NY Court: DWI Laws Don't Cover 'Huffing'

ALBANY, N.Y. (AP) -- A motorist accused of "huffing" stimulants from an aerosol can before getting into a deadly wreck cannot be charged with driving while intoxicated, New York's highest court ruled Wednesday.

The Legislature never included inhalants with alcohol and certain other drugs in the definition of intoxicated driving, the Court of Appeals ruled.

Several counts, including manslaughter and criminally negligent homicide, remain against Vincent Litto, who is charged in a 2004 crash in Brooklyn that killed a 17-year-old girl and injured others, including himself. Prosecutors allege he was driving when he sprayed a can of "Dust Off" into his mouth, and crashed into an oncoming car less than a minute later.

"If defendant did what the prosecution charges, then his conduct was reprehensible," wrote Chief Judge Judith Kaye in the unanimous decision. "Perhaps gaps exist in the law. ... However, a determination by this court that intoxication in Vehicle and Traffic Law includes the use of any substance would improperly override the legislative policy judgment."

Neither could the driver have been charged under a 1966 law against driving while high on drugs because that law covers only "explicitly enumerated drugs," the decision stated.

Details here from the AP. (via How Appealing)

Chef Sues Over Intellectual Property (the Menu)

She was, she asserts, the first chef in New York who took lobster rolls, fried clams and other sturdy utility players of New England seafood cookery and lifted them to all-star status on her menu. Since opening Pearl Oyster Bar in the West Village 10 years ago, she has ruefully watched the arrival of a string of restaurants she considers “knockoffs” of her own.

Yesterday she filed suit in Federal District Court in Manhattan against the latest and, she said, the most brazen of her imitators: Ed McFarland, chef and co-owner of Ed’s Lobster Bar in SoHo and her sous-chef at Pearl for six years.

The suit, which seeks unspecified financial damages from Mr. McFarland and the restaurant itself, charges that Ed’s Lobster Bar copies “each and every element” of Pearl Oyster Bar, including the white marble bar, the gray paint on the wainscoting, the chairs and bar stools with their wheat-straw backs, the packets of oyster crackers placed at each table setting and the dressing on the Caesar salad.

Details here from the New York Times.

Ex-Judge, City Attorney, Kills Himself

Now this is tragic:

Former Denver City Attorney Larry Manzanares, who was facing criminal charges in a stolen laptop case, shot himself to death under a walking bridge in the Highline Canal area on Friday evening, police said Saturday.

Manzanares, 50, was found by police just before 5 p.m. near East Dartmouth Avenue and South Colorado Boulevard in Eisenhower Park.

His family described him as a beloved husband, father, son, brother and son-in-law and lashed out at the press for what they said was unfair coverage of the case against him. . . .

[T]he former judge was charged June 13 with theft of a Denver District Court laptop.

Jefferson County prosecutors filed three felony charges of theft, embezzlement, tampering with evidence and two misdemeanor counts of misconduct and computer crime.

The laptop was also used to download pornographic images and movies, according to an arrest affidavit.

As I understand it (and the following may or may not be correct), it appears that former judge and city attorney Manzanares had been viewing porn at work on his computer. When it seemed he might get caught, he took the computer home and tried to clean it up. When he was charged with stealing it, he killed himself. He was a Harvard Law graduate, and a very well-respected member of the Colorado bar. What a waste and what a shame. My condolences to his family and friends.

Details here from the Denver Post. I posted about this story earlier here.

Technical Difficulties

My apologies, but technical difficulties have prevented me from posting almost entirely for the last week or so. The problems appear to be fixed now (fingers crossed), so regular posting should resume.

One of the consequences of these problems it that I have not been able to encourage any of you to go and vote for The Legal Reader at the Funniest Law Blog Poll being conducted at Legal Antics. The Legal Reader is currently in last place: tenth out of ten. Please go and vote for The Legal Reader so at least I can finish with more than four votes. :-(

New Legal Blog: Nota Bene

There's a new legal blog on the block: Nota Bene. It promises to focus on "criminal and appellate law." It's proprietor is Jeff Lewis, who used to run The SoCalLawBlog (now defunct). Jeff says: "You will probably find less posts about OJ Simpson and Greg Haidl and more posts about legal decisions and criminal law."

Jeff and I have been blogging friends for a long time. I encourage you to go check out Nota Bene, and I wish Jeff the best of luck with his new endeavor.

Judge: Disbarred D.A. Must Leave Now

Duke University has reached an undisclosed financial settlement with three former lacrosse players falsely accused of rape, while a judge said late Monday he would order the disbarred prosecutor [Mike Nifong] to leave office immediately. . . .

[E]arlier Monday, Nifong said he planned to leave office next month in a resignation letter to Gov. Mike Easley and to Superior Court Judge Orlando Hudson, who is overseeing a pending request to remove Nifong from office.

"It is my fervent hope that this action will spare this community the further anguish a removal hearing would entail and will allow the healing process to move forward," Nifong wrote.

But Nifong's July 13 departure date wasn't soon enough for Hudson, who decided late Monday to suspend Nifong from office.

