In an effort to minimize what are considered excessive prison sentences and help reduce prison overcrowding, federal judges and prosecutors are collaborating on programs that have been adopted at the state level in a growing number of states.
The special treatment programs are meant to minimize what had long been considered significant prison times for defendants who are drug addicted, The New York Times explained. In some cases, United States attorneys are able to either reduce or completely avoid prison sentences, bypassing drug laws that have been described as too rigid and highly disciplinary.

The Justice Department is cautiously making the program, possible, following the lead of state level, so-called "drug courts," which report that their programs have lowered costs and are, in fact, more efficacious when dealing with low-level, repeat offender drug addicts and prison sentences, The Times noted. That the model is picking up momentum at the federal level is surprising, especially in an environment long known to reject processes that restrict the way in which they are able to sentence offenders; yet, the programs have been put in place in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia, and Washington and have involved some 400 defendants nationwide.

In Charleston, West Virginia, legislators there have been talking about proposals to reduce the number of prisoners via a 2003-implemented experiment. The state now runs 20 drug courts in 30 counties for adults and 16 courts in 20 counties for juveniles, The Charleston Daily Mail wrote. That state's Supreme Court compiled data revealing the ways in which the program has proven better than incarceration.

For instance, Chief Justice Brent Benjamin told a joint meeting of the House and Senate Judiciary committees that since the program's inception, more than half—52 percent—of the 420 adults who entered the drug court programs have graduated; the recidivism rate has dropped from the 20 percent seen in traditional incarceration programs to 10 percent in the proposed program. In juvenile drug courts, 62 percent—201 juveniles—who entered the program completed successfully from 2007 to 2012; the juvenile recidivism rate for program graduates is 14 percent, compared to 52 percent for non-program juveniles, noted The Charleston Daily Mail.

In terms of costs, the state is seeing a savings: Per adult, $7,100 annually; $6,400 for juveniles for just a few months, when compared figures to residential treatment facilities. Circuit Judge Phillip M. Stowers told The Charleston Daily Mail that, "Twenty graduates will not change the world.... But it will change the world for 20 kids and 20 families for generations. I believe what we are really changing is something we could never do in our regular court process," Stowers pointed out. "We are changing families."

Judge John Gleeson, from Brooklyn, New York Federal District Court, issued an opinion in favor of the emerging approach writing, "Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines," according to the Times.

"We recognize that imprisonment alone is not a complete strategy for reducing crime," said James M. Cole, the deputy attorney general, in a separate statement. "Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution," Cole added, said the Times, which noted that the program was brought about in part in response to Obama administration-supported legislation that reduced sentences for crimes involving crack cocaine. The Justice Department supported some federal sentencing guideline changes that would enable for drug or mental health treatment programs used in place of prison for some low-level offenders, said the Times. In fact, the Justice Department changed policy to allow expanding the availability of these alternatives.

Decades prior, the United States Sentencing Commission established what are now considered outdated sentencing guidelines meant to unify federal sentences for similar crimes.
The drug court option is not available to defendants facing more serious charges; for instance those accused violent crimes, of being high-level dealers, or of high-level rug trafficking, the Times said.

Sentencing is an integral part of the criminal justice system, and a part that the criminal lawyers at Sullivan & Brill focus on very seriously. If you or someone you know has been arrested for a New York State or Federal Crime call us at 212-566-1000 so we can discuss your case.

Google, Inc., the internet giant, recently announced that it would require warrants from law enforcement officers before releasing information relating to its e-mail service, Gmail, or any data stored through its cloud service.  The announcement came within days of Google’s most recent “transparency report,” (http://googlepublicpolicy.blogspot.com/2013/01/transparency-report-what-it-takes-for.html) which has shown an increase in recent years of information requests by law enforcement for data on Google and Gmail users.  The announcement is interesting because under the Electronic Communications Privacy Act, or ECPA, law enforcement officers can generally obtain any data stored for more than 6 months without needing a warrant from a judge.

It is unclear whether other internet service providers will follow suit, but users should be aware that Google has voluntarily required law enforcement agents to get a warrant, and can waive that requirement whenever it chooses.  Likewise, plenty of user data is still provided without a warrant, under the ECPA, such as a user’s name, IP address, where they logged on from, when users have logged on, and what other accounts are associated with the Gmail account.

 As technology evolves, be sure that you are represented by attorneys who can adapt to the new challenges that arise.  The criminal attorneys at Sullivan & Brill have developed special experience in challenging the use of electronic evidence, such as emails and cell-phone records.  Our knowledge of current technology, as well as the criminal defense process, makes us an excellent fit for legal representation in today’s environment

The SullivanBrill criminal lawyers are thrilled to announce that the case against their client for looting in Coney Island the day after Hurricane Sandy was dismissed by a Brooklyn Grand Jury.  Last week, SullivanBrill's client exercised his right to testify in a New York State Grand Jury so he could explain to the grand jurors that he was innocent of looting.  Despite cross examination from the Brooklyn DA's office, SullivanBrill's client was able to persuade the grand jurors of his innocence and provide them with his side of the story.  Each of the 12 counts charged against the client were dismissed.   

A 19 year old life long resident of Coney Island in Brooklyn was arrested and charged with Burglary and other related charges when a NYPD officer claims to have seen him coming out of a fruit stand that was severely damaged as a result of Hurricane Sandy.  Nothing found on him was connected to the fruit stand and no one observed the new client stealing or damaging any property inside or outside the store.  The Kings County DA's Office requested an exhorbitant bail - $100,000 - clearly sending a political message that the DA's office is tough on looting matters.  However, the lack of evidence may get in the way of their political agenda on this case.

If you want to understand the power of mitigation factors at a federal sentencing hearing, look no further than the sentencing of Rajat Gupta before Judge Rakoff in the SDNY.

Mr. Gupta, a former Goldman Sachs board member, was convicted of 3 counts of securities fraud and 1 count of conspiracy for passing inside information (regarding Warren Buffet’s involvement with Goldman).  Prior to sentencing, federal prosecutors submitted memoranda that requested that the court sentence Mr. Gupta to a sentence within the Federal Sentencing Guidelines.  In Mr. Gupta’s case that was roughly 8-10 years.

But, Mr. Gupta’s federal defense attorneys provided the court with a long history of Mr. Gupta’s charity and philanthropy and otherwise very productive life.  In fact, Microsoft founder Bill Gates drafted a letter in support of Mr. Gupta for his work in helping the world’s most neediest people.

Ultimately, Judge Rakoff sentenced Mr. Gupta 2 years, which was a sharp deviation from advisory 8-10 year guideline sentence.  The sentence underscored the power of one’s mitigation and how it can counter the potential punishment from illegal behavior.  The sentence also is a shining example of how much of a role an advisory sentencing guidelines can play in someone’s life.  For Mr. Gupta, it was the difference of 6 years.

