Rutgers Hate Crime Bias Charges Considered

See this breaking report tonight from the Star-Ledger of Newark, confirming what Crime, Politics and Policy predicted yesterday.

I repeat: The rush to judgment, the rush to charge the two Rutgers students with serious bias and possibly federal civil rights deprivation charges, seems destined to raise a risk that these students will be charged criminally and face the threat of incarceration, not for what they did, but for the assumed (and not provable) causal connection between those actions and the freshman's suicide.  It hardly seems fair to charge anyone with a crime because of the claim by people other than the victim as to the inferred -- and unprovable -- impact of certain acts (which are arguably not, or should not be, considered "crimes") upon that victim.  The purpose of the criminal law is to protect the public, deter truly criminal behavior and, to a lesser degree, exact retribution. 

There just seems too much of an emotional, and irrational, blood lust to punish two 18-year-olds for a grand stupidity, but whose acts can hardly be considered to have caused a suicide.  If causing humiliation to another person becomes a crime, there will be a long list of societal interactions which will have to be avoided in order to minimize one's risk of being charged.  

If there were crimes here, they may stem from the distribution of sexual activity, although even here there are First Amendment issues and questions even as to whether consent was or was not given, or even whether there was a valid expectation of privacy.  Beware of new laws that will likely be proposed to cover certain conduct at issue here, because these laws will almost certainly threaten to criminalize innocuous, benign acts or impose a standard of criminality that may hinge on the amorphous definitions and arbitrary emotions of certain people.  I fear we may move closer on the slippery slope to the day when one's regret after the fact becomes the predicate for another person being held criminally responsible.  When that happens we shall hardly be free, or happy.  

Christie Accuses Rutgers Webcam Duo Of Causing Suicide, Taints Jury Pool

New Jersey Governor -- and former U.S. Attorney -- Chris Christie succeeded in tainting the jury pool for any criminal trial of the two Rutgers University students charged with multiple criminal counts of invasion of privacy for web-streaming a fellow student and roommate's sexual encounter with another man, when he accused the two students of having driven the young man to commit suicide. 

There is no definitive proof that the webcam caused or resulted in the student's suicide.  No "causal connection" has been proven.  And certainly no properly thorough investigation into the facts has been concluded.  We have only the plausible inference -- one competing among many -- that the webcam spying (which was morally wrong) and subsequent transmission of images depicting sexual activity may have helped precipitate the young man's suicide.  We are far, far away from having proof beyond a reasonable doubt.

But don't let the facts or proper procedures in following an investigation into a sensitive matter get in the way.  Note this quote from Governor Christie: 

[The two suspects] "...[know] that they contributed to driving that young man to that alternative [the suicide]."

This sure sounds like passing judgment and being a statement which may be raised by defense counsel as having potentially tainted the jury pool enough to deprive the defendants of their right to a fair trial.  Christie has basically declared the two students to be criminals, to have caused the suicide.    

As stated before, the students' reported acts are both wrong and -- in a narrow and limited sense -- criminal as defined under state law.  However,  the youth of the alleged perpetrators argues strongly against criminal intent having played a role here, and in favor of the stupidity of youth having played the lead role.  Moreover, there is an issue of prosecutorial discretion in bringing a case where intent may not be apparent and where this may simply have been a tragedy all around.  Sadly, the gay-sex nature of the salacious events may spur enough gay-rights-lobby pressure that a criminal prosecution, perhaps for crimes as serious as manslaughter and the deprivation of civil rights, may be brought in order to appease the blood lust of street protestors. 

Eric Dixon is a New York small business lawyer and privacy advocate who comments on various legal issues touching on technology, civil and constitutitonal rights.  He can be reached for comment and consultation at 917-696-2442 and by e-mail at edixon@NYBusinessCounsel.com.

Rutgers Cyberbullying: Wrong, But Not a Crime

The shameful exploitation of the Rutgers freshman's apparent suicide (note: not confirmed at press time), presumably due to embarrassment from being recorded having sex in his dorm room has begun.  As predicted in yesterday's Crime, Politics and Policy report, members of the Velvet Mafia gay lobby have begun referring to the alleged cyberbullying as a "hate crime."   

A brief background:  The Rutgers student was allegedly videorecorded via his roommate's webcam, without his consent, in his dorm room having a romantic/sexual encounter with another man.  The roommate then distributed the video via the Internet.  Allegedly, the student being taped committed suicide the next day. 

The inference from press reports is that the humiliation of the taping and distribution of these private moments led to the suicide.  This inference -- which has not been shown to have any factual basis -- may lead a drive towards serious criminal charges against the roommate and another friend whose computer he may have used to record the encounter remotely, who were arrested earlier this week on charges of "invasion of privacy."  This new crime is a felony and does expose them to jail time.  However, the "hate crime" push may lead to federal criminal charges on the basis of civil rights violations. 

The actions of the two Rutgers students were not right; they were immoral, disrespectful and harmful.  However, there is no evidence this was even bullying behavior and may have been nothing more than prankish, juvenile fun showing that they did not appreciate how embarrassing this could be to the student being recorded.

There are other issues here.  If "invasion of privacy" is a crime -- and I for one think this is ripe for a strong court challenge -- then one must ask what gives rise to a valid expectation of privacy. I note that the student alleged to have set up the webcam did so...in his own dorm room.  This student set up a webcam to record what was going on in his own room while he was out.  

The transmission of images depicting sexual activity without the consent of the actors is another matter.  This is the activity which common sense -- which often is uncommon -- dictates an expectation of knowing this is wrong (at least morally).  Note that a crime containing this concept as one of its elements has not been charged (well, it's only been a few days) but I would expect an effort to be made to do so.  However, there are two hurdles which I foresee.

The first hurdle is the ability to establish the absence of consent.  The problem here is that the best witness for the prosecution -- the young man presumed dead -- is unavailable, while his alleged sexual partner has yet to publicly surface (and one would hope that the authorities have identified and questioned him and secured his agreement to keep all this information confidential in order to preserve and protect the ongoing investigation). The second man may be able to claim he gave no consent to being recorded, but then the issue becomes which roommate was at fault for the secret recording.

It can be inferred from his presumed suicide that the deceased roommate did not consent to the distribution.  It is the distribution of the images that may have sparked the embarrassment and presumed suicide, and that act -- not the recording without consent -- may be the genesis of a charge. However, it is plausible that the young man did consent to being recorded by his roommate.  In that case, we could have a defense theory that the young man's sexual partner was lured by the deceased young man into his own dorm room to record the encounter.

Finally, do not forget the still-common element in any traditional criminal charge of criminal intent (notwithstanding the current trends towards criminalizing negligence and imposing all sorts of "strict liability" standards to eliminate actual intent as ann element).  Where was the intent to do serious, criminal harm -- as opposed to merely have some stupid fun?     

It is worth remembering that any criminal charge needs to meet the requisite standard of proof of "beyond a reasonable doubt."  The danger to the Rutgers students is that they may be threatened especially harshly, not only due to anticipated political pressures but also because the legal or factual foundations for any charges against them may be particularly weak.  (In my opinion, the severity of threats often moves inversely to the validity of the evidence or the strength of the law, reflecting the prosecution's awareness of the weakness of its legal or evidentiary position.)  