As part of the suspension, Hudson said he would order the sheriff on Tuesday to prevent Nifong from carrying out any duties of the district attorney.

"I have thought about the situation, and this is the way I wish to proceed," said Hudson, who initially agreed to allow Nifong work until next month.

A disciplinary committee of the North Carolina State Bar concluded Saturday that Nifong had lied to the court, made inflammatory statements about the three indicted players and their teammates, and withheld critical DNA evidence from defense attorneys. After some administrative steps, Nifong will have 30 days to turn in his law license.

Details here from the AP via Forbes.com.

Appeals Court Rules for E-Mail Privacy

CINCINNATI (AP) -- Federal investigators overstepped constitutional bounds by searching stored e-mails without a warrant in a fraud investigation, a federal appeals court ruled Monday.

In a case closely watched by civil-liberties advocates in the still-emerging field of Internet privacy, a three-judge panel of the 6th U.S. Circuit Court of Appeals found that e-mail users have a reasonable expectation of privacy.

"It goes without saying that like the telephone earlier in our history, e-mail is an ever-increasing mode of private communication, and protecting shared communications through this medium is as important to Fourth Amendment principles today as protecting telephone conversations has been in past," the appeals court said.

Although surveillance of in-transit e-mails is restricted under wiretapping laws, the government had contended that e-mails stored with service providers could be seized without warrants. Monday's ruling counters that position and comes at a time service providers are offering ever-increasing storage space.

"This landmark decision answered a question that had been dangerously open," said Kevin Bankston, attorney for the Electronic Frontier Foundation, a civil-liberties group based in San Francisco.

The appeals court's unanimous ruling upholds a lower court ruling temporarily blocking investigators from additional e-mail searches without warrants. The panel said the government would have to either provide an account holder a chance to contest such a seizure or to prove that the holder had no expectation of privacy.

Details here from the AP via The Columbia Daily Tribune. The Court's opinion is here.

Disbarred Personal Injury Lawyer's Suit for Fees Is Permitted to Move Forward

A lawsuit initiated by former personal injury attorney Morris J. Eisen against a law firm that allegedly failed to pay him for work he performed on cases he referred to it when he was disbarred will go forward following a Manhattan judge's denial of the firm's motion to dismiss.

Eisen was disbarred in 1992 by the Appellate Division, 1st Department, based on his conviction the preceding year for racketeering.

At his criminal trial, prosecutors presented evidence that Eisen and six co-defendants won multi-million dollar verdicts by fabricating evidence and bribing witnesses. They smashed a car with a sledgehammer to increase the apparent damage, enlarged a pot hole with a pick ax to exaggerate its danger and used shrunken images of rulers to make potholes appear deeper, prosecutors claimed. A co-conspirator allegedly paid a witness to proffer the same testimony regarding two different car accidents, one of which occurred while the witness was in jail for possession of stolen property.

Eisen was sentenced to 57 months in prison and was released after serving three years. He was disbarred in January 1992. . . .

[I]n denying the [defendant] firm's motion [to dismiss], New York Supreme Court Justice Marylin G. Diamond cited as precedent a prior action for unpaid fees waged by Eisen against a different set of defendants, Eisen v. Feder, 307 AD2d 817.

In Eisen, the 1st Department held that Eisen may recover on a quantum meruit basis for lawsuits completed by other attorneys following his disbarment and that the six-year statute of limitations commenced at the time of the disposition of each individual case.

Eisen may therefore pursue claims for any cases disposed of by Shapiro Uchman within six years of the commencement of the present case on Feb. 16, 2007, Diamond ruled.

That just doesn't seem right . . . . Details here from the New York Law Journal via Law.com.

Justices Reverse Conviction Over Blogging by Juror

A state appeals court has voided a man's burglary conviction because one of the jurors misled lawyers and wrote a blog about deliberations during the trial. An unpublished opinion released Thursday by a three-judge panel of the 4th District Court of Appeals found that the defendant, Donald McNeely, must be allowed a hearing to determine whether the jury was biased before the conviction can stand.

According to court documents, a juror who served as foreman bragged in his blog about hiding the fact that he was a licensed attorney during jury selection, instead telling the court that he worked as a project manager for a technology company. "More neutral than lawyer, don't ya think," the man wrote.

He also posted detailed accounts of jury deliberations, writing, "Nowhere do I recall the jury instructions mandating I can't post comments in my blog about the trial. (Ha. Sorry, will do.)"

The trial judge in the case threatened to report the juror to the state bar but accepted the verdict.

Details here from NBCSanDiego.com. The Court's opinion is People v. McNeely, No. D048692.

Black Cloud Will Linger for Judge

The extraordinary legal career that Larry Manzanares spent 25 years building will be forever tainted by the scandal and criminal charges he now faces, according to some legal experts.

"This debacle will follow him to the grave, regardless of guilt or innocence," said Denver lawyer Scott Robinson.

"He's always going to have that black cloud hanging over his head," Robinson said. "He'll be like Marley's ghost, pulling the weight of the chains that he's forged in life."

Manzanares, 50, was charged with three felonies Wednesday in the theft of a state-owned computer from the courthouse. Investigators found "massive" amounts of pornography on the computer, which Manzanares tried to delete before turning the computer over to police.

