History > 2005 > USA > State justice / laws

Chuck Asay

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Colorado -- The Colorado Springs Gazette        Cagle

2.12.2005

http://cagle.msnbc.com/politicalcartoons/PCcartoons/asay.asp

Jury Rules Wal-Mart Must Pay

$172 Million Over Meal Breaks

December 23, 2005
The New York Times
By LISA ALCALAY KLUG

BERKELEY, Calif., Dec. 22 - A California jury on Thursday ordered Wal-Mart, the world's largest retailer, to pay $172 million in damages for failing to provide meal breaks to nearly 116,000 hourly workers as required under state law.

The verdict came after a trial that lasted more than three months in a class-action suit filed at Alameda County Superior Court in Oakland.

The suit, filed on behalf of employees of Wal-Mart and Sam's Club stores in California, argued that the chain violated state law more than eight million times from Jan. 1, 2001, to May 6, 2005, said the plaintiffs' lawyer, Jessica Grant of the Furth Firm of San Francisco.

California law requires that employers provide a meal break of 30 minutes for every five hours on the clock, Ms. Grant said. If the break is shorter than that, provided late or not at all, the employer must pay an hour's pay, she said.

"What happened here is that Wal-Mart didn't make a single payment for 2001 and 2002 and only started paying in 2003 after we asked for permission to go forward as a class action," Ms. Grant said.

Responding to the verdict, Wal-Mart issued a statement saying that it planned to appeal, that the decision was unique to California and that it had no bearing on any other state.

Wal-Mart is facing similar cases in about 40 other states, Ms. Grant said.

The jury ordered the company to pay $57 million in general damages and $115 million in punitive damages.

"It sends a very strong message to Wal-Mart that it is not acceptable to work employees 7, 8, 9, 10 hours a day without meal breaks," Ms. Grant said.

A work law expert, Gillian Lester, a visiting professor of law at the University of California, Berkeley, said: "This in an important verdict. I agree with the plaintiff's attorneys that this is going to be an influential decision."

In its statement, Wal-Mart said it had "acknowledged it had compliance issues when the statute became effective in 2001."

"Wal-Mart has since taken steps to ensure all associates receive their meal periods, including adopting new technology that sends alerts to cashiers when it is time for their meal breaks," the statement read. "The system will automatically shut down registers if the cashier does not respond."

Jury Rules Wal-Mart Must Pay $172 Million Over Meal Breaks, NYT, 23.12.2005, http://www.nytimes.com/2005/12/23/business/23nwalmart.html

Pataki Wants

Death Penalty for Killers of Police

December 17, 2005
The New York Times
By WINNIE HU

Gov. George E. Pataki will call state lawmakers into a special session on Wednesday to vote on new legislation that seeks to curb illegal gun trafficking and permit the death penalty for those convicted of murdering a police officer.

Mr. Pataki's push for legislative action comes after the recent fatal shootings of two New York City police officers, Dillon Stewart and Daniel Enchautegui. The deaths have prompted finger-pointing among Republican and Democratic leaders in Albany over why antigun measures have stalled.

During a news conference in Manhattan yesterday, Mr. Pataki said that he would send two bills, one addressing illegal gun trafficking and one addressing crimes against law enforcement officers, to the Republican-led Senate and the Democratic Assembly.

"I am hopeful that, working together, we can get more illegal guns off the streets, and ensure those who injure or kill our police officers face the maximum penalties," Mr. Pataki said.

Mr. Pataki's legislation may also have the effect of reviving the death penalty. The state's 1995 law was struck down last year by a state court, which found a central element of its sentencing provisions unconstitutional. Assembly Democrats have resisted efforts to address the issue.

"Right now there is no effective death penalty in New York State, although it is on the books and we're going to continue to push to get it appropriately interpreted," Mr. Pataki said at the news conference. "With our bill there would be an effective death penalty."

In recent days, Senate Republicans have accused the Assembly Democrats of derailing their legislation to toughen sentences for people who use or sell illegal guns. Assembly Democrats have countered that the Senate has held up their antigun measures, and is unduly influenced by the National Rifle Association.

Under Mr. Pataki's gun legislation, penalties for sale and possession of illegal guns would be significantly increased. In addition, penalties for crimes committed against a law enforcement officer would become more serious and would permit the death penalty in cases where a police officer, peace officer or corrections employee has been murdered.

Joseph L. Bruno, the Senate majority leader, immediately issued a statement in support of Mr. Pataki's legislation. "The Senate is prepared to act on the Governor's proposals, as well as other measures to protect police officers and crack down on illegal firearms," Mr. Bruno said.

But Assembly Speaker Sheldon Silver announced that he would introduce his own competing legislation on illegal gun trafficking, saying that he would go further by imposing stricter regulations on gun dealers.

"The Senate and governor continue to protect loopholes that allow gun traffickers to evade detection and contribute to the illegal gun market in this state where criminals can obtain devastating weapons that threaten our safety," Mr. Silver said.

Charles Carrier, a spokesman for Mr. Silver, said that discussions were continuing on the governor's bill to increase penalties for those who injure or kill police officers. But Mr. Silver, who initially supported the death penalty, now opposes it.

"He no longer supports it because Assembly hearings have shown it is not the most effective way to improve public safety," Mr. Carrier said.

Still, Mr. Silver has also been under pressure to take action after the recent shootings of the police officers. He came under criticism last week after saying, "I don't go to cops' funerals." Mr. Silver later sought to clarify his comment by adding that he did not see funerals as a place to score political points.

Mr. Pataki, for his part, sought to play down his differences with Mr. Silver. "We've had ongoing negotiations," Mr. Pataki said. "There are still differences, but I think they are reconcilable."

During his weekly radio show, Mayor Michael R. Bloomberg also called yesterday for tougher legislation to remove illegal guns - and those who carry them - from the streets.

"If you're carrying a gun and you don't have a permit, you should go to the slammer because the only reason you're carrying a gun is because you think you'll want to kill somebody," the mayor told a caller to his show, on WABC-AM.

In particularly blunt language, Mr. Bloomberg described those responsible for the officer shootings as "assassins." He also asserted that the National Rifle Association has been "phenomenally effective in scaring legislators from voting to protect you and me, our children, our police officers, and all of us."

    Pataki Wants Death Penalty for Killers of Police, NYT, 17.12.2005, http://www.nytimes.com/2005/12/17/nyregion/17albany.html

R.J. Matson

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NY, The New York Observer and Roll Call        Cagle        16.12.2005

http://cagle.msnbc.com/politicalcartoons/PCcartoons/matson.asp

Illinois Court Overturns

$10 Billion Verdict on 'Light' Cigarettes

December 15, 2005
The New York Times
By JONATHAN D. GLATER

The Supreme Court of Illinois threw out a $10 billion class-action lawsuit today that had accused Philip Morris USA of fraudulently misstating the amount of tar and nicotine in "light" cigarettes.

Because the labeling of the cigarettes was specifically authorized by federal regulators, the court ruled, the claim against Philip Morris could not stand. The 4-to-2 decision overturns a lower court ruling made in 2003, which found Philip Morris liable for $10.1 billion.

The state Supreme Court decision ends nearly five years of litigation between a class of 1.1 million people who bought Philip Morris's Cambridge Lights from 1986 to 2001, or Marlboro Lights from 1971 to 2001. It also lifts a cloud over Philip Morris, which is a unit of Altria, which could have faced a barrage of similar lawsuits in other states if the verdict had been allowed to stand. Shares of Altria rose more than 4 percent on the news.