There is an old 17^th Century English saying: a man’s home is his castle.  Those words rang loud and clear in a recent case in Kalispell, Montana where an unarmed man was shot dead when he entered his neighbor’s garage to confront the neighbor about an affair he was having with the man’s wife.  Because of the self-defense laws in Montana (similar to the ones in at least 20 other states), or in other words, the “castle doctrine,” a person can brandish a gun to ward off a threat.  In addition, an individual does not have to flee or call the police before engaging in self-defense.

And what is that “threat?”  At least when the event arises in one’s home, the threat may be nothing more than one’s belief that they are about to be assaulted.  The County Attorney in Kalispell has made it clear that “You don’t have to claim that you were afraid for your life” “You just have to claim that he was in the house illegally. If you think someone’s going to punch you in the nose or engage you in a fistfight, that’s sufficient grounds to engage in lethal force.”

In New York criminal law, the law surrounding self-defense is markedly different from Montana, as well as over 20 other states.  Here, in New York, outside the home, if one reasonably believes that he or someone else is in imminent danger of deadly harm, one is justified in using deadly force as protection.  As you can see, there must exist more than just a fear of assault of physical injury before using deadly force.  In addition, the individual in fear of harm also has a duty to retreat, if they can do so safely, before using deadly force. With respect to homes, New York has a self-defense law based on the “castle doctrine,” but it is considered weaker than castle doctrine laws in other states. Within the home, the statute authorizes deadly force as long as the resident is not the initial aggressor.  In addition, a person in possession of a home, must first reasonably believe that another  person is committing or attempting to commit a burglary of the home before using deadly physical force that he or she believes necessary to prevent or terminate the burglary.

The NYPD says that it has made major inroads in improving their stop and frisk policies: but that remains to be seen.

Presently, there are potentially three class-actions lawsuits against the City of New York and the NYPD alleging improper stop and frisk practices.  If one believes the statistics calculated by the New York Chapter of the ACLU, in 2011, the NYPD stop and questioned people 685,724 times.  Out of those stopped, 9 out of 10 people were not ticketed or arrested for any crime.  On top of this, 55.7% of those stopped were frisked, but of those frisked a weapon was found only 1.9% of the time.  Not surprising these practices have led to extreme frustration and concern among residents, primarily in low-income communities in New York City.

The NYPD continues to claim that they are improving their stop and frisk policies by training police officers and making sure that the legal level of suspicion exists before a stop, frisk or search is conducted.  The crux of the lawsuits, now pending the New York federal court, is that “too little, too late.”

If you or someone you know has been the victim of what you believe to be a victim of an NYPD illegal stop and frisk – whether an arrest has occurred or not – call the criminal defense attorneys at Sullivan & Brill, LLP to consult with a lawyer immediately

If you were not a PNC Bank of Bank of America customer, you may not have heard that hackers had infiltrated databases making it impossible for customers to do their banking on-line.  Other than some majorly inconvenienced customers, no money was stolen.  But, the event, although not highly publicized, was a greatly symbolic when it comes to the world of cybercrime.  It underscored what the criminal defense attorneys at Sullivan & Brill have known for some time: computer hackers, if they choose to, can rule the world.

There is no doubt that cybercrime – or computer crime – is becoming one of most prominent types of criminal activity that face our country today.  Here in New York, the NYPD and the major DA’s offices have set up bureaus focused entirely on it.  New York City Council Speaker, Christine Quinn calls cybercrime, “the new crime scene of the modern age.”

Cybercrime comes in all forms.  At Sullivan & Brill, we have represented individuals who have been accused of committing all different types of cybercrime.  At the top, are the hackers, who use sophisticated software to infiltrate or “inject” the program into a large database, like a bank, and steal credit card numbers, debit card numbers as well as the customer’s pin numbers and passwords.  In a highly organized and efficient operation, the hacker works with many others who steal this information, or in some cases, the cash itself.  The operation ends quickly – sometimes over the course of a weekend when the company is  - literally – not minding the store.

There are lesser degrees of cybercrime as well, such as identity thefts.  In these cases, a smaller group of individuals will steal credit card or social security numbers and use the cardholder’s identity to purchase various types of merchandise.   At times, the credit card numbers are gathered by special machines that a cashier at a department store or a restaurant may possess.   The customer will have no idea that this event has occurred until they receive their credit card bill or a call from the credit card company.

The criminal attorneys at Sullivan & Brill have developed special experience when it comes to representing individuals charged with cybercrimes or computer crimes.  Our knowledge of the computer science, as well as the criminal defense process makes us an excellent fit for legal representation if you have been investigated or arrested for a cybercrime.

 

Was Scattered Bacon at Site of Muslim Gathering a Hateful Act?

Since the landmark decision of Miranda v. Arizona was handed down in 1966, courts have been chipping away at the breadth of protections that criminal suspects receive.  For example, in the 1971 case of Harris v. New York, the Supreme Court found that statements made by a suspect who was not given a Miranda warning could not be used as evidence in the trial against him, but could be used to impeach his testimony if he took the stand.  In 1984, the Supreme Court carved out a “public safety” exception to the Miranda requirement in New York v. Quarles.  This exception allows a police officer to interrogate – before rendering Miranda warnings - when there may be a risk of harm to the public.  These statements made by the suspect can be used against him in court.   Recently, in 2010, the US Supreme Court, in Berghuis v. Thompkins, said that courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.

In a recent decision, however, the Appellate Division, First Department bucked the trend and found that a statement made by a suspect not given a Miranda warning could taint a later statement made in a precinct even after a Miranda warning was given.  In People v. Perry, police officers entered O’Brian Perry’s apartment with a search warrant and handcuffed him and family members.  A sergeant asked Perry to tell him where a handgun was hidden, so that the police would not have to tear up the apartment.  When Perry told them, and the police could still not locate the gun, he pointed to the couch it was hidden in.  After being transported to the police precinct, the sergeant returned and read Perry his Miranda rights.  Perry then admitted that the handgun found in the apartment was his.  At a suppression hearing prior to trial, the defense moved to suppress the statement made at the precinct as being tainted as a result of Perry’s prior statement in his apartment where he was never told his Miranda rights.  The hearing court found that both statements were admissible, and Perry was found guilty of weapons possession at trial - and sentenced to 10 years in prison.

On appeal, the New York appellate court held that Perry made his statement while in custody and during interrogation.  As a result, he should have been given a Miranda warning.  Since he was not, his statement was inadmissible as evidence against him.  The Court went on to find that the second statement, made after a Miranda warning, was “part of a single continuous chain of events, so that the later warnings were insufficient to dissipate the taint of the initial violation.”  The Court therefore ordered a new trial in which precluding both statements.

It is important to have a criminal defense attorney can protect your constitutional rights and ably fight criminal charges against you – including post-conviction and state and federal appeals.  The attorneys at Sullivan & Brill have years of experience in both federal and state cases, and have represented clients regarding a wide array of criminal charges.    If you or someone you know needs legal representation, call us for an immediate consultation at 212-566-1000.

