Unlicensed Federal Prosecutor Doesn’t Doom Case, DOJ Tells Supreme Court

A federal prosecutor overseeing criminal cases on a suspended law license does not strip a district court judge of jurisdiction over a trial, the U.S. Justice Department told the U.S. Supreme Court.

Criminal defendants do not have “‘a constitutional right to a properly licensed prosecutor,’” U.S. Solicitor General Noel Francisco, quoting a North Carolina district court judge, told the justices in the case Mendez v. United States.

Lawyers for Gilbert Mendez argue the U.S. District Court for the Northern District of Ohio and the U.S. Court of Appeals for the Sixth Circuit were wrong to deny him a certificate of appealability on his claim that his 2005 guilty plea to cocaine charges should be set aside because the law license of his federal prosecutor had been administratively suspended at the time of the indictment. U.S. District Judge Donald Nugent of the Northern District of Ohio ruled against Mendez.

The justices are scheduled Thursday to review the case during the court’s private conference.

The Mendez case is one of several challenges—and perhaps the first to reach the Supreme Court—by criminal defendants whose indictments or trials were handled by former assistant U.S. attorney David Folmar Jr. Folmar was ineligible to practice in federal court from 2003 until 2009. His license had been suspended for failure to keep current with the continuing legal education requirements of the North Carolina bar. (The state bar still says Folmar’s license is suspended.)

During those six years, Folmar was engaged in the practice of law in the Northern District of Ohio, the Eastern and Middle Districts of North Carolina and the Eastern District of Tennessee. In disciplinary action in June 2010, the North Carolina bar found that Folmar had concealed his suspension from his Justice Department supervisors and falsely held himself out to the court and public as qualified to practice law. The North Carolina bar also found Folmar was suffering from personal and family problems.

The bar noted that Folmar enjoyed a professional reputation of honesty. The bar suspended his license for five years, with the opportunity to apply after 18 months for a stay of the remaining time if he complied with a list of ongoing requirements and restrictions.

Most of the challenges stemming from Folmar’s prosecutions appear to have failed. In the Supreme Court, Mendez’s counsel, Sarah Thomas Kovoor of Ford, Gold, Kovoor & Simon in Warren, Ohio, urges the justices to answer “whether the United States’ failure to be represented by a validly licensed attorney deprives the district court of jurisdiction.”

When Folmar signed Mendez’s indictment, Kovoor said, he committed a fraud upon the court and fraudulently induced Mendez to plead guilty. She argued in her petition that the misrepresentation violated Mendez’s due process rights and that the Justice Department’s failure to inform the defense of Folmar’s status and the court’s resulting lack of jurisdiction—both exculpatory information—violated his rights under Brady v. Maryland.

“This problem is not mitigated, but indeed is only aggravated, by the Sixth Circuit’s astonishing statement that any person is ‘authorized’ to represent the United States if that person is merely ‘assigned’ to do so by officials within the Department of Justice,” Kovoor said. If left undisturbed, she adds, that ruling means, for example, “that any unlicensed paralegal or law clerk employed could be ‘assigned’ to represent the government in litigation.”

In the government’s response, Francisco said Folmar didn’t sign the Mendez indictment or the superseding indictment. They were signed by then-U.S. Attorney Gregory White, according to Francisco. Folmar, assigned to prosecute the case, did sign the plea agreement with Mendez, defense counsel and the trial judge.

“This court has long held ‘that defects in an indictment do not deprive a court of its power to adjudicate a case,’” Francisco wrote. The prosecution was authorized by a “proper representative of the government,” he said, and although unlicensed, Folmar was “assigned” by his superiors to work on the case.

Mendez was denied relief by the district court because he failed to show he was prejudiced in any way by Folmar’s suspended license during the prosecution, Francisco told the justices.

Mendez failed to raise a due process claim in the lower courts, “and neither the court of appeals or the district court addressed a claim based on the appearance of impropriety,” according to Francisco. Like that claim, his Brady claim is not properly before the high court because he never raised it below, writes the solicitor general.

Kovoor told The National Law Journal that the government’s reliance on the U.S. attorney signing the indictments “makes absolutely no sense to me.”

Even if there were a factual error in the petition, she said, Folmar was the person who investigated the case, spoke to police officers, made the decision on whether there was sufficient evidence to go forward to the grand jury ,and was the “unauthorized person” in the grand jury room.

Kovoor also said Folmar, knowing his license was suspended, would want to keep that fact hidden, which provided a questionable motive for his role in the plea negotiations.

via Law.com – Newswire https://www.law.com/

May 8, 2019 at 03:30PM

Unless you want your payment card data skimmed, avoid these commerce sites

More than 100 e-commerce sites around the world are infected with malicious code designed to surreptitiously skim payment card data from visitors after they make purchases, researchers reported on Wednesday. Among those infected are US-based websites that sell dental equipment, baby merchandise, and mountain bikes.

