Just a quick note – and the video above.  One of our attorneys was interviewed (very briefly) by Al Vaughters of News 4 WIVB TV in Buffalo.  The subject was something dear to all our hearts: air fresheners and, more generally, things that can obstruct a driver’s view and thereby buy that driver a ticket.  We’ve addressed this, and related topics, in our own home-made video which can be found here, as well as another entry about window stickers (and, unbeknownst to the vast majority of drivers, their illegality).

And a – very quick – note within a note: Mr. Vaughters points out some interesting and surprising things about common air fresheners – things that have nothing to do with the law.  Suffice it to say that what you don’t know can damage your dashboard and upholstery.

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A recent New York Times piece bears the pithy headline: ‘How Much Is Too Much Marijuana to Drive? Lawmakers Wonder’. We wondered too. We took a look at the article, and at the American Automobile Association’s new study, cited by the Times. It’s posted on AAA’s website, along with a lot of other interesting information on this topic. The study’s called ‘An Evaluation of Data from Drivers Arrested for Driving Under the Influence in Relation to Per se Limits for Cannabis’ and its answer (on Page 3 of the report) to the question posed by the Times, “how much is too much?” – that “a quantitative threshold for per se laws for THC following cannabis use cannot be scientifically supported,” – boils down to “it depends.”

Meanwhile, at least three states, according to the study (on Pages 2 and 25) have put per se limits on the amount of THC you can have in your system and drive legally. ‘Per se‘ is latin for ‘in and of itself’. If you adopt a per se rule, you’re saying that any other fact is irrelevant. “I don’t care whether you were impaired or not,” the rule says, “I’m not punishing you for being impaired; I’m punishing you for driving with x amount of a substance in your system!”

The authors of AAA’s study concluded, however, that if the purpose of per se statutes is to deter impaired driving, they don’t do a very good job. Because of the nature of THC (‘THC’ is short for ‘delta-9-tetrahydrocannabinol’, and it’s what winds up in your system after you use marihuana), it has different effects on different metabolisms; in particular, you build up a tolerance to it over time. If you set an arbitrary limit on the amount of THC a driver can have in his or her system, you essentially make it legal per se to drive with less than that in your system. The authors fear this means that a good many people who are are impaired will get away with driving in that condition, because they have a low tolerance, but don’t meet the per se standard. Contrariwise, drivers who are seasoned marihuana users, and therefore can have a higher level of THC in their systems without being impaired, will be prosecuted, impaired or not.

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“What’s in a name? That which we call a rose By any other name would smell as sweet.”

Romeo and Juliet (II, ii, 1-2)

What’s in a name? ‘Lèse-Majesté’ is an attractive name. It’s French, derived from the latin laesa majestas, which Black’s Law Dictionary (5th Edition) defines as ‘injured majesty’; this term covers “any offense against the king’s person or dignity.” It can be a synonym for high treason.

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We thought we should expand a bit on an entry we published some time ago about fake IDs and the consequences of using them.

Be Polite!

The consequences, we noted, may include charges ranging from mere infractions to felonies. Don’t forget that you’re actually committing a class D felony when you carry one of these things. The person issuing your citation knows that, so if you do make the mistake of using a forged license, don’t make the additional mistake of being rude to the arresting officer – we’ve heard from at least one person in a position to know that when it comes to charging, politeness counts.

Administrative Punishment for Uncharged Offenses

In that entry, we also pointed out that there will be inevitable administrative repercussions, including the suspension or revocation of your real license.

Among other things, we said that DMV doesn’t need a conviction before it takes action against you. All the law requires is a violation of the Vehicle and Traffic Law, so a mere charge is enough to trigger an administrative response.

And that’s true, as far as it goes, but DMV may take action against you, we find, even without a charge. That’s worth restating: If you use a fake ID – and if DMV can figure out who you are – your license (or, if you’re from out-of-state, your privilege to drive in New York) can be revoked without a charge ever being brought.

We’ve had more than one report confirming this.
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Goya Dunce Cap.jpgHow do you stay on the right side of the law? Having some idea of what the law is might be a good start.

Not knowing the law won’t get you anywhere – as anyone who’s been pulled over for having a hanging air freshener or rear-window sticker knows – because “ignorance of the law is no excuse.” Courts have always been skeptical of a defendant who denies knowing illegal conduct was illegal, and this legal concept was first recorded (in the Latin maxim “ignorantia legis non excusat“) about a thousand years ago.

