They take on tough situations, handle them, and move on. They don't compare themselves to bears, pitbulls or any other animals. They just do their job.

If you need a tough guy to model after, look no further than John McCain. He makes no excuses, stands by his people (you included) and takes responsibility for his own statements failures and decisions.

Public Hypocrite #1: Sen.Arlen Spector Wants a Attorney General Who Can Say No To The President.

This is rich. Arlen Spector, Republican Senator from Pa. and former Chair of the Senate Judiciary Committee has announced that although Attorney General Nominee Eric Holder has excellent academic and professional credentials he is "concerned" that Holder may not be able to say no to the President.

IS HE KIDDING???? This is the man who as chairman of the Senate Judiciary Committee approved Alberto Gonzalez as AG. Now I understand that Holder told President Clinton he had "no problem" with Clinton pardoning Marc Rich, but Gonzalez not only had no problem with Rendition, and torture, he actually approved of them with written memos. He approved the firing of US Attorneys because they wouldn't do Karl Rove's bidding.

Hey Arlen, can you say "I am a Hypocrite??" Probably not, politicians are just not that honest.

Police Use GPS and Google to Find a Kidnapped Child.

I spend a lot of time on this blog criticizing police and Prosecutors. It isn't that I don't like them. It is that I think that since they represent the "people" I think they need to be held to a higher standard of conduct than any individual person.

When they "get it right" (and they do get it right far more often than not) however, I think they deserve to be acknowledged. Athol Police Officer Todd Neale managed to track down the missing girl by obtaining coordinates of her cell phone from the phone’s carrier and using Google Maps and Google World to locate the motel where she was being held.

Nice Job Officer Neale.

Full story here

Four Blog Posts You Should Read: An interesting Day in the Blogosphere

Some days the quality of posting is just really good.

Check these out:

Love and Marriage is not for the Funky Brown Chick. Interesting comments.

Note to self...don't sarcastically ask if after a day of yelling and fighting with your toddler is it ok to smother her, at least not on Twitter. Some humorless follower may call the cops.
Hattip: Spin me I Pulsate

Wow US Attorney Patrick Fitzgerald says you're guilty of something and we don't even have to have a trial. Man the kangaroos are jumping in Illinois. Dissenting Justice Darren Hutchinson says NO WAY. At least he believes there ought to be a trial.

Keeping it real. An adult,orphaned in childhood, recounts being reunited with her family on her last Birthday. It will move you.It moved me. Read "Me..Being Anonymous". This lady has a story to tell.


A day filled with new voices and ideas.

Where the Hell is the Change Barack??? : Cabinet Choices are all Clinton Retreads

Short post:

Is it me or is the "Change President" who promised to bring new faces and ideas to Washington just bringing back the same old Democrats we tossed out for 8 years of Bushies (who were just old retreads of his father's failed administration.

Let's see we have

Eric Holder for Attorney General, deputy Attorney General in the Clinton Administration. RETREAD. I like Eric, but come on he is hardly a fresh breath of air.

Hillary Clinton for Secretary of State. Uh the former first lady... Need we say more?

Bill Richardson for Commerce Secretary, I like Richardson. He is a fellow Jumbo. He is still a Clinton retread, former UN ambassador and Energy Secretary under "Uncle Bill."

UPDATE: Gov. Richardson has withdrawn from consideration.

Rahm Emanuel- Chief of Staff- Former Clinton Sr. Advisor on Policy and Strategy.

Leon Panetta for CIA- Clinton's Chief of Staff.

Where is the change?

Tony(c) Award for Best Criminal Law Blog for 2008 and an Honor: Professor Doug Berman Sentencing Law and Policy Blog

Thinking of words and phrases to describe out Tony(c) award winning Best Criminal Law Blog is easy: Informative, cutting edge, authoritative, well written, incisive, thought-provoking. The one I like the most is consistant.

The 2008 Tony(c)Award for Best Criminal Law Blog is Professor Doug Berman's Sentencing Law and Policy Blog. The reason for the award? This blog is consistantly the best place to go to begin to research the latest issues in Federal sentencing. Professor Berman is not only a blogger extrodinaire but his blog is cited to on a regular basis by courts and in briefs at the highest (read SCOTUS) levels of advocacy.