 

Throughout history, eyewitnesses have played an important role when it comes to matters of criminal defense law.   Needless to say, eyewitness testimony is not as reliable as many of us would want to believe.  According to the Innocence Project, headed by New York Defense Attorney Barry Sheck, 75% of the cases involving wrongful conviction were based on misidentification by a witness.  The United States Supreme Court has not addressed this issue since 1977 in Manson v. Braithwaite and just recently in 2011 in the case of Perry v. New Hampshire, but fortunately, the New Jersey Supreme Court is leading the charge in protecting the rights of the accused.

On July 19, 2012, the NJ Supreme Court issued new instructions that judges must give jurors to help them better evaluate eyewitness evidence used in a criminal case.  These instructions require jury members to consider factors such as the time between the commission of a crime and the witness’s identification, lighting conditions, stress levels of the witness, distances, whether police officers were present and how they behaved, and whether the witness was the same race as the defendant (scientific research has shown that individuals have a harder time identifying members of another race).  The court’s ruling was heralded as one of the most comprehensive reviews of scientific research on the subject of eyewitness identifications.

While this decision only affects the law in New Jersey, it is an important development since New Jersey has long been on the forefront of eyewitness identification standards.  In 2001, the state issued guidelines for police departments to follow in order to reduce mistaken identifications.  Other states soon adopted these policies, or used them as a guide in revising their own, making New Jersey’s guidelines the standard to follow.

Eyewitness identification has long been studied by social scientists, and is perhaps the most scientifically researched issue in criminal law, leading to over 2,000 studies since the Supreme Court’s holding in 1977 in Manson v. Braithwaite.  Legal experts hope that the new jury instructions will provide a road map for explaining eyewitness memory to jurors, and will help improve the legal system as a whole.

If you or someone you know requires legal representation, it is important you contact an attorney who can protect your rights.  At Sullivan & Brill, our attorneys have practiced in both state and federal court, and have defended clients against a wide assortment of charges.  Call us for an immediate consultation at 212-566-1000.

Under New York State and Federal law, the police must respect a suspects constitutional rights when making an arrest and taking a person into custody. The police must have probable cause before they can arrest someone and they must not use excessive force when apprehending or taking an individual into custody. If they do not respect these rights, they can be held responsible for the improper and illegal conduct. In New York, the misconduct of NYPD officers have been brought to light following a statistical study of the NYCLU of New York City's stop and frisk policy.  The results of that study showed that the NYPD stopped and questioned people 685,724 times.  Out of those stopped, 9 out of 10 people were not ticketed or arrested for any crime.  On top of this, 55.7% of those stopped were frisked, but of those frisked a weapon was found only 1.9% of the time.  

In fact, Sullivan & Brill's New York Criminal Defense Attorney, Steven Brill was recently interviewed by Lawyers.Com on his opinion and experience with New York's stop and frisk policy.  In the interview, New York Criminal Attorney Steven Brill expressed his dismay in the staggering rise of stop and frisks by the NYPD.  Needless to say, our criminal defense lawyers at Sullivan & Brill are well aware of the alarming increase in improper stop and frisk conduct by the NYPD and are using this conduct to better represent our clients who have been arrested and charged with a New York State or Federal crime. 

Sullivan & Brill has partnered up with experienced co-counsel to bring lawsuits for false arrest, malicious prosecution and police brutality against the New York City Police Department, as well as other municipal entities and the offending officers. Victims often don’t realized that even without a serious physical injury, they may have a strong case for the violation of their civil rights. In one recent case Sullivan & Brill and co-counsel obtained a $250,000 settlement on behalf of middle eastern man that was falsely accused of scalping tickets at a well known New York City theater. He was pulled from the line, his arm was twisted behind his back and he was thrown on the ground, but he was not otherwise injured.  To read more about this case, click here.

If you believe you have been falsely arrested you must act quickly.  In most cases when a false arrest claim is filed against New York City or the United States Government, the claim must be filed within a certain period of time or else you may be legally prohibited from filing a false arrest claim.  It is also important that you speak to a New York Attorney that handles false arrest claims, before your underlying criminal case is resolved.  Certain criminal convictions may preclude you from filing a viable false arrest claim.  Furthermore, if you have filed a complaint with the civilian complaint review board (CCRB) in connection with your arrest, it is important that you maintain the arresting officer's name and badge number and the CCRB's case number for your records. 

http://blogs.lawyers.com/2012/05/visiting-nyc-prepare-to-be-frisked/

Recently, the New York Civil Liberties Union (NCLU) analyzed the NYPD’s 2011 computerized data base for information regarding stops, frisks, reasons for stop and recovery of weapons.  What the report found was troubling.  In 2011, the NYPD stop and questioned people 685,724 times.  Out of those stopped, 9 out of 10 people were not ticketed or arrested for any crime.  On top of this, 55.7% of those stopped were frisked, but of those frisked a weapon was found only 1.9% of the time.

Despite this low percentage of success of New York City’s stop and frisk policy, Mayor Bloomberg attempted to put a somewhat disturbing spin on it.  The Mayor said “That’s exactly the point.  Stops are a deterrent.  They prevent people from carrying guns in the first place.  If you think you will be stopped on the street.  You are a lot less likely to carry a gun.”

As a criminal defense lawyer in New York who has dealt with several stop and frisk issues, I say: Either Mayor Bloomberg does not have a grasp of the reason for our fundamental right to be free from search and seizure or he is using some disingenuous language to mask some bad police policy results.  Either way, he is way off the mark.  Stop and search law is fundamentally rooted in our 4^th Amendment to the U.S. Constitution which allows us to be free from unwarranted search and seizure without probable cause.  This constitutional right has evolved to now permitting law enforcement to stop and frisk, less intrusive than search and seizure, with only reasonable suspicion (not probable cause) on the part of law enforcement.  In a nutshell, the 4^th Amendment was created to impede the vast and overwhelming power of the government from interfering with the rights of privacy of the citizens.  It was created to limit government from intruding on our persons and property

Apparently, Mayor Bloomberg sees stop and frisks as way not to actually recover weapons (or other contraband), but in and of itself deter one from possessing weapons in the first place.  With that logic, though, why require any level of suspicion before law enforcement can stop and frisk.  If you take Mayor Bloomberg’s logic to its end, the more stop and frisks that are conducted to more it deters crime.

And how can Mayor Bloomberg lose?  If the numbers of weapons recovered were good, he would say the policy is working by stopping guns from infiltrating New York City.  If the numbers are bad, as they appear to be, you still argue that the policy is working because it is deterring people from carrying weapons in the first place.

But as I see it, the real story is the worst of all worlds: More citizens in New York are being unreasonably and illegally stopped and searched and the people that are searched are innocent.  What I draw from these statistics is that New York’s stop and frisk policy is not working.  Given this many citizens stopped coupled with the low percentage of weapons found, means that the NYPD is clearly without the proper suspicion before they are stopping and frisking.  This is a flaw in the NYPD but more importantly, in our government, who sanction these stops in order to deter, as the Mayor says, when the real focus should instead be on the protection of our constitutional rights.