The young man's apparent suicide is an unquestioned tragedy.  That does not mean that these two other Rutgers students, both freshmen aged 18, committed any crime.  Making fun of someone is not a crime; even "bullying" is not a crime, however distasteful it is.  The zeal to make these acts crimes and to throw some young people in jail for acts of abject stupidity threatens to criminalize certain speech when the target of the speech finds it offensive, vulgar or harmful to his feelings.  We should resist the movement towards a society where someone can claim -- however validity -- that his or her feelings are hurt or reputation has been damaged and then push to criminalize the speaker. 

Hurt feelings, shame, regret, embarrassment, humiliation: None of these make a crime.  Those who wish to criminalize cyberbullying should be mindful of the implications for free speech.

Eric Dixon is a New York small business lawyer who handles investigations, regulatory matters and civil rights and constitutional matters.  Mr. Dixon is a 1994 graduate of Yale Law School and is admitted to practice in both New York and New Jersey.  Mr. Dixon comments often on issues involving privacy and technology and is a member of the New York City Bar's Science and Law Committee.  Mr. Dixon is available for comment or consultation at 917-696-2442 and by e-mail at edixon@NYBusinessCounsel.com

 

Tape Dorm Roommate's Sex, Do Not Pass Go, Go To Jail?

At press time it is strongly suspected that an 18-year-old Rutgers University freshman committed suicide after video of his romantic/sexual encounter with another man in his college dorm may have hit the Internet. The young man's 18-year-old dorm roommate -- who is suspected of taping the encounter using a webcam (perhaps the video recorder now common on laptops) -- and another 18-year-old student are facing third-degree (criminal) felony charges stemming from the sexual voyeurism and videotaping without consent of the act(s). More criminal charges -- perhaps even federal criminal charges on the basis of deprivation of civil rights -- could be coming.

The young man's suicide (if indeed that is the case) is tragic. The acts of the other two students, also young adults, were immoral, inconsiderate and harmful. But they were not criminal, in my opinion.

This case will illustrate the overcriminalization of behavior of which some -- but not all -- disapprove. As gay rights will soon be interjected into this tragedy, expect a push for greater criminal charges against the two other Rutgers students as a way to compel approval (which is distinct from legal acceptance and tolerance),, by and among the general (heterosexual) population, of all types of non-traditional sex (that is, anything other than between a man and woman married to each other). The gay rights lobbies can also be expected to try to impute the lowest of motives against anyone espousing "traditional" values (no matter that they are irrelevant to this case or the tragedy) and to use the legal system to punish with jail time anyone who dares to espouse such values or oppose the gay rights agenda.

Let me be clear: This tragedy is not about gay rights. And the tragedy, and the pain of one North Jersey family, should not be callously exploited by those who wish to achieve "equality" for all gays (e.g., to silence all political speech by anyone not fully endorsing gay rights, gay marriage, gay adoption, and don't ask-don't tell-in-the-military). But expect this tragedy to become the newest flashpoint by those who wish to advance their push -- not for legal equality -- but for their notion of a social equality with conventional mores. This notion requires the silencing of all sources of social, religious or cultural opposition, and in fact anyone who is insufficiently vocal in their approval, under pain of criminal prosecution.

It will be under such distorted social and political pressures that the stupid juvenile pranks of two 18-year-olds will be evaluated.

In reality, their indiscretions took a much more tragic turn because their harmful effect, their power to embarrass, was enhanced by the power of current technology to spy upon and disseminate at no cost and little difficulty moments which two decades ago would have been entirely private. Had these events occurred 20 years ago, the humiliation factor would not have been present -- or would have theoretically been less severe.

The fact that our youth can use the new tools of technology does not mean our youth can be trusted to use them well...or to make the sharp judgments to appreciate the dangers of certain actions.

Perhaps our collective failure to appreciate the destructive uses of technology is to blame. Perhaps most of all, we need to assess as a society whether our youth is old enough to be trusted with certain gadgets.

We don't let 20-year-olds drink alcohol, because we have decided as a society that youth cannot drink responsibly. Perhaps the same assessment should be made with certain technologies.

Eric Dixon is a New York lawyer who writes on issues involving science, technology, privacy and civil rights, and government regulation. He is available for comment or consultation at 917-696-2442 and at edixon@NYBusinessCounsel.com.

New Paradigm in Legal Industry

A recent report by a well-known law firm consultancy predicts flat consumer demand and pressure on billing rates will cause an overall job loss of about 17,500 lawyers over the next five to seven years.

 

What does this mean for the overall business economy?  In short, it means that if you have gone to a "mid-sized" or "large" law firm you have gotten cheaper legal service...and often of a lesser quality. 

 

I believe the traditional paradigm of the large law firm -- sometimes referred to as BigLaw (one word) -- has been on the wane for a long time.   The reasons are not merely the economic uncertainties of a recession and the continuing credit crunch which shows no signs of abating.  Many established middle-aged (and older) professionals and business owners have experienced not just one, but two major wealth-destroying events in the last ten years: the bursting of both the Internet company bubble and the residential real estate bubble,

 

Economic behavior is best studied by looking at the behavior of the owner class.  Business owners -- and in the legal profession this means "law firm partners" -- must preserve their own assets.  Law firms have become risky business ventures.  Let's see why.

 

As with many businesses, law firms' revenue side has come under pressure from reduced consumer demand, clients rejecting standard billing rates or, in an increasing number of cases, refusing, delaying or unable to pay bills when due. The key here is not what you charge; it's what you collect. Many clients are also delaying or foregoing using lawyers to solve certain problems, just like many patients will refuse to go in for elective plastic surgery but will still pay (and pay top dollar) for heart surgery.  The decline in demand for all professional services at certain price points (indeed, as with any service) may be compared with the view of getting certain types of medical treatment; absolute necessities will still be sought after, but all other matters may be viewed as elective and paid for accordingly.

 

Meanwhile, the expense side has continued to grow (certainly outpacing the rate of revenue growth), reflecting not just growing insurance costs but also pressured by bad decisions or bad timing such as long-term office leases signed when there were expectations of further growth (which often have evaporated) and at space-per-office-square-foot rates that were "market rate" in the middle of the last decade but which are now substantially above current market rates.   It should be no surprise that there are reductions in overall headcount, replacing certain staff with cheaper alternatives, and even substantial reductions in income and equity distributions to partner-owners.

 

Incidentally, none of these pressures have resulted in better legal advice. The opposite is occurring, as all providers of the advice become increasingly distracted. 

 

The "owners of the means of production" (that is, the partner-owner class) is distracted by the needs to generate new paying business (often to replace lost or non-paying business, and just as often to remain as a partner-owner) while its wealth is often tied up in the equity of the law firm.  This yields the different pressure, and the huge risk, from non-diversification of investment assets and is just as risky as having one's 401(k) plan assets invested in only the stock of one's own company.  Additional pressures come from anticipated cost increases next year -- from the gradual mandates of ObamaCare and insurance premium increases -- and the anticipated net income decline stemming from the expiration of the Bush-era tax cuts at the end of 2010.  The bottom line for the ownership class:  Several factors will likely drive net income down, perhaps substantially.