Doug is also a real giver. In addition to writing a blog that is a readers delight he also often authors briefs and amicus briefs on behalf of positions he believes in dealing with Sentencing law. Doug is generous with his time and is a frequent lecturer on all thing USSG and USSC. His insights have helped me over and over again in getting fair sentences for my clients. If a young practioner (or an old one for that matter) wants to learn the ins and outs of the USSG, get a copy of the USSG and then start reading the archives of Sentencing Law and Policy Blog.

An extra honor from me to Doug and his great Blog: This Tony(c)Award is being named for its winner. Hereinafter the Tony(c) Award for Best Criminal Law Blog will hereinafter be known as the "Prof. Doug Berman Memorial Tony(c)Award for Best Criminal Law Blog"

Thank you Professor for all you do.

Happy New Years to all of my readers.
TLD.

Follow me on Twitter and get updates througout the day of the best legal blog posts and news articles addressing the criminal law, law practice management and Constitutional law on and around the blogosphere.

Tony(c) Award Best New Voice: Sharon And Her Blog Red Shoe Ramblings

The Tony(c) Award Winner for Best New Voice in the legal Blogoshpere goes to Red Shoe Rambling and its vivacious and energetic author Sharon.

I met Sharon through her Twitter persona No Reins Girl. Her tweets were sassy and filled with positive statement. Her Avatar was a sexy picture of a woman holding a pair of red shoes. I was hooked from her first tweet.

I got to know Sharon through her thoughtful tweeting and then learned she had just been accepted to law school and would be starting law school very soon (January). We then had the chance to speak. I learned that she was blogging and I began to follow her blog. I have not heard a voice as interesting in the law school blogosphere since Energy Spatula stopped blogging.

I am excited for No Reins Girl. She still has that unjaded view of the good lawyers can do for others. She is excited about learning about the law as an academic pursuit as well as a "trade". Her most recent post is just like her. She is already sharing what she knows.

Now don't go off thinking No Reins Girl is some kind of Cock-eyed optimist or another lil' star struck law school wannabe. Nope Sharon does not suffer fools and she has a quick wit. That means she has an ability to cut one to the quick and do it fast. I expect as she starts to deal with some of the "Law school regulars" I think we will see a lot of her more biting side come through. Always the lady though I suspect we may have to read the post a couple of times to really catch the "meaning" of the stilletto sharp sarcasm.

I also predict her law school colleagues both at her law school and on line are going to learn a lot from her. More importantly we older colleagues are going to re-learn a lot too.

The Tony(c) Award for Best New Voice on a Legal Blog for 2008 is Sharon and Red Shoe Ramblings. Congratulations and please all have a happy and safe New Year's eve.

Tune in tomorrow for the last of the Tony(C) awards the Best Criminal Law Blog.

See you in 2009.

Free Ride Home For HS Students IN SYOSSET-WOODBURY, PLAINVIEW/OLD BETHPAGE , or JERICHO SCHOOLS Stranded on New Year's Eve: NO DWI'S TONIGHT!!

This New Year's Eve I am offering any High School Student at any High School located in the Plainview/Old Bethpage, Syosset-Woodbury or Jericho-Brookville School Districts, a free ride home from a party, bar or Train Station (Hicksville or Syosset stations) in those school district boundries, if:

1. You are too drunk to drive home

of

2. You do not have a safe ride home because the person driving You is intoxicated.

For a driver under 21 on Long Island that means if you had more than 1 drink and you are 100lbs or 2 drinks and are 150lbs or 3 drinks and 200lbs YOU ARE NOT SAFE TO DRIVE!!!

All you have to do is call 516-741-3400 and request a ride. The service will be provided between 11PM tonight December 31 2008 and 7AM January 1st 2009.

Doesn't matter if the intoxication is by drugs or alcohol. NO QUESTIONS ASKED. I will even arrange to have your car brought to your home the next day!!

That is right, if you have no way to safely and legally get home I will either pick you up, or have a car service pick you up, on my tab, and Drive You HOME.

