AS SEEN ON TV! You Can’t Really Use Tricks in the Courtroom

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I must admit, I thought this sort of thing happened only on TV!

John Rogers was indicted on charges related to the alleged distribution of narcotics.  He was provided counsel from the Public Defender’s Office.  The

case against John was not airtight – indeed, there were  at least two witnesses available who were willing to testify that that it was John’s brother Ray who has sold the drugs, and that Ray had given his brother’s name and date of birth when arrested. The lawyer must have seen too many courtroom dramas on television, because, rather than provide what might have been a solid defense based on the facts, she hatched a scheme of deception to get an acquittal for her client.

She planned to have Rogers switch clothes with his brother, and then sit in the audience. The brother would sit at the counsel table. They assumed the arresting police officer would take the stand and identify the person at the counsel table as the perpetrator.  Then, perhaps in a melodramatic style reminiscent of Perry Mason, the defense lawyer would arise and point out the faulty identification. All would see that her client was wrongly identified and falsely accused!

Alas, the plan went awry. The prosecutor found out about the plan, and the plan was aborted. To make matters worse, the prosecutor brought out the scheme during cross examination of the defendant to destroy his credibility. When the attorney told the judge that it was her idea, not Rogers’, the judge was incredulous. The jury convicted Rogers.

The story doesn’t end there, though. Rogers sought Post Conviction Relief, asserting that he had been afforded ineffective assistance of counsel due to his attorney’s failure to call the helpful witnesses at trial and also due to her scheme which backfired against him.  The appellate court agreed, finding the attorney’s conduct to be violative of the law and of the attorney’s Rules of Professional Conduct. The prejudice created by the damage to his credibility was so egregious that the appellate court ordered a new trial. The indictment was later dismissed.

But wait, there’s more! Rogers later sued the Public Defender’s Office for damages caused by this ineffective counsel.  When suing a public entity, notice of your intent to sue must be given within a specified time period. The lower courts have ruled that Rogers waited too long. That issue is now before the New Jersey Supreme Court.

Was justice done? Hard to say. Clearly, the lawyer should have known better than to attempt the deception. Just goes to show that those sometimes fantastic stories that we see on television do not often accurately portray the real world of the courtroom or of the law. But you knew that already, didn’t you?

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“But I Thought No One Was Going to See That!”-How Private Are Your Private Communications at Work?

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What happens when two important privacy principles come into conflict?

Here are two generally accepted privacy principles of which you should be aware. First, generally speaking, unless a person knowingly waives this right, any communicat

ions that are just between that person and his/her attorney are privileged  (this is known as the “Attorney-Client Privilege”). That means, these communications cannot be discovered by another person, even if you have sued that other person. Second, most employers now have a computer use policy that states that employees should have no expectation of privacy for any e-mails or other communications sent from, received on, or stored in their work computers. Recently, a situation arose when these two principles collided.

Maria Steingart worked as Executive Director for Nursing for Loving Care Agency Inc. Loving Care gave her a laptop to use for company business; from there she could also access the Internet. Loving Care had a computer use policy as stated above Through her password protected Yahoo account, she communicated with her attorney related to a contemplated suit against Loving Care. When she left her employment act Loving Care, she returned the laptop. Later, she sued Loving Care claiming a violation of the New Jersey Law against Discrimination. In an effort to preserve electronic evidence for the litigation, Loving Care hired an expert to create an image of the laptop’s hard drive. Among the items retrieved were Internet files containing the contents of seven or eight e-mails  Steingart had exchanged with her lawyers through the Yahoo account.

Steingart tried to prohibit Loving Care from using these e-mails and sought sanctions for violation of the Attorney-Client Privilege. Loving Care, citing their computer use policy of which Steingart  was aware, claimed that Steingart should have known at the time that the messages, sent from the work laptop, would not be considered private. The trial level court agreed with Loving Care, but this was reversed on appeal, and the issue then went to the New Jersey Supreme Court.

