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Friday, October 30, 2009

For New York City Mayor: Thompson (Stop Bloomberg)

This is less of an endorsement of William Thompson than a strong condemnation of two-term incumbent Mike Bloomberg.

The overturning of two popular referenda imposing term limits has been well-chronicled.   Bloomberg's advocacy of overturning term limits -- for his own benefit, no less -- irreparably harms the rule of law and undermines the very legitimacy of our society.   His actions (with the help of a pliant and largely atavistic City Council) convey the message that rules are meaningless, arbitrary and imposed only by the powerful upon the powerless.  

Our nation was founded on a bedrock principle that "all men are created equal," and our Constitution (Fourteenth Amendment) guarantees us "equal protection" under the law.   For a city whose inhabitants are particularly diverse in all manner, these principles carry special significance.   Hence, Bloomberg's actions are particularly reprehensible and unforgivable.   His advocacy of overturning term limits by itself is sufficient to require New Yorkers to vote against him, notwithstanding any of his accomplishments. 

Bloomberg had acquired significant respect from New Yorkers of all stripes during his first seven years.  However, by lusting for a third term he forfeited much of his credibility and moral authority which the Mayor of our City needs to govern effectively.  

If he should win, a third-term Mayor Bloomberg will be disrespected, scorned and increasingly held in contempt by a growing number of New Yorkers who live or work here.   Voters should fear the degree to which an emasculated, credibility-crippled -- and lame duck -- Bloomberg will be ineffective or, even worse, indifferent to their needs.  

Crime, Politics and Policy suggests that expectations of an effective third-term Bloomberg will fall far short of the reality.   Concerned New Yorkers have no choice but to vote against Bloomberg, and for Bill Thompson.

Thursday, October 29, 2009

Privacy Lost: Declassifed FBI Manual Shows Crime-Fighting Comes Second To Being Big Brother

George Orwell's Big Brother is not just real, but has been acknowledged by the federal government.   Our rights under the First, Fourth and Fourteenth Amendments have been under attack and broadly violated by the Executive Branch of our Federal Government, as shown by a declassified December 2008 Federal Bureau of Investigations manual (PDF format), accompanying this New York Times article.

Elements of the manual read as if they could come from a manual of KGB or Stasi.   The manual allows for the investigation of individuals or organizations without a reasonable suspicioin of wrongdoing; the infiltration of domestic organizations, all manner of ethnic or racial profiling, following people "in public," and the retention of all information gathered on a "subject" (i.e., you and me) indefinitely without the need to find wrongdoing or any cause to have investigated in the first place.  

These policies allow for the federal government, while invoking the cause of protecting the public, to eviscerate any "right to privacy" you may have thought you had, follow you ad infinitum once you are outside the confines of your home, spy on you inside your home, monitor any outside activities you engage in (bye-bye, right of assembly) and keep all records it creates or acquires about you indefinitely.  

The federal government can "investigate" you, for good cause, bad cause, or no cause.   In essence, you can be investigated, just for showing up and being you.

Just consider the following:." (Manual, p. 32) (Comment: Just get a pretext to monitor.)
"No investigative activity may be conducted for the sole purpose of monitoring the exercise of these [constitutional] rights
"It is critical that the authorized purpose [justifying an investigation] not be, or appear to be, arbitrary or contrived." (Manual, p. 32) (Comment: Is this Orwelllian doublespeak?)
An authorized purpose is defined as:
"an authorized national security, criminal or foreign intelligence collection purpose." (Manual, p. 32)
Wait, it gets better...

An investigation should be conducted in a manner "that does not materially interfere with the ability of the individuals or groups to engage in the exercise of Constitutionally-protected rights."  (Manual p.32)(Emphasis added.)

And...

"Individuals who gather with others to protest government action, or to rally or demonstrate in favor of, or in opposition to, a social cause sometimes present a threat to public safety either by their numbers, by their actions, by the anticipated response to their message, or by creating an opportunity for individuals or other groups with an unlawful purpose to infiltrate and compromise the legitimacy of the group for their own ends."
These passages make clear that our FBI feels free to blame political and social organizations, and their members, for the actions (or crimes) of others.   This comes dangerously close to criminalizing thought crime, as well as altogether shifting the criminal liability from the actor to the innocent "agent provocateur."  

Once our law enforcement starts codifying this philosophy of blame-shifting in its policy, we are all in danger.   When actually being innocent is no protection against being investigated (or prosecuted, or incarcerated), we've crossed the line from a society of laws to the atavistic jungle where might makes right. 

Nice job fellas. 

As always, the original source document is provided.   I report - you decide.
 (Manual, page 40)(Emphasis added.)