No one needs to be arrested tonight. No High School parent needs to call me in the middle of the night to tell me that his or her son or daughter is lying in a hospital, or sitting in a cell because of a driving while intoxicated issue in the Syosset-Woodbury, Plainview or Jericho-Brookville school districts on Long Island. All rides are courtesy of:

The Law Offices of Anthony J. Colleluori & Associates, PLLC
180 Froehlich Farm Blvd.
Woodbury, NY 11797

Tony(c) Award for Best PD Blog :Gideon at A Public Defender

Being a Public Defender (and in that I am also including members of the Legal Aid Society) is difficult work. Usually thankless work they get the hardest of the cases & clients. Public Defenders have the worst working conditions, carrying big case loads and the pay is... well modest would probably be a pay raise for most. Given those realities, that someone takes the time to blog is in and of itself a wonder. That a PD takes the time to put together a blog as well done as the one I honor is amazing.

Although I don't always agree with Gideon, He is without a doubt the best PD Blogger I have read this year. Gideon can be biting, is usually witty, and often controversial. In addition, he is unabashedly pro public defense and more importantly pro public defender. In fact he chooses to honor his colleagues in two ways. One he has named his blog "A Public Defender" two is that he remains anonymous. His name is not attached to the blog. Any PD could be authoring this blog, at least any Connecticut Attorney

Now earlier this year we had a disagreement over how I value PD work. I do not wish to rehash the argument. I do think however that if all lawyers much less PD's brought Gideon's attitude to the office, there would be far less unhappy clients in the world.

It is my pleasure to award a Tony(c) Award to "A Public Defender" and its author, the anonymous Gideon.

Tony(c) Award For Best NY Blawgger: JaneAnne Murray for NY Federal Criminal Practice Blog

The Tony(c) Award for the "Best NY Blawgger" (that is a writer who blogs about legal topics in NY) goes to JaneAnne Murray for her blog "NY Federal Criminal Practice Blog." JaneAnne's writing is crisp and understandable. The Blog reads like a law schoolstudent's recitation brief on a casebook case. Her analysis of the cases is clear and understandable. It is also a great niche blog.

I loved the way JaneAnne Murray covered Judge Weinstein's decision in US v. Polizzi which I covered in a post yesterday. She took a complex, 288 page, tome on sentencing and other issues, and whittled it down to a few paragraphs laid out brief style. The facts, holdings, and synthesis is clear to any attorney having to work with this case.

The fact that the blog is a little light on links and analysis on some of the bigger cases leaves room to improve. Covering the large amount of decisions she covers in the circuit (a circuit that has 2 of the most cited US District Courts and one of the top 3 cited US Circuit Courts of Appeal) Ms. Murray has a lot of cases to comb through and brief. Additionally, unlike most state court decisions(which generally run a few pages) these decisions are long and often tedious. I think her blog is a useful tool for research, and a definite worth-while read if one is just trying to keep up with criminal practice in one of the busiest US Circuits in the country.

Thus The Tony(c) Award for the Best NY Centric Legal Blog goes to NY Federal Criminal Practice Blog. Congratulations.

Let's Stop Lying to the Jury: The Case for Warning Jurors About Acquitted Conduct

Earlier this year US District Court Judge Jack Weinstein of the Eastern District of NY, one of the most reviled and respected judges on the US District Court Bench, issued a Magnum Opus of a decision. The 288 page tome has been roundly criticized by academics, politicians and prosecutors (as if there was really a difference) as a waste of judicial assets and paper. The case, United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008) held that Judge Weinstein erred when he failed to tell the jury of the potential effects of a guilty verdict in a case of possession of child pornography under the US Sentencing Guidelines. Weinstein reasoned that a jury in colonial times would have known what the potential sentences would have been, and an originalist view of the US Constitution would permit that jury to ignore the law and manipulated the verdict if it felt the law did not reflect the view of society as reflected by the jury. (Today we call that Jury Nullification See the John Peter Zanger verdict)

Many so called conservative (but I note not libertarian) bloggers were unhappy with the decision. Many think that the case will be overturned in the Second Circuit. Weinstein however makes a point however; juries do play with verdicts.

This "playfulness" comes in two forms, the aforementioned Jury Nullification (which is uncommon but works in favor of an accused) and the more common "Jury Compromise" (where the jury is otherwise deadlocked between guilt and not guilty so to appease one side or the other the jury "compromises" and convicts of something less than charged. This usually although doesn't always work against the accused), but it is still however a conviction on less than a reasonable doubt standard. An accused is owed the benefit of a doubt, not a compromise.


Now prosecutors and other "law and order" types hate Jury nullification. Yet somehow these clarions of justice find it just fine for the jury to act on less than proof beyond a reasonable doubt in convicting an accused.