The plaintiffs had not sought damages for the health effects of smoking but "only economic damages based on their claim of having purchased a product in reliance on statements by" Philip Morris, the court wrote. But those statements, according to the Supreme Court's decision, were authorized by the Federal Trade Commission.

"We conclude that the F.T.C. could, and did, specifically authorize all United States tobacco companies to utilize the words 'low,' 'lower,' 'reduced' or like qualifying terms, such as 'light,' so long as the descriptive terms are accompanied by a clear and conspicuous disclosure of the tar and nicotine content in milligrams of the smoke produced by the advertised cigarette," Justice Rita B. Garman wrote for a majority of the state Supreme Court.

Two dissenting justices strongly criticized the reasoning adopted by the majority, however. "The court's action today is predicated upon an erroneous and irresponsible interpretation of our Consumer Fraud Act," wrote Justice Charles E. Freeman. The regulatory action by the F.T.C. in this case, he continued, was not sufficiently specific to the activities of Philip Morris and so should not pre-empt claims by people who bought the cigarettes.

Justice Thomas L. Kilbride, who also dissented, further criticized the reasoning of the majority for giving too much weight to an F.T.C. consent order, which, he wrote, "have the force of law only as to the parties entering into the settlement agreements."

Justice Kilbride continued: "At most, the orders may be predictive of commission attitudes toward advertising practices in future cases. Simply stated, those consent orders cannot reasonably be deemed to be an industrywide specific authorization for the use of particular advertising descriptors."

    Illinois Court Overturns $10 Billion Verdict on 'Light' Cigarettes, NYT, 15.12.2005, http://www.nytimes.com/2005/12/15/business/15cnd-tobacco.html

Smokers Fret, Others Cheer,

Over New Ban in Northwest

December 10, 2005
The New York Times
By TIMOTHY EGAN

SEATTLE, Dec. 9 - The wind blowing off Lake Washington whistled outside Bergie's Bar and Grill on Friday, chilling the little makeshift shelter where a huddle of cigarette smokers tried to stay warm.

"This really makes me feel like a second-class citizen," said Matt Fischer, shivering along with the others in the Smoke Shack, as the bar calls its tarp-enclosed area.

If a variety of other antismoking initiatives had not already left them feeling like pariahs, the tobacco smokers of Washington State were certainly forced into deep exile this week. On Thursday, a law passed overwhelmingly by voters in November went into effect, not only banning indoor smoking in public accommodations but also requiring people who light up to stay at least 25 feet from the door of any such place. Officials here say the ban is the toughest anywhere in the country to be adopted statewide.

The 25-foot rule has people clucking.

"What are we supposed to do," said Tracy Godfrey, a longtime waitress at Mimosas, a blue-collar diner in nearby Renton, "go out there with a measuring tape so we can tell the smokers where to stand?"

Well, yes. The new law requires owners of restaurants, bars, stores and any other public place to do just that, and then draw a line. Some bar owners have been drawing lines in chalk outside in parking lots, designating where their smokers may stand. Others have put up little shacks or tents, as at Bergie's, where the sign on the shelter read, "Offering our customers a heated, semi-enclosed area with alcohol service."

Inside the bar, the nonsmokers were all smiles.

"I'm so sick of waking up in the morning smelling like smoke," Chris Penaranda said. "Now the only thing I'll wake up with is a hangover."

In addition to fines that the state can impose on offending businesses, smokers themselves can be fined $100 for violating the law. The police say they have not been scouring the bars of Washington looking for perps, and officials of the State Health Department report only a handful of complaints about violators. Still, there have been a few scuffles between barkeeps and patrons who, out of habit, continue with their habit.

Given that the law passed by a huge margin, it is no surprise that many people are joyous it is now in force.

"I don't usually get excited about anything that happens with an election, but I think this new law is just great," said Lemo Segi, a drywaller who was downing tequilas with pals at Maya's in Seattle. "A few weeks ago, I was at a bar with my buddies, and the smoke was so bad I had to leave. This is fantastic."

Mr. Segi's friend Duke Christensen said he wished the law extended even into the home.

"That might be the only way I could get my wife to quit smoking," Mr. Christensen said. "I mean, can you believe this? Here we are in a bar, and the air is clean."

Ms. Godfrey, the waitress at the diner in Renton, said she had lost only a few customers to the ban, so far. "They feel it's discriminating, that it really singles them out," said Ms. Godfrey, who can sympathize: she is a smoker herself.

"I'm paying $5.50 for a single pack of cigarettes, all that tax money, and I can't even light up in the break room," she said.

She was busy taking down the signs demarcating the old smoking and nonsmoking sections. For now, the diner's smokers do not even have a shack outside.

"We'll just send people out in the cold," she said.

    Smokers Fret, Others Cheer, Over New Ban in Northwest, NYT, 10.12.2005, http://www.nytimes.com/2005/12/10/national/10smoke.html

Former Officer Gets Probation in Homicide

December 10, 2005
The New York Times
By ANEMONA HARTOCOLLIS

A former New York police officer was sentenced to probation yesterday for fatally shooting an unarmed African immigrant in a Manhattan warehouse. The judge placed the blame for the killing primarily on the Police Department's training and supervision of the officer and the way the operation that resulted in the killing was carried out.

The judge, Justice Robert H. Straus of State Supreme Court in Manhattan, said that while the officer, Bryan A. Conroy, would have to live with the consequences of killing the immigrant, Ousmane Zongo, he believed the Police Department also needed to be held accountable.

In a blistering, nearly hourlong critique he delivered before pronouncing sentence, the judge said Mr. Zongo's death had come about because Mr. Conroy, who was relatively inexperienced, was "insufficiently trained, insufficiently supervised, insufficiently led on the day in question, by people who had the responsibility to make sure he did nothing but protect and serve rather than end up taking a life."

In response to Justice Straus's criticism, Paul J. Browne, a Police Department spokesman, said that the department's Internal Affairs Bureau was resuming its investigation of the killing, "to determine whether there were supervisory lapses," but noted that the department had already changed some policies in the aftermath of the shooting.

Justice Straus convicted Mr. Conroy of criminally negligent homicide following a nonjury trial in October, after a jury had deadlocked in his first trial. Mr. Conroy faced up to four years in prison, but the judge sentenced him to five years' probation and 500 hours of community service. Mr. Conroy was fired from the department after his conviction, which he is appealing.

Justice Straus said the police conduct of a raid at a storage warehouse in Chelsea on May 23, 2003, during which Mr. Conroy shot Mr. Zongo four times, was riddled with errors. Police officers involved in the raid, which was aimed at a counterfeit CD and DVD operation, did not know how to navigate the building, he said.

"Supervisors just ran out of rooms," he said. "There were people yelling out of windows." Officers lacked handcuff keys and elevators were inaccessible at a critical moment. There was, he said, "one series of mistakes after another." Investigators determined that Mr. Zongo, an immigrant from Burkina Faso, had nothing to do with the counterfeit operation. Justice Straus suggested that Mr. Conroy, who had been left alone to guard a storage bin on the third floor, reacted, perhaps reasonably, out of fear when Mr. Zongo unexpectedly appeared in a corridor.

When confronted by Mr. Zongo, the judge said, Mr. Conroy assumed a combat stance, drawing his gun and pointing it at the unarmed man. Yet, the judge said, Mr. Conroy testified at his trial that he had no reason to believe Mr. Zongo had done anything wrong, and was simply following the training he had received about how to persuade somebody in those circumstances to obey the police.

"Is that true? Is that what police are trained to do?" Justice Straus said. "In the city of New York, how can a police officer be trained to communicate with people by taking a combat stance?

Police officials said yesterday that officers were not taught to assume a combat stance against unarmed civilians.

