Criminal Procedure

Published on: November 15, 2012

Court Decides if Powell was Unlawfully Excluded from Seating in Congress

by Stephen Bilkis

During the 89th Congress, a Special Subcommittee on Contracts of the Committee on House Administration conducted an investigation into the expenditures of the Committee on Education and Labor, of which petitioner Adam Clayton Powell, Jr., was chairman. A New York Crirminal Lawyer said the Special Subcommittee issued a report concluding that Powell and certain staff employees had deceived the House authorities as to travel expenses. The report also indicated there was strong evidence that certain illegal salary payments had been made to Powell’s wife at his direction. No formal action or criminal charges was taken during the 89th Congress. However, prior to the organization of the 90th Congress, the Democratic members-elect met in caucus and voted to remove Powell as chairman of the Committee on Education and Labor.

When the 90th Congress met to organize in January 1967, Powell was asked to step aside while the oath was administered to the other members-elect. Following the administration of the oath to the remaining members, the House discussed the procedure to be followed in determining whether Powell was eligible to take his seat. A Brooklyn Criminal Lawyer said after some debate, by a vote of 363 to 65 the House adopted House Resolution No. 1, which provided that the Speaker appoint a Select Committee to determine Powell’s eligibility. Although the resolution prohibited Powell from taking his seat until the House acted on the Select Committee’s report, it did provide that he should receive all the pay and allowances due a member during the period.

The Select Committee, composed of nine lawyer-members, issued an invitation to Powell to testify before the Committee. The invitation letter stated that the scope of the testimony and investigation would include Powell’s qualifications as to age, citizenship, and residency; his involvement in a civil suit, and matters of alleged official misconduct.

Published on: November 14, 2012

Courts Discuss Population Cap for Prisons

by Stephen Bilkis

This case originated almost two decades ago when the plaintiff-prisoners, complaining of the conditions in the Harris County jails, filed a class action lawsuit against certain Harris County officials (“County”). The district court, based on extensive hearings, found the conditions in the jail to be inhumane. Subsequently, on February 4, 1975, the plaintiffs and the County entered into a “Consent Judgment” calling for renovations of existing facilities, the development of a new jail, and improvements in staff and security at the jails. New York Criminal Lawyer said the litigation, however, was far from over, and the “district court retained jurisdiction to issue interim orders.” Ten months later, the district court issued an opinion providing guidelines for streamlining the criminal justice system, implementing an effective pretrial release program, and improving the living conditions in the jails.

A Suffolk Criminal Lawyer said that, by 1982, the County had completed a new jail (the “Franklin Jail”), with more than three times the capacity of the old central jail (the “old San Jacinto Jail”). The County also maintained a detention center in Humble, Texas, and upon the opening of the Franklin Jail, the County closed the old San Jacinto Jail. The district court, however, remained involved in the jails’ operation and addressed staffing and supervision concerns in the jails. After consulting with an expert, the County determined that it would need additional space, and therefore the County authorized construction of a third jail (the “new San Jacinto Jail”) and the renovation of the old San Jacinto Jail.

A Suffolk Criminal Lawyer said that, eager to be free from the yoke of litigation, the County filed a motion for final judgment and permanent injunction. In order to assess the County’s compliance with its prior orders and to determine the maximum capacity of the jails, the district court appointed three monitors–a special master, a medical monitor-assessor, and a jail monitor-assessor (collectively the “monitors”). The monitors examined eighteen conditions and found that the County had complied fully with nine conditions, had complied partially with seven conditions, and had failed to comply with only two conditions of the court’s prior orders. Additionally, the monitors found that, as of June 1, 1987, the county jails’ population exceeded their design capacities by only five percent. Although the County had made substantial progress in conforming the jails to constitutional requirements, the monitors recommended that the court continue supervising the jails in light of the County’s “inordinate delay in achieving substantial compliance.”