 

As for the workers, the employees, anyone who is not an owner, their efforts will be increasingly consumed by the needs to keep one's job, look out for replacement jobs and conserve their own resources during the continuing economic uncertainty. The economic pressure felt by the ownership class will cause firms -- as with most businesses -- to try to control and reduce costs whenever possible.  This means attempting to get cheaper workers, and cheaper lawyers, especially if any decline in lawyer quality can be hidden.

 

These economic trends indicate that small business owners, entrepreneurs and other individuals are likely to receive worse service from their professsionals -- their lawyers, accountants and doctors -- and that even if their invoices show a savings, those savings are most likely to result from this worsening quality of service.  There is no reason why professionals will not cut costs the same way restaurants do: by using cheaper ingredients.

 

The foregoing analysis illustrates how the legal profession is really no different from any other type of service industry.  It's only in the midst of the current climate, when twentysomethings with Harvard degrees cannot find paying jobs requiring a college degree,

 

The entrepreneurial, consumer class needs to be very alert to the decline in lawyer quality.  There are many small firms with two or three lawyers which can and often do provide top-notch services at much more affordable rates.  On the other hand, there are a growing number of firms which are relying on being the cheapest provider, and a closer inspection shows an economic model that relies on cutting every corner possible to remain in business.  The general public should be wary of the latter.

 

Eric Dixon is a New York small business lawyer and has been a member of the New York bar since graduating from Yale Law School in 1994.  He is the president of Eric Dixon LLC.  He is available for comment or consultation on this and other legal, strategic and management issues at 917-696-2442 and by e-mail at edixon@NYBusinessCounsel.com.

 

 

 

   

 

 

 

 

Suicide: The Coward's Way To Avoid Prosecution

A tragic, and perhaps very revealing development on Monday:  The apparent suicide of one of the federal prosecutors in the investigation and prosecution (since reversed) of the late former Alaska Senator (and Alaska's former United States Attorney) Ted Stevens.

 

The prosecutor, Nicholas Marsh, had himself been involved in a criminal investigation by the Justice Department into alleged prosecutorial misconduct during the course of the Stevens investigation and prosecution.

 

Often in civil cases, a judge will rule that the unavailability of a prospective witness can support the drawing of an adverse inference against the witness, meaning that the trier of fact may infer from the witness being unavailable (or unwilling) to testify that the witness' testimony would have been adverse to the witness' own case (whether the witness is plaintiff or defendant).  The prosecutorial misconduct investigation being reported as a criminal investigation, from which either civil or criminal charges could have arisen, will likely now be hampered.  

 

Strictly an opinion, but the ruling from this corner is that we are dealing with someone whose professional ambition got out of hand, in the process likely ruining the tail end of a distinguished lawyer's and Senator's career and life, and who himself became a gutless puke, taking the coward's way out when facing the same medicine he was dishing out.  It is hard to look at any public figure who, under the specter of criminal investigation, ends his own life and not draw the inference that the departed was very aware of his own involvement in serious, criminal wrongdoing. (One notable example from New York politics: former Queens Borough President Donald Manes.) 

 

From a moral standpoint, suicide alone is an inherently selfish and eminently narcissistic act which serves to severely harm everyone around the suicide actor.  The person committing suicide succeeds in hurting everyone else, in order to spare himself what he -- and he alone -- considers to be pain, whether that be physical or psychological pain, shame, humiliation, or guilt.  

 

Notably, these sentiments, this private pain, did not cause the young prosecutor to consider the pain he helped inflict...on an innocent man and his family. 

 

Eric Dixon is a New York corporate lawyer. He is available for comment or consultation at 917-696-2442 and edixon@NYBusinessCounsel.com.

  

Is Perjury The Basis for the Clifford Minor Indictment?

This morning word came of the indictment of former Essex County Prosecutor Clifford Minor on federal charges of bribery and obstruction of justice.

It turns out that another man -- already facing weapons charges and having had a previous criminal record -- was already arrested and charged in the bribery/obstruction case. Might that man be falsely claiming that Minor did something criminal in order to avoid his own jail time -- which as a repeat felon would be a harsher sentence?

It would not be beyond the realm of possibility for a convicted, repeat felon to turn against anyone, even his lawyer, in order to spare himself the consequences of his own actions.

On the other hand, the charges against Minor are the most serious, given that they come against an officer of the court and, in this case, a former cop, judge and prosecutor. Should the charges be proven beyond a reasonable doubt, Minor will have disgraced his Newark policeman's badge, the bench (the New Jersey judiciary) and the New Jersey bar.

(Eric Dixon is a New York small business lawyer who represents small businesses and individuals in various legal and investigative matters. He is available for comment or consultation at edixon@NYBusinessCounsel.com.)



Sent from my Verizon Wireless BlackBerry

Disgracing the Bar, the Bench and the Badge

A former Essex County prosecutor, judge and police officer -- and candidate for mayor of Newark, NJ -- has disgraced the New Jersey bar, if federal government allegations are to be believed or are ultimately proven.

Clifford Minor will be indicted on bribery and obstruction of justice charges arising from facilitating a man's false confession to a weapons charge by the United States Attorney's Office in Newark.  A Star-Ledger news report states that Minor (former Essex County prosecutor, former municipal judge, former cop) accepted a bribe, which was disguised as legal fees, to convince an innocent man (who also accepted a small bribe) to plead guilty to possessing weapons in order to save someone else.  (Note to readers: The United States Attorney's Office has not yet made available the charging documents nor any press release.)

If the charges are proven or admitted, these actions strike at the very heart of the integrity of both the legal profession and our appointed public officials.  The charges are especially serious -- actually, they are revolting and abhorrent -- considering that Minor used to be a judge and former county prosecutor. 

A false confession is of the same family of falsity as perjury, witness tampering, witness intimidation and obstruction of justice.  All of these crimes defeat the essential purpose of the criminal justice system, which is to determine the facts.  All of these crimes also tend to lead to a horrible result: the investigation, charging, conviction and incarceration of the entirely innocent. 

Unlike the (long-time former Manhattan District Attorney) Robert Morgenthau types who treated their posts with seriousness and the practice of law as a vocation, it seems many other lawyers in public service treat their public positions as steppingstones for career advancement and financial success, with little or no regard for public service or the protection of the general public.  If the charges against Minor are proven beyond a reasonable doubt, they show a man who has accomplished a rare trifecta: disgracing the bar, bench and badge.

Eric Dixon is a New York corporate and small business lawyer who consults with and defends small businesses and their owners, and other individuals, against certain government and regulatory investigations, civil lawsuits and other matters.  He is available for consultation at 917-696-2442 and via email at edixon@NYBusinessCounsel.com.  

Why Business Due Diligence and Background Checks Matter

It is important that you know the character of the person or firm with which you are doing business.  The failure to do the adequate business due diligence can lead to you losing money, suffering a damaged personal reputation or business reputation, and even the effects of guilt by association.

Business due diligence means verifying information as well as spotting trends that may indicate trouble around the corner.  Often these trends and "warning signs" consist of individual facts or indicators which, when viewed in isolation, may appear harmless or innocent.  A skilled, experienced investigative lawyer (such as myself) may have a different opinion. 