Justice Straus said he did not believe the defense account that Mr. Zongo had been trying to grab Mr. Conroy's gun when he approached the officer with his hands out, palms up. Mr. Conroy, the judge said, was disguised in a mail carrier's uniform and his police shield was not visible "in a meaningful way."

Other officers were not able to reach Mr. Conroy until after Mr. Zongo had been shot, the judge said. At that point, he said, Mr. Zongo was treated callously. He "lies there on the floor," the judge said. "No one touches him. He's called a perp."

The judge did not hold the young officer solely responsible. He said it might have been appropriate for other members of the Police Department to be on trial. Mr. Conroy, Justice Straus said, was "a product of this training, a product of this leadership; I find the leadership sorely lacking on that particular day."

The judge described Mr. Conroy, 27, who was a police officer for about three years, as decent and "well intentioned," but said he had been trained to measure his success through his arrest rate.

The judge's criticisms of the department paralleled arguments that Mr. Conroy's lawyer, Stuart London, made during the trial, and Mr. London said in an interview that he was surprised by how profoundly the judge had apparently been affected.

Mr. Browne said the Police Department's investigation of the episode had been suspended during Mr. Conroy's trial, at the prosecution's request, but he added that some internal administrative policies had already been changed as a result of the case. Officers participating in an operation in a precinct where they do not work are now required to notify that precinct's command ahead of time. The department is also reviewing the circumstances in which officers can wear civilian clothing, as Mr. Conroy did at the time of the shooting.

Justice Straus was a criminal defense lawyer and a prosecutor before being appointed to the Criminal Court bench in 1987.

In asking the judge for prison time, the prosecutor, Armand Durastanti, said Mr. Conroy had "sought to take away one of the few meaningful things that a man can leave behind, Mr. Zongo's reputation." In his testimony, the prosecutor said, Mr. Conroy had portrayed Mr. Zongo as "a madman, a grunting animal."

Mr. Conroy's sister and parents lowered their heads and wept as the judge issued his sentence.

Mr. Zongo's uncle, Adama Zongo, 74, who lives in New York, said through a translator that he did not understand why Mr. Conroy did not receive prison time. "He knows for sure the family won't be happy about it," the translator said. Mr. Zongo's widow, Salimata Sanfo, who lives in Burkina Faso, did not attend, though a statement was read on her behalf in which she said she had struggled to explain her husband's death to their two young children.

The judge's scathing remarks about the Police Department could help the Zongo family in its federal civil suit against the city, said their lawyer, Sanford Rubenstein.

Mr. Conroy left the courthouse without commenting. Before sentencing, he told the judge he was sorry for the "great pain" he had caused both families.

Al Baker contributed reporting for this article.

    Former Officer Gets Probation in Homicide, NYT, 10.12.2005, http://www.nytimes.com/2005/12/10/nyregion/10sentence.html

Still No Wine in the Mail,

Months After a New Law

December 9, 2005
The New York Times
By DANNY HAKIM

ALBANY, Dec. 8 - Red wine, meet red tape.

New Yorkers with a taste for California syrahs or the latest Willamette pinot from Oregon were heartened by the State Legislature's decision last summer allowing them to buy these and other out-of-state wines directly, either through the Internet or over the phone.

But as the holiday season nears, wine lovers have bumped up against the bureaucratic ways of New York State, whose agencies - as of Thursday night at least - have yet to carry through on the law and allow shipping companies to actually deliver wine to New York from other states.

Officials with FedEx, U.P.S. and groups representing California wine growers say that one of the holdups has been the state's demand that delivery employees, who work with hand-held computers, fill out cumbersome paper forms when making the deliveries.

An official for the State Liquor Authority said that the paperwork requirement was not the cause for the delay. And on Thursday evening, a state official said that an announcement would be made on Friday that U.P.S. had been approved to make wine deliveries in the state. But almost five months after the law's passage, wine lovers might be excused for not believing it until they see it.

"The politicians got great P.R. for passing the law and for opening up the market, but when it comes to implementing it, they can't pull it off," said Paul Winkeller, a frustrated oenophile in Slingerlands, N.Y., who on Thanksgiving tried to join a monthly wine mail-order club offered by Ridge Vineyards of Northern California.

He received the following reply to his e-mail message:

"We have received our direct shipper's license to ship to New York; however, neither U.P.S. nor FedEx have been approved as common carriers," wrote Tracy Murray, a customer service supervisor at the vineyard. "They are having a heck of a time battling out the requirements with the N.Y. State Liquor Authority, and we are daily waiting for the green light."

Like Mr. Winkeller, Gov. George E. Pataki appeared to believe that consumers were already benefiting from the wine delivery law, given what he said in a statement late last month after awarding a new post to the departing commissioner of the State Liquor Authority, Edward F. Kelly.

"Recently, Ed worked to successfully implement one of the most sweeping changes in our Alcohol Beverage Control laws in decades," Mr. Pataki said, citing interstate shipments as the most notable achievement of Mr. Kelly's tenure.

The issue of allowing out-of-state vineyards to deliver in the state faced stiff opposition from wholesalers and owners of stores that sell wine, who see direct shipments as a threat to their businesses.

While it is possible to order direct delivery of wines from California and other states, it must be done through businesses that have arrangements with distributors or retailers based in New York. That often cuts out smaller vineyards entirely and greatly reduces choice, not to mention potentially driving up costs and delivery times.

In May, the United States Supreme Court struck down laws in New York and Michigan that allowed for direct shipments from instate vineyards but banned them from those in other states. Six other states had similar laws at the time.

"No one has ever come up with as convoluted a signature gathering and reporting requirement as the State of New York originally proposed," said Steve Gross, director of state relations for the Wine Institute, a trade group of several hundred wine growers that has been involved in the talks with New York officials over the issue.

But Kimberly Morella, a State Liquor Authority spokeswoman, said the paperwork requirement had not been an issue. She would not specify what accounted for the delay, or that there even was one.

Representatives at FedEx and U.P.S., the two shippers seeking approval - the Postal Service is forbidden by law to make shipments of certain types of alcoholic beverages - were not inclined to criticize the state. But they said that their delivery people had already checked the identifications of recipients of wine shipments in other states, to make sure they are of legal age, and had recorded a variety of information, beyond the usual shipment details, into their hand-held computers.

It being the 21st century, neither company wanted to return to paper records for one kind of delivery in one state.

"The moment you have to start having to have separate documentation, creating new procedures for one area of the country, that becomes onerous on the carrier," said Susan Rosenberg, a U.P.S. spokeswoman.

Kristin Krause, a FedEx spokeswoman, said, "We've been meeting with the New York Liquor Authority quite a bit on this issue. We seem to be making some headway."

For people like Mr. Winkeller, a consultant to nonprofit groups who has a 600-bottle wine cellar and a dim view of the fruits of the Empire State, the impasse has been discouraging, but he is used to being resourceful in his pursuit of California zinfandels.

In fact, he has been part of Ridge's wine mailing list before.

A decade ago, a co-worker in Albany picked up the wines for him when he visited his girlfriend in Maine.

"This guy has moved on, and I've been yearning to join this program again," Mr. Winkeller explained. "Thanksgiving Day, I went to the Web site, I was drinking Ridge wine with a bunch of my friends, and I e-mailed and said I wanted to join back in."

The Wine Institute sent The New York Times what it said was a copy of the paper form that New York was seeking to have shippers use when making wine deliveries.

The form requires the delivery person to fill out by hand the name and address of the shipping company, a license number of the shipping company and a number assigned for the particular delivery, as well as the name of the winery, a shipping number for the winery, the winery's license number and the winery's address. Then the deliverer must fill out the name and address of the person receiving the shipment as well as information describing the kind of identification presented, and the time and date of delivery. The signature of the recipient is also required.