In total, researchers with China-based Netlab 360 found 105 websites that executed card-skimming JavaScript hosted on the malicious domain magento-analytics[.]com. While the domain returns a 403 error to browsers that try to visit it, a host of magento-analytics[.]com URLs host code that’s designed to extract the name, number, expiration date, and CVV of payment cards that are used to make purchases. The e-commerce sites are infected when the attackers add links that cause the malicious JavaScript to be executed.

One of the infected sites identified by Netlab 360 is ilybean[.]com, an Orlando, Florida, business that sells baby beanies. As the screenshot below shows, the site executes JavaScript hosted at magento-analytics[.]com.

A quick review of the JavaScript, which is located at https://magento-analytics[.]com/5c3b53f75a8cb.js and partially shown to the right, shows a sprawling piece of code. While it’s hard for non-coders to fully parse, it includes tell-tale variable names, including verisign_cc_number, shipping:firstname, shipping:lastname, verisign_expiration, verisign_expiration_yr, and verisign_cc_cid. Functions suggest it collects the payment card data, and base 64 encodes it and siphons it away.

“This isn’t a new campaign, as the domain has been around for several months already, but it is one of the more active ones, according to our telemetry stats,” Jérôme Segura, head of threat intelligence at security provider Malwarebytes, told Ars. “We block an average of 100 connections to this domain daily from Malwarebytes users that visit an online store that’s been hacked.”

Segura pointed to this search query that showed 203 sites had been affected by the campaign. It appeared that some of the sites listed were no longer executing code hosted on magento-analytics[.]com, most likely because they had been disinfected after being indexed.

Most of the compromises reported by Netlab 360 appear to be hitting niche sites, but at least six of them are part of the Alexa top 1 million. They include:

    • mitsosa[.]com
    • alkoholeswiata[.]com
    • spieltraum-shop[.]de
    • ilybean[.]com
    • mtbsale[.]com
    • ucc-bd[.]com

Ars confirmed that all six of the sites were calling JavaScript hosted on magento-analytics[.]com at the time this post was being reported. Ars contacted each of the six sites to seek comment for this post but hadn’t received a response from any of them at the time this post was going live.

The compromises reported by Netlab 360 are part of a rash of infections that came to light starting late last year affecting, among others, sites for British Airways, Newegg, and seven other businesses with more than 500,000 collective visitors per month. In one case, a single site was infected by two skimming groups that competed against each other. The compromises were still going strong as of two months ago.

Historical IP and whois records show that magento-analytics[.]com has no relation to Megento, the e-commerce CMS that Adobe acquired last year. Attackers likely picked the name to confuse administrators of infected sites.

The full list of sites in Netlab 360’s report is:

devantsporttowels[.]single site was infected by two skimming groupscom

There’s no easy way for people to know for sure if an e-commerce site they’re browsing is infected. Malwarebytes and many other endpoint security programs will block the best-known campaigns, but new ones pop up so often that these products can’t be expected to catch all of them. People should never use debit cards when making online purchases. Credit card users should be sure to check their statements each month for fraudulent charges. People may also want to consider using temporary cards that have small, fixed lines of credit.

via Ars Technica https://arstechnica.com

May 8, 2019 at 04:21PM

Denver First to Decriminalize Psychedelic Mushrooms

Denver voters narrowly approved a proposal to make their city the first in the nation to decriminalize psychedelic mushrooms, the Denver Post reports. If the unofficial result is certified May 16, police will treat enforcement of laws against possession of psilocybin mushrooms as their lowest priority, similar to the marijuana decriminalization policies that preceded Colorado’s trailblazing pot-legalization vote more than six years ago.

Efforts are afoot to get psilocybin-related measures on the ballot in Oregon and California in 2020. An earlier effort in California last year failed to qualify for the ballot. Psychedelic mushrooms still would remain illegal to buy, sell or possess, with the latter crime a felony that carries a potential punishment of up to a year in prison and a fine. But Initiative 301 backers hope to lower the risk users face of getting caught with mushrooms. Last fall, the U.S. Food and Drug Administration granted psilocybin “breakthrough therapy” designation for its potential to help with treatment-resistant depression, a status that speeds up the development and review process for a medicine containing the substance.

via The Crime Report http://bit.ly/2myW3Gx

May 9, 2019 at 08:41AM

FL Prison Whistleblowers Tell of Racism, Abuse, Coverups

The Santa Rosa Correctional Institution is a crucial backstop in the Florida prison system, responsible for some of the state’s most challenging inmates, but also some of its most vulnerable. But the Panhandle prison also has major problems on its own staff, according to whistleblowers. In interviews with the Florida Times-Union, a dozen former and current employees at Santa Rosa Correctional Institution described a culture of abuse, bullying, racism and administrative cover-ups in the mental health dorms. Officers selected inmates they had problems with for unsanctioned forms of punishment: to include physical violence or withholding their food to the point where prisoners lost considerable weight, employees said.

