Monthly Archives: February 2011

Are You ‘Available?’: An Analysis of the Porco Appeal Before the N.Y. Court of Appeals

Written by David Szalda, Albany Government Law Review Member

 

Introduction

On the morning of November 15, 2004, the quiet Albany suburb of Delmar, N.Y. awoke to the news of the murder and attempted murder of Peter and Joan Porco.[1] Sometime in the night, while the two were sleeping an intruder entered their home, and savagely attacked them with an ax.[2] Hours later, police investigators and paramedics arrived at the Porco residence to discover Mr. Porco murdered and Mrs. Porco in her bed barely surviving her traumatic head injuries.[3] Investigator Christopher Bowdish began asking questions of the attack.[4] Eventually, the investigator asked Mrs. Porco if her son Christopher had done this to her and her husband.[5] As Investigator Bowdish and the paramedics would later testify Mrs. Porco responded with an up-and-down ‘nod,’ signaling, yes.[6]

Relying on the ‘nod’ and an abundance of circumstantial evidence the jury convicted the victim’s son, Christopher Porco, for the murder of his father and the attempted murder of his mother.[7] Porco’s appeal to the Second Department was premised among several legal errors, most notably the trial court’s error in admitting the police detectives and paramedics testimony as to Mrs. Porco’s nod as an excited utterance.[8] Upon appeal, the Second Department disagreed, and found the nod inadmissible hearsay.  However, the court held that error harmless because since Mrs. Porco was ‘available’ to testify, Porco’s Sixth Amendment right to confrontation was not violated.[9] On September 21, 2010, the New York Court of Appeals granted Porco’s defense motion for leave to appeal the Second Department’s holdings.[10]

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Are Two Judicial Systems Better Than One?: A Look at the Debate Between Military Tribunal Commissions v. Federal Civilian Trials in Terrorism Cases

Lindsey Overton, Albany Government Law Review Member

 

Khalid Sheikh Mohammed and four other individuals who are accused of planning and executing the September 11, 2001 attacks have been in U.S. custody since shortly after the attacks occurred and have yet to be prosecuted.[1] Although proceedings for a trial by military commission had commenced, in November 2009 Attorney General Eric Holder announced that the four men would be moved to New York and tried in federal court.[2] New York officials quickly objected due to concerns over security and the costs associated with such a trial.[3] The Obama administration subsequently suspended its plans for federal civilian trials; however, more than a year later, no action has been taken to bring the five accused terrorists to justice.[4]

Shortly after the September 11, 2001 attacks on the United States, then President George W. Bush established military tribunal commissions to try individuals accused of partaking in acts of terrorism, particularly those acts associated with the September 11th attacks.[5] Since the employment of the military tribunals, there has been a heated debate regarding the appropriateness of such commissions in comparison to federal civilian trials.  New York, the site of the vast majority of the destruction and the prime location for potential trials, has been at the center of this debate.  While there have been many obstacles to the use of military commissions, including U.S. Supreme Court rulings, current President Barack Obama has, despite his initial plan, allowed the commissions to function as a lawful means of administering justice within the American criminal justice system.[6] The Obama administration has yet to issue a final decision on where to try the “high-value detainees,” including the previously mentioned September 11, 2001 masterminds.[7] While some would like to see the detainees tried in New York, others oppose that venue due to the possibility of more terrorist attacks as a result of what would be high-profile proceedings.[8] The opponents are also concerned that the stricter civilian evidence standards could result in more acquittals and more lenient sentences.[9] This article will examine the results of accused terrorists tried in military commissions with those tried in federal civilian courts in an attempt to discern which process is the more effective means for administering justice.

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New York State’s Ethical Crisis: What Is Governor Cuomo Going To Do About It?

Emma Maceko, Albany Government Law Review Member

Introduction

New York State’s newly elected Governor, Andrew Cuomo, delivered his first State of the State address on January 5, 2011, in front of over two thousand people at Albany’s Convention Center.  During this address, he bluntly stated that “[t]his is a time of crisis for our state.”[1] No one can deny that the State of New York is in dire straits, plagued by a number of serious and controversial problems in need of immediate attention.  Although issues like the State’s current ten billion dollar budget deficit[2] and its high unemployment rate dominated Governor Cuomo’s State of the State address and have also stolen much of the media spotlight, the issue of ethical reform within the state government is one of great importance that should not be overlooked.

Ethical reform is an issue that has been getting a lot of attention all over the country, especially here in New York State.  Governor Cuomo addressed this issue in his State of the State address amid his discussion about reinventing the state government.  Governor Cuomo must approach ethical reform head on, and how he handles it will likely be critical to the success of his administration.  The people of New York State have lost confidence in their government.  Over the past few years, New York State politicians at all levels of government have made headline after headline for being at the center of high-profile political scandals, scandals that have resulted in a growing sense of distrust and disillusionment toward the government and other public institutions.[3] Governor Cuomo made cleaning up Albany a key campaign pledge, but what is it that he is proposing and how can future abuses by state politicians be prevented?

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Filed under Election Law, Government Reform

Same Sex Domestic Abuse and Orders of Protection

Zach Kansler, Albany Government Law Review Member

Introduction

No intimate relationship is immune from the danger of domestic abuse. Homosexual couples and heterosexual couples experience similar rates of harm inflected by domestic abuse. [1] Despite the similarities in rate of occurrence, and that humans should be treated equally and with dignity, some states expressly treat the personal safety of homosexuals as less valuable than that of heterosexuals.[2] This injustice is manifested in the express lack of availability of a basic legal tool of self-preservation, the order of protection.  Furthermore, where these orders are available to victims of same-sex domestic abuse (“SSDA”), it is not through clear and instructive language, but rather silence, [3] and in some instances, the fortuity of judicial interpretation.[4]

This practice of denying victims of SSDA the protection they deserve is a travesty[5] and should be eliminated.  States should take a proactive role in the protection of all their citizens, not just those who conform to the antiquated beliefs of their forefathers.  Even the states that allow for orders of protection in SSDA, the construct used may be inadequate, as they neglect to empower and inform the homosexual community of the rights they had been for so long denied.  These states proffer laws that afford protection through silence, failing to educate the homosexual community they are now empowered to petition for an end to the abuse.

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Filed under Constitutional Law, Criminal Law, Equal Protection