The Criminal Lawyers at Sullivan & Brill in New York work hard to defend clients who have been stopped illegally.  If you or someone you know has been illegally stopped and frisked, call us for an immediate consultation at 212-566-1000.

This week, an article in the Village Voice written by Nick Pinto uncovered some very important issues about the bail process in New York criminal cases.  Statistically, Mr. Pinto wrote that in 2010, only 17 % of those held on $1,000 or less made bail at arraignment – which is the first court appearance after one is arrested (usually about 24 hours after arrest). The other 83% stayed in jail unable to post bail.  Furthermore, Mr. Pinto discovered that half of the defendants who were unable to post bail remained in a jail cell until they agreed to a disposition on their case.

The import of this is that the poorer you are the more likely you will plead guilty at your arraignment (or soon thereafter) in order to get out - whether guilty or not.  Bail, then, has become a coercive tool instead of what is was intended to do - which is generally to address those who are a danger to the community and a risk of flight. To add, if bail is set and you are an illegal alien, the pressure is even worse.  Once an illegal alien spends is held in on bail and sent to Rikers, immigration authorities  seize the opportunity to lodge a warrant and an “immigration hold” and the illegal alien is most likely on his or her way to deportation.

So, it is no surprise that if a defendant is in a stuck in a jail cell after the arrest and arraignment, because of the inability to post bail, they will be more apt to take a plea to resolve the case in order to get out compared to those who can afford to post bail and fight their case while they are at liberty.There is, however, a growing trend in the New York criminal system (mostly by New York criminal defense attorneys),  towards bail reform.  In Queens, for example, a pilot program is taking defendants for whom bail would otherwise be set and freeing them on supervised release.  These defendants don't have to post bail, but they do have to check in regularly with CJA (Criminal Justice Agency) staff members, who ostensibly will help the defendants live productively while awaiting their court date.  Undoubtedly, this program is much more creative and positive for society than the present way of holding defendants - charged with low-level crimes - at Rikers Island as the case proceeds.

Interestingly, this this pilot program in Queens is very much like the Federal system of bail.  When one is charged with a federal crime and is presented before a federal magistrate after arrest, a magistrate’s marching orders are found in the Bail Reform Act of 1984.  In a nutshell, under section 3142(b) of the Act, “the defendant must be released on personal recognizance or unsecured personal bond unless the judicial officer determines “that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community.”  In other words, as long as some type of bail (whether by signatures and/or property/cash) will assure the court that the defendant is not a risk of flight and does not pose a danger to the community, he or she will be free on bail.

While a federal magistrate is free to impose a wide of range of conditions, when setting bail, like curfews, drug testing, home-detention or strict supervision, a defendant charged with a federal crime, generally has more of a chance of being released on bail than a criminal defendant charged with a New York crime – which is ironic considering that federal crimes generally expose a defendant to a much more severe punishment.

Whether one is arrested in the New York State or federal criminal system, bail is a crucial part of the arraignment process.   It is important to have a criminal defense attorney who can guide you and your family through process so that bail does not interfere with your ability and your constitutional right to fight criminal charges against you.

 

 

 

In yet another case where a prosecutor sat on exculpatory evidence, Darrell Dula spent 10 months behind bars when a Brooklyn DA failed to turn over evidence that an alleged sex trafficking victim recanted her accusation.  Here, an orthodox woman from crown heights accused four black males of Rape in the First Degree and Sex Trafficking.  As a result, all four were arrested and held in on bail.  Now, almost a year later it has been discovered that the alleged victim recanted her story about the rape and stated “can’t a ho change her ways?”

Despite this recantation, the Brooklyn DA’s office failed to disclose it to Mr. Dula’s attorney.  “This is a fundamental Brady issue,” says Steven Brill, a well-respected criminal defense attorney in New York.  “The Supreme Court in Brady held that withholding exculpatory evidence violates due process where the evidence is material either to guilt or to punishment.,” says Brill.  “For one who has been arrested and charged with a crime in New York, it may be the one of the most important cases involving due process,” adds Brill.

It may be important to a criminal defendant, but apparently, not so important to some Brooklyn District Attorneys.  Take the case of Abbie Greenberger.  Ms. Greenberger said she was handed the case in September 2011 — three months after Darrell Dula, 25, was indicted for being a part of a crew that of raped, beat and pimped out the alleged victim.  Greenberger said she found inconsistencies in the 22-year-old accuser’s account, but couldn’t convince her boss there was a problem. Ms. Greenberger told the Daily News that “When I brought the inconsistencies to the chief of the sex-trafficking unit at the Brooklyn District Attorney’s Office, I was told that I didn’t do my job right and that I’m trying to dismiss the case and that I should work harder,”

Surprisingly, the Dula case is not the exception.  Mr. Brill has noted another significant case where prosecutor’s offices has “hidden the ball,” as Brill says.  “Recently, a decision by the US Supreme Court overturned the conviction of Juan Smith, convicted of five murders, because the New Orleans’ District Attorney failed to turn over notes recounting a conversation between detectives and an alleged eyewitness where the witness  told a detective that he could not identify the perpetrators.  Chief Justice Roberts wrote the opinion finding the conviction must be overturned because the undisclosed evidence was material under standards set by Brady.”

Whether it is a New York Criminal case or a Federal Criminal case, the requirements under Brady are clear.  Nevertheless, Mr. Brill, who practices both New York criminal law and Federal criminal law says there are more and more cases where prosecutors do not comply.  “There is great pressure to get convictions,” says Brill.  Perhaps, Ms. Greenberger agrees.  When Ms. Greenberger approached her chief, the head of the sex trafficking bureau, about the recantation and inconsistencies, she recalls being told “I guess we have to take the case to trial.”

A decision last month by Judge Jed Rakoff of the Southern District of New York underscores the importance of the government’s Brady obligation and exposes their efforts to avoid it.

In the case of USA v. Rajat Gupta, a criminal insider trading allegation, the United States Attorney’s Office (USAO) and the Securities Exchange Commission (SEC) conducted investigations that consisted of interviewing 44 witnesses.  The SEC, however, also conducted separate interviews of 2 witnesses outside the presence of the USAO.  The attorney for Mr. Gupta moved the Court to order the USAO to turn over all of the notes taken at both interviews – arguing that the information was considered Brady material (i.e. favorable evidence to the defendant).

The government disagreed, countering that the USAO and the SEC did not work as part of the "same prosecutorial team," that the USAO and the SEC made "independent investigatory and charging decisions," and that neither the USAO nor the SEC had control over the other's actions in how to proceed.  The Government contends that because the SEC was not an "arm of the prosecutor" or part of a "joint prosecution team:  so the Brady obligation does not extend to documents in the SEC’s possession.