Tuesday, October 27, 2009

11th Circuit Upholds Sixth Amendment, Kuehne's Exoneration

A few years ago, the Bush Administration Justice Department criminally charged a prominent Miami criminal defense attorney, Ben Kuehne, for issuing an opinion as to the legality of much-more prominent Florida criminal defense attorney Roy Black's accepting as legal fees funds from a now-convicted drug kingpin.  

This abomination of a case moved one step closer to its overdue end, when the 11th Circuit issued a ruling yesterday (Oct. 26th) upholding the dismissal of a money laundering conspiracy count against Kuehne and a Colombian accountant co-defendant.   Here is the appellate opinion.

The decision to prosecute Kuehne -- and even to investigate him and Black -- indicates the last Administration's hostility to the basic Sixth Amendment right to counsel.   

Perhaps more dangerously, and certainly more appallingly, the last Administration was very hostile towards lawyers in general and tended to view them as objects of derision, impediments to every Administration objective, and virtual enemies of the state.

Although we have a new Administration, the current Attorney General Eric Holder should determine who was responsible for the judgment to go after and attempt to ruin these lawyers for nothing more than their desire to do their job.    The responsible parties should be encouraged to use their talents in the private sector. 

Sunday, October 25, 2009

Funny Hiring Business at New Jersey U.S. Attorney's Office?

There is a disturbing Star-Ledger report on Sunday, October 25th accusing former U.S. Attorney (and current Republican gubernatorial candidate) Chris Christie of hiring the very politically-connected, and very inexperienced, son (Samuel Stern) of a former U.S. Attorney / federal corporate monitor (Herbert Stern) appointed by the New Jersey U.S. Attorney's Office ("USAO") when it was headed by Christie, as an Assistant U.S. Attorney just weeks before Christie's resignation, and over the repeated objections of several line prosecutors who interviewed the young lawyer.  

The Star-Ledger really should not get the credit for this report.   The hiring of the younger Stern and the connection between Christie and Herbert Stern was originally reported by PolitickerNJ.com back in March 2009.  

(By the way:  Hasn't the New Jersey United States Attorney's Office been under a hiring freeze for some time?  Read this earlier Star-Ledger report.)

An allegation that the hiring of personnel for such a serious and sensitive position whose responsibilities include ferreting out corporate fraud, government corruption and all other sorts of serious crime was based on any factors other than merit has to raise questions as to the true priorities, and the actual performance, of the office in question.

This is not the first questionable report involving Christie's USAO tenure.   It is merely the latest in a string of reports involving other federal monitors (such as but not limited to former Attorney General John Ashcroft) and the no-bid multi-million dollar contracts awarded to them, the choice of David Kelley's firm (Kelley being the former Southern District of New York United States Attorney whose office prosecuted numerous colleagues of Christie's brother but excluded said brother from the criminal prosecution, the use and choice of deferred prosecution agreements, a loan from Christie himself to his top USAO deputy Michele Brown, Brown's subsequent resignation on the same day she was confronted with allegations of her running interference on responding to multiple Freedom of Information Act requests from Christie's opponent regarding Christie's USAO itinerary, Christie's automobile accident several years ago in which a motorcycle driver was injured and hospitalized while Christie escaped sans ticket, and even some strongly politically-tinged comments from the USAO this summer regarding the legendary Bid Rig corruption arrests.

I will draw a comparison between this New Jersey story (funny how New Jersey seems to be a punch line for just everything these days) and New York.   The last former U.S. Attorney with a significant post-prosecutorial political career in this part of the country was Rudolph Giuliani.   I don't remember hearing of any such string of funny business when Giuliani was the U.S. Attorney.

Perhaps Chris Christie is just no Rudy Giuliani.

Three additional comments (at least for today):    (1)  This story was first broken by PolitickerNJ.com seven months ago.   This illustrates the need in New Jersey for a real New York City-style tabloid.   The two principal New Jersey papers, the Star-Ledger of Newark and the Record of Hackensack, share content and generally still do a fine job of reporting on political, legal and crime matters despite several waves of staff reductions.   The Asbury Park Press also tries hard.   However, the rest of New Jersey papers are just understaffed, underfinanced and struggling.   Many of the stories dominating the New Jersey press -- and the people behind them -- would have been blown to bits by the New York City tabloid press corps.  

(2)  I can't help but think that Samuel Stern is a victim in this story.   Here is a young man who, on one hand, seems to have benefitted inordinately from family connections, yet on the other hand, has now had the story of his hiring and the attendant criticisms become public fodder.   His reputation stands to suffer, and really for no reason except for his father's connection to Christie.   Some may argue that the younger Stern has a public role as federal prosecutor and hence needs to get used to the heat or flee the kitchen. 