The New Jersey Supreme Court decided in favor of Steingart.  Steingart v Loving Care 201 N.J.300 (2010).  They found that she had a reasonable expectation of privacy in the e-mails she exchanged with her attorneys. It is important to note that those e-mails were exchanged on the personal, password-protected e-mail account, and not the company e-mail account. That fact may have made all the difference. Although Steingart won on this issue on these facts, under a different set of facts she might not have.

There are two important lessons here. First is to know what your employer’s computer use policy is. Second, when communicating with your attorney, it is always a good idea to ask her to explain the circumstances under which your communications would or would not be protected.

Divorce After Death

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Usually, when one spouse dies during the pendency of a divorce action, the action comes to an end. If a divorce action was not complete, it proceeds no further. Absent written agreements to the contrary, the surviving spouse retains whatev

er rights or obligations he/she would have had.

But not always. Recently, the New Jersey Supreme Court held that where it is equitable to do so, courts may allow the estate of the deceased spouse to continue a divorce action. In Kay v. Kay 200 N.J. 551 (2010),  the husband and wife were in the midst of divorce litigation when the husband died. There were no children of that marriage, but each spouse had children from prior marriages. Among other things, the husband had claimed that the wife diverted marital assets for her own personal benefit and that of her daughter. Prior to his death, through the divorce litigation, he had sought to reclaim those assets. Apparently those assets would have been available to fund some of the bequests to his beneficiaries.

When he died, the wife was initially successful in terminating the divorce proceedings. Accordingly, assuming that she had in fact diverted the assets as alleged, she would have been able to retain them thus precluding their use for the husband’s beneficiaries. The Supreme Court thought this was not fair, and essentially ordered that the husband’s executor could intervene, and that the action to reclaim the allegedly divergent assets could continue.
So, for those who thought that death and divorce are always final, it ain’t always so.

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Take My Mother-In-Law, Please

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“I just got back from a pleasure trip. I took my mother-in-law to the airport.” One of many old Henny Youngman jokes. Funny? Sure it is. Grounds for a lawsuit? Probably not.

Mothers-in-law across the country were dealt a blow recen

tly when a United States District Court in New Jersey ruled that jokes by comedienne Sundra Croonquist about her in-laws were not defamatory and could not be the basis for a lawsuit.
Croonquist is of African-American and Swedish descent. Her husband is Jewish. In her comedy routines posted on the Internet, she includes remarks about her mother-in-law and her husband’s family. She compares her sister-in-law’s voice to a “cat in heat,” and calls her a “Jewish broad.” She allegedly accuses her mother-in-law of being a racist, and allegedly admits her ill feelings toward her mother-in-law by stating: “Have you ever met someone and in the first 5 seconds you say through your teeth ‘I hate this bitch.’” I don’t know whether this gets any laughs from her audiences, but it apparently did not sit well with her husband’s family. They filed a lawsuit alleging, among other things, defamation and infliction of emotional distress.
The court threw out the lawsuit. It found that the comments in the comedy routine merely conveyed Croonquist’s opinions of her mother-in-law, and other members of the family. Statements of opinion rather than fact are protected under the First Amendment and are not defamatory. Because opinions, even including name-calling, cannot be proven to be true or false, they are simply not actionable. The use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are discouraged, but they cannot serve as the basis for litigation.
So now it seems that Croonquist’s in laws will have to grin and bear it – or if they can’t grin, just bear it. The Court’s opinion did not mention how Croonquist’s husband was faring in this war between the women in his life. Me,I love my mother-in-law, so I don’t have to worry.

 

Kids Post the Darndest Thing… And Can Get In Trouble for It!

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We all know that our right to free speech is guaranteed by the first amendment to the U.S. Constitution. You may not realize, however, that students in school do not have the same extent of freedom that adults out of school have. Sometimes

even judges can’t agree on how limited a student’s free speech rights are.