Published on: November 13, 2012

Respondent Claims Constitutional Rights Were Violated

by Stephen Bilkis

Two suits, permitted to proceed as class actions, were brought in District Court under 42 U.S.C. § 1983 by respondents, individuals and organizations, against petitioners, the Mayor of Philadelphia, the Police Commissioner, and others, alleging a pervasive pattern of illegal and unconstitutional police mistreatment of minority citizens in particular and Philadelphia residents in general. A New York Criminal Lawyer said the petitioners were charged with misconduct ranging from express authorization or encouragement of the mistreatment to failure to act in such a way as to avoid recurrence.

The principal antagonists involved in one case were two police officer, not named as parties, who were found to have violated complainants’ constitutional rights in three of eight incidents as to which the District Court made detailed factual findings and as to which a five-day suspension had resulted in one incident and no disciplinary action in another. In the other case, in only two of 28 incidents did the District Court conclude that the police conduct amounted to a deprivation of a federally secured right; it found no police misconduct in four incidents; in another, departmental policy was subsequently changed; and, though the court made no comment on the degree of misconduct occurring in the remainder, there were arguably 16 police violations of citizens’ constitutional rights in the year involved.

A Bronx Criminal Lawyer said that, the District Court found, that the evidence did not establish the existence of any policy on the part of petitioners to violate the constitutional rights of respondent classes but found evidence of departmental discouragement of complaints and a tendency to minimize the consequences of police misconduct. The court found that only a small percentage of policemen commit violations of the rights of Philadelphia residents generally but that such violations could not be dismissed as rare or isolated. Petitioners were directed to draft for the court’s approval “a comprehensive program for dealing adequately with civilian complaints” to be formulated in accordance with the court’s “guidelines” containing detailed suggestions for revising the police manuals and procedural rules for dealing with citizens and for changing procedures for handling complaints. On petitioners’ appeal the Court of Appeals affirmed.

Published on: November 12, 2012

Appellant Seeks to Preclude Testimony of Lower Court

by Stephen Bilkis

On this proceeding, a real estate company and a man move for a relief, in which both of them seek inspection of the grand jury minutes, suppression of evidence, discovery and disclosure. The real estate company and the man are both charged under count one with attempted promoting prostitution in the third Degree.

A New York Criminal Lawyer said the City of New York’s proof consisted of the testimony of two undercover police officers. The first undercover officer testified that when he entered in the real estate’s office with another undercover officer and spoke to a real estate agent, he indicated that he wanted to rent a house in the neighborhood. The real estate agent arranged to show a house to the undercover officer. While walking to the house, the real estate agent explained that the owner wanted the house to be used for commercial purposes. The undercover officer speaks with the agent in Spanish language explaining that it would not be a problem because he was in the people’s business and that the house would be the house of prostitution. A Long Island Criminal Lawyer said the real estate agent then allegedly explained to the undercover officer that the house they were going to see would not be suitable for that purpose because it had recently been used as a house of prostitution. It had been closed down by the police, with extensive media coverage. The real estate agent said that he would try to find another house that would be more suitable.

Afterwards, the undercover officer returned to the real estate’s office. On that occasion, the original real estate agent was assisted by the man who was introduced to the undercover officers as being a real estate agent who had some prior knowledge with that kind of business. The man suggested a house that was in a secluded area.

Published on: November 12, 2012

Defendants Move for Summary Judgment

by Stephen Bilkis

This involves a case where the Supreme Court Appellate division held that conceivability is not equivalent to foreseebility. The Court herein granted defendant’s motion for summary judgment dismissing the complaint.

A New York Criminal Lawyer said the plaintiff was a tenant in a building located at 584 Academy Street in Manhattan, owned by defendant holding company and managed by defendant development company. In the early afternoon of February 26, 2002, plaintiff entered the building through the lone entrance available to the tenants. A man whom plaintiff did not recognize entered the building immediately after her. The man walked ahead of plaintiff up a staircase, which plaintiff was using to reach her unit on the second floor. As plaintiff opened the door to her apartment, the man, who had continued up the staircase when plaintiff walked from the staircase to her unit, ran down the staircase and pushed plaintiff into the apartment. The man then sexually assaulted plaintiff at gunpoint.

Plaintiff commenced this action to recover damages for personal injuries, claiming that defendants failed to provide adequate security for the building. Specifically, a New York Criminal Lawyer said the plaintiff’s theory of liability is that defendants failed to maintain a working lock on the door to the tenants’ entrance, which failure allowed the assailant to gain entry to the building and assault plaintiff.