On the other hand, it is wrong to mislead the jury as to facts. In other words, if a lawyer knows a fact to be untrue, he is forbidden to argue it to a jury. Hence recently a lawyer was sanctioned very severely for telling a jury that her client was "mild mannered" when in fact she had kept his actual violent behavior out of the case through a Motion in Limine.

Notwithstanding that, Judges in Federal cases mislead jurors all the time (see the Bazelton dissent) by not telling them about their power to nullify. Not telling a jury that their failure to acquit a defendant of all related conduct exposes the defendant to having the conduct for which he was acquitted used against him to enhance his sentence. In fact, the judge can use the acquitted conduct to enhance the sentence so much, that the resulting sentence can be high enough to render the acquittal a nullity. In other words, we are not telling jurors that their decision to acquit doesn't count for sh.... well you can rhyme it yourself.

We tell jurors that serving on a jury is an important and that their voice counts, but we yet through the use of acquitted conduct, we lie to them. Dress it up any way you want to, when jurors find out that defendants are sentenced to far more time in jail than they thought was appropriate for the crime the accused was actually convicted, they feel like their work didn't matter. To them it doesn't matter how we lawyer types word it, they were ignored.(My colleague and "blog as marketing" sparring partner Scott Greenfield has a great step by step explanation of how we lawyer types "explain" such nonsense)

Continued use of acquitted conduct hurts jurors even more when a jury works hard to come to a decision. If it is deadlocked, we demand it return to come to a decision. If it then decides to compromise, an activity we know they partake in, only to find that their compromise meant nothing and they were better off to just hang their verdict they feel cheated (almost as much as the accused does).

We have been at this charade for better than 20 years. Acquitted conduct is part of the USSG but the advent of the Internet makes this kind of behavior really well known. How long before jurors refuse to sit, or catch on and lose all respect for the criminal justice system altogether?

One way to handle this, is to explain to the jury, that compromise verdicts are not legal.Compromises that are based on less than every juror believing that every element of every charge was proven beyond a reasonable doubt is cheating the parties of a fair trial. Tell them that a conviction on any related count will result in the court being allowed to use the acquitted related behavior to enhance the sentence of an accused to what it would have been if the accused had been convicted of the higher charges in the first place. And let's add to the Allen charge the following: a compromise verdict is not what we seek. We would rather you return as a hung jury, than reach a compromise that left anyone unconvinced beyond a reasonable doubt that a charge was proven.

To do anything less than tell that to a jury, cheapens the work that they do, and frankly cheapens the verdict they render.

The Tony(c) Award for Best Law Practice Management Blog Goes To: My Shingle

Law Practice Management for the Solo and Small Practitioner is the difference between demise and survival. Network marketing, hiring staff, CLE, SEO, M.O.U.S.E. (that one is a joke understood best by those who are baby boomers) and others skills are not taught but are expected of a solo or small firm lawyer. Not only do we know how to advise others on how to run their businesses, but we are expected to know how to run ours.

Law Practice Management blogs are a good way to save the money on the book and stay up to date on changes in managing one's office and staff. If a young lawyer asked me what is the one thing I wish I had when starting my office, it would be the Internet. The one thing I would want in addition would be access to Law Practice Management bloggers. I especially favor those that blog for the solo/small firm member.

There are many blogs that focus on this area of practice. Some are from people who make a living coaching others to be better lawyers. Allison Shield's Legal Ease Blog is a good example of the best of that genre. Others are Bar Association blogs where the primary job of the writer is to help others succeed in opening and maintaining a practice.

Then there are bloggers who are practicing lawyers who are willing to focus there blogs on issues involving law practice management. Today I honor one of those bloggers: Carolyn Elefant and her blog My Shingle

My Shingle is a very well written blog. It encourages people to take the plunge into solo and small firm law. It extols the virtue of being in charge of one's shop while not sugar coating the experience. Moreover it is a cornucopia of links to ideas and items that can help the lawyer better run his office.

Carolyn is an active Tweeter on Twitter and also gives a lot of time to solo and small practitoner groups. Again, I have spoken with Carolyn and much like Dennis Kennedy she always tries to make herself available to bloggers and others starting out in the practice of law.

While awarding Carolyn this years Tony(c) award probably make me ineligble to win anything over at her site(she runs great contests), (and for a Presidential Pardon as well) it is the right thing to do.