Do not rely on an inexpensive "Internet search" on various databases.  There are plenty of companies which offer "background checks."  These are not sufficient.  They offer "comfort" and "peace of mind" for a cheap price.  Do not confuse that with an actual answer to your question about someone with whom you are dealing. 

A real answer may be the answer you don't want to hear -- and more often than not it's an answer that is well hidden by crafty, shady businesspeople who know the tricks to hide from and keep from appearing in those cheap searches.  The scam artists -- the real crooks, the ones who not only know how to deceive you and take your money in the process, but also know how to get a "head start" and stand a good chance of avoiding ever being brought to justice -- have already figured out how to hide from the typical background check process.  As a result, they will appear "clean." 

These are the people who are the real dangers.  If you deal with them, it could cost you more than your money.  It could destroy your business and reputation.  In fact, in some businesses, dealing with a customer or supplier whom you do not know is shady could even expose you to guilt by association and even criminal liability.  Many criminals, once caught, try to get reduced prison sentences by claiming that they know about criminal activity committed by just about anyone and everyone else they know -- even family members.  The truth -- meaning, your actual innocence or the lack of "criminal intent"-- doesn't stop these criminals from lying to the police, to the prosecutors, or to investigators from agencies like the FBI or IRS.  (Warning:  Lying to the authorities often constitutes "obstruction of justice" and lying in court constitutes "perjury."  Both are separate crimes.)  Don't expect these people to tell the truth; if they lied to you, they will lie -- and often have lied -- to many, many other people.  

In addition, the expansiveness of the meaning of the term "conspiracy" also means that actions which, taken individually, are innocent and committed by innocent people (you, for example), could be viewed by someone else as part of a "criminal conspiracy."  This gives a criminal, with every reason to lie in order to escape jail time, plenty of opportunities to lie about you.

That's why you need a skilled human brain to sift through, analyze and investigate all these disparate facts, hints and indicators to assess the risk you are taking with your money, your career, your reputation, even your liberty.   

That difference may save you a lot of money and heartache in the short-run and the long-run time horizons.

Eric Dixon is a New York corporate lawyer who handles investigative matters for small businesses, entrepreneurs, freelancers and other individuals in non-business matters.  He accepts inquiries at 917-696-2442 and edixon@NYBusinessCounsel.com. 

 

Warning to Click Fraudsters and Other Scammers

Here's a friendly warning to the various click fraudsters (who engage in what's now known as "click fraud" to drive up website advertising costs fraudulently) and other internet scam artists:  I am watching you.

Especially those of you in the nations of Turkey, Romania and South Korea.

Should any of you ever be in the United States or subject to its jurisdiction and need a very cerebral lawyer who can be tireless in his representation of you, making legal arguments, exhaustive legal and factual research -- including credibility research on potential state/government witnesses against you -- and otherwise investigating your situation to help negotiate a better resolution of your "situation," you should call me.

If you have a problem with the friendly people in the United States Department of Justice, I know people who are very experienced and would consider taking your case.

All of the foregoing assumes, of course, that any funds you would have to use to pay for any lawyer would be coming from legal sources and are not the proceeds of or otherwise derived from any illegal activity.

Eric Dixon is a New York lawyer who handles government investigations, corporate internal investigations and private investigative matters for small businesses, freelancers and individuals.  He accepts inquiries at edixon@NYBusinessCounsel.com and will meet with prospective clients situated in and around New York City.

The New Hawaii Five-O: Christie and Cheney Would Approve

TV series and movie remakes of earlier -- often iconic -- hits are usually disappointing to the fans of the original.  (Think about the nice-try-but-still-subpar 2001 remake of Planet of the Apes.)  

Sometimes the remakes fail to "connect" with the original, disappointing both the fans of the original and receiving indifferene from the current audience which is left wondering what the "big deal" was with the original.  (Examples include the 2005 remake of Rollerball, the classic 1975 movie intersecting the appeal of sports violence on television with corporatism, starring James Caan and John Houseman, and the absolutely horrendous 2007 movie remake of the dated 1980s TV hit Miami Vice.)

Rarely do the remakes live up to the creative success of the original.  Two exceptions come to mind:  The hugely successful (in spite of) Tom Cruise trilogy of Mission: Impossible movies, and the brilliant political allegory Battlestar Galactica which starred former Miami Vice police chief Edward James Olmos. I am reminded of a third notable remake: ABC's V (a scheduled midseason replacement), a reimaging of a successful early 1980s NBC miniseries about alien invaders in big saucer-type ships which was absolutely and brutally ruined in a subsequent NBC weekly series.  

It was with these observations in mind that I watched the series premiere of the remake of Hawaii Five-O last night on the CBS network.  (Check out the surprisingly cool reboot of the original credits and theme song, and then compare it against the 1968 original and even this rejected 1998 CBS pilot that would have had Gary Busey playing McGarrett!)  I remember watching reruns of the original, which ran from 1968 to 1980, also on CBS.  Much has changed about the pace of crime dramas. 

The current show's producers deserve a lot of credit for some subtle tribute-paying to the original.  First, the reimaging of  the title song is an absolute hit.  Secondly, here we have opening credits for a show accompanying the theme song, a feature which has slowly been abandoned (Can you think of another show with credits and a recognizable theme song other than CSI's use of The Who's timeless "Who Are You?" comes to mind?)  The opening credit montage clearly evokes -- yet updates -- the iconic opening of the orignal show, including the classic wave and Iolani Palace.  It even has a McGarrett turning around on a hotel balcony (watch quickly, perhaps only those who remember the original will even notice). 

The best tribute to the original, however, came when the new Steve McGarrett (Alex O'Loughlin) goes into his murdered father's garage and lifts up a car cover to reveal an antique 1960s vintage black Ford Mustang...the car driven by the original Steve McGarrett (Jack Lord).  The original Ford Mustang is in the original show's credits (go check); then pull up the 2010 pilot episode and you'll see for yourself what I'm talking about.

After that, the new show takes off on its distinct path.  This is where fans of the original would get "lost" (pun intended) if there was too much of a departure.  My impression is that the new show stands on its own.

First, the remake shows a brighter Hawaii with tropical blues and greens abounding.  You can imagine that tropical humidity, with a 70 degree dewpoint coming right off the screen.  This is not the Hawaii of the original, or even of Magnum, P.I.  

Secondly, the cast seems to mesh.  You have a "core of four" on the show.  While the original McGarrett was clearly that show's star and unquestioned dominant figure (as Jack Lord was already a star in his own right when the original premiered), the new McGarrett is perhaps the least defined of the four main characters.

Now, for the legal analysis.  How would the new Hawaii Five-O fit into the existing legal framework?   In the first episode, we have the governor granting McGarrett "full immunity" to go after these criminals and terrorists.  It seems like the script writers didn't know how to launch the new McGarrett.  Is he a good cop, a felon needing redemption to get a sentence reduction recommendation, or a vigilante?  

How does McGarrett's new strike force fit into the existing state government?  The original show had Jack Lord often conferring with -- and appropriately deferring to -- both the governor and the attorney general (each of which were recurring roles).  The new show -- at least episode one -- implies that legal, procedural niceties like chain of command and constitutional rights are solid concrete barriers to "fighting crime."  Let's review the evidence.

