Archive for February, 2012
The Second Circuit Court of Appeals unanimously upheld sanctions against one attorney who called for the judges hearing their appeal to recuse themselves. The attorneys, representing a 9/11 victim, sued members of the Bush administration, arguing that a bomb explosion, and not an aircraft impact, caused damage to the Pentagon on September 11, 2011, injuring the plaintiff. Judge Denny Chin, of the Southern District of New York, dismissed the plaintiff’s case, characterizing the complaint as “cynical delusion and fantasy.”
The plaintiff’s attorneys appealed to the Second Circuit, which upheld the dismissal. The attorneys subsequently filed a motion requesting that the appellate judges who upheld the dismissal recuse themselves, arguing that the judges had a “severe bias” against them and were motived by personal emotions, precluded them from ruling reasonably.
That same panel of judges ruled that the attorneys “acted in bad faith in demanding the recusal of the three panel members and any like-minded colleagues” and ordered sanctions of $15,000, in addition to double what the government spent to defend the claims, against one of the attorneys. The attorney has 30 days to comply with the court’s order
Greg Kelly, the son of NYPD Commissioner Ray Kelly and a television anchor for Good Day New York, will not be charged with the rape of a 28 year old woman after an investigation by the Manhattan District Attorney’s Office. The NYPD elected to have the DA’s office, led by Cyrus Vance, investigate the rape allegations to avoid any conflicts of interest from the commissioner.
As reported by the Daily Mail, in a letter to Kelly’s attorney, Martha Bashford, the chief of the sex crimes unit in the Manhattan DA’s office, wrote,” After reviewing all of the evidence, we have determined that the facts established during our investigation do not fit the definitions of sexual assault crimes under New York criminal law.”
The two-week long investigation included interviews of numerous witnesses, including the accuser and Kelly, and analyses of receipts, security logs, phone records, and text messages. As a result of this investigation, “criminal charges are not appropriate,” wrote Bashford.
“I am thankful that the investigation established what I’ve known all along, that I am innocent of the allegations that were waged against me,” Kelly told the Daily Mail.
Proposition 8, the voter-approved referendum banning gay marriage in California, was recently ruled to be unconstitutional by the Ninth Circuit Court of Appeals. Proposition 8 was passed in California in 2008 with 52% of the vote.
In 2010, Federal District Judge Vaughn R. Walker ruled that preventing same-sex couples from marrying violates both the Due Process and Equal Protections clauses of the US Constitution. While the Ninth Circuit upheld Judge Walker’s decision, it framed the legal question more narrowly, focusing not on the right for same-sex couples to marry, but on the treatment of domestic partnerships. The Ninth Circuit ruled that the disparate treatment of domestic partners in California, when compared with married couples, violates the Equal Protections clause.
Writing for the majority, Judge Stephen R. Reinhart wrote, “All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage’…. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”
However, a stay imposed by Judge Walker preventing same-sex couples remains in effect for two weeks following the ruling, preventing same-sex marriages from taking place immediately in California. The final question regarding whether same-sex couples have a Constitutional right to marry in California is not likely to be answered until the Supreme Court rules on an appeal from the Ninth Circuit’s ruling, or declines to entertain an appeal, which would be viewed by many as a tacit endorsement of this decision.
New York Attorney General Eric Schneiderman filed a lawsuit in a Brooklyn Supreme Court alleging that banking giants Bank of America, JP Morgan Chase, and Wells Fargo created and maintained a mortgage database and then used that information to institute defective foreclosure proceedings against homeowners. Mr. Schneiderman alleges that the banks created this private mortgage electronic registry system, or MERS, as a tool to make it nearly impossible for homeowners to track which bank or entity in fact owned the home or issued the mortgage for the home in question. In essence, the complaint alleges that large banks created a private system with inaccurate records to more easily conduct fraudulent foreclosure proceedings against homeowners, while limiting the ability of those homeowners to defend themselves against foreclosure.
“The banks created the MERS system as an end-run around the property recording system, to facilitate the rapid securitization and sale of mortgages,” Schneiderman said, through his press office. “Once the mortgages went sour, these same banks brought foreclosure proceedings en masse based on deceptive and fraudulent court submissions, seeking to take homes away from people with little regard for basic legal requirements or the rule of law.”
The lawsuit states that “by creating this bizarre and complex end-around of the traditional public recording system, banks achieved their primary goal — over 70 million mortgage loans, including millions of subprime loans, have been registered in the MERS system and the industry has saved more than $2 billion in recording fees.”
The lawsuit seeks an end to this practice, along with civil damages and payments to victimized homeowners.
In the State of New York, minors as young as 16 years of age are prosecuted in adult criminal court, rather than in family court, for non-violent offenses, including vandalism and shoplifting. However, as the New York Law Journal reports, courts across the state have begun to implement a pilot program for minor offenders that emphasizes rehabilitation and skill building, including job training and drug counseling, over punishment. Termed “Adolescent Diversion Parts,” this pilot program will allow non-violent offenders to receive lighter sentences in conjunction with rehabilitation programs, leading to a dismissal of charges following attendance of court-mandated programs, for example, rather than community service and a criminal record. Prosecutors and defense attorneys alike are optimistic about this new measure, with the understanding that a heavy hand with adolescent offenders leads to increased rates of recidivism, when additional support and opportunities for growth are often needed to correct problem behavior and prevent crime. Courts across the state, including in Nassau County and in each of the five boroughs, have adopted this pilot program so far. Johnathan Lippman, the Chief Judge of the New York State Court of Appeals, said in a speech last year, as reported by the New York Law Journal, “We need an approach that is based on the best interest of the child and rehabilitation rather than an approach based on punishment and incarceration.” In addition to the state-wide establishment of this new approach to adolescent offenders, Judge Lippman has also called for raising the age of criminal responsibility to 18.