One former Panhandle prison employee said she filed a written complaint about a correctional officer’s racist behavior, then came into work several days later to another officer dangling a noose made of toilet paper in front of her. Another former employee said she walked in on a handcuffed inmate being beaten in the medical unit, surrounded by a group of officers. She was suspended one day after filing an incident report about it, and fired within two weeks. One former inmate, Ronald Thornton, was one week away from his release date, serving a four-year sentence for cocaine possession, when he says guards told him they had a going-away present for him — a severe beating, which he claims was retribution for his complaints about racist guards.

via The Crime Report http://bit.ly/2myW3Gx

May 9, 2019 at 08:41AM

Cops Celebrated A Copwatcher’s Arrest. They Had No Idea They Were Caught On Tape.

New York City just paid Jose LaSalle of the Copwatch Patrol Unit nearly $900,000 over claims of false arrest related to the 2016 incident, but his fight for justice is far from over.

At around 11 p.m. on Aug. 5, 2016, Jose LaSalle was brought into the NYPD’s Police Service Area 7 in the Bronx in handcuffs. Several officers noticed LaSalle, the city’s most well-known copwatcher, and celebrated his arrest.

“It’s a party! It’s a party! It’s a party! Hey!” one of the officers joyously sang.

When another officer excitedly told LaSalle that he was “a felony collar,” the room broke into applause and cries of “Got him!” and “We did it, guys!”

LaSalle, founder of the Copwatch Patrol Unit, was arrested on disorderly conduct charges. Later that night, officers claimed the walkie-talkie he used for copwatching was illegal and charged him with illegally possessing a radio device that transmits over police frequencies. But the officers were unaware that they were being recorded. Their celebrations and their attempts to falsely charge LaSalle would come back to haunt them.

Lawsuits settled, but LaSalle still seeking justice

In late March this year, the city and the NYPD agreed to pay LaSalle an $860,000 settlement after he accused the police of false arrest, imprisonment, and conspiracy. Also in March, he received $65,000 to settle a separate lawsuit against the department.

But LaSalle wants more than monetary settlements. At protests he held on April 3 outside Bronx District Attorney Darcel Clark’s office and Police Service Area 7, LaSalle said he wants the cops and prosecutors who he said tried to frame him held accountable. He and his lawyer are now considering taking their case to the Department of Justice.

“We gathered in front of the Bronx district attorney’s office to send her a message that she needs to indict these officers that have cost the city close to a million dollars and are still working, and are still doing the same things that they’ve been doing,” LaSalle told The Appeal. “And also, from there, we ended up marching to PSA 7 because we want to send them a message, too, that what they’re doing is standing behind criminals. These officers perjured themselves, and they committed a crime because they tried to set me up with felony charges.”

Bronx cops celebrate an arrest

LaSalle was part of a coalition of activists and families affected by gang raids who sought to push back against them. Just months before LaSalle was arrested, NYPD and myriad federal law enforcement agencies raided the homes of people living in the New York City Housing Authority’s Eastchester Gardens housing complex and made mass arrests. One hundred twenty people were indicted in federal court in what the Department of Justice lauded as “the largest gang takedown in New York City history.”

So LaSalle started paying extra attention to police in public housing during his routine copwatching. The night of the arrest, he was in NYCHA’s Patterson Houses in the Bronx. He began recording Sgt. Miguel Frias, Officer Felix Baez, and Officer Elvis F. Duran conducting stop-and-frisks on two young men. After the officers finished searching the men, they turned their attention toward LaSalle. “Y’all need to stop harassing people for no fucking reason, though,” LaSalle told the officers. The cops got angry at LaSalle for cursing at them.

“It’s my freedom of speech,” LaSalle responded. “I could say what the fuck I want to say. What you going to do? Show your true colors?” One of the officers then told LaSalle to “shut the fuck up” to which LaSalle responded “you shut the fuck up!” Then the cops handcuffed him.

The incident was caught on video.

In the patrol vehicle, LaSalle told the officers, “This is something that you’re going to have to answer to, believe me.”

They replied that they had “no problem” because it “doesn’t cost [them] anything.” LaSalle responded, “You’re right! It doesn’t cost you anything. It costs the fucking taxpayers money.”

When the officers brought him to the NYPD’s Police Service Area 7 in handcuffs, LaSalle noticed that it was in the middle of the shift change, so there were more than 20 officers present. That’s when the officers started celebrating.

“Oh, Jose LaSalle!” one officer yelled as other officers laughed.

“He told me to Google him. I didn’t believe him!” another one of the officers joked.

“Now for him, filming is a crime, right? All right,” LaSalle responded.

And then one of the officers sang: “It’s a party! It’s a party! It’s a party! Hey!”

The police searched LaSalle and removed his belongings from his pockets. They found the two-way radio that he used to communicate with Copwatch Patrol Unit members. LaSalle explained how he used his radio, but the officers insisted that it was a scanner transmitting on the NYPD’s frequency.

“This is illegal. You are now transmitting in our frequency,” one officer triumphantly told LaSalle as others cheered. “You are a collar, my man. You are a felony collar! You cannot transmit in our frequency. That is a FEL-O-NY!”

Loud applause broke out and several officers jokingly cheered, “Got him!”