Published on: November 11, 2012

Defendant Denied Right to Counsel

by Stephen Bilkis

This case is about the Prosecution’s appeal from the order of the Supreme Court, Queens County, dated May 12, 1982, which granted defendant’s motion to suppress certain statements since his Fourth and Fifth Amendment rights were violated by the Police Officers.

A New York Criminal Lawyer said on March 12, 1981, the defendant was arrested on charges of murder in Pemberton, New Jersey. The murder occurred on May 23, 1980 in Queens County, New York. The detectives took the defendant to the local police station in Pemberton, where he was read his Miranda rights. He was then transported to the Burlington County’s prosecutor’s office where he was again given his Miranda rights. Later that day, at approximately 3:00 P.M., defendant was produced before a Judge of the Superior Court of New Jersey where he waived his right to extradition and agreed to return voluntarily to New York.

Specifically, the New Jersey Judge exhaustively explained to defendant his options as well as the concept of extradition considering that he is also wanted in the City of New York for the crime of murder. The said Judge also offered to give him a lawyer if he could not afford one, in case he opts for extradition. After having been apprised of his options, Defendant unequivocally chose to go back to New York voluntarily, thereby waiving his right to extradition.

Published on: November 11, 2012

Court Discusses Doctor Patient Privledge

by Stephen Bilkis

Hospitals in 1955 were required by the statutory law of New York to report all procedures that involve the termination of a pregnancy. The superintendent of all New York hospitals is required to report each procedure and to subdivide the procedures into categories that reflect the nature of the termination of the pregnancy. In 1955, abortions were illegal in the state of New York. The only permitted abortions were those that were necessary to save the life of the mother. This type of abortion was termed a therapeutic abortion. The only other categories of abortion were natural and illegal. A New York Criminal Lawyer said any time that a woman naturally aborts the fetus, it is called a spontaneous abortion. There is nothing that can be done to prevent a spontaneous abortion. Sometimes, nature just detects something that modern medicine cannot and the pregnancy is self terminating. The illegal abortions are called induced. An induced abortion may be caused by actions or omissions by the mother, or by some other person. Some doctors have been known to perform illegal abortions for women in the state.

New York law requires that the superintendent of a hospital to accurately report the number of therapeutic, spontaneous, and induced abortions that are performed, or that occur in their establishment. In 1955, the prosecutor in Kings county suspected that the superintendent of Kings County Hospital in Brooklyn was not ensuring that his doctors were reporting the numbers accurately. In order to determine if any illegal abortions were being performed in the hospital the prosecutor needed to be able to examine the records of all of the abortions that were performed in the hospital for that year. A Brooklyn Criminal Lawyer said he demanded that an emergency Grand Jury be convened to demand that the hospital provide all of the medical records of all of the abortions that occurred in the hospital that year.

The superintendent of the hospital refused to provide the records. He claimed that the demand for the records of women who had committed no crimes would be an illegal search and seizure under the Fourth Amendment of the United States Constitution. The prosecutor filed charges of contempt of court against the superintendent of Kings Hospital following his refusal to disclose the personal information of innocent women in the state of New York who had not been charged or found guilty of any crime. In fact, there was no probable cause to suspect that any of them had been guilty of a crime. There was little more than a hunch on the part of the prosecutor that someone may have avoided being turned in for an illegal abortion in the hospital. By riffling through innocent American’s personal medical records, the prosecutor hoped to find a few who were guilty of a crime. Many women who had suffered through miscarriages would be forced to have their personal information reviewed by the court. Many who had to suffer through therapeutic abortions to ensure that they survived would have to explain their choices to a prosecutor. A Bronx Criminal Lawyer said the superintendent of the hospital flatly refused to deliver the medical records of the patients of his hospital to the Grand Jury for review.