In Layshock v Hermitage School District, Justin Layshock, then a high school senior, created a fake MySpace page for the school’s principal. He created a profile that could be viewed as derogatory. He also posted a picture of the principle copied from the school’s website. When the school found out, Layshock was punished, including a 10 day suspension. He and his parents filed suit claiming that Justin’s First Amendment free speech rights had been violated, and the parents’ 14th amendment right to raise their child had also been violated. The District Court in Pennsylvania ruled in favor of Justin but against the parents. It found that since Justin’s conduct did not disrupt the school, and his use of the school’s website did not constitute entering the school, the school could not punish his out of school expressive conduct. A three-judge panel of the Third Circuit Court of Appeals upheld the decision.

In another Pennsylvania case, a middle school student (identified only as J. S.) also created a MySpace profile of her school’s principal, including his photograph from the school’s website, as well as profanity laced statements insinuating that he was a sex addict and pedophile. She too received a punishment including a 10 day suspension; her parents sued as well making claims similar to those in the Laychock matter. Here, the result was different. The District Court found that her actions did not “substantially and materially” disrupt the school, but it did cause some disruption. Because the lewd and vulgar off-campus speech had an effect on-campus, the court found that J.S.’s free speech rights were not violated. A different three-judge panel of the Third Circuit Court of Appeals upheld that decision.

Thus, we have a somewhat unusual circumstance where one three-judge appellate level panel has one opinion, and a different three-judge panel seems to have reached the exact opposite conclusion. Of course, the facts are somewhat different in each case. How does this dilemma get resolved,so that schools, students, and parents all know what is, and what is not permitted? Recently, a 14 judge panel of the Third Circuit held new hearings on both cases. Hopefully, they will reach a decision that clarifies the issue. That may not be the last word, however, as this matter might end up in the lap of the United States Supreme Court.

Stay tuned… but in the meantime, be careful of what you put on the Internet because someone will always be watching.

 

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One More Thing To Do Before You Die

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You can control what happens to you after you die. No, this is not a blog about religion and I do not profess to know what happens to a person’s soul. But a recent decision by the New Jersey Supreme Court does confirm that you can control what ha

ppens to your body after your death. And, if you don’t take precautions, it may not turn out the way you or your loved ones intended.

Here’s the facts: when Larry Marino, Sr. passed away in October 2005 he had six children, two by his first wife, and four by his second wife Joan. Joan and Larry had not been divorced but apparently their relationship had deteriorated prior to his death. Joan wanted Larry to be buried in a plot that they had acquired through her mother, where she intended to be buried, and which was near her family’s plots. The children unanimously insisted that their father should be buried in his mother’s plot, as that is where he had wanted to be buried, and that he certainly did not want to be buried with Joan’s family. At the trial of the matter, Joan testified that she had been coerced into agreeing to having Larry buried where the children wanted. Later she sought a court order to have his body disinterred and moved to her plot.

She lost at trial. Even though the judge found that her decision to allow the burial near Larry’s mother was coerced, the judge held that Larry’s desire to be buried with his family coupled with his inferred desire not to be disinterred was paramount. That decision was reversed by the Appellate Division which held that Joan, as the surviving spouse, had the authority to determine where Larry was to be buried, and since she had been coerced into acting contrary to her wishes, the body could be disinterred.

The New Jersey Supreme Court disagreed. It pointed out that there is a statute related to internment, but a different statute related to disinterment. The internment statute says that if the person who has died has not left a will specifically appointing a person to control the funeral and the disposition of his remains, the right to do so belongs first to the surviving spouse and then to a majority of the surviving adult children. So, initially Joan did have the right to determine where Larry should’ve been buried, to the exclusion of the children. But, once a body is in the ground, the internment statute no longer applies, and one must look to the disinterment statute. That statute says human remains shall not be removed from an internment space unless the surviving spouse, the adult children, and the owner of the internment space all authorize the removal in writing. Majority does not rule in that instance. Thus, even though Joan had certain rights prior to burial, once the body is in the ground she had to share those rights with the surviving children. Since they could not all agree, the body stays put. This emphasizes the strong preference against disinterment.

The lesson to be learned is that everyone should not only have a will, but that will should be explicit as to what you want to happen to not just your possessions, but your remains as well.

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