We have the new McGarrett secreting evidence at a crime scene (the tape recorder in his father's tool box), interrogating and threatening a suspect (well, we know he's a really bad guy) and failing to announce his presence before entering a suspect's bungalow.  The original McGarrett would never have done -- and did not do -- any of these things.  But you can bet that government leaders who believe that the ends justify the means -- Dick Cheney and Chris Christie, raise your hands -- would approve.

While this show is fiction and not a docudrama by any means, do take note of the message to the audience: It's OK for the good guys to "cut corners" when it comes to procedures and rules.  In the real world, such an attitude is often characterized by judges as "police misconduct" and, when done by prosecutors, as "prosecutorial misconduct."  Some prosecutors will use other terms like "official misconduct," "official corruption" and "felony."  The show sends a message -- which Crime, Politics and Policy disapproves of -- that the post 9/11-authoritarianism of government is not just good, but necessary, when in reality these tragedies have been exploited by those in government to expand its power at the expense of basic civil liberties and constitutional protections,.  More troubling is the implicit imputing of the lowest of motives and character traits to those who raise these concerns. 

Another critical difference:  The new McGarrett backs down when confronted by the suspect outside the aforementioned bungalow when he threatens to shoot an innocent bystander in a brief stand-off.  The old McGarrett would never -- and I mean, never -- have taken his finger off the trigger.  Fortunately, sidekick Danny "Dan-o" Williams (whose character is a former New Jersey cop from the New York suburbs who likes "skyscrapers") saves McGarrett from being killed.  I suspect Williams (played by Scott Caan, yes, the son of Sonny Corleone, er, James Caan) will be the best actor on this show -- not the new McGarrett.

There is a degree of subtle comedy in the show.  Take note that Williams is a divorced father and takes the occasional phone call from his ex-wife.  The call produces a Psycho-like screech from the cell phone.  Just a little light humor that was absent from the starched-shirt, buttoned-down seriousness of the original.

One final question.  Given that the opening episode revolved around international arms-smugglers and people-smugglers, where was the Department of Justice here?  (Perhaps future episodes will introduce the Justice Department as some sort of barrier to future investigations, presenting "turf battles" and otherwise getting in the way of the flawed good guys of the new show.) 

So far, the show seems like a creative success and may actually be worth watching.  For now, the show is scheduled to run Monday evenings at 10 pm Eastern time. 

Eric Dixon is a New York lawyer who writes regularly on civil liberties and constitutional rights issues and will represent clients on matters regarding such issues.  Mr. Dixon also represents small businesses, their owners and managers on legal and strategic issues, including government investigations and regulatory and tax inquiries.  Mr. Dixon is available for comment and consultation at 917-696-2442 and via e-mail at edixon@NYBusinessCounsel.com.







 

Is Your Insurance Company Acting in Bad Faith?

Anyone who owns assets, seeks medical treatment or owns or manages a business of any type is a potential claimsholder with an insurance company.  All of these people -- and this covers most of our audience -- should consider the premise of a new book on the insurance industry called Delay, Deny, Defend:  Why Insurance Companies Don't Pay Claims And What You Can Do About It, by Rutgers Law School professor Jay Feinman. (A related article is available here.)

The simple premise of this book -- that insurance companies are in the business of making money and thus have every financial incentive to increase their profit margin by paying out as little to policyholders, regardless of the merits of a claim -- makes eminent sense both economically and practically. 

Policyholders who believe they have a valid claim and who experience any difficulty in getting a claim covered, in the proper or adequate amount, and paid in a timely fashion  -- a practice which can be considered "acting in bad faith" -- should definitely consult with a qualified lawyer who practices civil litigation. 

As an insurance industry spokesman in the aforementioned linked article points out, the industry does pay out most claims.  (Remember that the insurance industry is subject to regulation by each of the states.  How adequate or appropriate that regulation may be is a separate topic altogether.)  However, the speed and amount of such payments can make all the difference.  Some small businesses which encounter catastrophic events are often forced to close, despite having "insurance coverage," because their other resources cannot tide them over (usually because the businesses have loans and cannot get what's called "forbearance" on the loans while they wait for the insurance payment -- and during such time the business may be closed entirely) while they wait to resume operations and generate cash flow again.  A related problem is the small business credit crunch, in which banks have become much stricter about which businesses they lend to, the amounts of the loans and all the conditions (such as representations and warranties, and covenants) the business borrower (and sometimes the "guarantors") are subject to.  Again, anyone encountering any of these situations is well advised to consult with a qualified lawyer who understands the mechanics and rationale behind all of these types of transactions. 

Eric Dixon is a New York lawyer and runs his own practice in New York City. He has been practicing corporate law since graduating from Yale Law School in 1994.  He is available for comment or consultation at 917-696-2442 and accepts inquiries via e-mail at edixon@NYBusinessCounsel.com.

 

Downturn For Financial Sector?

Today's New York Times has an article on an expected downturn in the financial sector.  This follows my earlier, Sunday September 19, 2010 article warning about many of the same things.  (See also this article in Crain's New York for September 20th about the broken small business finance system, which quotes me.)   

Eric Dixon is a New York corporate/securities lawyer who offers legal and strategic analysis services to small businesses through Eric Dixon LLC.  Mr. Dixon considers himself bearish on the financial sector.  Mr. Dixon is available for comment or consultation regarding small business or personal, sensitive legal or financial matters -- all of which are held in the strictest confidence -- at 917-696-2442 or via e-mail at edixon@NYBusinessCounsel.com.) 


 

Bank Bailout Not Helping Small Businesses

One would have thought that the massive Troubled Asset Relief Program (TARP) bailout for the nation's financial institutions woud eventually benefit the rest of the private sector.  Instead, many businesses, and small business in particular, have been hit with a liquidity and credit crunch the likes of which have not been experienced in decades.

Read this Crain's article -- on newsstands tomorrow -- quoting Eric Dixon on the problems facing small business.

The last two years have shown that the banks have just used the program to access very low cost financing for themselves while availing themselves of every means possible to ratchet up revenue from borrowers and depositors. The result: Many businesses -- and especially small businesses -- have found credit harder to come by, credit line limits reduced (in some cases, by 100%), increased bank demands for collateral and other proofs to maintain existing credit (never mind getting new credit) and increased charges on almost any transaction imaginable.

After three years of an economic downturn -- which may prove in the end to have been either a double-dip recession or a prolonged stagflation, as these figures are finalized only a few quarters after the fact -- there is no sign of a sustainable economic recovery. 

Most economic news -- that is, reporting using actual facts -- is and remains bad.  That is distinguished from  "commentary" from sell-side "analysts" who are really trying to induce the audience to go long the market.  

You would never know the economy is poor from the banks, however.  We see record profits, high bonuses to corporate executives, substantial bank marketing efforts (wall-to-wall TV and radio ads and sports arena naming rights) and new branches opening up on many available street corners.  

