Soares Beats Kindlon

Based on election results reported so far by the Albany County Board of Elections, it appears that David Soares has soundly defeated Lee Kindlon the primary for District Attorney.

As of 10:23 pm, Soares is ahead 57% to 40%, with over half the precincts reporting. It seems like a very low turnout, so it is always possible that Kindlon will come back. But with this wide a margin, it sure doesn't look likely.

This is a sad day for Albany.

--Update--

It's gotten worse. Just a few minutes after the original post the count was updated:

Now nearly 75% of the precincts and Soares actually gained a little. This one's over. Soares will be District Attorney for another four years.

In other news, Phil Steck appears to have won the Democratic primary for the 110th Assembly district. He'll have a tough race in November.

And Frank Commisso lost his primary to Patricia Fahy. Hopefully Ted Danz will win that one in the general election. It's an uphill climb for a Republican but Ted is a great guy.

Lee Kindlon for Albany DA

The campaign for Albany County District Attorney is a big deal. David Soares has been DA since defeating Paul Clyne in the 2004 election. Lee Kindlon, son of prominent defense lawyer Terry Kindlon and an experienced lawyer himself, is running against him in the September 13 Democratic primary election. I've moved on to Florida so this doesn't matter so much for me. My Albany practice is winding down quickly. But I still care deeply about my hometown.

There have been a lot of uninformed negative attacks against both sides on the internet, most notably on the Times Union blogs about Soares and Kindlon. I write today from the perspective of someone who has worked in the Albany criminal courts since 2003. I also worked as an intern in the DA's office back in early 1990s under Sol Greenberg, in the same unit as Clyne. I have handled many criminal cases with the Albany DA's office. I have also handled cases in more than a dozen other counties. 

I endorse Kindlon in this election. This is not so much because I think Lee is wonderful or that he will be the best prosecutor in history. I've met him. I like him. I have tremendous respect for his father. Lee will probably be a good prosecutor.

The main reason for my endorsement is my experience with the Albany DA's office under Soares. They are the worst in the region.

It's not that the individual employees are bad people. They're mostly good people struggling to work in a difficult situation.

The bread and butter of criminal prosecution in New York State is local criminal court - the city, town and village courts. This is where nearly all cases start and where most are resolved.

In 2004 while I was a Republican candidate for Congress, I supported Democrat Soares publicly during a radio interview. I voted for him. He has let us down.

He ran on a campaign supporting drug policy reform. But he is worse on drug cases than his predecessor. The legislature did finally reform the Rockefeller Drug Laws. I handled some of those cases. In other area counties like Saratoga, the DAs respected the legislative decision and applied the law. I had multiple cases in Albany where Soares' office resisted. And I know this topic - Judicial Diversion - better than most.

Soares created office policies that overburden his staff and the courts. In one case my client was accused of a massive grand larceny. Soares' office dropped the ball. While I still believe my client was innocent, the main reason he walked was mistakes in Soares' office. I've won other cases because of their incompetence, and in some of those my clients were guilty.

I don't need to write about Soares' more public failings. They've been adequately covered by others. But his showboating in Vancouver and Florida are important because they demonstrate a lack of focus on getting the job done in Albany.

Deep down what's missing in the Albany DA's office is a sense of what really happens in criminal courts. Most defendants are not hardened criminals. They're regular people, just like you and me. Some had a bad moment. Many have mental health problems. A good prosecutor recognizes that the ultimate goal in these cases is not punishment. It's prevention.

We do more for society if we get them help. This reduces the danger that they will make more mistakes, or tip over into a life of crime.

A prosecutor who spends too much time prosecuting people who need help has less time to prosecute the ones who need to be prosecuted. Soares clearly does not get this. He does not give his staff the chance to make these decisions.

In the recent Soares-Kindlon debate, the two disagreed about Kindlon's idea of a "rocket docket" to get cases moving. Soares responded in a misleading way:

Soares said, "Mr. Kindlon talks about a 'Rocket Docket." Well, unless he's running for Judge, I don't know who else controls our docket. It's the judge that set the calendars, the judge that set trial the judge that sets hearings"

While it is true that judges have ultimate control, the District Attorney has major influence over how cases move through the system. They can delay cases or push them forward. Soares' office is the primary reason for delays. They are often not ready to move forward. They haven't talked to the victim, or the arresting officer. They fail to follow up. Again, this is not about the individual ADAs. They are overloaded. They simply can't get to all the things on their plate because Soares' policies keep loading more and more on them.

Lee Kindlon will not be perfect. But he's worked on both sides. He's more likely to get this point. He's more likely to just run the office better.

But ultimately this election is not about Lee Kindlon. It's about Soares. When someone fails to get the job done, it's time to give someone else a chance. Mr. Soares: Your time is up.

Spooky Search Engine Stuff: Flowers on Google

I had a spooky (or perhaps creepy) moment today doing a simple Google search. I searched for "flowers" because I want to buy flowers for a family member's birthday. Some of the results were what I expected - the sponsored links (paid ads) and the top links were online florists. Then they showed florists near my home, which doesn't work in this instance because the gift is for someone in another area.

But then there were these:

Near the top was a link to the Wikipedia entry for the Rolling Stones album "Flowers." I just got an e-mail about a showing of a Rolling Stones concert film (Some Girls: Live in Texas '78) and had been searching for information about it. And it clearly identifies the reason: You recently searched for rolling stones.

But there was more - two Google Plus posts from someone I'm linked to named "Kirk Flowers" about Romney vs. Obama. For those more familiar with Facebook, this is someone I'm "friends" with. And I do search a lot for things related to the presidential election.

