Saturday, February 28, 2009

Dan Abrams and the Presumption of Innocence

I just read this op-ed piece by Dan Abrams in the Wall Street Journal. He responds to criticism about media ignoring the presumption of innocence. In one sense he is correct -- that the presumption really applies to juries. The general public is not required to presume someone innocent. But his characterization of the criminal process is what got me.

My favorite quote is this one: Essentially we stack the legal deck in favor of the defendant.

Um ... no. That is a gross mischaracterization. Anyone who's dealt with a traffic ticket knows it's not true. Let's talk about how the deck is really stacked. For starters, let's take the appropriate perspective. Imagine you, the reader, are the defendant.

1. Lawyers
The prosecution gets a team of lawyers. In New York State this is known as the District Attorney's office. An Assistant District Attorney will be assigned to your case. The government pays for the prosecutor in every case, meaning that at least in a small way you pay for their lawyer. The ADA has access to a wide variety of resources (such as experts and investigators).

You can get a lawyer too. If you're poor you get a public defender, though only for crimes. DWAI is a great example of a case where you don't get a PD. They're paid less than the ADA and have more cases to handle. The PD will spend a very small amount of time on your case until trial, and will usually encourage you to take some kind of deal. Keep in mind that there are some great public defenders out there, but you might not get one of those. The PD usually has substantially less resources than the ADA. If the PD needs something unusual he may have to apply to the judge for the money. The ADA doesn't need the judge's permission for any spending.

Or you can hire a lawyer. It costs a lot of money. Your lawyer will probably be more experienced than the ADA and be able to devote more time to your case. You do not get your legal fees back if you win. Your lawyer has access to a wide variety of resources, but you pay for everything.

2. The Judge
In my experience, many judges (but certainly not all) will treat you as if you're guilty from the get-go. I had one case where my client, whose case was eventually dismissed, had bail set at $90K. His family spent something like $7K to get him out of jail. The bail was completely unreasonable for his circumstances -- a minor felony charge with dubious facts against a local guy who was married with kids, owned a home, and had a state job. He should have been released without bail.

The judge makes a number of critical decisions both before trial and at trial. One key area that stands out is whether your constitutional rights were violated. This is addressed at a suppression hearing, if the judge decides you get one. Here's the thing - police lie sometimes at suppression hearings. In my experience, a lot of them lie a lot at this stage. Usually it's not deliberate lying, but more a situation where they don't really remember all the details and they fill in the gaps based on their paperwork. But this usually leads to them getting the facts wrong and then getting caught in lies.

Imagine that. A police officer is caught lying in a situation regarding whether he or she violated your constitutional rights. Sounds like a no-brainer, right? The judge should find that your rights were violated and suppress the evidence. For whatever reason, many judges seem to find police officers credible no matter how obvious the lies. This isn't necessarily conscious. The judge sees these police officers frequently. He's never seen you before this case. In many courts the judge is protected by that police force. So many of the local courts are located in the same building as the police station.

I had one case where I actually had my client and a witness testify at the suppression hearing. The officer had testified very poorly about his reason for stopping the vehicle -- no visual estimate of the speed and no radar. He said my client was weaving in and out of traffic -- then admitted on cross that he had changed lanes twice in a span of well over a mile. The officer claimed my client had made an unsafe start, spinning his wheels when a light turned green. My client testified that his vehicle has traction control, making the idea of an unsafe start essentially impossible. Somehow the judge upheld the stop.

3. Timing
In many ways, the prosecution controls the timing of your case. Many defendants are distressed about how long their cases take. Your constitutional right to a speedy trial is a fiction. I've got one DWI case that has been going for more than a year. His license has been suspended the entire time. The judge denied our speedy trial motion. If my client had pled guilty he would have been suspended for 90 days.

If the prosecutor wants to move the case slowly, there's little the defense can do about it. On the other hand, if the prosecutor wants to move fast there are situations where this makes it difficult for your attorney to prepare your defense. With the wrong judge, you're out of luck on that.

There's plenty more on this but I'm running out of steam. The good news is, in my experience, juries are pretty fair. They don't get to decide on your constitutional rights, but if you catch cops lying then you're in a good situation. The problem is that you'll end up spending well over $10K in most cases to get through a jury trial. And you don't get that money back.