Ms. Morella, of the Liquor Authority, would not comment on the form, other than to say, "we have to adhere to the law."

But the law that went into effect in July does not appear to require such paper documentation. It does "require a recipient to sign an electronic or paper form or other acknowledgment of receipt, as approved by the authority," as well as present identification establishing that he or she is 21 or older.

Ms. Rosenberg, of U.P.S., said that getting the signature and identification was already required. "All of the other states will accept our procedures and verification that we do."

    Still No Wine in the Mail, Months After a New Law, NYT, 9.12.2005, http://www.nytimes.com/2005/12/09/nyregion/09wine.html

Court hears

"right to die" case of battered girl

Tue Dec 6, 2005 7:27 PM ET
Reuters
By Jason Szep

BOSTON (Reuters) - A man facing a possible murder charge for beating his stepdaughter so badly she is in a permanent vegetative state asked Massachussetts' top court on Tuesday to keep her alive in a case that highlights the divisive "right to die" issue in America.

Jason Strickland, a 31-year-old auto mechanic, is accused of battering 11-year-old Haleigh Poutre, whose brain was found partly sheared when she was hospitalized on September 11. Her body was covered with burns, cuts and bruises and her teeth were broken.

Strickland's wife -- the child's maternal aunt and sole legal guardian -- was found shot dead on September 22 with her grandmother in an apparent murder-suicide a day after police accused her of hitting Haleigh with a baseball bat.

The case is as much about who has legal rights to the girl, who is now on life support in state custody, as it is about her ultimate fate and whether the state can remove the breathing machines and feeding tubes keeping her alive.

It carries echoes of the case of Terri Schiavo, the brain-damaged Florida woman taken off life support in March after a legal battle that galvanized the Christian right and drew in President George W. Bush and the U.S. Congress.

Strickland's lawyers asked the Supreme Judicial Court on Tuesday to overturn a juvenile court judge's decision that the man has no legal rights over the girl. The court's seven justices are expected to rule within 130 days.

"I would respectfully say that without intervention by this court, this child will die," Strickland's attorney, Jack Egan, told the one-day hearing.

A juvenile court decided in September that the Department of Social Services could disconnect Haleigh's life support.

But Strickland, who never adopted the child, wants to be legally recognized as her de-facto father because he lived with Haleigh for four years.

If the court grants his wish, it would allow Stickland to decide whether to take Haleigh off life support and could also allow him to avoid a charge of murder.

Justice John Greaney questioned the wisdom of putting the girl's fate in the hands of her alleged abuser.

"When you talk about de-facto parent you are talking about someone who is substituting for the real parent who is nurturing and taking care of the child," he said.

"You don't talk about it in terms, as it seems to me that you have here, of someone who has inflicted injuries on the child and has harmed that child...," he said. "That would turn the whole concept completely on its head."

Haleigh's birth mother, 29-year-old Allison Avrett, lost custody of the girl when she was four years old because of allegations of abuse, said the Department of Social Services, whose lawyers have consulted Avrett in the case.

Avrett has said she would prefer the removal of Haleigh's life support system.

"This is not about a right to life. This is about the circumstances under which this person is going to be allowed to die," said Virginia Peel, a social services lawyer.

Peel said Haleigh's doctors "have consistent medical opinion about her current condition" and all agree she will not regain consciousness.

    Court hears "right to die" case of battered girl, R, 6.12.2005, http://today.reuters.com/news/newsArticle.aspx?type=domesticNews&storyID=2005-12-07T002712Z_01_KNE701571_RTRUKOC_0_US-CRIME-MASSACHUSETTS.xml

Texas Judge

Lets Stand 2 of 3 Charges Against DeLay

December 6, 2005
The New nYork Times
By RALPH BLUMENTHAL and CARL HULSE

HOUSTON, Dec. 5 - A Texas judge dismissed one charge against Representative Tom Delay on Monday but let stand two more serious charges, complicating Mr. DeLay's hopes of regaining his post as House majority leader when Congress resumes in January.

The judge, Pat Priest of San Antonio, handed Mr. DeLay and two co-defendants a partial victory in dismissing charges of conspiracy to violate the election code by making an illegal corporate contribution.

Judge Priest left standing charges of money laundering and conspiracy to launder money against all three.

The decision moves Mr. DeLay and his co-defendants, the Republican fund-raisers John D. Colyandro and James W. Ellis, a big step closer to facing trial - perhaps as soon as January - on felony charges that carry long prison terms and fines.

The charges involve $190,000 that the state says was collected from corporate donors in 2002 and, in violation of Texas election and money laundering laws, routed through Republican political action committees to seven Republicans running for the Texas House.

The judge ruled that the conspiracy provisions of the state election code did not take effect until a year after the charged violations. But he rejected defense challenges to the money laundering charges and ruled that they could go to trial.

The political stakes were underscored with the arrival in Houston on Monday afternoon of Vice President Dick Cheney, who appeared with Mr. DeLay at a previously scheduled political fund-raiser. The event was closed to reporters. Several hundred protesters jeered outside the fund-raiser, held at the Westin Oaks in the Galleria shopping mall.

After the judge's decision, which came just as about 400 guests were arriving for the function, at $500 and up per ticket, Mr. DeLay's office in Washington released a statement that sought to put a positive spin on the ruling and again attacked the Austin prosecutor who brought the charges, the Travis County district attorney, Ronnie Earle.

"The court's decision to dismiss a portion of Ronnie Earle's manufactured and flawed case against Mr. DeLay underscores just how baseless and politically motivated the charges were," the statement said.

Along with Mr. DeLay's earlier success in disqualifying a previous judge accused of Democratic political partisanship, the statement said that the ruling "represents yet another legal victory" and that Mr. DeLay was "encouraged by the swift progress of the legal proceedings" and looked forward to his eventual exoneration.

Mr. Earle declined to comment on the ruling, saying it was under study. The state has 15 days to appeal for reinstatement of the dismissed charges. Mr. DeLay cannot appeal until after a trial, Judge Priest said.

A defense lawyer involved in the case, who spoke on condition of anonymity out of concern of antagonizing the judge, conceded that the ruling could be read as a substantial victory for the prosecution.

But Dick DeGuerin, Mr. DeLay's chief lawyer, said, "We won more than they did," contending that the remaining charges would be "impossible to prove."

If all the charges had been dismissed, Mr. DeLay, 58, who has represented his district around the Houston suburb of Sugar Land since 1985, would have had a clear path to return immediately to his leadership post in Congress. The split decision eliminated that possibility and significantly complicated his effort to retain a leadership role.

"There are likely to be leadership elections in January," said Representative Jeff Flake, Republican of Arizona.

Other Republicans, who would not speak for the record about internal party matters, said they also believed it was virtually a foregone conclusion that Republicans would consider installing at least a new majority leader early next year. They said the party needed to instill some stability in the leadership team heading into what is expected to be a politically difficult election year.

Representative Roy Blunt of Missouri, the Republican whip, is serving temporarily in both his job and the majority leader post that Mr. DeLay resigned after his indictment.

One Republican lawmaker, who has supported Mr. DeLay in the past but is concerned about the political fallout from this case and others involving Republicans, said there was some sense of relief with the decision, since it postponed Mr. DeLay's return to the top.

The lawmaker said he and others were nervous that a separate federal investigation into the activities of the lobbyist Jack Abramoff, once a close DeLay ally, could entangle Mr. DeLay and others, further embarrassing lawmakers who last week saw a senior California Republican plead guilty to accepting bribes.