The sum of this behavior indicates that the banks may be "hoarding" capital -- cash -- for an anticipated nuclear winter rainy day.  The expectation that current favorable conditions for banks will not continue would seem to fuel the desire to make the money while one can... because long-term conditions may be significantly worse than they are today.  (There is the looming problem of massive government debt at all levels in this country and most of the world.) 

The combination of these factors suggests that many business owners will need to hoard cash and build up a cash cushion to ensure liquidity for tomorrow's operations as well as the ability to fund tomorrow's basic living expenses.  In such conditions, one can hardly expect hiring to resume or many capital expenditures (from infrastructure to equipment) to be made.  These conditions point to a slow downward spiral that has yet to decelerate.

Eric Dixon is a New York lawyer who represents small businesses, entrepreneurs and freelancers on legal and strategic matters including litigation, negotiations and government investigations.  He can be reached for consultation or comment at 917-696-2442 and edixon@NYBusinessCounsel.com. 

 

Christie's First Amendment

Should Chris Christie be our next President, this story is cause for concern about basic constitutional rights and civil liberties.


A New Jersey assistant train coordinator named Derek Fenton who, on his own time and acting as a private citizen, decided to burn a few pages of the Koran (Qu'ran) near the site of the planned Ground Zero mosque (Park51/Cordoba House), was fired Monday, reports the Daily News today.


This Daily News report quotes Christie's longtime spokesman Michael Drewniak as saying, "We're supportive of the action taken by NJTransit."


Note that the defense of civil liberties is coming from the Democratic Party. Prominent Democratic State Senator Ray Lesniak issued a statement that if Fenton was doing this "on his own time" and "as an American exercising his constitutional rights, then the agency is clearly in the wrong (to fire him)." 

Certainly Fenton's firing seems like a very wrongful termination.  Expect his union to be speaking up. 


The burning of any religious work is highly offensive, provocative and can be considered immoral. 

However offensive, this is core constitutional free speech.


The fact that a former federal prosecutor, state Governor and prospective Presidential candidate has such little regard for core constitutional rights should alarm anyone concerned about civil liberties, regardless of political ideology.


Eric Dixon is a New York lawyer who investigates and analyzes constitutional issues and civil rights issues. He is available for comment at 917-696-2442 and by e-mail at edixon@NYBusinessCounsel.com.

Mosque Developer Faces Eviction; Slumlord Imam Also In Court

The New York Daily News reports that the developer of the Park51 / Cordoba House mosque at Ground Zero is facing eviction.  

What does it say about the judgment of our elected officials -- from Mayor Mike Bloomberg to President Obama to outgoing Governor David Patterson -- that each has blessed this highly-inappropriate project (given its site, it should be off-limits to all faiths, just like any public place, in accordance with that other part of the First Amendment, the phrase about no establishment by the government of any religion) which is backed by an apparent deadbeat (the deadbeat being Sharif El-Gamal) and will be guided spiritually by an imam whose wife is alleged to be a New Jersey slumlord?

Were our elected officials incompetent regarding their due diligence on this cast of characters?

Were they negligent regarding that due diligence?

Or -- were these elected officials complicit -- for reasons known only to them (for now) -- knowing the less than sterling reputations of these characters?

There must be an awfully strong personal motive for these powerful elected officials to be backing (and using the full weight of their respective government offices to push, in violation of the First Amendment) this particular project, in this particular location.  Usually, such motives in any business deal -- and particularly ones where public officials are involved -- attract the attention of investigators and prosecutors in the Public Integrity Unit of the Department of Justice, as well as its local counterparts.

Sharif El-Gamal, the reported principal of the real estate firm Soho Properties, is facing eviction for $39,000 in unpaid rent for space at 552 Broadway (that's in the dingy, grimy part of Broadway north of Canal Street, not a high-rent area by any means), according to the report. In addition, the report states there was another lawsuit settled last year for back rent due of about $89,000.


Questions for observers: When evaluating the mosque developers' promises and representations as to plans for the mosque, isn't it prudent to use financial and litigation history as one way to assess their credibility, trustworthiness and reliability?


My opinion is that El-Gamal's history of being sued for nonpayment raises "red flags" in any business context. The same goes when assessing the litigation history of Imam Feisal Abdul Rauf and his wife Daisy Khan.


What are your thoughts?

Eric Dixon is a New York lawyer who specializes in investigating complex financial and legal matters and defending the innocent in government investigations.   He can be reached at 917-696-2442 or by e-mail at edixon@NYBusinessCounsel.com.

Calling NY Gov: Paladino In GOP Upset

At 10:59 pm Crime, Politics and Policy will be the first to call the New York Republican gubernatorial primary for Buffalo businessman Carl Paladino.

About 37% of the vote is in.  However, historical statewide primary votes suggest that no more than 250,000 to 300,000 Republicans vote in any statewide primary, which implies that 125,000-150,000 votes should be sufficient for victory.

Paladino already has surpassed 150,000 in the actual vote.  Hence, the prediction, even with two-thirds of precincts yet to report.

The Paladino victory should effectively end both the political elective office career of Rick Lazio and the leadership as state party chair, of Ed Cox.

Now the question becomes: Does Lazio even get to November?  Can he beat out Ralph Lorigo for the Conservative Party nomination?  With 36% in, Lazio leads by about 1,200 votes.   Typically, Conservative Party statewide primaries garner about 20,000-25,000 votes.

Eric Dixon is a New York election lawyer, political strategist and commentator.  He can be reached at 917-696-2442 all night (Election Night) through Wednesday morning, and by email at edixon@NYBusinessCounsel.com.

Unscanned Ballots Threaten Integrity of NY Primary

A few press reports seem to be snowballing. The new ballot scanning devices -- which are supposed to scan holes punched in by voters -- are not working as well as planned. These problems, plus untrained poll workers, threaten the very integrity of the primary elections. In races with small turnouts, even one machine malfunction can result in enough (a) uncounted votes, (b) undervotes where some individual votes are not counted, or (c) non-votes from discouraged voters who showed up ready to vote but became (or were driven to be) so discouraged -- or simply couldn't wait any longer -- that they left for school, work, home or other commitment without voting.

The effective interference with the right to vote is fairly evident.  Furthermore, as parts of New York City remain "covered districts" for purposes of the federal Voting Rights Act, it would seem sensible that the Department of Justice will be curious -- read: they will investigate -- about the reasons behind both the malfunctions and the very selection of the machines by the New York City Board of Elections.
 Stay tuned...The implications of these malfunctions could be enormous.  I think this could affect some prominent political race results.


Eric Dixon is a New York election lawyer and president of Eric Dixon LLC. He provides strategic analysis, litigation consulting, crisis management and political consulting services in addition to legal services. He is available for comment at 917-696-2442 and edixon@NYBusinessCounsel.com.

Your American Citizenship At Risk

Update: 2016 Republican presidential candidate Donald Trump now advocates ending birthright citizenship. He is the latest to float this as the solution to a major problem, but fails to consider the consequences and serious drawbacks to this proposal. Below is my commentary, from way back in 2010.

* * * 

Every so often, the concept of amending the 14th Amendment to do away with birthright citizenship is floated as the solution to the problem of illegal immigration.  This is a seriously flawed approach, for two primary reasons. The first is that removing birthright citizenship (out of fear of encouraging the irresponsible parents of "anchor babies" to come here to give birth) potentially imperils everyone's American citizenship. Everyone -- except for those in the protected elites and the "connected" -- would be at risk of having to demonstrate their "worthiness" to be an American.