One thing underlying Dan Abrams' article is the widely held notion that nearly all defendants are guilty. I might go with most, but not "nearly all". And it really depends on the kind of case. Unfortunately I think the general public is on the "nearly all" view. That changes when they, or their kid, gets arrested. Too late.

Friday, February 27, 2009

How NOT to handle a speeding ticket

I just got one of those speeding ticket phone calls ... the kind that leaves you scratching your head.

I got a ticket for going 96 in a 55.

Okay, so that's an 11-point speed which leads to a suspension unless you take defensive driving, and the fines are up to over $1300 ($685 on the ticket and $675 from the DMV assessment).

I already went to the trial date. The judge wouldn't let me put my case in, and found me guilty. Can I appeal?

This is like a regular Joe performing surgery on someone, killing the patient, and then looking for a doctor to do a resurrection. Yes, you can appeal that case but now it's going to cost a lot of money (maybe $2500) and we'll probably lose.

Hire a lawyer at the start. It costs less and is more effective.

Sunday, February 22, 2009

Dan from Expert Village

I just thought this was funny. If you want advice on getting out of a speeding ticket, check out Dan from Expert Village. I'm not saying you should follow the advice, keep in mind. Use your own judgment on this.

Saturday, February 21, 2009

Delaware Traffic Courts

I got motivated today and added the State of Delaware to our traffic court directory. There are only three counties with a total of about maybe 20 courts. If you get a ticket in Delaware, check out the Delaware county courts.

Wednesday, February 18, 2009

Breezes Curacao

We took a recent trip to Curacao. It was quite an experience.

Fairly short flight from Miami, maybe 2 ½ hours. We stayed at Breezes Curacao, an all-inclusive resort. I describe the experience including a number of complaints below, but I should start out by noting that it seems pretty inexpensive. We paid $3500 for a week at the resort in a nicer room, including airfare, food, and a number of other things included for two adults and two kids. Figure $500 apiece for roundtrip airfare and it's only $1500 for a week including food, etc. We were right on the ocean.

The resort provides a shuttle from the airport. It was more complicated and took longer than it should have. We had to check in two different places, fill out a form that seemed completely unnecessary. The staff seemed confused that we didn’t have a voucher – we booked through Travelocity. The couple after us didn’t have a voucher either. This must have happened before. Why are they surprised? Bus ride took what seemed like a long time for what can’t be more than 6 miles.

Breezes Curacao is in a great location with a fantastic view and beach. We had an oceanfront room and it’s pretty good. I’m spoiled by our Costa Rica trip, where the rooms were much nicer. One gripe involves the internet. It's an “all-inclusive” resort. To me, the internet should be free at an all-inclusive. It was only $28 for a week of internet access, and it works well in the room. So not a big deal.

The food at Breezes, overall, was pretty good but not great. The main setting for food is “Jimmy’s Buffet”. There are many choices so you can find something you like. Nothing is spectacular. I liked the black beans for breakfast. The French Toast was great one day but average the rest. The fruit was marginal, a sharp contrast with our Costa Rica experience where the fruit was consistently excellent. But to be fair, Curacao is essentially a desert island while Costa Rica is one of the most fertile places on earth.

The resort has a “Japanese” restaurant named Munasan. The atmosphere is pretty nice – you essentially eat outside, but under a roof. The food is not very Japanese. The sushi is weak by my snobby standards. It’s disappointing that they haven’t figured out some interesting ways to use Caribbean fish. This, again, is a big difference with Costa Rica where they have their own “Ceviche” dishes that use raw local fish. Also a surprise that there was no dessert at Munasan. You can get dessert at Jimmy’s if you want. The coconut cake is good. There’s also an Italian place, Pastafari, but we were unable to get in.

Another nice feature of Breezes is the Kids Club. Seems like few families actually use it, but our kids saw it and wanted to go there. This gives parents a break from the kids and allows for couple time.

We went out for dinner one night to Villa Elisabeth, a top-notch French restaurant that happens to be across the street from Breezes. Villa Elisabeth has pleasant indoor seating but the garden dining area is exquisite, including a pond with a footbridge. The menu requires a bit of adventurousness. You can choose a 3, 4, 5 or even 6-course meal and you get surprised by what’s brought to you. We chose a different path – small plates where you choose the type and they bring out something without telling you what it will be. There are also a few straight-up items you can order. We did order a couple of well-defined appetizers just to be safe, but the surprise items were mostly great. This would easily be one of the best restaurants in Albany and it was less expensive than places like 677 Prime and Mezza Notte.