Thus this year's winner of the Tony(c) award for Law Practice Management Blog is My Shingle.

Merry Christmas: A Dad Fable

Every writer, blogger, priest and politician hopes to come up with something profound to write tonight. Something that will help people take the spirit of the birth of the Christ child into the new year, and make this spirit part of their daily lives.

The truth is, Christmas is special because it is hard to live this way everyday. Imagine however if we did.

Imagine if you can, a world where we see the other guys point of view, and he saw ours. Imagine a world, where we made it our business not to close our eyes at night until we made a positive difference in someones life that day. Imagine a life, were those that did the most for others, were the ones who attained the riches, where those that gave the most, not those that took the most,received the most.

My dad used to tell us a story about a poor man who walked onto a big estate. The Master's house had been empty for many years as the Master had been away fighting wars for the emperor, others rented from him their homes, but since the Master had been away, no one had collected the rents.

As the old man approached the first home on the estate, a terrible snowstorm whipped about him. The man was dressed as a rag man, he looked tired, old, and poor. He came to a house of a woman and he asked her for a loaf of bread. She looked at the bread in her home and said to herself, "I have a loaf, but if I give him my whole loaf I will go hungry." She returned with a two slices and said, "I have one loaf but if I give it all to you, I will have nothing." The traveler thanked her but refused her "hospitality".

At the next house he again came to the door. There was a party going on inside. He asked for a loaf of bread and again explained he had come far and had not eaten, but the hostess who had more than five loaves of bread brought only a few slices back and said, "I have five loaves of Bread, but I am having a party and I can't take a chance I will run out."

He again thanked her, and went on his way. He walked from home to home on the estate, and all he was ever offered was but a slice or two from the loaves that were available.

At the last house he came to, he notice that it was a clean home, but it was clear that the residents were of modest means. When he knocked on the door, the woman of the house opened the door and inside the home there was a house full of children and a Christmas tree inside. There were stockings by the fireplace. A tired man sat at the head of the table. The old man made his request of the woman. She asked him into the home. Then she took the only loaf of bread that she had, and gave it to the old man. She gave him the rest of the food in her cupboard, and at the end of the meal, the old man and the head of the household shared the last of the wine.

The old man stood, and as he was about to take his leave he asked of the woman and man, why they had been so generous. They had given him the last of all they had. The man said,

"You are wrong. We have plenty. We have 5 strong sons and 3 beautiful daughters. All of them, my wife and I are healthy. We have a generous landlord who while he has been away at war, has allowed us to remain on his estate rent free. Finally we have faith that tomorrow, when we are hungry, God will provide us with an opportunity to fill our stomachs. We do not have a lot of material things. But what we have, all of the money in the world cannot buy. We are the richest family on this estate."

The old man looked around and smiled. He thanked the man and woman for their hospitality, and patted each child, and took his leave.


The next day, the ells at the Master's house rang out. He had returned from the war and all who lived on the estate were to come to him. They all came wearing their best clothes and bringing food and gifts.

The Master looked out upon them. He was tall and regal. He was clean shaven and well dressed. He thanked them for their gifts and then said to the couple who had all the children "Where are your gifts?" The father spoke up, "Our gifts sire, are our children. We are here to till your fields and work in your home. we cannot afford presents."

The Master asked why they had not brought any food to the feast and the father told the Master about the visitor the night before. "I have not had the chance to get more food nor has my wife had a chance to bake more bread."

The Master then smiled. He looked at the residents of his estate and said

"This man and woman, fed me last night when I was hungry. They sheltered me from the storm. They gave me their last drop of wine. You all had more than they, you all have partaken of my hospitality, yet when I was hungry, you gave me crumbs from your table. These people, though they only had crumbs, shared them with me. They did not know when I would be coming, yet they treat everyone as if they were I."

The other residents gasped in the realization that the beggar man from the night before had been the Master of the Estate. "Master" they all said if we knew that it were you, we would have given you all we had too."

He roared out at them "You know not when the Master will come! You should treat all as if they were your Master.Then you will not have to worry that you did not recognize me!!"

The master continued:

"I am leaving to return to the lands that I have conquered for our emperor. I have been made Governor, and I will have an estate there twice as big as this one. I have decided to give this estate to one of you to collect the rents and to do what he will with the land and its bounty. I have chosen to give the land of my Estate, to the people who took in a stranger last night, and with the last bit of food and drink that they had, provided for him."