Jennifer Crider, a spokesman for Representative Nancy Pelosi of California, the House Democratic leader, said the judge's ruling showed that the "Republican culture of corruption is alive and well."

"This is not a vindication," Ms. Crider said. "Congressman DeLay still faces very serious criminal charges."

Mr. DeLay and his allies acknowledge that the clock is working against him and that he needs to dispose of the charges quickly. House members return to Capitol Hill on Tuesday and are expected to meet for about two weeks and then are not scheduled to return again until late January. One senior leadership official said Republicans could discuss the leadership situation at a party meeting scheduled for Wednesday.

Mr. Delay's troubles appear to be taking a toll at home. A Gallup poll of his district released on Monday by CNN showed that 49 percent of those surveyed said they were more likely to support a Democratic candidate compared with 36 percent who said they would favor Mr. DeLay should he seek re-election in November. He is already being challenged by a Democrat, Nick Lampson, who lost his seat in a district redrawn in 2003.

Neither Mr. Cheney nor Mr. DeLay made a public appearance or any comments outside the event Monday night. Afterward, briefing reporters, a local Republican, Paul Bettencourt, the Harris County tax assessor, said, "The vice president talked about his long friendship with Mr. DeLay." The fund-raiser was the most successful ever for the congressman, Mr. Bettencourt said, but no figures were released.

Judge Priest's ruling examined conflicting claims about state charges that Mr. DeLay, Mr. Ellis and Mr. Colyandro conspired to collect $190,000 in corporate contributions for delivery to a group they formed called Texans for a Republican Majority. The three are accused of having that group transfer the money to the Republican National Committee and the Republican National State Election Committee, for distribution in the races of specific candidates, illegal under state law.

In his ruling, the judge said he was dismissing the charges of conspiracy to violate the election law because the Texas Legislature had added the conspiracy provisions after the charged offenses occurred.

But he rejected defense arguments that the charges of money laundering conspiracy and actual laundering should be thrown out in part because they involved checks and were not covered as "funds" by the law.

Judge Priest also said he had yet to rule on a defense motion of prosecutorial misconduct.

Ralph Blumenthal reported from Houston for this article, and Carl Hulse from Washington. Maureen Balleza contributed reporting from Houston.

    Texas Judge Lets Stand 2 of 3 Charges Against DeLay, NYT, 6.12.2005, http://www.nytimes.com/2005/12/06/national/06delay.html

Gay couples endure

legal battles across the nation

The Associated Press
Posted 12/4/2005 11:13 AM

In more than one sense, Brian Rice and Jason Kelliher are pioneers. They were among the first same-sex partners in the nation to marry legally— last year in barrier-breaking Massachusetts —and now are among the few such couples to forgo their much-prized rights by moving to another state.
Their new home, Connecticut, is among the most liberal on the issue; its legislature has approved civil unions that extend marriage-like rights to gay couples. But that option doesn't tempt Rice and Kelliher.

"We've already reached the pinnacle of what a couple can hope for —a marriage license," said Rice, a lawyer. "Civil union is a second-class citizenship. ... We don't want to take a step backward."

Yet Rice and Kelliher know that if they venture to any other state —except back to Massachusetts —their status wouldn't improve. While a few states have recognized same-sex couples, many more are strengthening bans on gay marriage. Conservatives in some places —including Michigan and Ohio —are now taking aim at existing domestic-partner benefit policies.

"There are lots of families in states where it's harder to be a strong family, where the state does everything it can to weaken you," said David Buckel, an attorney overseeing marriage issues for the gay rights group Lambda Legal. "It's challenging, it's discouraging, at some points it's enraging."

Rice, 27, and Kelliher, 29, moved from Boston in August 2004 because of a job offer for Rice in Stamford, Conn. Kelliher now works for an apartment management company, and qualifies for domestic-partner health benefits from Rice's law firm.

They initially hoped Connecticut would recognize their marriage, but the state decided otherwise. They can't file joint state tax returns, as they could have in Massachusetts, and worry that they need to execute a will because Connecticut wouldn't consider the survivor a spouse in the event one of them died.

"There are very few attorneys who specialize in these issues, and the law is very unsettled," Rice said. "If you're moving from state to state, or traveling, protections you had in one state may not be available in another."

Despite the uncertainties, the couple sense they are better off in New England than in the dozens of other states that have explicitly outlawed gay marriage. Many have enshrined such bans in their constitutions; several also forbid civil unions.

"We're fortunate not to be facing some of the challenges couples are facing elsewhere," Rice said.

Among those challenges:

•In Michigan, Republican Attorney General Mike Cox and several conservative groups are arguing in court that the gay-marriage ban approved by voters in 2004 should be interpreted as barring local governments and public universities from providing health insurance to partners of gay workers.

•In Nebraska, state officials are trying to reinstate a ban on same-sex marriages that was struck down by a federal judge and is considered by gay-rights advocates to be the harshest such ban in the nation. Approved with 70% support in 2000, the constitutional amendment bars virtually any legal protections for same-sex couples, including shared health benefits for gays employed by the state. The amendment "made gay people into political outcasts," said American Civil Liberties Union lawyer Tamara Lange.

•In Ohio, conservatives who helped win passage of a 2004 ban on same-sex marriages and civil unions are now suing to stop a state university from offering health insurance to employees' same-sex partners.

That Miami University program "violates state law by creating a legal status for same-sex couples designed to mimic marriage," said lawyer Jeff Shafer of the Alliance Defense Fund. "Granting special legal status to newfangled non-marital relationships is a state policy option rejected by the voters."

Lambda Legal lawyer Camilla Taylor said the lawsuit, if successful, would validate discrimination. "I'm sure gay and lesbian families are wondering if Ohio is the right state for them to live in," she said.

•In New Jersey, one of a handful of states with a domestic partnership law, activists were dismayed by two recent cases dramatizing the law's limitations. In one case, Ocean County officials refused to approve the transfer of death benefits to the lesbian partner of a cancer-stricken law enforcement officer, Lt. Laurel Hester. In another case, also involving lesbians who registered as domestic partners, 66-year-old Betty Jordan is suing the state because of a ruling that she is not entitled to the couple's home and cars after her partner's death in July.

Steven Goldstein, chairman of Garden State Equality and one of New Jersey's leading gay activists, said he was optimistic despite the two cases.

"The Hester case proves how progressive the state is," he said. "The outrage from the entire state is unbelievable. It brings home to legislators how narrow and insufficient the domestic partnership law is."

Some other recent developments have heartened gay activists. In Alaska, one of the first states to pass a constitutional ban on gay marriage, —the state Supreme Court ruled in October it was unconstitutional to deny benefits to same-sex partners of public employees. And the mayor of Salt Lake City, capital of conservative Utah, signed an executive order in September extending health benefits to city workers' domestic partners.

    Gay couples endure legal battles across the nation, UT, 4.12, 2005, http://www.usatoday.com/news/nation/2005-12-04-gaycouplescourtbattles_x.htm

A Cleanup

That's Easier Legislated Than Done

December 4, 2005
The New York Times
By JENNIFER STEINHAUER

Two years ago, the New York State Legislature passed what it called the most significant environmental legislation in recent memory, the culmination of a seven-year effort to turn many long-abandoned industrial sites into usable properties.

The law, hailed by an unlikely coalition of environmentalists, government officials and real estate interests, seemed to set the stage for economic revitalization in neighborhoods blighted by such sites - in no small part because of tax incentives offered to developers willing to clean up the sites.

In New York City, where many former manufacturing neighborhoods were recently rezoned to allow for residential construction, there was hope that the legislation, known formally as the Brownfield Cleanup Program, would pave the way for badly needed housing.