And then, more results related to my Rolling Stones search - the Flowers album on Amazon and a YouTube video titled "Dead Flowers Rolling Stones". I do use Amazon a lot. While writing this post I did the search again and these latter two results were gone. That last one indicated that another of my Google Plus links had "shared" the video.

The internet has been getting spookier in this way for a while now. The New York Times wrote about it a couple years ago. The Google Plus stuff is part of the Google: Search your world initiative.

It's all part of an effort by Google to make search results more relevant to the user. While in this instance the added results were not useful, overall it seems like a good idea. But it's still a little creepy (or spooky).

Later on I decided to try one of the sites, FromYouFlowers, that I saw in the sponsored links. Here's the ad:

Seemed like a good deal - $19.99. I upgraded a little and chose something that was $29.99. Then as I was close to completing the checkout they were about to charge me over $45. There was a $14.99 delivery fee! And I wasn't even doing the same-day-delivery that seems included in the $19.99 price in the ad.

So be careful shopping for flowers on Google. Not surprisingly, the ads might be misleading. And I'm not buying from someone that does misleading ads.

Ron Artest Battery (Metta World Peace)

Ron Artest should be charged with battery after a vicious elbow to the head of James Harden. Below is a video of it:
 

The sports news media has been obsessed with the incident and the question of how long of a suspension Artest, aka Metta World Peace, would face from the NBA. He was suspended for 7 games. There has been little or no talk about criminal prosecution (see Bleacher Report for an argument about how Harden could sue Artest), but there should be. What Artest did qualifies as "battery" under California Penal Code Section 242:

A battery is any willful and unlawful use of force or violence upon the person of another.

Under §243(a), the maximum sentence would normally be $2000 and 6 months in jail. But §243(d) provides for up to one year and possibly longer:

When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

The serious bodily injury standard applies. Harden appeared to suffer a brief loss of consciousness and was diagnosed with a concussion. The impairment to his physical condition was serious enough to cause him to leave the game and miss subsequent games.

As a criminal defense attorney I've seen people prosecuted for far less than what Artest did. The Los Angeles District Attorney should step up to the plate and hold him accountable.

The NBA's 7-game suspension is pathetic, especially in light of his violent history.

Judicial Diversion: The Second Department Speaks

I'm pleased to report that we won a big appeal. I wrote back in 2010 about Judicial Diversion.

We have had several cases where clients were accused of drug felonies and we sought relief for them under Article 216 of the Criminal Procedure Law - "Judicial Diversion". When courts follow this 2009 law, most defendants go through treatment instead of incarceration.

If they do well under the program, there are huge benefits - the felony is reduced to a misdemeanor, sealed, or possibly even dismissed. This is the carrot that has always been missing from the carrot and stick. Previously the drug laws were all stick. The stick is still there - if the defendant does not comply with treatment, they lose the benefit of the law, go to prison, and the felony stays on their record.

But there has been a big problem with the law. We have encountered a number of prosecutors and judges who don't follow it. I've had prosecutors threaten my clients that if they seek diversion, the plea offer will get worse. I've seen judges who blatantly refuse to follow the law at all, including one "administrative" judge who hears criminal cases.

Part of the law states that defendants who request diversion must be evaluated and that the judge must give them a hearing. I've seen two judges who refused to do this - no evaluation, no hearing. In both cases we went ahead and got our own evaluation, and the judges still refused to give our clients hearings.

In the recent case, the judge reluctantly agreed to do an evaluation and a hearing. Before I go further, I have to say that I genuinely like Judge DeRosa. He is pleasant to those before him. He listens. While he was reluctant, he did listen to me and did go ahead with the evaluation and hearing. And while he improperly denied diversion, he did not send our client to prison, sentencing him only to probation. Many judges would have imposed a substantial prison sentence for 220 pounds of marijuana.

This is an important issue in the world of criminal defense. There are many drug cases and the legislature spoke clearly. I couldn't sit still. I had to fight this. So we appealed this case pro bono (for free). I'm not an appellate attorney, so this was way outside my comfort zone.

Despite our lack of appellate skills, the Second Department saw the facts and the law and did the right thing. Here's a link to their decision: People v. DeYoung.

This is apparently newsworthy - I found out about the decision when I heard from the New York Law Journal and then Reuters today. Here's a link to the initial Reuters article.

You can see the prosecutor's attitude in the article:

Orange County District Attorney Frank Phillips said he was "very disappointed" by the ruling.

Phillips said that he believes that the judicial diversion program is usurping prosecutors' discretion. He estimated that roughly 90 percent of the defendants in Orange County who are diverted are done so over his office's objection.

"I believe that judicial diversion, as it works in Orange County, is not productive, and that too many people who shouldn't be there are there," Phillips said.

Mr. Phillips is a fine example of a prosecutor showing disregard for the legislature's decision. He refers to "prosecutors' discretion." But the law doesn't give any discretion to prosecutors, and not much to judges either.

If prosecutors and judges want to punish defendants for not following the drug laws, shouldn't they follow the laws themselves?

We can only hope that the Second Department's ruling changes minds and behavior.

Here's some key language from the Second Department's decision:

In explaining its finding, the County Court placed much emphasis on the amount of marijuana and money involved in the transactions facilitated by the defendant in this case. While some County Court and Supreme Court cases suggest that diversion is appropriate only for low-level offenders (see e.g. People v Coco, 28 Misc 3d 563, 565), the Legislature specifically made defendants charged with crimes up to class B felonies eligible for judicial diversion (see CPL 216.00[1]). Class B felonies involve relatively large quantities of drugs (see e.g. Penal Law §§ 220.16, 220.39), and people who sell such quantities of drugs are unlikely to spend the entire profit on drugs. Nevertheless, the Legislature made such persons eligible for judicial diversion.