But, Judge Rakoff disagreed with the USAO argument and reasoned that for “Brady purposes, it is enough that the agencies are engaged in joint fact-gathering, even if they are making separate investigatory or charging decisions.”  In essence, the government cannot avoid its crucial Brady obligations by trying to draw artificial distinctions between them and another investigative body when in fact they both are engaged in the same fact-gathering conduct.

The USAO reluctance to turn over the notes taken by the SEC attorney was somewhat surprising given the recent decision in USA v. Ted Stevens. In that case, the government withheld key pieces of evidence that would have been favorable to Senator Stevens while at the same time provide relevant evidence negatively affecting the cooperating witness’s credibility.  The Brady violation was so egregious that the Department of Justice conceded the violation and asked the trial judge to void the conviction.  In fact, just today (April 16, 2012), the lead AUSA resigned his position from the DOJ.

Has the USAO learned their lesson?  Are the Stevens and Gupta decisions enough to assure that the government will not play games with this extremely important obligation?  Given the government’s unquenching hunger to win – especially high profile matters – we probably have not seen the last of this.

The Supreme Court, in a 5-to-4 vote, just ruled that officials may conduct strip searches on anyone arrested for any offense before being jailed; this, even without suspicion of contraband.

Consider being strip-searched for speeding. This is exactly what happened to the plaintiffs in Florence v. Board of Chosen Freeholders. All parties were arrested for what are considered minor offenses—walking a dog without a leash, speeding, lapsed child support payments.

The group challenged a New Jersey detention facility policy in which all arrested people must be strip-searched before being included with the inside population, said CNN. In one facility, this means, "a complete disrobing, followed by an examination of the nude inmate ... by the supervising officer, which is then followed by a supervised shower with a delousing agent," according to CNN. The booking process in another facility, "required groups of 30 to 40 arrestees to enter a large shower room, simultaneously remove all of their clothing, place it in boxes and then shower.”

The New York Times noted that such procedures are banned by statute in no less than 10 states and may contradict federal policies. Federally, the courts have long had mixed decisions; most prohibit strip searches without a reasonable suspicion of contraband.

In practice, this decision will sanction that policy that people may be strip-searched after arrests for violating a leash law, driving without a license and failing to pay child support. Citing examples from briefs submitted to the Supreme Court, Justice Breyer wrote that people have been subjected to "the humiliation of a visual strip-search" after being arrested for driving with a noisy muffler, failing to use a turn signal and riding a bicycle without an audible bell

This growing, unfortunate trend is contrary, however, to Fourth Amendment principles.  In fact, Supreme Court Justice Breyer agrees.  In his opinion, the Fourth Amendment should be understood to bar strip-searches of people arrested for minor offenses not involving drugs or violence, unless officials had a reasonable suspicion that they were carrying contraband.   Sounds logical, yes? 

Despite this, Justice Anthony M. Kennedy, with the backing of the Court’s conservative wing, wrote that it is not the courts’ standpoint to oppose how correctional officials make decisions given that they must contend with potential weapons, drugs, and gang issues, wrote The Times. “Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, added The Times, which increases the flexibility to perform strip searches on any person to be jailed.

In doing so, the court has, said CNN, entered into “an abdication of its responsibilities”; to subject all persons to the humiliating practice “without any demonstrable need” and “without any evidence that such policies are effective is to perpetrate an injustice unworthy of our high court.”

The recent verdict convicting Dharun Ravi - a Rutgers student who had sent out Twitter and text messages encouraging others to watch his roommate, Tyler Clementi, engaged in intimate, sexual activity with another male student - for bias and invasion of privacy crimes at Rutgers University have widespread ramifications in the area of criminal law.  Now,  law enforcement and prosecutors may be more willing to arrest individuals for cyber-bullying type crimes from the simple act of a Facebook post or a tweet.

Shortly after Mr. Ravi advertised and publicized this intimate event, Mr.  Clementi committed suicide by jumping off the George Washington Bridge.  However, Ravi was not charged with causing Mr. Clementi’s death. Instead he was charged with a host of other crimes: four counts of bias intimidation as a hate crime, two counts of invasion of privacy, two counts of attempted invasion of privacy and seven counts of witness tampering and hindering apprehension.

This verdict will no doubt spur new criminal investigations of the aggressive use of social media like Facebook, Twitter and LinkedIn.  The use of social media, whether by statements that set out embarrass, criticize or humiliate another may likely bring new attention for law enforcement who could consider these statements a verbal assault – if you will.

Suffice it to say, hurt feelings should not rise to the level of injury that warrants criminal action.  But, ponder this: while law enforcement did not charge Mr. Ravi with Mr. Clementi’s murder, one can imagine a case in the near future where one is indeed charged with the tragic result of cyber-bullying.  If solicitation to murder or inciting a riot exists as crimes, it is just a matter of time when legislators draw the same logic that words or behavior on social media that lead to similar results (riots or injuring another) could become mainstream charges as well.

Indeed, it is happening now. Just recently, the New York Post reported that an Occupy Wall Street protester tweeted that “we won’t make a difference if we don’t kill a cop or 2.”  Needless to say, the NYPD will pay that tweeter a visit.  But this new matter re-enforces what we as a generation are experiencing – which is we are all part of a society that shares everything with the public.   Some days it almost feels that anything goes.  Expressing our opinion to our friends on face book and twitter for a lot of people has become a way of life.  Some believe it is Mr. Ravi who is also a victim by being caught up in this new social media way of life.  But, the verdict at Rutgers may have made things a bit more clear.  Perhaps, everything does not go - especially if your words or behavior on social media sites lead to damaging results.

To our clients at Sullivan & Brill, remember this: from an investigatory perspective, it is not difficult for law enforcement to log on to any public site and observe the comments made and identify the one who made them.  If the Rutgers verdict teaches us anything, it is that: one must choose words that you share with the public carefully, for if not, you may find yourself charged with crime with real consequences.

 

Recently, the US Supreme Court, in U.S. v. Jones, decided a case which underscored the developing need to reconcile innovative, technological investigatory techniques and our right to be free from “unreasonable” searches and seizures.  In Jones, two men were convicted of a conspiracy to possess and distribute substantial amounts of cocaine and crack.  One defendant argued that his conviction should be overturned because the police violated the 4^th Amendment prohibition of “unreasonable searches” by tracking his movement 24 hours a day for 4 weeks with a GPS device they had installed on his Jeep without a valid warrant.  In a surprise ruling, Justice Scalia (more surprising) for the majority held that attaching a GPS device to a vehicle was akin to a “trespass and then using that device to monitor the vehicle’s movements constitutes a 4^th Amendment search.  So, because fruits from these movements led to the defendant’s conviction, the conviction had to be reversed.