And with that the poor man and his wife became the owners of the estate, and never wanted for anything again.


Imagine if we constantly remembered that God is always around us, and that when we act charitably towards another in his flock , He sets a place at his table, and provides an estate for us in Heaven. Imagine what the world would be like if we all remembered my Dad's fable.

Merry Christmas to all of you, and a Happy and Healthy New Year too.

Tony"That Lawyer Dude" Colleluori and Family.

Around the Blogosphere the Week of 12/14/08-12/20/08: Part III- In and Around NY and Long Island

IN part III of this trip around the Blogosphere I found myself looking at some of the things happening in legal life around "here." ("Here" is Long Island and the five boroughs of NYC)

1. In the News on Long Island; Freaky Driving stories:

A. From Newsday (off twitter feed): A Long Island woman jumps from a moving SUV because the driver didn't want to take her to a bar. He wanted to eat dinner. She died. I heard of dying for a drink, but this one is ridiculous.

B. Also from Newsday Suffolk County Cops taze a 62 year old driver who is experiencing bleeding on the brain. He refused to follow orders of cops, they pull him over, he won't get out of car, they taze him, have to then take him to the hospital and wind up saving his life... Now that is making Lemonade from lemons.

2. The Agitator has this post on the indictment of a NYC Police Officer who attacked a guy on a bike, then arrested the guy for running into him!! The officer probably would have succeeded in getting the bicyclist busted on Felony charges had there not been somebody there with a camera phone taking a movie of the incident. The camera man gave his recording to reporters and the cop is now the first cop to be indicted for "Testilying" in as long as I can remember. Radley of course uses the indictment as a teaching opportunity. He scolds Pennsylvania prosecutors for using an old privacy law to allow cops to prosecute people who take photos of them while they "fail" to do their jobs.

3.NYS Governor David Patterson will be appointing a new Jr. Senator from NY to replace Hillary Clinton if she becomes the new Secy of State. So far we have Caroline Kennedy and Fran "The Nanny" Dresher. I would love to throw my hat in the ring too, as it seems the only qualification you need is that you have no qualification...
Ok you have to be at least Thirty years old.

Anyway, Kennedy is campaigning for the job (Dresher was on Larry King but she has a snowball chance in hell of getting the job unless she runs for it and gets a voice coach) Now here is the thing
In this story Caroline says she is a "Clinton Democrat". Now that does nothing for me but assuming it does something for a democrat, How can she call herself a Clinton Democrat when she supported Barack Obama against Clinton for President??? (Maybe Caroline is more qualified for the US Senate than we think, she clearly already knows doublespeak.)

Then I notice her voting record in general elections is "spotty". That means sometimes she doesn't chose to vote. Now while it is popular to say that it is everyone's duty to vote, I for one do not agree. I refuse to vote when I think that I am voting for the lesser of two evils. That is usually how I feel when I vote for President and sometimes Governor but at least there are lesser offices I might care about. I also do not vote when I don't know anything about the candidates or their opinions. I see nothing wrong with that. (About not voting, not knowing positions is a different post entirely, sometimes that is not my fault.)

Ms. Kennedy-Schlossberg is not unqualified to be a Senator from NY because she has missed votes, nor because she has never held nor run for public office. She is unqualified because she knows nothing of the needs of New Yorkers and we do not need another celebrity senator coming from this state when there are a number of people who do know what they are talking about and what to do about the issues. Unfortunately none of them are even in Congress right now.

Finally there is this interesting choice for US Senator, one that the Governor should really think about, one who has served our state very well over the last 20+ years and who is well aware of the needs of the people of our state. I think Eric Turkewitz of New York Personal Injury Attorney Blog is on to something when he recommends Chief Judge Judith Kaye who retire in 2 weeks to be our new Junior Senator. The only qualm I have with Eric's post is that he compares Ms. Kennedy with Pres. G.W. Bush. I am sorry Eric, there is no comparison. Caroline was an excellent student and a very good child. She has always been thoughtful and concerned about others while she guarded her privacy. Comparing her to Bush is like comparing the Pope to Saddam Hussein. Still I think Judge Kaye would make a great democrat possibility for US Senate.