Overall, Breezes was good with some bad moments. One was the Carnaval (that’s not a misspelling), which is centered on a parade. A staff member sold us on a “package” for the kids event, the first of three. The event was completely inappropriate for us, and we were misled about a number of key details – like how long it would all take, what time it would start, and in particular that we would get transportation to the event included. What we thought would be 4 hours ended up being nearly 8 hours. After the parade ended we waited … and waited … and waited for our taxi to pick us up. It began to get dark and there we were, in a foreign country far from our resort with no way to get back. None of us (there was another couple) had a cell phone. If they had given us good information, we would not have gone to the event. Also, picking a location near the start of the parade route would probably have made more sense, and having a good plan for getting out afterward would be smart things.

An interesting thing I’ve noticed about traveling – tourists talk about how friendly the people are in a place. I’ve often heard criticism of New York City and France, yet I have generally found people in both places to be helpful. I also remember some rather helpful Italians in Ferrara. I didn’t find Curacao unfriendly, and we did meet some pleasant locals, but overall I felt resented as much as welcomed. I can’t help but compare to Costa Rica, where the resort staff were over-the-top nice. At Breezes Curacao it’s hit or miss. Some of the staff are great. Some are fair and some are grumpy. There are times when there’s not enough staff. Our last breakfast I set our own table and cleaned up a spill myself. There was one guy who was working vigorously, but at times it seemed like he was alone. This was the morning after Carnaval, so maybe that led to a number of people calling in sick?

The bars were often slow as well. Perhaps this is a consequence of the no-tipping policy. Most bartenders make more on tips by serving more drinks. The bartenders here are in no hurry. And at times there aren’t enough bartenders.

One fairly good part of the trip was Peter Trips – a Dutch guy named Peter who runs a business taking tourists on trips to see different parts of Curacao. On one trip we saw a cave and an ostrich thing. Hato Cave is nothing special. Our local Howe Caverns has a lot more going for it. The ostriches were pretty neat though. The other trip was to Christoffel Park, the national park. Also somewhat interesting – an even smaller cave, some Indian paintings, and some truly gorgeous coastline. You can really see the power of this part of the Caribbean on the north side of the island. The powerful surf at Boca Tabla is below.

There was another bad moment on our last day. My wife was supposed to get a spa treatment for her birthday. She arrived and was taken into a room, then waited 25 minutes. The staff bungled her appointment and even had trouble executing a refund – and it was odd that she had to pay for the treatment up front.

On the whole it was a decent trip, but I would not recommend Breezes after our experience. They dropped the ball too many times. There were other glitches. Our room needed a variety of minor repairs. For example the top latch on the door was loose. Since it’s for security that’s not inspiring. It was dated too. The bathroom sink was very small. The shower had an odd corner in it. Cleaning of the room varied from day to day. A “kayak” we used had a seal missing and it capsized on us, scaring my daughter.

There were a number of transportation issues. Breezes is advertised as being near the Sea Aquarium. It’s a bit too far for a walk with small children, and they don’t have a shuttle, so you end up paying $10 for a very short cab ride – each way. We got a surprise note that we had to sign up for the airport shuttle – an odd parallel to our initial experience with the shuttle and the voucher. Did they think we had made other plans? There’s supposed to be a shuttle into the city, but it’s far from easy to use it and we ended up paying for a cab. But the Sea Aquarium was pretty cool. Maybe worth a 2-hour visit or less. Picture from the dolphin show below.

And a last thing – Breezes blew the wake up call. Our shuttle leaves at 5:30 am. We asked for a 5 am wake up call. No call. The couple we were at Carnaval with were also on the same shuttle. They also did not get their wake up call, but did get one on an earlier day when they hadn't asked for one.

I should say more about the good things. Breezes has great pools, especially for kids. There's an area with three connected kiddie pools, a bar/grill, a playground, all with a great view of the beach. The Kids Club has a larger playground next to it. There is a main area with even more pools, and then at one end there's a larger pool we didn't even notice until someone told us about it. The beach is protected by a row of large rocks about 100 yards out. This makes for a safe and relaxing area for all kinds of things - kids wading, snorkeling in the deeper sections, water sports, etc. There was entertainment that was generally enjoyable. No one would win American Idol, but we all liked it, especially the kids. Food is available almost all the time, which is very helpful in dealing with small kids. There were pool tables, ping pong tables, shuffleboard, a game room, and more.

