April 2009In This IssueMurray Law LLC
Murray Law LLC specializes in criminal cases, government investigations and complex civil litigation.Visit MurrayLawNY.comOur Blog
Principal attorney JaneAnne Murray is the author of the New York Federal Criminal Practice Blog, which offers posts on decisions and developments of interest.Visit the NY Federal Criminal Practice BlogForward to Friend
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|Lawyers in the Dock
Lawyers have played key roles in many major fraud schemes. When should they be prosecuted for their participation? When the lawyer facilitates and consciously avoids knowledge of a fraud that “doesn’t pass the smell test,” the court held in Ruble, a decision that is a must-read for every lawyer. In Simels, another high-profile prosecution of a lawyer, the court lays out an important roadmap for navigating privilege issues in the prosecution of a lawyer.
The Right to Know Too Much
The public may be more interested in the juicy details contained in judicial documents, but its right of access to these materials implicates much more profound matters. In Spitzer, the judge ordered the unsealing of wiretap applications that may reveal the origins of the downfall of a governor. Courts partially granted newspapers’ motions for the disclosure of sentencing memoranda in Roeder and Strevell. And, turning the tables, Treacy ordered a journalist to answer questions about his interview with a defendant.
Get Thee to a Luxury Apartment
The issue of the detention of several celebrity defendants recently has spotlighted the interaction between the presumption of innocence and the presumption of bail. Famed lawyer Marc Dreier and Ponzi schemer Bernie Madoff were both granted pre-trial bail under the supervision of private security guards. The Second Circuit, however, affirmed Madoff’s detention after he had pled guilty. Evidence of actual innocence eventually led to the granting of bail to a defendant in a capital case in Jones. In Arzberger, a court ruled certain automatic bail restrictions in child pornography cases to be unconstitutional.
The Dark Side of Jury Selection
Jury service may be one of the highest acts of citizenship, but it brings out some of the lowest and most ambivalent human impulses. In Dolphy (a case briefed and argued by Murray Law LLC’s Robert Culp in his individual capacity), the Second Circuit rejected the prosecutor’s challenge of the sole African-American juror because she was obese. In Lee, however, it upheld a challenge to an African-American reader of the Amsterdam News. In Uvino, a juror had second thoughts about serving, and in Bangiyev, the defense had second thoughts about challenging. Finally, in Simmons, the Court permitted a verdict of eleven, after the twelfth (and possible holdout) missed one day of deliberations due to a family emergency.
No, Really, the Guidelines are Advisory
The Supreme Court reiterated the primacy of a district judge’s sentencing discretion in Spears and Nelson. The Second Circuit made the same point in Cavera. These holdings are beautifully contextualized in Hodges, Murray Law LLC’s own case. In addition to developments on the advisory scene, mandatory minimum sentences have taken a beating in Williams and Ballard, and in Polouizzi, the Second Circuit left open the possibility that judges could instruct jurors of their existence. Finally, the areas of restitution and forfeiture continue to generate some notable decisions, including Follieri, Hernandez, Kalish, Niccolo, and Varrone.
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Murray Law LLC launched its award-winning blog in September 2007, and now has over 180 postings on decisions and developments of interest, and several regular guest contributors. Focusing on quality above quantity, the blog has an extensive and growing following of loyal subscribers via email or RSS feed, and not just lawyers! You can sign up for regular e-mail updates of new content at our blog.