(3)   The second point brings me back to the underlying theme of this article:  Does Samuel Stern's preferential hiring portend a wave of preferential hiring -- and for more than just "political hires" -- in a prospective Christie gubernatorial administration?   Should New Jersey expect a political administration under Christie along the lines of what Bush 44 and Karl Rove did to the nation post 9/11?

Although this blog does not intend to endorse any political candidate -- heck, we seek to be equal opportunity skeptics -- this blog does issue a flashing caution yellow in this case.  The revelations of the last two months, combined with earlier stories about the use of federal monitors, raise enough credible questions about Christie's tenure as U.S. Attorney to raise serious doubts as to what type of governor New Jersey could expect with Christie.   The issues of character, judgment and fairness are always relevant...but take on particular importance when a candidate implies that his prior prosecutorial experience is evidence that he possesses the requisite character, judgment and temperament.   Two recent gubernatorial candidates made this exact claim recently: former New Jersey governor James McGreevey and former New York governor Eliot Spitzer.   When both were shown to be hypocrites, each chose to resign before being pushed or suffering even greater humiliation.   One hopes that Chris Christie learned this lesson, but the signs that he did not are only growing. 

Thursday, October 22, 2009

Is the Federal Government Sponsoring Hate Speech?

On Wednesday, a federal judge ordered released on bail a supposed blogger who gained some notoriety by allegedly attempting to incite any listeners to kill three federal judges sitting in Chicago.  (See this Thursday article from the Record of Hackensack, NJ.)

When this man was first arrested this past June, I read that he was claiming to have been working as an FBI informant.   My first impulse was to assume this was another nut job conjuring up an implausible excuse for an inexcusable act.  (I was also wondering about his attorney's level of skepticism.) To my surprise -- and I'm sure to many of you -- the claim was true, as it was admitted by the Justice Department.   Just look at the following passage from today's report:
During hearings in Chicago in July, [Hal] Turner’s lawyers disclosed - and federal prosecutors confirmed - that Turner had worked on and off for several years as an informant for the FBI, passing along tips about violent threats against individuals and elected officials, including President Obama.   (Emphasis added.)
I add up this admission to the other reports calling Turner some sort of hate radio blogger.   (The contents of his communications are not the subject of this article and I do not wish to publicize them at all.)    Someone in Congress should ask what the FBI is doing, recruiting (and presumably spending money in the process) people on the fringe to scout around for other crazies.   Perhaps this is a well-intentioned, or productive, initiative to stop the next Oklahoma City bombing...or it is perhaps the first admission that the FBI is engaged in domestic surveillance of all manner of political/civic/community activists.   If it is the latter (and don't hold your breath for an admission here), then we've not advanced one bit from the excesses (or outright illegalities) of the J. Edgar Hoover days or the Nixon days, when executive branch agencies became de facto extensions of the then-current Administration's re-election committees.   In fact, if the latter is true, there is one less way to distinguish ourselves from many oppressive banana republic regimes.  What would Frank Church think?

Americans who participate in civic and political life should note the FBI's recruitment and use of such individuals.   Are local groups being infiltrated by government-sponsored "agents provocateur" who attend meetings to spout nonsense, stir up trouble, "gum up the works" of the group at issue and otherwise interfere with the organization? 

One action which concerned citizens can take is to "police their own."  This means confronting those people who attend meetings and shout out nonsensical, inflammatory, derogatory and in some cases, defamatory statements.   In community meetings, you are "involved" in public civic life and the bashfulness we may display in regular settings is not necessarily appropriate.   The "nuts" who seem to drown out other voices of reason need to be confronted. 


Wednesday, October 21, 2009

Mets Win! Mets Win!

Mets LP, an entity associated with the New York Mets baseball club, took out approximately $47 million more from the Bernard Madoff scam than it invested, according to a Bloomberg News report which cited court papers filed Monday, October 19th by the court-appointed receiver for the Madoff entities, Irving Picard.

Keep reading the report and you'll notice that Mets LP put in a claim for "lost profits" based upon apparently totally-bogus account statements.

Fred Wilpon's taxpayer-funded shrine to the Brooklyn Dodgers; a/k/a Citi Field (that is, until Citi folds or is acquired by another bank).


At some point, an investor's claim to lost profits based upon such fraudulent documents looks not just intellectually dishonest, but morally dishonest as well.   This is a fundamental and very basic sense, one which underlies the general public's lack of great compassion for some of the self-proclaimed "victims" of the Madoff scheme, many of whom actually profited on a net basis from their investments -- meaning their profit came at the expense of other, truer victims.