The principle – less pithily put, perhaps – is embodied in Section 15.20 of New York’s Penal Law, which says that

A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense . . . .

But if ignorance of the law is no excuse, how do you avoid ignorance: how do you figure out what the law is?

Some things don’t take a lot of thought. For instance, you could study Section 160.00 of the Penal Law, and the sections immediately following, which define robbery as, essentially, a ‘larceny’ committed using force or the threat of force. You might then take a side trip to Section 155.05 to find out what ‘larceny’ is (larceny is a medieval French word for ‘stealing’). And if you’ve done all that you should, to be really thorough, follow up with an examination of the court reporters to make sure you haven’t missed anything a judge has said on the subject. But most people don’t have to. They just know they’re not supposed to hit strangers in the street and take their money!

The rules that govern our lives aren’t always that simple, though, as we’ll see below.
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Jonathan Lippman, Chief Judge of New York’s Court of Appeals, got nationwide press with his recent address on the state of New York’s judiciary. He proposed, in that address, to increase the role of the judge in the grand jury process, at least in cases where civilians have been killed by police officers.

The issue of homicide by police officers has been on a lot of minds since the killings, last year, of Michael Brown in Ferguson, Missouri, and Eric Garner, here in New York. In both cases, grand juries failed to indict the officers involved and – given the opinion of a former Chief Judge that a competent district attorney could get a grand jury to “indict a ham sandwich” – it was widely assumed that prosecutors had rigged the proceedings. (For instance, a British publication, The Independent, published an article under the headline “A grand jury could ‘indict a ham sandwich’, but apparently not a white police officer.”)

To quote Judge Lippman (at page 2 of the State of the Judiciary address):

Of immediate concern are the perceptions of some that prosecutors’ offices, which work so closely with the police as they must and should, are unable to objectively present to the grand jury cases arising out of police-civilian encounters.

To counter this ‘perception’, Judge Lippman recommended that in cases involving police officers accused of felony assault or homicide against a civilian,

a judge be physically present in the grand jury room to preside over the matter. The judge would be present to provide legal rulings, ask questions of witnesses, decide along with the grand jurors whether additional witnesses should be called to testify, preclude inadmissible evidence or improper questions, and provide final legal instructions before the grand jury deliberates.

In order that justice not only be done, but ‘be seen to be done‘, the Chief Judge also proposed making certain grand jury evidence public after the proceeding is concluded.

The state’s prosecutors seem to have been stung by Judge Lippman’s remarks. A Times Union article quotes Robert M. Carney, the District Attorney of Schenectady County, as saying that “I haven’t talked to any of my colleagues, but I can’t imagine any of them are going to look at that say that it is a good idea” [sic].

According to Mr. Carney, “it would violate the separation of powers in the legal system to have judges so involved in the grand jury process that they order witnesses.” He points out that “they’re not prosecutors.”

This is a very interesting point of view, but represents a fundamental misconception of the role of the grand jury – and of the role the prosecutor should have in it.
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The ‘Dread Pirate Roberts’ – Ross Ulbricht, to you and me and the FBI – has been convicted of several crimes in connection with Silk Road, the ‘black market’ website described in the video above. We don’t intend to get too far into that case, but a statement by the defense, as quoted in the Daily Beast got our attention: “the government equates the desire for privacy… with criminal intent.”

New York’s Court of Appeals would seem to agree with the government, there. The court got a good deal of ink last year when, in People v. Golb, it struck down as unconstitutionally vague and overbroad a law that forbade communicating with someone “in a manner likely to cause annoyance or alarm.” Among journalists, the takeaway message seemed to be that a great blow had been struck for liberty and free speech.The New York Times, for instance, published a piece under the title ‘Top Court Champions Freedom to Annoy‘. And New York Magazine – with more feeling than accuracy – published an article about the case, entitled ‘Annoying Someone Is No Longer a Felony in New York‘. (Aggravated harassment in the second degree, as defined in subdivision 1 of Penal Law Section 240.30 was a misdemeanor, not a felony).

Where the court closes one door, however, it often opens another. In upholding the defendant’s convictions for criminal impersonation and forgery, the Court of Appeals in Golb made it clear to prosecutors just how easy it can be to charge someone with those crimes.

And it’s all too easy, as noted in Judge Lippmann’s thoughtful dissent from this part of the majority’s decision. It goes so far, in fact, that it’s arguably an unconstitutional attack on free speech.
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Caesar Decides.jpgAs sources all over the country have been reporting, actor Mark Wahlberg is seeking a pardon for a crime committed in his youth. Wahlberg was convicted in (and seeks clemency from) the Commonwealth of Massachusetts, but the coverage piqued our interest, and we thought we’d take a brief look this week at pardons and the whole issue of executive clemency and then see how it works in New York.