A fleeting moment of freedom

Months before LaSalle’s arrest, someone taunted and threatened cops on the NYPD radio frequency. The media closely covered the story, so when LaSalle was arrested in August 2016, one officer told a fellow officer to “make sure you call operations, let them know, ’cause they’re looking for guys with this.” That officer also commented that LaSalle’s arrest was “a great collar, especially right now.” A month later, the police said they found the people who were actually responsible for using their radio frequency.

“I was in a cell all the way until 6 in the morning,” LaSalle told The Appeal. “Then they transferred me to the Bronx Central Booking, and I was there until about 9 at night when I was mysteriously released.”

As LaSalle waited to see a judge at Central Booking, he was told to go with an officer. LaSalle cautiously agreed, but the officer refused to answer when he asked, “Where are you taking me?” The officer took LaSalle to a back door, released him, told him he was free to go, and closed the door behind him. LaSalle was confused; he thought it was a set-up so the NYPD could claim he attempted to escape. He would later learn the NYPD had tried to charge him with disorderly conduct and illegally possessing a radio that could transmit over police frequencies, but the Bronx district attorney declined to prosecute.

When LaSalle realized that he was free, he went to Police Service Area 7 to retrieve his belongings.

“I went to pick up every single thing they took from me,” LaSalle told The Appeal. LaSalle then traveled to the Crown Diner on 161st Street in the Bronx to meet with friends doing jail support that night. “I ordered a deluxe cheeseburger with fries. Before the cheeseburger with fries got there, the police got there.” Deputy Inspector Jerry O’Sullivan, Lieutenant Eric Dym, Lieutenant Ramon Tejeda, and Sgt. Raymond Contreras then entered the diner to re-arrest LaSalle.

Shannon Jones, an activist with the abolitionist group Why Accountability, was with LaSalle in the diner that night. “This is really weird because this is your top brass of the precinct rolling up to speak to one guy,” Jones told The Appeal. “The cops basically form this perimeter around Jose and begin to get on their phones and you can hear them discuss the need to confiscate Jose’s technological equipment.”

In a video of LaSalle’s re-arrest, the officers can be seen asking him about the copwatching equipment he had when he was first arrested. After making some calls and talking among themselves, the cops decided to handcuff LaSalle. They told him he was accidentally released without seeing a judge, and took him back to Police Service Area 7 to give him a court date. LaSalle and his law

Bronx Cops Celebrated A Copwatcher’s Arrest. They Had No Idea They Were Caught On Tape.

yer later learned that once LaSalle was released, several top NYPD officials called Bronx DA Clark to inform her that one of her assistant DAs had made a mistake by declining to prosecute and that LaSalle needed to be re-arrested and have his charges reinstated.

Back at Police Service Area 7, officers asked LaSalle for the passcode to his phone. He refused. They took him back to Central Booking where he was eventually given a desk appearance ticket that didn’t even list his charges. He was again released without seeing a judge. When LaSalle went to collect his belongings for a second time, the police said his two phones, a video camera, his two-way radio, and a GoPro camera were being vouchered as evidence. Days later, on Aug. 16, LaSalle and other copwatchers held a rally outside NYPD headquarters to raise awareness of what happened.

Audio of arrests emerge

In January 2017, the Bronx DA’s office dropped all the charges against LaSalle, including illegal possession of a police radio, and sealed the case. Later that month, LaSalle and his lawyer, Jeffrey Emdin, went to pick up his belongings from the NYPD property clerk’s office in the Bronx. They were accompanied by the Bronx DA’s Public Integrity Bureau, including assistant DAs Gary Lee Heavner and Peter Kennedy, and Detective Investigator Peter Moro. LaSalle had Moro forensically examine the devices. The meeting was recorded on video, and LaSalle discovered missing memory cards from his cameras. He also found out through an app installed on his phones that cops tried to unlock at least one. (The app takes a photo when someone attempts to unlock a phone with an incorrect passcode and sends an email alert to its owner along with a photo and even a few seconds of audio.) LaSalle showed investigators that on the night of his Aug. 6, 2016, re-arrest he received three messages indicating that someone had tried to unlock his phone. Another app alert captured a blurry picture and audio of someone saying, “I’m going to shut this off so it’s not on.”

A few weeks later, LaSalle retrieved the remainder of his belongings and realized that one of his phones saved audio recordings of the first of the two arrests. It captured everything, including the police officers celebrating and their discussion of the felony against him.

“When we got the audio tape back and we’re listening to their conversation, you could hear them trying to figure out a felony to charge him with,” Emdin told The Appeal. “Then, there’s even some conversation, and they’re going to say it was joking but I submit that it was tongue-in-cheek joking, of ‘Oh, maybe we can slip the ADA $800 and stick him with a gun charge.’”

The audio recording also captures officers saying they hoped to find weapons like pepper spray or a Taser on him. And officers Duran, Frias, and Baez were recorded reading one of LaSalle’s fliers and mocking the statistics on the number of people killed by police every year. While discussing charging LaSalle with “obstruction of governmental administration” (for recording their stop-and-frisks), Duran said they “could charge him with it, but the DA is going to say that he didn’t come into physical contact with us.” The audio also caught Baez admitting that LaSalle was “15-20 feet away” and therefore not interfering with the officers when he recorded them.