But two years after the legislation passed, only slightly more than 100 of the state's thousands of industrial sites have been approved for the program. As well, scores of developers, confused about the program's regulations, still have no idea whether they qualify to participate.

Indeed, many private nonprofit organizations hoping to use the legislation to develop housing and other projects in low-income neighborhoods complain that the program excludes smaller, less contaminated sites - like a dump filled with car parts or construction materials - and may prevent new economic development in the communities that were supposed to benefit most from the legislation.

"This law was a very good idea," said Richard G. Leland, an environmental lawyer and chairman of the environmental law committee Real Estate Board of New York's environmental law committee. "But it is flawed in its execution."

Officials at the Department of Environmental Conservation, which is overseeing the program, say many applications have been filed with the state and that they are encouraged by the response from developers and others.

They contend that any new program of this size can be expected to encounter some snags.

"The Brownfield Cleanup Program has made substantial progress since its creation just over two years ago with more than 240 applications submitted to the program in that short period of time," said Dale Desnoyers, the department's official in charge of the program.

But some developers and community groups say the environmental agency, while well-intentioned, is too understaffed to deal with the paperwork and other aspects of a sprawling new program.

In many ways, some legislators and development experts say, the experience of the brownfield cleanup program is emblematic of New York's way of doing business: later and more strangely than any other state in the union. New York was the last former manufacturing center to pass a brownfield law, and it structured its incentive program in a way that seems to favor large developers.

In fact, many of the program's problems, these people say, stem from the Legislature's decision to give tax credits up to 22 percent of the total cost of a project on a brownfield. Most states offer tax credits based only on the cleanup cost, rather than the project's total cost.

If developers here do not spend all their credit, they are eligible for a check for the difference. Participants get protection from lawsuits and a letter when they have completed their work declaring the site clean, which can be useful in attracting investors.

But the generous tax benefits set off a stampede of developers - many of whom were already planning to build before being offered the incentives - that has overwhelmed the environmental agency and led to long delays. The New York Times Company, in fact, sought a brownfield tax credit for its new headquarters in Midtown, but was rejected.

"It is going more slowly than people had hoped," said Michael B. Gerrard, an environmental lawyer with the Arnold and Porter firm.

Some of the most acute frustration with the state has been felt by nonprofit organizations interested in building low- and moderate-income housing. They say their applications - for cleaning up and building on smaller, less toxic sites - have been rejected because those sites are not contaminated enough.

Mathy Stanislaus, a director of New Partners for Community Revitalization, a nonprofit group that develops projects on brownfields in low-income neighborhoods, said the environmental agency had basically decreed that sites available for development had to have been the scene of major toxic spills.

Mr. Stanislaus is not alone in his frustration.

"There are swaths of areas around the Bronx River, in many cases in low- or moderate-income neighborhoods, where those sites are not eligible as defined by D.E.C.," said Linda Shaw, legal chairwoman of the National Brownfield Association, which represents developers who want to develop brownfields.

Mr. Desnoyers of the D.E.C. insisted that all projects get the same consideration, no matter their size or what will ultimately go on them.

Tension has also continued between environmental groups - who generally believe that the most important thing is to clean up hazardous sites, no matter what their ultimate use - and economic development interests that generally believe that a cleanup without a development goal is a wasted opportunity.

"In order to solve a problem you have to agree on what the problem is," said Mark A. Izeman, a senior lawyer at the Natural Resources Defense Council. "And when it comes to brownfields, there is no agreement on what the problem is. Every person you speak to has a different reason for why sites are not being cleaned up."

Lawyers and developers point to New Jersey and Pennsylvania as states with easier-to-navigate programs. Those programs, which offer more modest tax breaks than New York's, have produced hundreds of cleaned-up properties since their inception a decade ago. "Pennsylvania is a very streamlined program," said Kenneth J. Warren, an environmental lawyer in Philadelphia.

Thomas P. DiNapoli, the state assemblyman who was instrumental in getting the law passed, acknowledged that New York's program needed work. "It is a very ambitious program with a lot of detail attached to it," Mr. DiNapoli said. "It would have been nice if it had been done faster but it would rather have it done right. As we monitor things, we are open to things being tweaked here and there."

    A Cleanup That's Easier Legislated Than Done, NYT, 4.12.2005, http://www.nytimes.com/2005/12/04/nyregion/04fields.html

Battle intensifies

over gay marriage in Massachusetts

Wed Nov 23, 2005 7:18 PM ET
Reuters
By Jason Szep

BOSTON (Reuters) - Backers of a proposed constitutional amendment that would outlaw gay marriage in Massachusetts said on Wednesday they had more than double the number of signatures needed to put the issue to voters.

But gay rights lawyers threatened a legal challenge to stop the ballot initiative, underscoring deepening tension over the divisive issue a year after Massachusetts became the first U.S. state to legalize gay marriage.

A loose coalition of conservative and Christian groups seeking to ban same-sex marriage had to gather at least 65,825 signatures before state lawmakers could decide whether to put the question to a public referendum in 2008.

On Wednesday, as a deadline passed to submit the signatures to town and city clerks who must check their authenticity, jubilant officials at the Massachusetts Family Institute and other conservatives announced they had found solid support.

"We have more than surpassed our goal of 120,000 signatures, and we expect there will be a significantly larger tally than that when the final numbers come up," the institute's president, Kristian Mineau, told Reuters.

Massachusetts' highest court ruled in 2003 that it was unconstitutional to ban gay marriage, paving the way for America's first same-sex marriages in May the following year.

Conservatives and some religious groups say the issue is so important that voters should decide it, not the state Supreme Court, a position backed by Massachusetts' Republican governor, Mitt Romney, a devout Mormon with White House ambitions.

LEGAL SHOWDOWN

Gay rights lawyers are girding for a legal showdown.

They say that under the state Constitution, a ballot initiative cannot reverse a judicial decision. They plan to sue the state's attorney general, who approved the ballot initiative on September 7.

"We're going to be wrangling over one little sentence in the Constitution," said Gary Buseck, legal director at the Gay & Lesbian Advocates & Defenders, which successfully argued the

2002 case that opened the door to gay marriage in the state.

As the battle intensifies, the country is looking on.

Texas this month became the 19th U.S. state to approve a constitutional ban on same-sex marriage. But reflecting a mixed national mood, Maine voters this month rejected a conservative-backed proposal to repeal a gay-rights law.

An ABC/Washington Post poll in January found that 41 percent of American adults thought gay marriage and civil unions should be legal and 55 percent did not.

But that poll also showed a conflicting view among people in the prime marrying ages of between 18 to 29 -- 55 percent of that group supported gay marriage and 42 percent did not.

The U.S. Supreme Court has not taken a case on gay marriage, leaving states to decide the issue.

"Massachusetts is ground zero for the definition of marriage," said Mineau.

If the signatures on the petition are approved by December 7, his group and other conservatives would then need further approval by 25 percent of the 200-member state Legislature over two straight sittings -- one in 2006 and the other in 2007 -- before the issue could be put to voters in 2008.

The initiative, if passed, would not seek to annul about 6,500 marriage licenses already issued to same-sex couples.

    Battle intensifies over gay marriage in Massachusetts, R, 23.11.2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2005-11-24T001848Z_01_MCC401092_RTRUKOC_0_US-RIGHTS-GAYS-MASSACHUSETTS.xml

Commission Seeks Removal of a Judge

November 23, 2005
The New York Times
By NICHOLAS CONFESSORE

The State Commission on Judicial Conduct has recommended that a controversial New York City judge be removed from the bench for helping a robbery suspect in her courtroom elude a detective by allowing him to exit through a back door.