The second point is that removing birthright as the basis for citizenship requires the substitution of a different criterion upon which decisions to allow one to remain in the country would be made. (The alternative would be to have no standard, in which case a subjective and entirely arbitrary practice would emerge.) This raises some awfully troubling questions:

(1) What objective criterion would be used to determine if you are desirable?
(2) How does one determine which others are desirable without being blatantly discriminatory?
(3) Who does the "deciding"?
(4) Who hires the "deciders"?

The practical result of doing away with birthright citizenship could be the emergence of a massive new federal "citizenship registry" which would evaluate everyone. The numbers of workers needed for such an agency will be huge. More workers -- and lawyers -- would be needed to be agency lawyers, administrative law judges and federal judges (the latter, to handle the immense flood of court appeals that would be virtually certain to arise).

As a lawyer, this would be a potentially lucrative practice.

As an American, I fear that this is a tremendously elitist proposal. What is dangerous is that "the masses" and especially the populists can be deceived into supporting doing away with birthright citizenship. Perhaps nothing threatens our rights more than the idea that the federal government can strip us of citizenship as a reaction to its own gross dereliction of duty regarding its failure to keep our borders secure.

Eric Dixon is a New York lawyer who runs his own legal and strategic consulting practice. He writes on public policy and legal affairs. He may be reached at EDixon@NYBusinessCounsel.com.

Paladino Upset in the Making?

Today is primary day in New York. There is a contested primary for governor among both Republicans (Rick Lazio vs. Carl Paladino) and Conservatives (Lazio vs. Ralph Lorigo).

The gubernatorial primaries will indicate whether the moribund and arterosclerotic leadership of both the Republican and Conservative parties is at risk of change. One suspects that at least some of the "anti-Lazio" vote (going to Paladino or Lorigo) is a protest motivated by nothing more than a desire to clean house among party leadership.

Stay tuned.

Eric Dixon is a New York lawyer who has represented nearly two dozen candidates or party committees. He is available for comment at 917-696-2442.

Is That Confession Reliable?

There may be more innocent people in jail due to false confessions than was  previously suspected.

A new study, quoted in an article in the New York Times, asserts that it is possible for entirely and totally innocent people to falsely confess to crimes they did not commit.

The article cites certain personality characteristics that could make one more vulnerable to being pressured to falsely confess: mental disability, being "easily led" or being young. This should prompt concerns as to how young, pre-teen and teenage suspects are handled, whether in school disciplinary or juvenile court proceedings.


Of course, certain police and prosecutor interrogation techniques seem designed to elicit a desired response rather than ascertain real facts, so the concerns as to innocent people falsely confessing should not be limited to certain "more vulnerable" segments of the population.


I will repeat a concern stated before on Crime, Politics and Policy: Law enforcement and prosecutors must emphasize fact-finding, and be willing to put in the hard and often unrewarding work, to ensure that the wrong suspect -- the entirely innocent person -- is not targeted, investigated, arrested and jailed, for a crime he didn't commit. Too often, the authorities take the easy way out, the path of least resistance, and such an approach leads to corner cutting, a tolerance for shoddy practices and eventually a tolerance for fudging evidence, prejudging the innocent and covering up acts of official misconduct (or mistakes). All of these actions commonly lead to innocent people being victimized by the people sworn to protect them...while the real culprits remain at large and able to terrorize the rest of society.


Eric Dixon is a New York lawyer who handles investigations and civil rights and constitutional law matters. He is available for comment at edixon@NYBusinessCounsel.com and by phone at 917-696-2442.








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New Jersey Town Sues Park51 Mosque Imam For Being A Slumlord

Ground Zero mosque imam Feisal Abdul Rauf -- husband of reported slumlord Daisy Khan -- is now being sued by the Hudson County town of Union City, New Jersey for various landlord-tenant disputes arising from conditions at buildings owed by entities to which he is connected.

Inez Sainz No Victim

Over the weekend it was revealed that the New York Jets football team is being investigated by the National Football League for alleged sexual harassment of a female reporter, Inez Sainz, who works for the Mexican television network TV Azteca.


Not to condone any of the alleged antics or harassment -- which, if proven, are sophomoric and embarrassing to any adult. However, the real sexist behavior here is likely that of the TV Azteca network. It was TV Azteca who chose a young "eye candy" reporter for this assignment. And TV Azteca may have had a role in dictating reporter Ines Sainz's wardrobe.


A provocatively-dressed female reporter going to a men's athletic practice is, first and foremost, dressed to provoke and attract attention. A reporter going there to report will be dressed differently; as examples, there are several female ESPN reporters, including Bonnie Bernstein, who cover NFL clubs and dress and act professionally. You don't hear of any incidents.


This observer speculates that this controversy is entirely contrived by a career-ladder-climbing, ambitious Ines Sainz, an Erin Andrews-wannabe (this was the ESPN reporter stalked by some pervert looking through hotel room door peepholes for kicks) who was looking for her own 15 minutes of fame (or notoriety), so she could turbo-boost her career and perhaps land a gig as a magazine centerfold, model or contestant on the next "Dancing With The Stars."


Analysis and prediction: The real sexist here is Ines Sainz (honorable mention to Mexican television network TV Azteca).


Here's betting that Ms. Sainz is no innocent victim. Wait for all the facts to emerge.






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Women Wearing Tattoos and the Silent Contempt of the Snobs

It appears there has been an explosion in young people (particularly women under 35) wearing tattoos starting about ten years ago. Lately this craze has accelerated, perhaps thanks to tattoo-covered entertainment stars like Angelina Jolie.

This self-branding is a form of self-exclusion. I believe wearing tattoos is a sign that one comes from the proletariat class, what used to be the "unwashed" working class. People discriminate against others based upon physical appearance, and this includes tattoos.  In a day when the larger "U-6" unemployment benchmark is around 17 percent, tattoos just give a hiring manager another reason to find someone else. 

There is a nefarious, evil and discriminatory motive behind the tolerance, acceptance and even encouragement of tattoos among others in the regular population (that is, as long as you're not working for us or marrying into the family).

The upper class plebeians -- the snobs -- have customarily desired to keep the classes apart, partly to secure their status at the top of the social power pyramid. In America, as traditional barriers between the "upper class" and the rest of society have been broken down or eroded over the last 50 years, the snobs at the top have wanted new marks with which to identify Them.   This allows the snobs to keep the proletariat slobs out.  Tattoos become a new marker, a scarlet letter of sorts, that help gatekeeper determine who gets in and who stays out.

Tattoo exclusion becomes important, since the traditional barriers keeping out the commoners -- elite colleges, wealth, membership in the ruling class, and vowels at the end of surnames -- have been overcome thanks to the Civil Rights Act of 1964, affirmative action, immigration, technological innovations and hedge funds. The snobs generally despise the "nouveau riche" and want to keep their distance.

Tattoos serve the purpose of making identifiable those who are not wanted. The tattoo culture -- some claim it originates from prisons and the maritime industries and spread through the underclass into Gen Pop - helps identify those who are not of "good breeding." A purebred blueblood, after all, would never have a tattoo. At least not where its visible.