The association with Madoff was something which even the most-diehard Mets fan finds hard to swallow.   In my opinion and based on anecdotal observation of other Mets fans, the toxic combination of a once-in-a-generation recession/credit crunch/economic dislocation with the Madoff scandal has caused many rank-and-file fans to become a little more distant with their emotions towards the franchise.   One should then add the specter of the Mets' new ballpark being built with public funds, being christened Citi Field, and then being shrouded in Dodgers memories (from the ballpark's exterior design to the sanctification of former Dodger Jackie Robinson).   In my opinion, Mets fans came to feel that the ballpark symbolized corporate greed, the taxpayer-funded-bank-bailout (also recognized by fans as a big wealth transfer away from them) and the tradition of a franchise which hasn't been in New York in 52 years. 

Somehow, I suspect that after the events of the last year (and without even getting into the multiple late-season collapses), a serious segment of Mets Nation is enjoying the misery of Mets ownership...and this may only be the beginning.   


Monday, October 19, 2009

Former AG, Judge Mukasey: To Fight Terrorism, Stop the Lawyers!!!

Another atrocious op-ed appears in today's Wall Street Journal under the byline of Former Bush 43 Attorney General and federal judge Michael Mukasey.   The op-ed decries the constitutional protections afforded terrorism suspects -- and all Americans -- by our federal rules of criminal procedures and our judicial system as a whole and proposes that civilian trials are just not compatible with protecting the nation from another terrorist attack. 

It is hard to believe that a distinguished jurist, and a man who for a time was the nation's principal law enforcement official, actually believes some of the writings attributed to him in the op-ed, such as:
"...there is every reason to believe that the places of both trial and confinement for such [terrorism] defendants would become attractive targets for others intent on creating mayhem, whether it be terrorists intent on inflicting casualties on the local population, or lawyers intent on filing waves of lawsuits over issues as diverse as whether those captured in combat must be charged with crimes or released, or the conditions of confinement for all prisoners, whether convicted or not."  (Emphasis added.)
Hmmm, so lawyers are the problem?  

Hmmm, without the lawyers, perhaps certain government abuses, outright mistakes or incompetence would never be exposed?   After all, the innocent and wrongfully-accused are just acceptable collateral damage...after all, they're not dead...thanks to the post 9/11 Justice Department / Homeland Security regime.  Or perhaps Mukasey's real concern is to chill the activities of the troublesome lawyers, the better to  keep certain things secret. 

Mukasey further advocates for a "touchstone for admissibility of evidence" as "relevance and apparent reliability."   He fails to address how this standard would not imperil the rights, freedom and liberty of every American if applied in any other court.

Finally, Mukasey all but states in his last two paragraphs that those of us who assert the primacy of our Constitution will have blood on our hands should there be another attack.   However, many of us cannot reconcile our Constitutional protections with such practices as indefinite detentions without trial, wiretaps without warrants, sneak-and-peak searches, and torture.   We have been -- and remain -- concerned that such practices, once tolerated against the most horrible of the horrible, can easily threaten and be imposed upon the rest of us on a creeping, slippery slope with ever-changing definitions of what is "wrong" or "undesirable."

Such concerns become of greater importance with the revelation this past summer that our domestic law enforcement agencies have admitted to infiltrating domestic political organizations to identify possible law-breakers.  (That will be grist for a future post; stay tuned.)

Thursday, October 15, 2009

Confrontation Clause Lives: Gotti Vindicated by Federal Judge...

...on accusations of witness intimidation stemming from uncorroborated claims by a government witness against Gotti.   The federal judge (Kevin Castel, in Manhattan federal court) found that no United States Marshals saw anything of the sort which the prime government witness alleged to have occurred.

See a current Daily News report here.

Eric Dixon was the first to question the witness' allegations, as well as question the wisdom of a possible additional prosecution for witness intimidation or obstruction of justice, which was speculated about in a New York Post article Saturday, October 10th.

Nice to see the Sixth Amendment lives. 

Not so nice to see that the major government witness in this case -- whose testimony arguably is the basis for this criminal prosecution -- has been shown to have lied, inside the courtroom (but not in sworn testimony) of all places.   Has the Justice Department based its entire prosecution on this man (John Alite)?   Not one of Justice's finer hours.

Justice Department on Honest Services Theory

The Department of Justice has some interesting thoughts on the use and boundaries of the theory of deprivation of "honest services" in its Supreme Court brief opposing jailed former media baron Conrad Black's appeal of his criminal conviction.  (I suggest going to the ABA website at http://www.abanet.org/ for all the briefs, including from amici, in this case.   If you have less time, see this Dan Slater article in the Wall Street Journal with some background on a few current cases awaiting trial.)