Justice Laura D. Blackburne of the State Supreme Court in Queens is only the fifth Supreme Court judge to be recommended for removal - the panel's harshest penalty - since the commission was constituted in 1978.

In its decision, a majority of the 11-member commission said that Justice Blackburne had "set a reprehensible example for court officers and other court personnel" and "transcended the boundaries of acceptable judicial behavior." Eight members voted for removal and two said she should only be censured. One was not present.

Richard Godosky, a lawyer for Justice Blackburne, said she would ask the Court of Appeals, the state's highest court, to review the recommendation. That court has agreed with the commission in the four previous cases involving Supreme Court justices, and has affirmed the commission's recommendations in the vast majority of cases.

"We think the majority missed the boat on this," Mr. Godosky said. "There's never been a judge removed for a single instance of aberrant conduct with no venal motive."

He added, "I think that perhaps adverse publicity regarding the event led them astray."

In her decade on the bench, first as a civil court judge and then on the Supreme Court, law enforcement officials have frequently accused Justice Blackburne of being biased against police officers.

In 1992, she resigned as chairwoman of the New York City Housing Authority after spending hundreds of thousands of taxpayer dollars to take business trips overseas and redecorate her office with items including a $3,000 pink leather couch.

But Justice Blackburne, a former counsel for the state N.A.A.C.P. who remains well-connected in local political circles, did not lack for defenders yesterday.

"I'm surprised and chagrined to believe that they would take such an extreme step over this incident," said Leroy G. Comrie, a city councilman from Queens. "I would encourage her to challenge it."

Councilman Charles Barron of Brooklyn was even more vocal. He described the commission's decision as "outrageous, extreme, unjust, straight up bogus."

"They made it sound like some dangerous criminal was being smuggled out the back door," added Mr. Barron, who has often crossed swords with law enforcement officials over issues of police misconduct.

In its decision, the commission wrote that the facts of the case were "largely uncontested."

On June 10, 2004, the defendant, Derek Sterling, appeared before Justice Blackburne to update her on his progress in a drug treatment program.

During the hearing, Detective Leonard Devlin arrived to arrest him in connection with a robbery the month before.

While the detective was outside the courtroom's main entrance, Justice Blackburne ordered a court officer to remove Mr. Sterling through a private exit at the courtroom's rear, giving him access to a stairwell leading to the judges' parking lot.

Told by a prosecutor in the courtroom that her action was inappropriate, Justice Blackburne said she was angry that the detective had told a court officer he was there to question Mr. Sterling when he actually intended to arrest him, calling it a "ruse."

Mr. Sterling was arrested the next day at his drug treatment center.

According to the commission's report, when Detective Devlin arrived at the courthouse and while he was waiting outside Justice Blackburne's courtroom, he told several court workers that he was there to arrest Mr. Sterling. He also told a lawyer, Warren M. Silverman, whom Justice Blackburne asked to represent Mr. Sterling after learning that a police officer was there to arrest him.

One court officer, Sgt. Richard Peterson, told the commission that the detective said he intended only to question Mr. Sterling. The detective insisted that he had told Sergeant Peterson he meant to arrest Mr. Sterling, however, and Sergeant Peterson told the commission that he assumed that the detective was going to arrest the defendant, as well.

Mr. Godosky, Justice Blackburne's lawyer, disputed that account.

"The majority made up a fact when they said that when a court officer said to the judge that even though the detective was outside to question a defendant, everyone knows that means he was there to be arrested," he said. "I've talked to 20 lawyers and none of them seem to know that."

According to the commission's ruling, Justice Blackburne, who never spoke with the detective, found the discrepancy insulting.

"I have directed that you be escorted out of the building by Sergeant Peterson because I - and I'm putting this on the record - specifically, I resent the fact that a detective came to this court under the ruse of wanting to ask questions when, in fact he had it in his head that he wanted to arrest you," she said. "If there is a basis for him arresting you, he will have to present that in the form of a warrant."

Justice Blackburne added that she was not trying to keep Mr. Sterling from being arrested, but was "trying to keep you from being arrested today in my courtroom based on obvious misrepresentation on the part of the detective."

The judge later admitted that she had acted improperly and requested that the commission issue a disciplinary sanction no stronger than censure. But the commission disagreed, saying that her behavior was "such gross deviation from the proper role of a judge that it justifies the sanction of removal."

Justice Blackburne was sharply criticized by an array of law enforcement and police union officials, including Raymond W. Kelly, the police commissioner, who called her action "outrageous conduct by any measure."

It was the second time in recent years that Justice Blackburne drew the ire of police officials. In one 2002 case, she threw out a 13-count indictment against a man accused of shooting an officer and later refused to reinstate the charges, saying Queens prosecutors had taken too long to bring charges against the suspect. A state appellate court overruled her decision.

Officials from the Patrolmen's Benevolent Association, which along with the Detectives Endowment Association had filed a complaint against Justice Blackburne before the commission, lauded yesterday's decision.

"Laura Blackburne has demonstrated throughout her career that the only judgment she possesses is bad judgment," said Patrick J. Lynch, the P.B.A.'s president. "She aided and abetted a felon in escape that was wanted for questioning for violently robbing the citizens of the city in Queens. She knew what she was doing."

He was echoed by Commissioner Kelly, who said, "Her extraordinary conduct merited this appropriate sanction."

But Mr. Barron, the councilman from Brooklyn, said the judge was the target of a "witch hunt" by the police unions.

"I think all New Yorkers need to support Justice Blackburne," Mr. Barron said.

"She's a woman of integrity, intelligence, competence and commitment to justice."

Ronald L. Kuby, a prominent civil rights lawyer who has defended Justice Blackburne's actions in the past, said that the commission's decision was "no more than what we've come to expect from a commission more interested in public relations than in the administration of justice."

He added, "With all of the corrupt judges, the judges who engage in sexual misconduct, the judges who are non compos mentis, the judges who are alcoholics - all of whom remain on the bench and go unchallenged by the state commission on judicial conduct - to order removal of the judge who took strong affirmative action to prevent police misconduct in her courtroom is outrageous."

The incident with Mr. Sterling took place while Justice Blackburne was presiding in drug treatment court, where judges have an unusual amount of contact with the defendants who appear in front of them, and often serve as cheerleaders and social workers as well as jurists.

The last time the commission called for the removal of a Supreme Court justice was in 2002, when Justice Reynold N. Mason of the Supreme Court in Brooklyn was removed for improper financial dealings.

The commission has sometimes been criticized for focusing on part-time judges in small-town courts, and by its own account only 36 of the 149 judges it has voted to remove were in full-time posts.

But the commission has gone after higher-ranking jurists, too, including Michael H. Feinberg, the Brooklyn surrogate judge, who was removed from the bench in February for awarding millions of dollars in fees to an old friend.

Leslie Eaton and Kareem Fahim contributed reporting to this article.

    Commission Seeks Removal of a Judge, NYT, 23.11.2005, http://www.nytimes.com/2005/11/23/nyregion/23judge.html?hp&ex=1132808400&en=0e32684ef0053b60&ei=5094&partner=homepage

2nd Music Settlement by Spitzer

November 23, 2005
The New York Times
By JEFF LEEDS

A second major record company has reached a settlement with the New York attorney general, Eliot Spitzer, to resolve accusations that it made payoffs to persuade radio programmers to play certain songs, the attorney general said yesterday.

The $5 million settlement with the Warner Music Group, the nation's third-biggest record company, was the latest in Mr. Spitzer's widening investigation, which has exposed payments to radio programmers in exchange for playing music and routine manipulation of playlist information.