In early April 2017, LaSalle released some of the audio which he dubbed the “Copwatch Tapes” during a rally outside the NYPD’s headquarters. The Bronx DA’s office told NY1 it was investigating the officers’ actions during LaSalle’s arrests, and NYPD Commissioner James O’Neill said, “I haven’t heard the audios yet. If Mr. LaSalle has an allegation he should come forward with it so we can investigate it.”

Later that month, LaSalle and other activists held a rally outside the Bronx DA’s office and crashed the Police Service Area  7 precinct council meeting to demand that the cops who falsely arrested him be indicted. But the office refused to prosecute the officers. The DA’s office did not respond to multiple requests for comment.

‘Something’s got to happen’

The $860,000 that LaSalle received in March over his arrests was a significant settlement for someone who wasn’t beaten or injured by the police. LaSalle said the city and the NYPD did not want to take the case to trial where high-ranking NYPD officers and even Bronx DA Clark would have been called as witnesses. “They didn’t want these officers on the stand to continue to perjure themselves or plead the Fifth Amendment because it would’ve been a big embarrassment to the NYPD,” LaSalle told The Appeal. “They didn’t want to put these officers through that. They didn’t want to put the Bronx DA, who would have to take the stand, which would’ve been crazy, [through that].”

Several of the officers involved in his case have cost the city more than $6 million in total, LaSalle said. According to the Legal Aid Society’s CAPstat database, officers Larry Nikunen, Frias, Baez, Duran, Dym, and Tejeda have all been named in past state and federal civil rights lawsuits, usually in cases involving false arrests and excessive force.

In fiscal year 2018, New York City paid $230 million in settlements in 3,745 lawsuits against the NYPD, according to an April 15 report by New York City Comptroller Scott Stringer’s office. Of the $230 million, approximately $108 million stemmed from allegations of police misconduct like false arrests and excessive force.

“I feel like it’s so easy for everybody to discount people that have been saying for years ‘They pinned this on me! They’re lying! This isn’t true! They violated me in these cells! They planted evidence!’ and all that falls on deaf ears because there’s no evidence. This was the best evidence ever of what happens in these precincts,” Kim Ortiz, an activist who is also a member of LaSalle’s Copwatch Patrol Unit, told The Appeal. “Imagine how many people that don’t have the reputation, the reach, and the resources that Jose LaSalle has. They get fucked, and there’s nobody there. There’s no technology on their phone to save them. They just get stuck in the system.”

On April 17, LaSalle finally got a copy of the city’s Civilian Complaint Review Board’s investigation into his case. LaSalle plans to take his case to state Attorney General Letitia James or even the Department of Justice, and he doesn’t plan on giving up until the cops who tried to set him up are finally held accountable.

“Something’s got to happen. Because I’m not going to stop until these officers are no longer on the job continuing to do these things to other people. So I

Bronx Cops Celebrated A Copwatcher’s Arrest. They Had No Idea They Were Caught On Tape.

’m going to keep fighting for that,” LaSalle told the Appeal. ”And I know it’s a long road ahead of me, but guess what? Thanks to the NYPD, I got a little bit of money to make a little more noise.”

via The Appeal https://theappeal.org

May 9, 2019 at 09:53AM

Nearly 60% of Young Lawyers Pondering Career Switch, Florida Bar Survey Finds

Michelle Suskauer, Florida Bar president and Dimond Kaplan & Rothstein attorney.

Young Florida attorneys are finding their legal careers fall short of the expectations they’d had of the profession.

A new study showed nearly one-third of fledgling lawyers would not apply for law school knowing what they now do about the field, many take little or no vacation, and 58% of respondents have considered changing careers, switching to a different firm or practice, and feel the legal work is becoming “less desirable.”

The data comes from a newly released survey by the Young Lawyers Division of the Florida Bar. Between Nov. 15, 2018, and Dec. 6, 2018, the group collected 1,967 responses from attorneys across the state over a six-month period, with input from psychologists.

Young Lawyers Division membership is open to attorneys who have been practicing for less than five years or are younger than 36. Division president Christian GeorgCourtesy photoe said the survey was designed to gauge the mental health and wellness of attorneys who had recently entered the workforce, to then fine tune programs and resources aimed at providing relief.

“The goal was to find out … what mental health issues are affecting our constituents and how people are dealing with it, either in healthy ways or not,” said George, managing partner of Akerman’s Jacksonville office,

Attorneys on the group’s health and wellness committee put together the survey, then a team of voluntary psychologists modified it, and a Florida Bar in-house statistician made edits and gave it back to the psychologists.

“We didn’t want to just throw a survey together that wasn’t looked at by actual professionals,” George said.

‘Tough Numbers’

It was worth the effort.

The survey also showed more than one-third of respondents said stress had caused them to leave a law office in the past, and more 25% reported they felt they are unable to balance their lives with their legal careers.

Almost one-third of those polled said time constraints kept them from taking more vacation time in 2018.