Executive clemency has a long history, as noted in a very interesting essay in the London Review of Books. Prior to the American revolution, the British Crown had the power to grant reprieves, commutations and pardons, and after the revolution these powers were appropriated by US jurisdictions (and the federal government). According to Ex Parte Wells, a venerable Supreme Court case discussed in the essay, this was because

[w]ithout such a power of clemency, to be exercised by some department or functionary of a government, it would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy.

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“What makes you think she’s a witch?”
“She turned me into a newt!”
“A newt?”
“I got better.”
“Burn her anyway!”

-Monty Python and the Holy Grail

Our last entry was about the writ of habeas corpus, used in the US primarily to get federal review of state actions, and the “narrowing of the federal courthouse door” caused by AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996).

Specifically, we looked at Lopez v. Smith, a US Supreme Court decision that came down in October of this year. Mr. Smith had complained that a state court ruling in his case violated the US Constitution. The US Court of Appeals for the Ninth Circuit agreed with Mr. Smith, but based its decision on Ninth Circuit case law. It thereby failed, in the opinion of the Supreme Court, to show that the state action violated 28 USC 2254(d)(1) (an AEDPA provision) by flouting “clearly established Federal law, as determined by the Supreme Court . . .”

This week, we thought we’d look at an even more recent appellate opinion suggesting that the doorway – though narrowed – hasn’t been walled up altogether. The case is Woodfox v. Cain. That’s Albert Woodfox, an inmate of the Louisiana State Penitentiary, against Burl Cain, its warden (you’ll recall that a habeas corpus proceeding is very primal; you’re protesting your illegal imprisonment).

The US Court of Appeals for the Fifth Circuit decided the case on November 20th, focusing on an AEDPA provision that was little more than a footnote in Lopez v. Smith: 28 USC 2254(d)(2). This allows a habeas petition to be granted where a state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Woodfox involved an alleged constitutional infirmity in the Louisiana grand jury system. As noted in a prior Supreme Court case, (Campbell v. Louisiana, cited in Woodfox) grand jury foremen in Louisiana were, in essence, extra members of the grand jury, personally chosen by the judge. African Americans were statistically under-represented when it came to being chosen as grand jury foremen. The US district court had ruled that

the state court was not entitled to AEDPA deference; that Woodfox had successfully made out a prima facie case of discrimination in the selection of the grand jury foreperson; and that the State of Louisiana, acting through Respondent- Appellant Warden Burl Cain, had failed to rebut the prima facie case.

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“We have found a witch! (A witch! a witch!) Burn her burn her!”

Monty Python and the Holy Grail

The Writ of Habeas Corpus is a way to challenge illegal imprisonment. In fact, it’s been the primary way to do that since King John signed the Magna Carta in 1215.

It’s such an established part of our jurisprudence that the US Constitution doesn’t even pretend to grant the right. All the Constitution says, (in Article I, Section 9), is that habeas corpus can’t be suspended except “in cases of rebellion or invasion.” In other words, habeas corpus is a given.

But there’s always a catch, and the catch here is that the Constitution says nothing about imposing crippling limitations on the vehicles through which habeas corpus petitions must be brought.

By way of illustration, we thought we’d look at a recent per curiam decision of the US Supreme Court denying federal habeas corpus relief to a California inmate.

In Raul Lopez, Warden v. Marvin Vernis Smith, the Supreme Court overruled a federal district court and the Ninth Circuit Court of Appeals, which had granted habeas corpus relief to the inmate, Marvin Vernis Smith. (the term ‘per curiam‘, by the way, is Latin for ‘by the court’; it implies that the court is speaking with one voice)

Mr. Smith had been convicted, after a jury trial in a California court, of first degree murder. He was given a sentence of 25 years to life. All of Smith’s state court appeals had been denied (an appellate court first overturned the conviction, then affirmed it – having been ordered by the California Supreme Court to think again).

So Mr. Smith sought habeas corpus relief in the federal courts. This is a time-honored procedure, as we’ve said: once your state court appeals run out, you can apply to the federal courts. To succeed in a federal court, however, you have to show that the state courts have denied you a right guaranteed under the US Constitution. Here, Mr. Smith argued that his right to due process and his sixth-amendment right “to be informed of the nature and cause of the accusation” had been violated.
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