In short, Justice argues that the honest services statute (which is Section 1346 of Title 18, which modifies the mail fraud statute at Section 1341) covers a range of conduct considerably narrower than the current popular perception, and gives a good argument -- if not necessarily persuasive -- as to why some judges' concerns (especially Supreme Court Justice Antonin Scalia's) are overblown.   Justice cites three court decisions constraining the honest services theory and overturning criminal convictions (see pp. 39-40 of the brief).   However, the fact that those circuit court decisions were able to be cited illustrates the problem Scalia and others have:  those cases were brought, and ultimately-exonerated individuals were prosecuted and convicted, because of the vagueness of the statute.     These judges -- and other commentators including law professors -- correctly identify and fear the potential for abuse.

The honest services theory seeks to proscribe breaches of a duty of loyalty, committed with an intent to deceive and involving materiality.   The plain language of the statute is as vague as it is specific.   But the real problem we should keep our focus on is the statute's elasticity (my term); in other words, the statute's susceptibility to being used by a creative prosecutor to cover a wide range of conduct and call it "criminal." 

This is a situation calling out for Congress to act.   For a body which loves to produce reams of proposed legislation (most of which goes to the shredder), this group can put together as complex a bill as necessary to specify exactly what is a crime, and what is not. 

Until then, innocent people will have only the protection of the people at Justice who are charged with making investigative and prosecutorial decisions.   The law itself will not offer the protection.  A law which depends on the benevolence of its enforcers to be protective will be the first law to be put to harm's use when the benevolence is replaced by malevolence.   As a nation of laws and not of men, such a law is fatally flawed.    Such a law should be carefully amended -- or repealed altogether.   

Wednesday, October 14, 2009

Soylent Green Government

In meeting recently with some self-styled constitutionalists and anti-establishment types, I proposed that their most common principle seems to be a problem with government, and that the nature of the problem means that government will always be viewed warily.

The problem, you see, is that government is nothing more than an aggregation of people.   People are flawed and sometimes quite evil.   Hence, anything containing people is flawed and possibly evil.   Just like Soylent Green, government is people. 

Perhaps this problem can be solved when machines run the world.  (Memo to you sci-fi fans: Do not remind me of the "Cylon" problem from the show Battlestar Galactica. Thank you.)

Eric Dixon is a New York lawyer and strategic consultant for businesses, political campaigns and individuals. Mr. Dixon is available for comment or consultation at edixon@NYBusinessCounsel.com and 917-696-2442.

Saturday, October 10, 2009

Does the Confrontation Clause Allow Me to Threaten Your Life?

Reputed mob figure (and son of the late Mafia leader John Gotti Sr.) John Gotti Jr. may face an additional federal prosecution stemming from alleged threats he made against the main prosecution witness against him this week in Manhattan federal court, according to this New York Post report.

The charges could be obstruction of justice and/or witness intimidation.   It is alleged that Gotti mouthed to the witness a threat to kill him, and did so in open court as the witness was walking near the defense table.

The Sixth Amendment is supposed to guarantee criminal defendants the right to confront their accusers.   Impediments to this confrontation right can encourage wayward witnesses to commit perjury, among other things.   However, the confrontation clause does not permit witness intimidation, and the allegations (if true) would seem to fit within that definition.   Threatening to kill someone -- when you're a defendant facing murder charges -- probably isn't constitutionally-protected behavior.

This alleged incident raises several questions:  What is the defendant allowed to do in the course of his right to confront the witnesses against him?  Is a stare-down a prosecutable offense?   Why is the defendant failing to show a decent amount of self-control at one of the most important times in his life?   Why is the witness being paraded anywhere near the defendant?   Is the government trying to incite or provoke the defendant?   Should that be allowed?   Or was this supposedly mouthed comment just theatrics?  

Friday, October 9, 2009

Securities and Exchange Commission Issues New Strategic Plan

The Securities and Exchange Commission today issued a new five-year strategic plan for public review and comment.

One of the new goals of the SEC is to have "successfully resolved" 90% of its cases.   "Successfully resolved" is defined as achieving a settlement, judgment on the merits or default judgment.   Of course, the SEC adds that it will seek to "file large, difficult or precedent-setting cases when appropriate, even if success is not assured."   (See page 17 of the plan.)

The SEC must have anticipated the criticism of this benchmark.   Having this type of numerical measure of its efficiency and competence invites -- if not guarantees -- that the SEC will rack up the numbers by, among other things:
  • pursuing the smallest brokerage firms and individual brokers, investment advisers and so on, for they have the least financial wherewithal to afford lawyers to handle investigations (in the pre-charge stage) or fight SEC charges once brought; and
  • bringing those actions which are the easiest to win.
Note that neither of these categories has anything to do with the SEC's prime directive of investor protection.   If investor protection were the primary concern, we would see the following:

"The SEC seeks to pursue cases where the aggregate claimed loss to investors is approximately 90% of the total claimed loss to investors in all matters brought to the SEC's attention"


Under the SEC's new plan, there is going to be a huge temptation to go after "small fry" (say, an individual bad broker where the claimed loss is $25,000) and to go after lots of them, many of whom might not be able to fund a prolonged, vigorous defense, rather than the one powerful and wealthy defendant which can throw lawyers at a case.   