The questionnaire was released as part of the Young Lawyers Division and Florida Bar’s fifth annual “Health and Wellness Month for Florida Lawyers.”

The topic of mental health in the legal profession has become a subject of renewed focus in recent months, thanks to high-profile incidents. Last year, for instance, Florida’s legal community reeled in the wake of Miami-Dade County Administrative Law Judge Timothy Maher’s Aug. 24 suicide during a standoff  with law enforcement.

Florida Bar president Michelle Suskauer said the results of the survey and “Health and Wellness Month” present an opening for the state bar to better assist those in need.

Courtesy photo“It’s a challenge but it’s an opportunity,” she said. “It’s an opportunity to say, ‘What can we do better to help our young lawyers? What can we do better to help lawyers, all of our lawyers, in dealing with these issues?’ ”

Suskauer said it’s her hope the survey will ultimately provide a guidepost on the challenges faced by Florida lawyers.

“I know this is going to help frame the opportunities for future presidents, young lawyers and bar presidents moving forward,” she said. “They’re tough numbers, but they’re instructional.”

She adds, “I think data always helps you fine tune. … It makes you rethink what are the programs we have and how can we do better?”

George said he’s “too close” to the profession to have been shocked by the survey’s findings.

“This has been one of my passions for so long I was not that surprised,” he said. However, he pointed to other numbers from the results — such as the 79% of lawyers who report a personal sense of satisfaction from their work — that pave a path forward for a profession grappling with how to take care of its own.

“There’s hope,” George said. “If you’re a lawyer and you’re struggling with these issues you’re clearly not alone, and you shouldn’t be afraid to address them.”

He adds, “ I’m hoping as a result of this and other efforts, in five years the disheartening responses will be more positive.”

Read the survey: [falcon-embed src=”embed_1″]

Related stories:

‘My Heart Breaks’: Lawyers React to Miami-Dade Judge’s Suicide

Florida Board of Bar Examiners Settles Suit Alleging Discrimination Over Mental Health

Law Grads Say Schools Don’t Offer Enough Mental Health Support

via Law.com – Newswire https://www.law.com/

May 8, 2019 at 01:36PM

More Dirty Tactics Lawyers Should Rarely Use

Last week, I wrote an article about some of the dirty tactics I have seen attorneys use during my career.  I received numerous positive emails about the article, and I think most practicing attorneys have experienced adversaries using underhanded strategies at one point or another.  Some attorneys have urged me not to write a follow-up piece lest I give attorneys ideas for underhanded strategies they can use against adversaries!  However, since my article last week seems like it struck a chord with some attorneys, I decided to write a follow-up piece listing additional dirty tactics that lawyers should rarely employ.  I hope I don’t give anyone any ideas.

Sending Documents to the Wrong Office

One of the most annoying tactics I have seen adversaries employ is sending documents to the wrong office.  Many law firms, like some of the shops at which I have worked, have multiple offices, and attorneys may rarely visit locations of a firm other than their home office.  As a result, if adversaries send documents to the wrong office, it can be difficult for the appropriate attorney to review the materials.

Now I know what you are thinking, surely there are times when attorneys innocently send materials to the wrong office.  Of course, this is the case, and I have had experiences when I have notified my adversaries of their mistake, and they later sent materials to the appropriate location.  However, sometimes adversaries have routinely sent materials to the wrong office, and unless the Keystone Cops are running their firms, there is no way they would constantly send materials to the wrong place.

My practice is to always send materials to the correct office, and email a copy of the relevant documents whenever I can.  This is the 21st century, and emailing materials makes things easier.  However, some attorneys intentionally send materials to the wrong location, and if people really trusted their abilities, they would make it easier for their adversaries to review materials.

Behavior at Depositions

Attorneys often employ a number of dirty tactics at depositions.  Since a court officer is usually not present at depositions, there are often few consequences to employing underhanded strategies at examinations before trial.  One of the dirtiest tactics I have seen at depositions is attorneys giving nonverbal advice to their clients during the proceedings.  Of course, the court reporter cannot record nods of the head from counsel, so attorneys can usually employ a number of nonverbal methods to instruct their witnesses.

I remember one time earlier in my career, I was conducting a deposition of a plaintiff who had suffered a slip and fall.  After every important question I asked, the attorney representing the plaintiff shook his head or nodded his head, and I was pretty sure this was a way for him to tell his client that he should either answer “yes” or “no” to the questions asked.  I ended up calling him out on his behavior, and this started one of the biggest verbal confrontations of my legal career.  The plaintiff tried to say that he couldn’t even see what his attorney was doing, since he was in a neck brace and wasn’t able turn his head.  Of course, this was total malarkey.  In any case, behavior like this at depositions is unacceptable, and attorneys should not abuse the deposition process to unfairly disadvantage their adversaries.