You will never hear this spoken by the nobility. It's not polite. It will be expressed, through disapproving glances and a different, cut tonality of words said only before rarified audiences. Many times, there is also an expressed relief, as tattoos help identify and distinguish the pretenders, the faux nobility, from the true "betters" in our society.  To be clear, this is a case where silence is a form of contempt.  That is why you won't hear too many people mention it -- it is to their advantage (and your disadvantage) that you have that tattoo because you keep yourself out.  It makes their task easier. 

Mention this to your friends, and your children. Having a tattoo is not just a "tramp stamp" -- it is a mark of being "lower class" and one day may subject its wearer (especially women) to some very subjective, negative judgments. A woman with a tattoo may be considered a "good time girl" from the "wrong side of the tracks" but not someone to bring home to meet the family at the Hamptons estate. Not unless the boyfriend/prospective husband wants a scene out of the 1960s Sidney Poitier movie, "Look Who's Coming to Dinner."

Eric Dixon is a New York lawyer who mentors young professionals from time to time.  He can be reached at edixon@NYBusinessCounsel.com.

Greenmail: Mosque Just a Business Ploy?

On the cusp of the 9/11 commemoration (nine years after the attack) and the Ground Zero mosque protests to follow (reportedly, 3 pm at the corner of Park Place and West Broadway), and following all sorts of reports and likely exaggerations about who wants to buy the mosque site, here is an interesting theory:  Perhaps the mosque developers (likely front man Sharif El-Gamal, Imam Abdul Rauf and alleged New Jersey slumlord Daisy Khan) and their backers (yet to be revealed) bought the site merely as a business ploy to make a killing in a depressed real estate market.   Here's how.

Understand that real estate, even commercial real estate in New York, has suffered significant price declines since 2005-06.  The Park Place plot (47 Park Place) was bought at a possible trough in the market.  This makes smart business sense: buy low...and sell high.

Here's how one could sell high  and make a quick buck in this market -- or in tomorrow's uncertain market and even more uncertain financing market (i.e., will bank financing for any project be accessible, on terms even remotely approaching what is available today?).  Flip the property.  

How do you ensure the quickest sale at the highest price?  Come up with an idea for development that is sure to rankle people and induce someone to come up with an offer to make you "go away."  Now do you see where the mosque idea comes into play?  It could be all a scheme to get someone to say, "Here's double your money, now go away." 
\
(As I learned when I started my legal career, among corporate raiders doing hostile takeovers of companies, the tactic of certain large shareholders to wrangle a lucrative buyout of their position by management or majority shareholder groups in order to make the troublemakers go away was referred to as "greenmail."  I think the mosque developers are using the same strategy -- and if so, it's brilliant.)

This is just a theory, but it makes logical business sense.

One other thought.  The mosque plot is worth significantly more than it was valued last year, when Soho Properties (allegedly, El-Gamal's company) purchased 47 Park Place for a reported $4.8 million.  The increase in value is due to the decision last month by New York City's Landmarks Preservation Commission to decline to grant the site landmark status.  The landmark designation process had been in the works for some 20 years (according to a civil suit filed in August by the American Center for Law and Justice regarding the mosque).  This means that Soho Properties bought in 2009 a property which was subject to the very real risk of being declared a landmark and thus off limits to development.  That risk alone would justify a serious "haircut" in the value of the property -- and the removal of the risk would justify a significant increase in its value. 

I sense more and more that the developers want to, and will accept, a high premium to scuttle the project and flip the property.  Stay tuned.

Eric Dixon is a New York corporate lawyer and president of Eric Dixon LLC.  In addition to legal investigative matters including government and regulatory investigations, Mr. Dixon has a background in corporate finance transactions and securities law and engages in management and strategic consulting.  He is available for comment at 917-696-2442 and via email at edixon@NYBusinessCounsel.com.

Duties Between Employees and Employers

The old paradigm governing relations between employer and employee -- or master and servant -- has changed.  Have the duties owed by one party to the other changed as well?

Customarily, there is the expectation that the parties owe each other certain duties.  The employer pays the employee and promises continued employment; in return, the employee remains loyal to and exercises care for the work done for the employer.

Has this changed, in light of the erosion of the traditional relationship?  When employer-employee relations are considered to be more than just "at will" employment but virtually a minute-to-minute, everchanging relationship, what are the real duties owed by the parties? 

I would be interested to hear what the public has to say about this.

Eric Dixon is a New York lawyer and president of Eric Dixon LLC.  He is a practicing lawyer but consults on a variety of issues including economic and management issues, legal issues and lawsuit management issues.  He is available for comment or consultation at 917-696-2442 and edixon@NYBusinessCounsel.com.

Attorney General Endorsement: Drink Coffey

Next Tuesday there is a primary for New York State Attorney General among Democratic Party voters. Crime, Politics and Policy endorses Sean Coffey for the party nomination.

Among the five candidates running, Coffey holds the most promise of being a reformer. He has the best claim to being an outsider, having never run for elective office nor been appointed; his previous public employment was as an assistant Manhattan federal prosecutor. He is by far the most likely to be able, and willing, to use the powers of the office to investigate wrongdoing as opposed to merely prosecuting what others have found.
Coffey shows no inclination to play political hopscotch, as he has ruled out running for governor. These sentiments indicate he will use the office to uproot wrongdoing, as opposed to pursuing headlines and possibly misusing the office's powers and abusing -- or even ruining -- innocent people. This is a key change from the regime of Attorney General Eliot Spitzer, whose shoot first-ask questions later produced some questionable results (see: AIG chief Hank Greenberg and most especially, former stockbroker Theodore Sihpol). As a result, Coffey may be welcomed by business interests -- not just Wall Street -- who simply want a fair shake and a government which does not prejudge businesses and entrepreneurs as prospective criminals.

Coffey's "fairness" card illustrates why former Spitzer deputy AG Eric Dinallo is not the best candidate. Attorneys general should be judged by fairness and the justice they uphold. This is the standard which Spitzer failed the most, even more than the fidelity-to-one's-spouse standard which Client 9 breached with abandon. Dinallo suffers from a taint by association which he has not adequately explained.

Kathleen Rice is an ambitious Nassau County district attorney and seems to be a permanent candidate. Her recent suggestion to make criminal luring a crime is an example of the mistaken mindset that the solution to crime is more laws (and a resulting reduction in the scope of our liberty, since any increase in the definition of what is "illegal" will always reduce the scope of what is "legal.") There are plenty of laws on the books to enforce, and a preventative approach stops crime before it happens. The approach of let's-pass-a-new-law requires a victim. It doesn't stop crime; it almost encourages it, since a law's proponents almost invariably look to justify its existence with results. Here, that means victims. This approach is just wrong.

Finally, Richard Brodsky and Eric Schneidermann are career state legislators who happen to be attorneys. They are not the best choice and are tainted by their Albany careers.  And Brodsky's poorly-conceived, proposed bill making organ donations automatic for any registered New York State driver unfortunate enough to die in the state was already the subject of serious criticism. 

We urge New York Democrats to vote for Coffey.