Now add in an additional incentive -- that being the goal of pursuing "precedent-setting" cases has another troubling aspect to it. It suggests that cases will be brought as a form of administrative rule-making. In essence, the SEC would seek to make law.  (Objection:  That is the prerogative of Congress.)

One can see a wave of wrongfully-accused or over-charged financial industry defendants, disproportionately not-well-financed, getting attacked as the SEC's eager young bureaucrat-lawyers will look to show how innovative and creative they are (rights of the wrongfully-accused be damned), all while being able to boost their stats (like a basketball player shooting three-pointers in garbage time) to show how efficient they are, all by taking advantage of the weaklings in the litter.  

This mental masturbation and bureaucratic stat-padding will come at the expense, I fear, of a lot of good people.   The quality of the financial advisory business will suffer and investors will ultimately pay the price.

Just as with wayward publicly-traded companies, the pressure to "hit the numbers" leads to bad things.  The SEC ought to know better!   (Oh but where have we heard that one before?)
A true commitment to investor protection requires the pursuit of these parties.  If the SEC wishes to avoid confrontation with parties which can fight back, then it can issue all the strategic plans it wants; it will just be more "lip service" from the "same-old-same-old" SEC.  
Now if this were the objective, the SEC would have a bigger budget, more manpower and smarter manpower.   Naturally, it would have to go after the biggest targets and the deepest pockets.   These also would be the richest and most influential financial players on the planet.   However, they are the parties which by virtue of their size, tend to do the most damage.  

Thursday, October 8, 2009

New Jersey's New Disabled and Handicapped Child Registry: Destroying the Privacy of the Most Vulnerable

New Jersey Governor Jon Corzine has just signed a law that threatens the basic privacy rights of all children in New Jersey born or diagnosed with a host of disabilities or birth defects.   See this report from NorthJersey.com.   

This law requires all doctors and other health professionals to report the names of all children diagnosed.   On its face this is a breach of the doctor-patient privilege, and there is no "opt out" provision for parents.   The reporting is mandatory.  

Governor Corzine promises us that all information provided to the state government will be confidential.   In reality, "confidentiality" can be measured by the integrity of the least honorable person on the state payroll.   As we all know, public servants in New Jersey are known for their honesty.   (For those of you who doubt the Great Dixon, see www.usdoj.gov/usao/nj and browse through the press releases.)   If confidentiality really were a concern, there would be no reporting requirement on doctors.    The reporting requirement also violates the patient-doctor privilege, and the spirit if not the letter of the HIPAA privacy rules and the current HHS Privacy Rule. 

Ostensibly, the objective of the law is to assure that the parents of these children receive the necessary resources and treatment.   The logic is fatally flawed; it follows that the government-maintained database is necessary to deliver the help.   If that were true, then without the database you have more children developing cleft palates, for example.  

I have two major legal objections (which you should share):

(1) the referrals and recommendations for resources, treatment, information, etc. can be and are done right now, without any mandatory reporting requirement upon doctors and without any children bearing any risk of loss of privacy (and thus the risk of future discrimination) -- in other words, the stated objective of this law is already being achieved, and can continue to be achieved by using far less burdensome means (and this would be one strong avenue of attack in federal court!) than the creation of this database and its consequent dangers, and

(2)  the database risks destroying the privacy of, and exposing to lifelong discrimination, all disabled children -- including the children of parents who have already sourced these resources through their own efforts, and who would literally gain nothing from the law no matter how well-intentioned it is.

In addition, while physical disabilities are harder to conceal, some disabilities are mental but not physical and are not necessarily apparent.  Think about behaviorial disabilities (such as ADHD and autism spectrum disorders) which by their nature are hard to diagnose with certainty.   But if doctors are forced to report every child with certain mental/behavorial disabilities, they will risk reporting children whom they misdiagnose.   A toddler with symptoms that support a diagnosis of autism, for example, may not be autistic at all...but he will be labeled in the database under the New Jersey law.  

If someone gets access to that government database, like a government worker who later enters the private sector, well...twenty years later she might just remember little Johnny's name and make small coffee talk to her friends in HR (in a conversation likely to begin with, "You didn't hear this from me, but...") and voila, little Johnny who's now a completely normal (or even above-average) young adult suddenly can't get a job and can't figure out why.