The bigger picture here is the very fact that law enforcement has taken what is now a common tool used by everyday drivers (the GPS) and utilized it an investigative technique to track the comings and goings of crime suspects.  Indeed, the installation of a GPS in the vehicles of unsuspecting targets vehicles, has become a popular form of surveillance for law enforcement – evidence that our New York criminal defense lawyers at Sullivan & Brill are constantly combating.  The use of the GPS underscores a very real and rapidly growing trend – which is that that the government has clearly taken full advantage of the advent of technological advances and gadgets in order to build cases and gather evidence against criminal defendants. 

As one can imagine, the government’s use of technology is not limited to the GPS.  Just as frequently, federal law enforcement seeks warrants to acquire cell-tower records from cell phone companies who store all of that data.  In fact, the federal criminal lawyers at Sullivan & Brill are actively defending a client in the Eastern District of New York where we have filed a motion to set aside a guilty verdict regarding the issue of whether the government needs probable cause before a cell tower warrant can be gotten.  Notably, the technique of using cell phone data has become so important to law enforcement that, recently, the FBI in Arizona set up a fake cell phone tower, or a “stingray” to zero in on a suspect’s wireless card, and thus determine a suspect’s whereabouts.  For those who have not yet experienced the “Stingrays,” they are designed to locate a mobile phone even when it's not being used to make a call. The point being that by gathering this cell phone tower data, law enforcement can pinpoint the user’s particular location during a particular time.  Needless to say, not a very welcomed evidence to any criminal defense attorney.

And the list keeps growing: the NYPD is developing a futuristic device to detect concealed firearms under the clothing of suspects using heat-seeking technology.  The device, which is reportedly slated to be mounted on police vans, scans infrared, or heat rays that are naturally emitted from the body.   Metal objects, like guns, would block the heat, creating an outline where guns are usually possessed.   

Clearly, state and federal law enforcement are developing ways to take full advantage of the digital age and all of its innovations when conducting investigations of targets of their investigations.  The trick, however, for the New York criminal lawyers at Sullivan & Brill is to answer how these technological advancements should be reconciled with our 4^th Amendment rights?   With every government’s decision to use this technology in investigating and prosecuting cases, significant issues for our clients arise, such as: Are these techniques considered searches at all?  In other words, will thermal heat seeking cameras act as a less-invasive substitute for the traditional pat-down? Has our reasonable expectation of privacy become less of an expectation - especially when we broadcast our thoughts and movements on “Facebook,” texting and emailing on a daily basis?  And with less intrusion and more limited expectation of privacy, will Courts low the lower the probable-cause standard to one that is easy for law enforcement to meet?

These questions are in the process of being answered in cases like Jones.  But, one thing is clear: we should all expect that the laws surrounding 4^th amendment search issues will change as rapidly and dramatically as the new technology itself.

 

 

Let’s face it. Nothing is private anymore. If you use Face book, most of your friends probably share their most intimate, as well as their most mundane moments with you and the rest of their virtual world. We live in no ordinary time.

So, what happened in New Jersey this past September when two freshmen secretly placed a camera in a dorm room and broadcasted a live feed of a fellow student’s "sexual encounter" on the internet, raise important issues in criminal law - issues that affect our criminal defense practice here at Sullivan & Brill, LLP.

In New York, PL §250 addresses offenses against the right to privacy. These offenses continue to evolve with the times. Included in this section are charges involving eavesdropping and wiretapping. http://law.onecle.com/new-york/penal/PEN0250.05_250.05.html. Usually, a charge like this existed when one was accused of tapping another’s phone (perhaps by an estranged lover), unknown to the parties engaged in the phone conversation. Also, most states, including New York, have enacted laws that make it a crime to surveil, and disseminate that surveillance. http://law.onecle.com/new-york/penal/PEN0250.50_250.50.html. These offenses usually involve the surveillance of something sexual in nature such as, "peeping toms" or voyeurs for their own deviant enjoyment. Given the immense popularity of You Tube, My Space, and the ubiquitous web cams and mini digital cameras in the market, the ease with which one can upload or stream a video - any video - is staggering. So, it is not surprising that we are seeing an increase in these types of dissemination cases. Indeed, it is exactly this type of dissemination crime that the prosecutors in New Jersey on the Rutgers case are basing their charges.

And what is the appropriate punishment? Some prosecutors have made rumblings that if the victim of this unlawful surveillance reacts in a way that leads to self-inflicted injury or suicide then the appropriate charge could be a lot worse than an offense against privacy

 

Given the daily bombardment of social networking and the pervasive surveillance of our cities, post 9/11, were the students who made this choice to post this video intending to do any harm? As the law stands, their intention of harm plays no role. The act of dissemination is enough for the DA to charge them. But like any change or enhancement of a criminal law, DA’s and state legislatures tend to react to public outcries. It would not surprise us that in the future, new laws are enacted that addresses the physical harm that may come from these types of crimes. Perhaps as severe as homicide.

 

 

     With the news today that Ahmed Ghailani was acquitted of all but one of 280 charges of conspiracy and murder in the 1998 terrorist bombings of U.S. embassies in Kenya and Tanzania, there is no doubt that a lot of people will be shocked and downright angry.  The ink is not even dry on the verdict sheet yet and some already are calling this decision a massive miscarriage of justice.  Get ready.  This verdict will lead to a national debate on every political talk show for weeks to come.  You can bet that politicians, naturally, will use this verdict to justify why trials of Gitmo detainees belong in a military court, before a military tribunal, not in civilian court.  But, whatever your feeling is about the verdict, one thing stands clear: the American judicial system worked – as it works day in and day out in courtrooms all across the country.   

            Of course, politicians will speak candidly about this verdict in typical platitudes, but how many of them observed an iota of the actual trial.  Over the course of 6 weeks, some of the government’s best U.S attorneys presented evidence through witnesses, documents, videos and photographs.   At all stages of the trial, massive amounts of legal submissions - such as motions, objections, and requests, were researched, filed, argued, and decided.  Once the evidence was in, the jury, which was made up of 12 ordinary people from New York City - beholden to no government or political platform – engaged in over 5 days of deliberation.  Like all juries are instructed, their decision was based solely on the evidence presented and the elements of the crimes charged.  In the end, all 12 reached this monumental verdict. 

            At moments like these, I cannot help but think of the great speech by Michael Douglas in the movie “The American President,” where he says “America isn’t easy, you’ve gotta want it bad because it’s going to put up a fight.  It’s gonna say, you want free speech let’s see you acknowledge a man who’s words make your blood boil and who’s standing center stage and advocating at the top of his lungs, that which you would spend a life time opposing at the top of yours.”   There is no question that this verdict is a hard pill to swallow.  But, isn’t this exactly what makes our nation the greatest in the world?  We are, and have always been, a nation of laws.  No matter what the crime charged – even as large as terroristic acts and mass-murder - our judicial system, our laws and our constitutional rights must loom larger. 