Another detail worth mentioning -- we took a taxi into the Punda area of Willemstad. It was very touristy but nice. Punda is home to the oldest Jewish synagogue in the western hemisphere, Mikve Israel, which made for an interesting stop. There is a pontoon bridge between Punda and Otrobanda. I've never seen anything like it. One end of the bridge disconnects to move out of the way for ships coming through into the harbor -- including large cruise ships, oil tankers (there's a refinery) and military ships.

Some final details about Curacao. It's an interesting place. A desert island that makes its economy out of tourism, a refinery, and commerce. It is near Aruba and Curacao, and not far off the coast of Venezuela (maybe 50 miles). The temperature is generally 80-85 degrees during the day with a refreshing breeze, and in the high 70s at night. I counted 20 mosquito bites on my legs by the end of the week. A woman we met at Carnaval who'd been there three weeks must have had 100 on her legs. I had almost none anywhere else even though I wore short sleeves. Our 4-year-old had no bites at all, while our 7-year-old had a few. Carnaval seemed to involve most of the island's population. The parade route is 10 miles long. Where we were the street was packed, so if that is true for the whole route it must be a lot of folks. You could name it the Island of Babel with all the languages. There's plenty of Dutch, quite a bit of Spanish, some English, and the natives speak Papiamento which seems to be a mix of the three.

Monday, February 09, 2009

Ken Runion of Guilderland

Cool new website up for those interested in Guilderland. The infamous Ken Runion is now discussed in detail in a website about him. Quality stuff.

Wednesday, February 04, 2009

Traffic Court - New Milestones

Our traffic court site has cleared some new hurdles. We not only surpassed 100,000 visits in 31 days. We've hit 130K visits, and over 114,000 unique visitors. We also cleared 300,000 pageviews. These numbers are one day short of a peak -- going a day forward we'll lose a Sunday and pick up a Wednesday - an extra 5K visits and 12K pageviews.

Oh, and we're doing well on Alexa too:

So according to Alexa, the site is now one of the top 100,000 websites in the world (but just barely), and one of the top 25,000 in the US. Making progress ...

Advanced Web Metrics with Google Analytics

Tuesday, February 03, 2009

Albany DWI "Blanket Patrol"

Big news in Albany - this past weekend had a "blanket patrol" per Capital News 9.

Nice bit from the story - 944 traffic stops and 21 "drunk driving" arrests. If I've got this right, they interrupted the lives of about 1100 people (figuring 1.2 people per car) to make 21 arrests.

Also seems like 21 DWI arrests on a weekend for 11 municipalities is less than normal, not more. Maybe they should just focus on routine traffic enforcement.

Sunday, February 01, 2009

NY DWI: Why low BAC cases should be fought

I got a call the other day from a prospective DWI client. His BAC was 0.16. It's already difficult in Albany to negotiate a reduction with a BAC that high. But it's worse than that. He had a previous DUI offense 3 years earlier and his lawyer pled him to a DWAI. That causes a big problem - he is ineligible for a conditional license. This guy won't be driving for at least a year.

On the prior offense his BAC was 0.08. I wrote recently about perspectives on DWI defense. My position remains that low BAC cases should always be fought. This case is a great example of why.

Paris Hilton had a BAC of 0.08, and they didn't fight the case. She apparently got a reduced charge - called "alcohol-related reckless driving". From what I can tell this is known as "wet reckless". Dry reckless does not involve alcohol. She got 3 years probation, and that led to her stint in jail.

You would think Paris Hilton could afford a quality DUI lawyer to fight her case. With a BAC that low, the chances of winning are strong. See People v. Beltran for an example.

In New York State, if your BAC is 0.08, in my opinion it makes no sense to plead guilty to a DWAI without thoroughly testing the prosecution's case at least through a suppression hearing. As the recent phone call and Paris Hilton's experience suggest, pleading to a reduced DUI charge can have very serious consequences.

Drug policy blog

Just a pointer to a great: drug policy reform blog. I've been involved with ReconsiDer for many years and am a big fan.