To be clear, our handicapped children's privacy will depend on the scruples of government workers.   When you go to a government office and deal with surly, rude and disinterested clerks, do they fill you with a sense of confidence that they are concerned workers with integrity and honesty?   Do you want your privacy, and the privacy of your child, to depend on these people?

At present, we are allowed to keep our diseases, maladies and handicaps private.   The right to privacy regarding medical matters is virtually a holy sacrament in some quarters.   The Roe v. Wade  decision revolves -- in a contorted and incomprehensible way -- around the right to privacy.  

Some of this is legally illogical.   Follow my logic...if I am a child and I am diagnosed with a disability, I have no privacy in keeping my disability a secret from the state government.   (And prior to being born, if my mother chooses to kill me she has a near-absolute right to do so because her "right to privacy" outweighs my "right to live.")  But once I choose to fornicate, if I get pregnant or catch an STD, I get an absolute right to privacy.

Talk about a moral hazard.

Today, if you have an embarassing disease like a sexually-transmitted disease, or a major disease like cancer, there is no database tracking you to make sure you do not infect others, or warning your healthy neighbors to stay away from you.   This is true even with HIV, which is merely an incurable disease.  

So let's think what would happen if we replaced the phrase "children with autism" with the phrase "adults with HIV."   How would this database requirement be viewed then?   You could bet your last dollar that the AIDS / HIV lobby would strenuously resist -- and rightfully so -- any attempt at a database.   The AIDS victim registry would raise fears about government-sanctioned discrimination and quaranting.   Hell, they would engage in major civil disobedience.   And they would be completely right on their concerns!   The argument about making sure these sufferers get their treatment is just as valid -- perhaps even more valid than for disabled/handicapped children. So under New Jersey's rationale, why aren't we having mandatory reporting for all AIDS sufferers?   Cancer sufferers?

Do you see now how this New Jersey law has nothing to do with health?  Get the point?

We have patient privacy laws keeping medical information private between doctors, patients and insurers precisely to safeguard the information and prevent the potential for discrimination.   Every time a new party gets access to information, the mere act of transmission involves the potential for a breach, which means an irreversible loss of privacy.

As we know, there are protected classes (the handicapped are one -- that's why we have an Americans with Disabilities Act) for a reason: They are discriminated against. And this database, with its reporting requirement, will make it much easier to discover, track, monitor and discriminate against some of the more vulnerable members of society.

The survivors of the Nazi concentration camps recognize this as branding.  The difference between requiring a class of people to wear yellow stars on their clothes, and this database-reporting requirement, is essentially one of semantics.  

One final comment.   Human history reveals that much evil is couched in terms implying benevolence.   This may be a well-intentioned law (OK, Governor, time for a pat on the back during this election season!)...but it is severely flawed.   Any law which depends on the benevolence of its enforcer is inherently fatally flawed and is a bad law deserving repeal.  This law's danger may only become apparent after some disabled children lose their privacy, their innocence, their rights.

I believe this law is unconstitutional on its face, and have already begun researching avenues for its challenge in federal court.

This law purports to help disabled and vulnerable children. In fact, it is about helping a political class -- yep, those running for election this year -- be able to claim that they are helping. Huge difference. I suggest you remember this distinction the next time any charity comes calling; same principle applies.

That's My Boy!: Astor Son and His Lawyer Found Guilty of Fraud

Breaking news from the New York Daily News that Anthony Marshall, son of philanthropist Brooke Astor, was found guilty of several criminal counts relating to his alleged looting of her estate prior to her death two years ago at age 105.  Marshall's lawyer-friend, Francis Morrissey (not Marshall's lawyer in the criminal case), was also found guilty of forgery relating to some "codicils" (written amendments) to her wills.  

The jury took over twelve days to decide, and recent reports stated the jury was close to coming to blows over tensions during the deliberations.   Expect an appeal by both defendants.

Tuesday, October 6, 2009

New York Pension Fraud Case: Liberal Party Leader, Investment Adviser Plead Guilty

Breaking news this afternoon in the New York pension fund scandal which has been the subject of parallel federal and state criminal investigations.

The New York State investigation, brought by Attorney General Andrew Cuomo, has yielded guilty pleas today from
  • former Liberal Party chieftain Raymond Harding, who was perhaps the major player in city politics during the Rudolph Giuliani administrations; and
  • Saul Meyer, an investment adviser.
These are pleas to state charges of securities fraud.

For a breaking news link, click here.

The story references a political adviser to former State Comptroller Alan Hevesi (pled guilty to an unrelated felony and resigned a few years ago, and who is reportedly a target of at least one investigation into the pension fund scandal).    Hevesi has not been charged.   Not yet.

This adviser is likely Hank Morris, a well-known political consultant.   Morris has been charged; he was indicted earlier this year.