NEW YORK, NY (March 24) – You're driving up Sixth Avenue at night in Manhattan. You see a rare opportunity to make some time as one traffic light after another begins changing from red to green in perfect sequence. You press down hard on the accelerator as your vehicle picks up speed with each passing second. Then, before your foot can reach the brake pedal, a man carrying a briefcase is suddenly standing right in front of you, as if from out of nowhere. You hear a sickening thud. It all happens so fast, so unexpectedly. Now what? Do you stop and call for help? Or, do you leave the scene of the accident as fast as you can, hoping no one saw your car strike the unfortunate pedestrian who is now lying motionless in the street?

According to Steve Brill, a New York criminal defense lawyer, in cases involving serious pedestrian knockdowns it is not at all uncommon for the driver, in a moment of panic, to think that if they can escape without being identified, it might be possible to avoid facing what they fear are dire legal and financial consequences.

In 2007, hit-and-run drivers killed 38 people in New York City, and 17 of those cases were never solved.

"Unless the driver believes that remaining at the scene may jeopardize his or her own safety," Brill strongly advises, "the driver should never leave the scene of an accident. They should stop their car and call the police immediately. Then I strongly suggest the next call they make should be to an attorney."

Leaving the scene of an accident is the event that triggers potential criminal charges and exposes the driver to longer jail time and license sanctions.

"With the popularity of cell phones with built-in cameras," Brill said, "drivers involved in a pedestrian knockdown are almost always identified by someone. In the past, far more hit-and-run drivers got away with it. But that is very rarely the case anymore."

Brill explained that the degree of the crime and severity of the penalties for leaving the scene of an accident almost always depends on the condition of the driver and the facts surrounding the incident.

"For example, if someone leaves the scene of an accident where only property is damaged," Brill said, "the driver could be arrested on a minor misdemeanor charge."

"On the other hand," he continued, "if it is alleged that the driver was drunk, or driving recklessly and someone is injured, or killed, the potential penalties and license sanctions will be the most severe."

As a New York criminal defense lawyer, Brill has seen hit-and-run cases where the District Attorney's office went so far as to charge the driver with second-degree murder based on allegations of 'depraved indifference' to human life. "In each of these situations," Brill said, "the driver was accused of driving drunk and causing an accident that killed someone."

Brill further explained that in pedestrian knockdown accidents involving serious injury, or death, part of the investigation done by the NYPD will include efforts to determine whether to charge the driver with criminal behavior.

"I get calls from people all the time," Brill said. "They have just hit someone with their car and don't know what to do next. When I get these calls, I always advise the person not to say anything to the police, or the DA's office, or to any law enforcement official, until I get there. "If not," he said, "the driver risks making a statement that could be incriminating.

"While we are unable to advise a client to run from the scene," he added, "we have advised clients to exercise their 5th amendment right to remain silent and not volunteer any information. If the NYPD wants to make an arrest, that is their prerogative. But our clients do not have to make their job any easier."

NEW YORK, NY (Feb. 17) – If a perjury indictment is returned against 7-time Cy Young Award winner Roger Clemens, one noted New York criminal defense lawyer fully expects the federal government to make an example out of the superstar pitcher in a bid to deter anyone in the future from lying during a congressional hearing.

"This could turn out to be a perfect example of how the cover up is worse than the crime," said Steven Brill, a New York criminal defense attorney and partner in the New York litigation firm of Sullivan & Brill. In a February 12, 2009 article out of the Associated Press, a retired FBI agent is quoted as saying that perjury cases involving high-profile defendants are becoming more common, telling AP: "It used to be we didn't mess with these kinds of cases. Everybody lied to us. Then, they got Martha Stewart on lying, and it became the flavor of the month."

"Even if he is found guilty of having taken performance-enhancing drugs back in 1998, 2000 and 2001," Brill said, "from what I've seen I don't expect Clemens to be charged with the underlying drug crime. But there is no question that he will suffer because of his celebrity if a perjury indictment is handed down by the grand jury.

"Congress does not like to be lied to," Brill warned. "If he is convicted of perjury, he could be facing jail time."

Brill said that if Clemens is indicted and the case goes to trial, Clemens lawyer, Rusty Hardin, will probably focus most of his energy on trying to discredit Brian McNamee, Clemens' former trainer and principal accuser, so that no credible evidence exists that could support a perjury finding against Clemens.

"If Clemens stands by his statements," Brill explained, "and McNamee is shown to be a liar, then the perjury charge cannot stand."

Looking ahead at what will probably happen to Clemens, Brill said that once a witness gives sworn testimony that contains untrue statements on a material matter in a case, there is not much more that can be done to avoid criminal prosecution.

"For this reason, we always advise our clients of the risks and consequences of testifying falsely, "Brill said. "It is human nature for some people to lie when they are under fire and their future is on the line. If we get the sense that a client is traveling down that road, we strongly advise the client not to testify at all."

According to Brill, state and federal perjury charges are infrequent because it is hard to prove that an individual willfully lied about a material matter.

"In a perjury case," he explained, "the government must present evidence that proves not only that the defendant testified falsely, but that he or she willfully made a statement which the defendant did not believe to be true and that the matter about which the defendant is testifying falsely is a material matter in the case.

"Clemens lying about his address or the names of his kids wouldn't count," Brill said.

(NEW YORK, N.Y., Nov. 20) – Police on eastern Long Island are investigating reports that more than a dozen cars were spray painted with racist graffiti; 10 days later seven white teenagers reportedly insulted an Hispanic man with racial slurs before attacking and killing him at a Long Island Railroad station; St. Joseph and La Salle Universities are currently investigating two racially charged incidents over the last two weeks where a gang of white male students punched a young black woman on campus and used racial slurs to describe Barack Obama.

"There is no question that when people lose their jobs and make less or no money they look for someone to blame, and sometimes they resort to violence," warned Steve Brill, a New York defense attorney who has worked on numerous hate crime cases in his career."

In a recent New York Times editorial dated November 11, 2008, the writer points out that, "The atmosphere began to darken when Republican politicians decided a few years ago to exploit immigration as a wedge issue. According to the editorial, now that the economy is in free fall, the possibility of scapegoating is deepening Hispanic anxiety.

"Furthermore, "Brill emphasized, "If an individual is of the personal belief that his or her economic plight is due to another race or nationality, as irrational and mistaken as that is, you have the precondition for an escalation in the incidence of hate crimes."

The police in Patchogue, NY, said the seven teenage boys allegedly involved in the murder of Marcello Lucero had been driving around town looking for Latinos to beat up. According to The New York Times, a prosecutor at the arraignment quoted one of the young men as having said,"Let's go find some Mexicans."

In his experience, Brill said while there are no clear statistics on the subject, it is safe to say that most minorities end up on the losing end of hate-based criminal behavior.

"Over the years that I've been involved in criminal defense work in New York," he said, "I've learned that when a hate crime is charged, it is not always clear that race is the motivation for the attack. There is rarely a cut and dried motivation for a race-based attack. Most of the time when a non-race-related event occurs, like one that precipitates a fight, race creeps in during the course of that aggression, particularly in times when the preconditions for hate crime behavior exist."