Short-Serving Parties

Most attorneys understand that when a party files a motion, there is a set time for the opposition to the motion to be served and filed, and then the party filing a motion usually needs to serve and file their reply within a prescribed timeframe.  Sometimes, attorneys try to file sur-replies to a reply, which is obnoxious, and I can probably devote an entire article to this topic!  In any case, many times, attorneys will serve their documents a few days after they are supposed to, which puts the other party at a disadvantage when drafting their reply papers.  Sometimes, parties do not want to adjourn the return date of a motion because of a few days’ delay in serving the opposition papers, since this could postpone a case.  Everyone knows when their papers are supposed to be served and filed, and it is unfair to serve documents late.

I had a colleague earlier in my career who employed another method to give his adversaries less time to respond to motions.  Court rules generally require that parties simply drop their papers in the mail to an opposing party on the date they are due to serve papers.  My colleague would routinely drop his documents in the mail after business hours, and better yet, before a holiday or weekend, to try and give his opponents less time to respond.  Of course, now that electronic filing is almost universally used, it is more difficult to employ this method against an adversary, but attorneys should not use underhanded tactics to give their adversaries less time to respond.

In the end, lawyering is an adversarial profession, and every attorney is charged with diligently representing their clients.  However, there are a number of dirty tactics attorneys should avoid using, since they unfairly disadvantage other parties, and people should trust that their legal abilities will be enough to succeed on behalf of their clients.

Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.

via Above the Law https://abovethelaw.com

May 8, 2019 at 10:52AM

Man Wins Legal Battle Over Traffic Ticket By Convincing Court A Hash Brown Is Not A Phone

Readers here will know that we rather enjoy when an ordinary person takes extraordinary steps to clap back against government intrusions over speech and technology. A recent example of this was a Canadian man routing around a years-long battle with his government over a vanity license plate for his last name, which happens to be Assman. One thing to note on the technology side of the equation is that as legislation seeks more and more to demonize anything to do with technology, even in some cases rightly, it causes those enforcing the laws to engage in ridiculous behavior.

For example, one man in Connecticut has only just won a legal battle that lasted over a year, and cost him far more than the $300 traffic ticket he’d been given, by convincing a court that a McDonald’s hash brown is not in fact a smart phone. This, I acknowledge, may require some explanation.

On April 11th, 2018, Stiber was pulled over by Westport Police Cpl. Shawn Wong Won, who testified that he saw Stiber moving his lips as he held an object resembling a cellphone to his face while driving. Stiber’s lawyer, John Thygerson, countered by saying those lip movements were “consistent with chewing” the hash brown his client purchased at a McDonald’s immediately before he was pulled over.

Stiber also made a Freedom of Information Act (FOIA) request to acquire records showing that Wong was on the 15th hour of a 16-hour double shift and may have had less-than-ideal judgment when he pulled Stiber over. The judge concluded that the state didn’t bring forth enough evidence to show that Stiber was, indeed, on his phone while driving.

The fact that Stiber stared down this $300 traffic ticket to the tune of two separate trials and whatever the cost of his legal representation might strike some as absurdly stupid. On the other hand, Stiber was apparently wrongly accused. What matters the cost of getting proper justice served? Especially from a hash-brown-chewing man with such high-minded morals such as the following?

In the end, this outcome took two trials and more than a year to come by, and it cost Stiber legal fees exceeding the $300 ticket and four days of missed work. But he has no regrets: “That’s why I did it, because I wouldn’t want anyone else to go through this. Other people don’t have the means to defend themselves in the same way.”

Now, this might only bring up additional questions, such as why talking on a phone and eating a hash brown are treated so differently by law, despite them requiring similar bodily motions? Eating can certainly be distracting to driving, after all. Have you ever lost that last fry down by your lap or feet while on the road? I certainly have and there is no army in the world that could keep me from finding that delicious morsel under the right conditions.

But those questions aside, it’s a win for Stiber, who spent a year in court to prove that a hash brown is not a phone.

Man Wins Legal Battle Over Traffic Ticket By Convincing Court A Hash Brown Is Not A Phone

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via Above the Law https://abovethelaw.com

May 3, 2019 at 05:28PM

New Documents Reveal DHS Asserting Broad, Unconstitutional Authority to Search Travelers’ Phones and Laptops

EFF, ACLU Move for Summary Judgement to Block Warrantless Searches of Electronic Devices at Airports, U.S. Ports of Entry

BOSTON — The Electronic Frontier Foundation (EFF) and the ACLU today asked a federal court to rule without trial that the Department of Homeland Security violates the First and Fourth Amendments by searching travelers’ smartphones and laptops at airports and other U.S. ports of entry without a warrant.

The request for summary judgment comes after the groups obtained documents and deposition testimony revealing that U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement authorize border officials to search travelers’ phones and laptops for general law enforcement purposes, and consider requests from other government agencies when deciding whether to conduct such warrantless searches.

“The evidence we have presented the court shows that the scope of ICE and CBP border searches is unconstitutionally broad,” said EFF Senior Staff Attorney Adam Schwartz. “ICE and CBP policies and practices allow unfettered, warrantless searches of travelers’ digital devices, and empower officers to dodge the Fourth Amendment when rifling through highly personal information contained on laptops and phones.”

