NYCBA Members Newsletter

Welcome to the June 2007 issue of our Newsletter, our final issue until the Fall.

Richard Ware Levitt's Annual Second Circuit Review

On Monday evening, May 21, 2007, Richard Ware Levitt presented his annual lecture on Recent Developments in the Second Circuit Law, and, as always, this event was well-attended and filled with an enormous number of brilliant nuggets of advice to the criminal defense bar.

As an example, Mr. Levitt noted the publication of an article entitled "Why are Federal Judges so Acquittal Prone?" by Andrew D. Leipold, of the University of Illinois College of Law, as published in the Washington University Law Quarterly, Vol. 83, p. 151, 2005. For the benefit of our readers, we have posted a copy of that article on our website.

The article explores the myth that juries are more prone to exonerate a criminal defendant that a Federal judge - and, backed by a lot of statistics, the article shows that the opposite is true. Over a recent 14 year period, for example, the jury trial conviction rate was 84%, while the bench conviction rate was a mere 55%. Moreover, while the conviction rate for juries has remained nearly constant for many years, the judicial conviction rate has fallen steadily since the late 1980s. This article presents the first systematic attempt to explain this "conviction gap." Using original compilations of government records for over 75,000 federal criminal trials, the article explores a variety of stories that might explain why judges and juries behave so differently. It concludes that some, but not all, of the gap can be explained by the differences in case types that are directed toward judges. It also hypothesizes, however, that alterations in the federal sentencing scheme, which changed dramatically in the 80s and 90s, may well have affected the way judges evaluate the government's evidence in bench trials. The latter conclusion may have significant implications for the changes in federal sentencing that are likely to occur over the next several years.

NYCBA Web Site Features

Each month, we try to point out some of the latest resources that we have posted on our Website at www.nycrimbar.org/. In keeping with that tradition, we note the following item:

• Because the length and severity of punishment for sex offense crimes continues to grow geometrically, and because the regulatory maze continues to become ever more creative and complex, we have posted on the Legal Research section of our Website a series of three articles by Amy Baron-Evans and Sara Noonan, National Federal Defender Resource Counsel, which collectively present a detailed - and downright scary - summary of the scope and extent of the Adam Walsh Child Protection and Safety Act of 2006. Click here for Part I - Part II and Part III.
  
  
  
• We have posted on the Briefs and Motions section of our Website a copy of the Defendant's Motion to Dismiss the Indictment in the Government's giant and controversial tax shelter case against the former partners of KPMG, entitled U.S. v. Jeffrey Stein, No. 05 Cr. 888 (LAK) (S.D.N.Y.). The motion is based on allegations of prosecutorial misconduct that the defendants charge "shocks the conscience." For a summary of that motion, see "Defendants Ask Dismissal Of KPMG Case: Say U.S. Misconduct 'Shocks the Conscience'," by Beth Bar, New York Law Journal, June 12, 2007. See also, "Prosecutors Urge Dismissal of KPMG Indictments," by David Reilly and Paul Davies, The Wall Street Journal, June 25, 2007; and "Prosecutors Invite a Dismissal in KPMG Tax-Shelter Case, Burdened by Technicalities," by Lynnley Browning, The New York Times, June 26, 2007.
  
  
  
• We have posted on the Decisions section of our Website a copy of the recent opinion by the New York State Court of Appeals, entitled Cubas v. Martinez, No. 74, N.Y.S. Court of Appeals, June 7, 2007 (2007 NY Slip Op 4723; 2007 N.Y. LEXIS 1456),in which a divided Court held that New York state's requirement that people seeking driver's licenses must verify they are in the United States legally if they lack Social Security numbers does not unconstitutionally discriminate against undocumented aliens. For a summary of that ruling, see "DMV License Identity Rules Survive Immigrants' Protests," by Joel Stashenko as published in the New York Law Journal on June 8, 2007.
  
  
• We have also posted on the Legal Memoranda section of our Website a copy of the recent Report entitled "The Immigration Consequences of Deferred Adjudication Programs in New York City," published by The Association of the Bar of the City of New York, June, 2007
  
  

What's New On The Internet:

• We have posted on the "What's New" page of our website a copy of the article entitled "Sentencing Guidelines - New York's New Commission on Sentencing Reform," by Alan Vinegrad and Douglas Bloom as published in the New York Law Journal on May 7, 2007
  
  
  
• We have also posted on the What's New section of our Website an article entitled "Don't Let Your E-Evidence Get Trashed," by Jerold S. Solovy and Robert L. Byman, as published in the The National Law Journal, on June 11, 2007.
  
  
  
• For those who have heard about "legal wikis" but don't have the foggiest idea what they are, we have posted on the Computer Tips section of our website an article entitled "Legal Wikis Are Bound to Wow," by Robert J. Ambrogi, which was first posted on the Law Technology News Section of Law.com on May 7, 2007.
  
  

Annual Dues:

We have begun the process of suspending access to the NYCBA Website for those members who have not paid their 2007 dues. If you no longer have access to the NYCBA Website, and you wish to be reinstated, or if you believe the suspension was made in error, please immediately contact Michael Bachrach, the New York Criminal Bar Association Treasurer, by telephone at (646) 797-2776 or by email at michael@mbachlaw.com.

Comments and Newsletter Contributions Welcome:

Comments and suggestions about, and contributions to, this Newsletter are most welcome; and we encourage you to let us know what features you would like to see included in the Newsletter. Please send your comments by email directly to our committee at: nycrimbar@nyc.rr.com.

Internet and Newsletter Committee:
Scott Tulman, Chair
Harvey Fishbein
Michael K. Bachrach
Peter G. Schmidt