4. Finally, The New York State Bar Association has a general Practice committee. It has a blog. The blog written by Leonard Sienko has a lot of important stuff on it. You don't have to be a member of the State Bar to read the Blog. So READ THE BLOG!!

Two important posts:

A. NY has finally adopted the Model Rules for Professional Conduct. It goes into effect in March 2009. I will be blogging on that I imagine a lot in the next few months.

and

B. The IRS is willing to help struggling homeowners refi and sell their homes by allowing Federal Tax liens to take a secondary position to some mortgages. It's a start anyway.


5. Over at the Divorce hotline, Janine Barbera (aka MatMaven) has a post about the way some judges just lord over a court, forgetting the people that use the court are not there to serve them so much as to be served by them. The post is short on facts but that is fair, Janine wants to be able to continue to practice law. Besides if any judge she appeared before in the last couple of days sees himself, then he should CHANGE HIS WAYS!!!

Q: In the meantime here is a quiz... What is the shortest time span known to man??

A: The period of time it takes for a newly minted judge to forget he was ever a practicing lawyer...

Ok that is a generalization, but sadly it is true way too often. Maybe it is something they should address in judge's school.

OK so much for Part III.

Around the Blogosphere the Week of 12/14/08-12/20/08:Part II- Law Office Management

Continuing my trip around the blogosphere with you, we move on to the Second Part of our Journey Law Office Management and Tech posts.

1. Cornell Univ. Legal Information Institute is a really great service providing case law and statutory law for no cost (but you should donate)to users. LII has a new beta program for attorneys to get referrals from other LII users. Go to the NYS General Practice Section Blog for more information. Oh by the way, did I mention that it is free?

2. Susan Cartier-Liebel's Build a Solo Practice Blogis one of the most popular blogs in the legal world. Susan is the founder of the Solo Practice University a great resource for CLE, "bridge the gap" and "develop a new practice area" learning.

In this blog post she shares a new service that can help a solo (or anyone else) organize the business cards they get, loose receipts, as well as other information. Really it is a scanning operation for your stuff, but if you don't have the time to do it yourself, or you just are not going to do it (or you don't own a scanner) then this service is cost effective. It is called Shoeboxed and it looks pretty interesting. I will be checking out myself before the year is out. You may want to do the same.

3. Susan also has a second post that is very important as money for legal services begins to dry up. In her post "When Pricing Your Legal Services, Remember Your Client" Susan suggests that we might want to start understanding what our potential clients are going through financially, and start to think about how we can help them through this difficult stage in their lives. I think if we are just looking at this problem now, we may be too late, but while not answering any questions, Susan raises the issues that are on our clients pricing minds and makes us think about these issues too. Which leads me too our next post:

4. The Dirty Thirteen, or as the post writer (the modestly named Greatest American Lawyer) calls it, the Thirteen Worst Things About Hourly Billing.

As a long time fan of "Value" billing I see the last two posts going hand in hand. I will have my own Value billing post up in a couple of days (weeks?) and will discuss it further, but I want to say one thing now: In a time of economic uncertainty, the two things a client wants most is a fee certain, and a fair shake. Value billing provides both.

5.Allison Shields is the President of Legal Ease Consulting and is a business consultant for law firms. She also writes another really great legal business blog by the name Legal Ease Blog.(What else would you call it if you were she?)

In her recent post she talks about "When E-mail Isn't Appropriate."

I have to say that I disagree to an extent with Allison. In a day and age where time is money, and money is scarce; where clients complain that lawyers do not communicate enough, I think E-mail, text messaging, and now Twitter Direct messaging, can really reduce client anxiety. I will agree with her on one point however, if you will be bringing important information to a client by electronic medium, it is only fair to the client to make yourself or another in your office available to answer any questions your client may have thereafter.

I find the best way to do this is to send the e-mail late in the day so that the client will get it in the morning (if it is more urgent than that, I pick up the phone.) I then ask that they respond with questions which I can peruse while waiting in court; answer from my blackberry; or call my secretary or associate to help me respond. Then I return calls at the end of the day, or at least I try to. I am not perfect but I am improving.

6.Your best source of new business is your present client. If you are in a practice area that doesn't lend itself to clients who have other legal matters you could work on (like Criminal law for example)then you need to constantly look for new work or referral sources. This post on the Rainmaker Blog gives some excellent suggestions and ideas. It is worth the read.

Well that is two posts down but I have a few more to go. I will have more for you in a little while.