The previously undisclosed government information was obtained as part of a lawsuit, Alasaad v. McAleenan, EFF, ACLU, and ACLU of Massachusetts filed in September 2017 on behalf of 11 travelers—10 U.S. citizens and one lawful permanent resident—whose smartphones and laptops were searched without warrants at U.S. ports of entry.

“This new evidence reveals that government agencies are using the pretext of the border to make an end run around the First and Fourth Amendments,” said Esha Bhandari, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “The border is not a lawless place, ICE and CBP are not exempt from the Constitution, and the information on our electronic devices is not devoid of Fourth Amendment protections. We’re asking the court to stop these unlawful searches and require the government to get a warrant.”

The government documents and testimony, portions of which were publicly filed in court today, reveal CBP and ICE are asserting broad and unconstitutional authority to search and seize travelers’ devices. The evidence includes ICE and CBP policies and practices that authorize border officers to conduct warrantless and suspicionless device searches for purposes beyond the enforcement of immigration and customs laws. Officials can search devices for general law enforcement purposes, such as enforcing bankruptcy, environmental, and consumer protection laws, and for intelligence gathering or to advance pre-existing investigations. Officers also consider requests from other government agencies to search devices. In addition, the agencies assert the authority to search electronic devices when the subject of interest is someone other than the traveler—such as when the traveler is a journalist or scholar with foreign sources who are of interest to the U.S. government, or even when the traveler is the business partner of someone under investigation. Both agencies further allow officers to retain information from travelers’ electronic devices and share it with other government entities, including state, local, and foreign law enforcement agencies.

The plaintiffs are asking the court to rule that the government must have a warrant based on probable cause before conducting searches of electronic devices, which contain highly detailed personal information about people’s lives. The plaintiffs, which include a limousine driver, a military veteran, journalists, students, an artist, a NASA engineer, and a business owner, are also requesting the court to hold that the government must have probable cause to confiscate a traveler’s device.

The district court previously rejected the government’s motion to dismiss the lawsuit.

The number of electronic device searches at the border has increased dramatically in the last few years. Last year, CBP conducted more than 33,000 border device searches, almost four times the number from just three years prior. CBP and ICE policies allow border officers to manually search anyone’s smartphone with no suspicion at all, and to conduct a forensic search with reasonable suspicion of wrongdoing. CBP also allows suspicionless device searches for a “national security concern.”

Below is a full list of the plaintiffs. Their individual stories can be found here:

  • Ghassan and Nadia Alasaad are a married couple who live in Massachusetts, where he is a limousine driver and she is a nursing student.
  • Suhaib Allababidi, who lives in Texas, owns and operates a business that sells security technology, including to federal government clients.
  • Sidd Bikkannavar is an engineer for NASA’s Jet Propulsion Laboratory in California.
  • Jeremy Dupin is a journalist living in Massachusetts.
  • Aaron Gach is an artist living in California.
  • Isma’il Kushkush is a journalist living in Virginia.
  • Diane Maye is a college professor and former captain in the U. S. Air Force living in Florida.
  • Zainab Merchant is a writer and a graduate student at Harvard.
  • Akram Shibly is a filmmaker from New York.
  • Matthew Wright is a computer programmer in Colorado.

    For the motion for summary judgment and statement of material facts:

    For more information about this case:

Senior Staff Attorney
ACLU of Massachusetts

via EFF.org Updates http://bit.ly/US8QQS

April 30, 2019 at 01:32PM

This Week’s Corrupt Cops Stories

An NYPD narc gets busted for lying to create drug cases, a former Philadelphia cop heads to prison in a scheme that also saw eight Baltimore cops jailed for drug stealing and dealing, and more.

In New York City, a former NYPD narcotics detective was arrested last Wednesday for making false statements in court and in court documents that resulted in multiple unlawful arrests Joseph Franco, who was assigned to Manhattan South Narcotics Division, allegedly lied during at least three arrests for drug crimes in 2017 and 2018. Three innocent men pleaded guilty in those crimes, and two of them went to prison. The Manhattan DA’s Office has since moved to vacate those convictions. Franco is charged with perjury, offering a false instrument for filing, and official misconduct.

In Baltimore, a former Philadelphia police officer was sentenced last Friday to nine years in federal prison for conspiring with officers in Baltimore to sell cocaine and heroin seized on that city’s streets. Eric Troy Snell, 34, was paid thousands of dollars to serve as a conduit between crooked Baltimore cops and his brother, who sold the drugs in Philadelphia. He had pleaded guilty in November to conspiracy to distribute illegal drugs after one of the Baltimore cops testified against him. In all, eight Baltimore cops involved with the Gun Trace Task Force, including two commanding sergeants, have been convicted and imprisoned in the case.

In Atlanta, a former state prison guard was sentenced Tuesday to five years in prison for trying to smuggle meth into the facility. Mark Edward Jeffery, 34, tried to sneak the drugs in through his beverage container last year, but the drugs were found during a search. He copped to one count of possession with intent to distribute in February.

via Criminal Justice http://bit.ly/2SI2Tpv

May 1, 2019 at 04:08PM