There is also a reference to New Mexico pension funds.   There is a parallel -- and now seemingly connected, but distinct -- scandal and investigation into New Mexico pension funds.  

One possible connection of the dots:  Obama's initial nominee to be Secretary of Commerce, former Senator, New Mexico governor and 2008 presidential candidate Bill Richardson, suddenly and inexplicably resigned just weeks before Obama's inauguration.   Some reports have tied him in with the New Mexico scandal, but he has not been charged or implicated.   Not yet.

Ex-Corzine Benefactor Carla Katz Goes After Christie

Here is an atrocious cheap shot on New Jersey gubernatorial candidate Chris Christie and his alleged weight problem.  (New Jersey political watchers may be amused to note that the cheap shot author is the ex-paramour of, and previous recipient of serious financial genero$ity from, Christie's opponent, Governor Jon Corzine, and is also a former union leader who negotiated labor agreements with the same Governor.  Said author has also been reported to have been under investigative scrutiny for financial dealings involving the labor union she once headed.  No further comment is necessary.)   This follows a report a few days ago with the headline Christie: Stop Calling Me Fat!

Apparently, the Republican candidate Christie doesn't mind all the criticism from commentators such as the Star-Ledger's Paul Mulshine that he has no plan for the state, no plan to reduce property taxes, no plan to balance the state's several-billion-dollar budget deficit, and no plan for economic recovery, and is silent on all of these issues.    But mention his weight, and watch out!

So now we know three things that get Christie mad.  One is to have NJN's Michael Aron ask him a question ... any question.  The second is to mention his brother Todd Christie and that stock fraud investigation overseen by the Manhattan U.S. Attorney who later on received a corporate monitor appointment from Christie as New Jersey's U.S. Attorney.  (Oh that's old news.) The third is to mention his weight.

Hmmm.  Time for a donut.

Moscow on the Hudson, with Comrade in Chief Bloomberg

httNew York City will move several steps closer to a command-and-control society if Mayor Mike Bloomberg has his way.

According to this appalling New York Times report, the City will install a new zone of surveillance cameras and license plate readers covering the bulk of Midtown.   The proffered purpose is to protect the public.   A skeptical mind -- and there are many -- will think this is a large data-gathering effort aimed at regulating regular behavior merely by spreading the word that "you are being monitored."

Civil libertarians are right to be alarmed.   The logical flaws in this plan show a few reasons why.

The license plate readers would be one component in an effective anti-terrorism effort... but only if the people monitoring the data are doing so (a) in real time, and (b) know exactly who they're looking out for.   At present, the authorities have the ability to do (a) and (b) using "regular" surveillance techniques.   Ohhh, but that might involve work and cost manpower and money...so it's easier (but not cheaper, no, not by a long shot) to use a lot of very expensive gadgets and hire a large group of camera watchers.   Moreover, the public will be asked to "trust" the government that the data will not be misused and that, of course, someone will actually be watching all the time.  

This plan will become another reason to avoid living, dining, relaxing or working in Midtown.   I wonder how the small business community feels about this.

Eric Dixon is a New York lawyer and strategic consultant for businesses, political campaigns and individuals. Mr. Dixon is available for comment or consultation at edixon@NYBusinessCounsel.com and 917-696-2442.





Friday, October 2, 2009

Mukasey Scaremongering on Patriot Act Renewal

Former Attorney General (and federal district court judge in the Southern District of New York) Michael Mukasey authored a thoughtful essay in today's Wall Street Journal opinion pages about reasons to renew certain controversial provisions of the USA Patriot Act.

Mukasey was doing fine, until the last paragraph, stating as follows:
Those who indulge paranoid fantasies of government investigators snooping on the books they take out of the library, and who would roll back current authorities in the name of protecting civil liberties, should consider what legislation will be proposed and passed if the next Najibullah Zazi is not detected.
Mukasey strongly implies that we should give the government more power, and even be willing to sacrifice some constitutional freedoms and certainly endure some inconveniences.   His reason comes in the form of a barely-veiled threat: that any future attack will embolden the government to be much more aggressive in pursuing suspects, the rights of the innocent be damned.

Mukasey undermined the message of the rest of his essay with this extraordinarily ill-advised ending.   His last paragraph evokes the basic "brute force" argument of the schoolyard bully:  Give us what we want, now, or else you'll really be sorry.    The implicit brutality of the argument all but admits that there is either a basic flaw in the government's argument for Patriot Act renewal, or a basic, callous indifference to popular constitutional rights and protections.  

The Founding Fathers, who drafted the Bill of Rights with the memories of British tyranny and repression fresh in their minds, would be appalled at the tone, not just the substance, of Mukasey's essay.