In The Interests of Justice: Why Federal Prosecutors Should Welcome Evidence Disclosure Reforms

By Kristin Keehan, Albany Government Law Review

            Under Brady, a prosecutor’s failure to provide material, exculpatory evidence to the defense is a violation of due process.[1]  This famous ruling is commonly known as “The Brady Rule.”[2]  The ruling from Brady has been further embodied in the New York Rules of Professional Conduct, Rule 3.8(b):  Special Responsibilities of Prosecutors and Other Government Lawyers:

b. A prosecutor or other government lawyer in criminal litigation shall make timely disclosure to counsel for the defendant or to a defendant who has no counsel of the existence of evidence or information known to the prosecutor or other government lawyer that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the sentence, except when relieved of this responsibility by a protective order of a tribunal.[3]

The failure to provide evidence that could be deemed to be Brady material can result in mistrials,[4]  reversal on appeal, and/or professional sanctions.  However, the damage done to a criminal defendant is usually the cause of irreparable harm.

            The thirst for a “win” in court has led to more and more Brady violations.  In 2003, a man by the name of Edgar Rivas was convicted of conspiracy to possess more than five kilograms of cocaine while he was aboard the foreign freighter the Antwerpen arriving in the United States.[5]  The day before trial was to begin, the Government’s main witness admitted to carrying onto the Antwerpen the cocaine that was found in Rivas’s cabin.[6]  The Government, however, failed to disclose this information to the defense, and Rivas was convicted.[7]  On appeal, the U.S. Court of Appeals for the Second Circuit found the Government’s actions to be in violation of the Brady Rule, vacated the judgment, and ordered a new trial.[8]  The only reason that Rivas’s defense counsel ever found out about the Brady violation was through a Government translator who approached defense counsel after the trial.[9]  Unfortunately, Mr. Rivas is just one of many who suffer at the hands of prosecutors who wish to conceal evidence from the defense.  According to Marvin Schecter, “the slow trickle of uncovered Brady violations spawned by DNA exonerations has become a steady, flowing stream of egregious cases.”[10]  Schecter believes that the violating of Brady is “something that is learned and taught.”[11]  Though such claims have been ardently denied[12], the reaction to legislation to keep such Brady violations at bay signals that Schecter’s assertion might not be as outlandish as some claim.

Continue reading “In The Interests of Justice: Why Federal Prosecutors Should Welcome Evidence Disclosure Reforms”

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The New York City Segway: A Hiccup in the Vehicle and Traffic Law

By Benjamin Fox, Albany Government Law Review

The Segway was introduced to the public in December of 2001.[1]  At that time its creators and members of the public believed it would be the new mode of travel for the twenty first century.[2]  Few were purchased, and current estimates suggest only 80,000 units have been sold worldwide.[3]  Considering these statistics, the laws regarding (and in effect limiting) use of the Segway in New York City seem bizarre and unnecessary.  For that reason, the statutory definition of “motor vehicle” should be amended to exclude all Segways from its reach.  In doing so, it is crucial to understand how the Segway fits into the Vehicle and Traffic Law (hereinafter VTL).  Continue reading “The New York City Segway: A Hiccup in the Vehicle and Traffic Law”

An Analysis of Leandra’s Law: Are Mandatory Alcohol Ignition Interlocks an Effective Way to Curtail Drunken Driving?

By Stephanie Goutos, Albany Government Law Review

I. Introduction

On October 11, 2009, an intoxicated Carmen Huertas got into her vehicle and began to drive seven young children to a slumber party.[1]  Manhattan District Attorney Robert Morgenthau would later report that Ms. Huertas had “brushed off warnings that she was too drunk to drive,” [2] and authorities stated she was playing a guessing game with the passengers, asking them to raise their hands if they thought they would make it home without crashing.[3]  Ms. Huertas subsequently lost control of the vehicle, which swerved off the road and flipped over on the Henry Hudson Parkway.[4]  Huertas’s blood alcohol limit was tested at the scene of the accident and reported to be above 0.13 percent, surpassing the legal limit of 0.08.[5]  One of the passengers in the car was eleven year old Leandra Rosado, who was thrown from the vehicle as a result of the accident, and did not survive.[6] Continue reading “An Analysis of Leandra’s Law: Are Mandatory Alcohol Ignition Interlocks an Effective Way to Curtail Drunken Driving?”

Taking the Fight Against Cyber-Bullies Outside The School House Gate

Michael Telfer, Editing Chair, Albany Government Law Review Member

With the widespread use of the Internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed.  With the great benefits that new technology brings, also comes the ability for people to use it to the detriment of others.

Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.”[1] Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.”[2] Specifically, bullies engage in cyber-bullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identify of other students,[3] and posting embarrassing comments on Facebook to humiliate other students.[4] Reports of students who have been victims of cyber-bullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”[5]

As has been addressed in a previous Fireplace article, the issue of whether school districts can punish students for cyber-bullying when the student’s right to free speech is implicated is not uniformly defined.[6] Due to the fact that these incidents exist off of school grounds, the ability for schools to take action against cyber-bullies is limited because action taken by a school district can only be justified if the student’s online speech “materially disrupts class work or involves substantial disorder o[f] the rights of others.”[7] The uncertainty of the state of the law is not helped by the fact that the Supreme Court has “not addressed online student speech.”[8] The ability of schools to combat cyber-bullying has been tested in at least one case in California where a parent had his child’s suspension, due to the posting of a video on YouTube, overturned when the court found the disruption to the school caused by the video posting was “only minimal.”[9]

Since cyber-bullying usually impacts one student’s emotional well being and does not affect the larger school environment, students may be unable to rely on their school to protect them if cyber-bullying happens outside of school, which in most cases it does.   The question this article seeks to answer is whether victims of cyber-bullying have legal remedies through either criminal or civil laws of New York.

Continue reading “Taking the Fight Against Cyber-Bullies Outside The School House Gate”