A graduate of Harvard Law School, Manzanares became a Denver county judge in 1992, a district judge in 1998 and was appointed Denver city attorney in January. His salary was $125,473.

This is a hard fall for a person whose career appeared to be on a rapid rise to even greater achievement, said Denver lawyer and former prosecutor Craig Silverman.

Bummer, dude. Details here from the Rocky Mountain News. (via Above the Law)

Spector's Former Lawyer May Be Held in Contempt

Sara Caplan, a former lawyer for Phil Spector, will be held in contempt of court if she refuses to testify about whether she saw a defense expert mishandle material that could be evidence in the music producer's murder trial, the judge ruled this morning. The decision carries criminal penalties, but the contempt ruling was immediately stayed until June 22 to allow Caplan time to appeal to a higher court. Los Angeles County Superior Court Judge Larry Paul Fidler also gave the parties until Monday at 9 a.m. to work out a compromise.

Fidler said it was the first time in his 25 years on the bench that he has had to punish an attorney with contempt. The jurist was clearly sorrowful that the dispute over Caplan's testimony led to his decision.

"It goes without saying that nobody wants to be here today," Fidler said as he recited his ruling from the bench. "Nobody has any personal animus against Miss Caplan. "I admire her for taking the stance she is taking; I don't agree with it," Fidler said, adding later that as a judge he had no choice. "You often have to do things you don't like." "I see no reason why Miss Caplan should not testify," said Fidler, who was a defense attorney for 10 years. "There is no other person who can testify to what she saw."

Details here from the Los Angeles Times.

Experts: Paris May Set Legal Precedent

As Paris burns back in county jail, the debate over her short-lived release rages on, with law experts dissecting the thorny legal issues raised by the Simple Life star's sentence.

The main issue? Whether Los Angeles Superior Court Judge Michael T. Sauer was correct in overruling Sheriff Lee Baca's decision to transfer Hilton to house arrest after just three full days in jail for what was originally a 45-day sentence.

"It's really bizarre that the most frivolous person in the western world in the most frivolous case in which she didn't know she has a license to drive might end up creating precedent that could affect thousands of prisoners and where they're housed and how they're housed for years to come," said Stan Goldman, professor of criminal law at Loyola University Law School.

Goldman and others agree the showdown creates a legal quandary—i.e., whether the elected sheriff is truly independent of the judiciary and whether Judge Sauer overstepped his bounds.

Details here from Josh Grossberg of E! News.

Judge Orders Paris Hilton Back in Court

Hours after Paris Hilton was sent home under house arrest Thursday the judge who originally put her in jail on a reckless driving probation violation ordered her back to court to determine whether he should return her to jail.

Superior Court Judge Michael T. Sauer issued his order after the city attorney filed a petition late Thursday afternoon demanding to show cause why Sheriff Lee Baca should not be held in contempt of court for releasing Hilton Thursday morning and demanding that Hilton be held in custody.

Hilton was ordered to report to court at 9 a.m., Superior Court spokesman Allan Parachini told the Associated Press.

"My understanding is she will be brought in in a sheriff's vehicle from her home," Parachini said, adding that although Hilton is at home she is technically in custody because she is under house arrest.

Good. Although I can understand why Sheriff Lee Baca let her go: Would you want to have to put up with her whining, teary, herpes-infected ass for 23 days? I don't think so. Details here from the AP via the San Francisco Chronicle.

Actor's Risque Past Halts 'Adam' Film

The man who plays Adam in a video aired at a Bible-based creationist museum has led a different life outside the Garden of Eden, flaunting his sexual exploits online and modeling for a clothing line that promotes free love.

After learning about his activities Thursday, the Creation Museum in Kentucky pulled the 40-second video in which he appears.

"We are currently investigating the veracity of these serious claims of his participation in projects that don't align with the biblical standards and moral code upon which the ministry was founded," Answers for Genesis spokesman Mark Looy said in a written statement.

The actor, Eric Linden, owns a graphic Web site called Bedroom Acrobat, where he has been pictured, smiling alongside a drag queen, in a T-shirt brandishing the site's sexually suggestive logo. The Web site, which has a network of members, allows users to post explicit stories and photos.

Hah! Details here from the AP via the San Francisco Chronicle.

Porn King Flynt Seeks Information on Sexual Exploits of Lawmakers

"Hustler" publisher Larry Flynt - just days after posting a $1 million bounty for verifiable information on the sexual exploits of U.S. Congress members and political leaders -- says he's already been deluged by more than 200 leads pouring in from around the country, "80 percent of them on Republicans.''

"I'm not interested in exposing anyone's sex life,'' said Flynt, in a telephone interview with the San Francisco Chronicle Wednesday. "It's the hypocrisy I'm after. I think that if someone takes a public position contrary to their private life, they're fair game.''

The article notes that when President Clinton was facing impeachment over the Monica Lewinski affair, "GOP House Speaker elect Bob Livingston resigned after Flynt prepared to go public with an informant's details of his illicit affair." Details here from the San Francisco Chronicle.