Published on: November 10, 2012

Defendant Claims He was Denied Due Process

by Stephen Bilkis

In a disciplinary case, the Supreme Judicial Court of the Commonwealth of Massachusetts vacated an order imposing a two-year suspension on K. and entered a judgment suspending K. from the practice of law for four years, retroactive to October 24, 1997. K’s disciplinary proceeding in Massachusetts arose as a result of K’s unlawful payment of $12,000 to a congressman for the purpose of arranging a transfer of K’s uncle from one federal prison to another.

A New York Criminal Lawyer said that the Florida Bar filed a complaint against K and attached a copy of the Massachusetts judgment to the complaint. In his response to the complaint, K admitted that he had been suspended in Massachusetts and that the order attached to the Bar’s complaint setting forth the facts leading to his suspension was genuine and admissible as evidence. The Bar filed a motion for summary judgment. K did not appear for the hearing on the motion. Instead, he filed a pleading entitled “Respondent’s Objection to Complainant’s Motion for Summary Judgment” in which K alleged that he had been denied due process in the Massachusetts proceeding. Following the hearing, the referee granted the Bar’s motion.

In her report, the referee found that K. did not demonstrate that he had been denied due process in the Massachusetts disciplinary proceeding. The referee further determined that the Massachusetts adjudication of misconduct constituted conclusive proof of K’s misconduct in the instant disciplinary proceedings pursuant to Rule Regulating the Florida Bar 3-4.6.

Published on: November 9, 2012

Defendant Retracts Her Confession

by Stephen Bilkis

On 2009, a seventeen years old girl was arrested and subsequently accused of felony charges in two separately docketed felony complaints. She was charged with criminal sale of a controlled substance in the third degree (drug possession) when an undercover police officer alleged in the complaint that she along several others, were selling narcotics from a first-floor apartment window of a building. The officer specifically alleged that the girl, who he saw at the window inside the apartment, handed three bags of crack cocaine to his colleague, who was standing on the sidewalk outside the window. The man then immediately delivered the crack cocaine in her possession to the officer.

In a separate complaint, a New York Criminal Lawyer said the girl was also charged with crack possession. Another police officer alleged that, at about the same time the sale occurred, he entered the aforementioned apartment and found the girl and a twenty-three-year-old man, inside. The officer further stated that he recovered fifteen clear bags containing crack cocaine sitting in plain view on the dining room table. While the police officers were in the apartment, the girl’s brother entered and asked what is going on. The brother was also arrested, along with the girl and the man.

The girl appeared for her arraignment and the court assigned the public defender organization to represent her. A very experienced staff attorney from the organization was designated to be the girl’s attorney. The attorney met with the girl to discuss the case prior to her court appearance. He went over the factual allegations in the accusatory instruments with her, and she then told the attorney her version of the events. When the girl appeared, she entered pleas of not guilty to all charges. The cases were deferred for grand jury action.

Published on: November 8, 2012

Defendant Raises Issues Regarding 6th and 14th Amendments

by Stephen Bilkis

Under Massachusetts procedure, a ‘two-tier’ system is utilized for trial of a variety of criminal charges. The initial trial under this system is in a county district court or the Municipal Court of the City of Boston. No jury is available in these courts, but persons who are convicted in them may obtain a de novo trial, with a jury, in the appropriate superior court by lodging an ‘appeal’ with that court. At the de novo trial, all issues of law and fact must be determined anew and are not affected by the initial disposition. In effect, the taking of the appeal vacates the district court or Municipal Court judgment, leaving the defendant in the position of defendants in other States which require the prosecution to present its proof before a jury.

A New York Criminal Lawyer said in January 1974, appellant was charged with knowing unauthorized use of a motor vehicle, an offense under Mass.Gen.Laws, c. 90 § 24(2)(a). The offense is subject to the two-tier system described above. Prior to trial in the Municipal Court, appellant moved for a jury trial. The motion was denied and the trial before the court resulted in a judgment of guilty. A one-year prison sentence was imposed. Appellant thereupon lodged an appeal in the Superior Court for SuffolkCounty.

Without awaiting proceedings in Superior Court, appellant appealed to the Supreme Judicial Court, seeking to establish that the Sixth and Fourteenth Amendments require that a jury be available in his first trial, whether it be in the Municipal Court or the Superior Court. He also raised speedy trial and double jeopardy contentions as bars to his retrial before a jury.