Brill noted that while most hate crimes involve groups of individuals as the alleged attackers, in most instances not all of the members of the group are equally culpable.

"As a defense attorney in New York," he said, "I always make sure that the District Attorney doesn't automatically prosecute the case as a hate crime merely because a group had a fight and one member of the group felt emboldened to make racist comments. Others members of the group should not bear the same criminal responsibility as the instigator, or leader, of the group."

Brill points out that there is a fine line separating ones very strong political beliefs and committing crimes motivated by race.

"Simply because other members of the group are present when some of the group use racial epithets," Brill said, "does not mean that those racial epithets should be attributable to all.

"From the point of view of the alleged attackers in the Patchogue train station incident" he added, "the more evidence their lawyer is able to show the District Attorney, or the jury, that the crime was not about hate or racism, the degree of the crime and the underlying sentences could certainly be lessened.

Brill explained that the "degree" of the crime exposes defendants to less, or more severe, sentencing guidelines. The example he used is Assault in the Third Degree, an A misdemeanor, punishable by a maximum of one year in a city jail, like Rikers. On the other hand, if the incident is charged as a hate crime he said it becomes an E felony punishable by a maximum of 1-½ years-to-4 years in an upstate prison.

"In order for members other than the leader of the gang to be held criminally responsible for a hate crime," he said, "the prosecutor must prove that other gang members shared the same criminal intent as the main actors of the gang. Standing around and watching should not lead to criminal liability unless other gang members were acting in a way that furthered the crime."

Stronger gang members always lead the followers, he emphasized. "It must be remembered," Brill said, "that criminal law attempts to punish criminal intent. If less vocal followers of the group do not bear the same criminal intent as the leader, then their crime should not rise to the level of a hate crime. Once the case is no longer tried as a hate crime," Brill said, "the defendant is not exposed to enhanced sentences under the hate crime statutes."

Steven Brill, a partner in the New York law firm of Sullivan & Brill, tried the first ever "assault as a hate crime" case in Queens, New York.

"My client and his cousin, two Puerto Rican teenagers," he said, "had a dispute with two African American teenagers. During the course of the fight, the "N" word was used. In young urban society, that word has non-racist connotations. In fact, very often kids refer to each other more by that word than by their own names. In light of that fact, I was able to argue that in spite of the use of the N word, my client was not motivated in any way by racism. For better or for worse, the N word in certain circumstances can possess non-hateful and non-racist connotations. I did for my client what any defense attorney should do in these cases – make every word that sounds racist, non-hateful and non-racist.

"When you strip away the unintended racial overtones of words," he concluded, "it leads to doubt as to whether a defendant's motivation legally supports a hate crime. All that was left then,in my case, was a fight among teenagers, which is clearly a better place to be for my client than to be charged with a hate crime."

He Also Has Advice for Joba Chamberlain's Attorney

New York Defense Lawyer says courts abuse celebrities' rights NEW YORK, NY (Nov. 19) – If Yankee pitcher Joba Chamberlain is convicted of driving while under the influence, a Nebraska court, in addition to enforcing the mandatory jail sentence of anywhere from 7-to-60 days, could revoke his license, making it impossible for the star right hander to drive himself to the opening game against the Cleveland Indians on April 16, 2009, in the new Yankee Stadium, according to Steve Brill, a New York City defense attorney who has handled all types of DWI cases.

"The courts could also mandate an alcohol treatment program for Chamberlain," Brill said, "requiring him to attend classes. While unlikely, the classes could potentially interfere with his place in the Yankee lineup for part, or all, of the season."

The 23-year-old starter, with a wholesome reputation, was arrested near his hometown of Lincoln, Nebraska on October 18 for driving under the influence of alcohol, the Nebraska state patrol said.

"If I was defending him," Brill explained, "I would make sure that Joba is not treated worse than anyone else in similar circumstances, which can happen, if some aggressive prosecutor decides to use him as an example."

Brill said he knows that as a public figure there is a tremendous amount of pressure on Chamberlain to speak.

"I would make sure he understands," Brill warned, "that anything he says will most likely end up hurting his case."

Brill explained that most of the time DWI cases are resolved with negotiations between defense attorneys and District Attorneys.

"But celebrity is always a sensitive situation," he said. "The goal of the defense is to convince the DA and the Court that a famous defendant must be treated as fairly as anyone else. In DWI cases especially, the DA has the tendency to throw the book at celebrities in order to use their celebrity to send a message to society."

Brill said that should the evidence confirm that Joba was legally intoxicated, he would advise Chamberlain's lawyer to focus heavily on minimizing any sanctions, or penalties, and to advise Chamberlain to remain silent and not make any statements to the press.

He said the fact that an open bottle of booze was found on the front seat of his car will make his lawyer's job that much harder and the DA's job that much easier.

"The open bottle," Brill said, "is independent evidence that the person was actually drinking while driving, which makes it hard to argue that the person was not driving in an impaired or intoxicated condition."

Brill said that when Chamberlain goes before the Nebraska court in December his lawyer's top priority should be to keep the first time offender out of jail.

"At the same time," he said, "his lawyer should fight to keep Chamberlain's criminal and driving records clean, help him maintain a valid drivers license, pay only minimum fines and help keep him out of alcohol treatment, unless the facts of the case make it clear that an intervention program would be in his client's best interest."

Brill advises anyone who is arrested on a DWI charge – celebrity or otherwise -- to seek legal advice.

"There is a significant need," Brill urged, "to have a good lawyer who knows the law and procedures as it pertains to DWI crimes."

He said that while some sentences are mandatory, there is a wide range of guidelines within those mandatory sentences.

"A license suspension is mandatory," he explained, "but there is flexibility in the length of time of the suspension. The same can be said for the fine."

Brill said that a good lawyer can make the difference between a client sustaining a criminal record and no criminal record; between an alcohol program and no alcohol program; between community service and no community service; between a seized vehicle and the release of that vehicle; between having driving privileges and no privileges.

"DWI laws are strict and getting stricter in every state," Brill said. "Even in his home state, where he is something of a hero, Chamberlain could conceivably have license problems and run the risk of sustaining a criminal record for life. A lot will depend on how his attorney handles the case."

Brill pointed to an example of one client of his New York defense law firm, Sullivan & Brill, who was stopped for driving erratically.

"In police paperwork," Brill explained, "the driver was alleged to have all of the characteristics of being drunk – slurred speech, watery eyes, alcohol on his breath. The driver was taken to the precinct and asked to submit to a breathalyzer test. In New York the NYPD videotapes breath and sobriety tests. After pressuring the DA, we got a hold of the videotape and saw that our client looked and acted sober. He was steady and in control. His speech sounded normal and he appeared to understand what was going on. Despite what the arresting officer allegedly observed, the videotape saved the day for the client. No jury could be convinced beyond a reasonable doubt that our client was intoxicated. The DA was forced to reduce the charges and we negotiated a deal that involved very minimal sanctions."