In July, Sony BMG Music Entertainment reached an agreement with Mr. Spitzer. The two record companies that have not settled - the Universal Music Group, a unit of Vivendi Universal, and the EMI Group - remain under investigation, as do many big radio chains, according to people involved in the inquiry.

Warner acknowledged yesterday that certain employees had pursued radio promotion practices that were "wrong or improper," and apologized. In a separate statement, the company added that "we consider this to have been a valuable process."

"From our perspective, radio cannot be too consumer-driven. The music that people hear on the radio always should represent the highest quality the industry has to offer."

Mr. Spitzer said that Warner executives had obtained play time for songs through "deceptive and illegal" practices, including making payoffs in the form of personal electronics and tickets to the Grammy Awards, the World Series and the Super Bowl.

Warner executives also tried to land their artists on playlists by paying for a station's daily operations, Mr. Spitzer said. He cited examples of the record company's covering the cost of painting a station logo on a promotional vehicle, the production of a station "jingle," and the costs of hiring a voiceover talent.

Warner, which counts acts like Green Day and Twista on its artist roster, also provided an array of "promotional" items for use in listener contests and giveaways, a practice company executives described as "an industry standard."

Indeed, Mr. Spitzer's investigation has shown that it is common for record executives to link the amount of promotional support provided to a station to the amount of play time. In February 2004, when Z-100, the New York pop music powerhouse, requested the record company pay for a listener trip to Los Angeles or Glasgow as the grand prize in a contest, a Warner executive wrote to another: "With the record in power, I feel we should do one of these for them. Can we approve this?"

Clear Channel Communications, the parent of Z-100 and several other stations cited by Mr. Spitzer, said in a statement: "We take this issue very seriously and have zero tolerance for pay for play. Any employees who violate this policy will be dealt with accordingly. We investigate any allegation of improper conduct by our employees. This is no exception."

The company, the nation's biggest radio broadcaster, fired two programming executives last month after a review by the attorney general's investigation.

Under the agreement announced yesterday, Warner will pay $5 million, to be distributed to nonprofit organizations that finance music education and appreciation. The company will also pay $50,000 to cover the costs of the inquiry.

Warner also agreed to an array of changes that mirror those set out in a deal Mr. Spitzer reached with Sony BMG, which agreed to pay $10 million. Warner, like Sony BMG, also agreed to end its use of certain independent promoters, middlemen who are paid by the company to press programmers to add songs. And the company agreed to limits on the efforts its executives can undertake to market its artists.

Mr. Spitzer said in an interview: "In this case, as in others, the acceptance and tolerance of paying for airtime is what has surprised us. It was routine."

He also criticized the Federal Communications Commission, which he said had displayed a "disappointing" lack of action in dealing with the radio broadcasters under its jurisdiction since the New York inquiry became public. The agency announced shortly after Mr. Spitzer's first settlement that it would start its own inquiry.

Despite e-mail messages and other evidence that appear to point to widespread violations of the federal law, Mr. Spitzer said broadcasters did not seem worried about the prospect that the F.C.C. could impose its toughest penalty, revoking a station's license.

"Because the notion of license revocation is so clearly discounted, nobody is terribly concerned about the consequences of the F.C.C.'s involvement," Mr. Spitzer said. "That's too bad, because what's at stake here is the airwaves. Why the F.C.C. is not responding is a little mysterious to me."

One F.C.C. commissioner, Jonathan S. Adelstein, also pressed for deeper involvement, saying the agency "needs to act on this evidence and conclude as soon as possible" its own inquiry. Mr. Adelstein said the practices Mr. Spitzer illuminated appeared to reflect "the most widespread and systematic abuse of F.C.C. rules in the history of American broadcasting."

An F.C.C. spokesman declined to comment on the status of the investigation, but said "three months is not a long period for investigations."

Matthew Sweeney contributed reporting for this article.

    2nd Music Settlement by Spitzer, NYT, 23.11.2005, http://www.nytimes.com/2005/11/23/business/media/23payola.html

Judge puts off ruling on DeLay dismissal

Tue Nov 22, 2005 3:47 PM ET
Reuters
By Jeff Franks

AUSTIN, Texas (Reuters) - Attorneys for U.S. Rep. Tom DeLay sought the immediate dismissal of conspiracy and money laundering charges against the once-powerful Republican on Tuesday, but a Texas judge said he would not rule for two weeks in the case that has derailed DeLay's political career.

Judge Pat Priest, new to the case after DeLay complained the previous judge was too close to the Democratic Party, also said he was unlikely to hold a trial before year's end if he did not throw out the indictments.

"This is not the only thing on my plate," he said.

DeLay has pushed for a quick resolution because he wants to regain the House majority leader position he had to resign when he was indicted in Texas in September.

Any delay hurts his chances because a vote on the next majority leader is set for January.

DeLay attorney Dick DeGuerin said he was disappointed Priest had not ruled immediately.

In the nearly three-hour hearing, DeGuerin repeated previous assertions that DeLay had broken no laws and the indictment against him was flawed because of legal technicalities.

"No crime occurred and no crime is charged," he told Priest, a Democrat who was appointed to the case by the Republican chief justice of the Texas Supreme Court.

DeLay and colleagues Jim Ellis and John Colyandro are accused of laundering $190,000 in corporate donations through the Republican National Committee for distribution to Republican candidates to the Texas Legislature in the 2002 state campaign.

Texas law forbids the use of corporate money in political campaigns.

But DeGuerin argued the law did not apply to the transactions in question, nor did it cover money laundering transactions conducted with a check instead of cash. He also said no corporate money was involved in the deal.

WIDENING SCANDAL

The charges are part of a widening political scandal around DeLay, who has been accused of several ethical violations in recent years and whose former top aide and press secretary, Michael Scanlon, pleaded guilty Monday to conspiracy to bribe public officials in a separate case in Washington.

Scanlon, after leaving DeLay's staff in 2000, was a partner with lobbyist Jack Abramoff, who is being investigated for bilking American Indian tribes of millions of dollars for legislative help with their gambling casinos and of treating politicians including DeLay to lavish trips and perks that may have violated U.S. House of Representatives ethics rules.

DeLay has said the Texas case is part of a Democratic plot to oust him from power because of his effectiveness in advancing his conservative political agenda. He faces up to life in prison if convicted.

DeLay nodded firmly in assent when one of his attorneys said both Republicans and Democrats had freely used corporate donations in political campaigns before a reform bill pushed by Senators John McCain and Russell Feingold was passed.

DeLay's Texans for a Republican Majority political action committee helped Republicans win control of the Texas Legislature for the first time since the post-Civil War Reconstruction era. Under DeLay's guidance, the legislature then redrew congressional districts to increase the number of Republicans elected to Congress from Texas.

Prosecutor Rick Reed told the judge DeLay and his colleagues broke the law simply by accepting corporate donations.

Colyandro attorney Joe Turner countered, "If that's the case, that means there are 2,800 political action committees that are operating illegally in this country."

Priest said he was "a little confused" about the case and requested more written arguments before making a decision.

    Judge puts off ruling on DeLay dismissal, R, 22.11.2005, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=2005-11-22T204746Z_01_MCC182701_RTRUKOC_0_US-DELAY.xml

Investigators Called Rikers Medical Contract Illegal, State Panel Says

November 22, 2005
The New York Times
By PAUL von ZIELBAUER

State officials have reached a preliminary conclusion that New York City's $300 million contract for medical care at Rikers Island is illegal because it violates a state law regulating profit-making medical companies, according to the State Commission of Correction.

New York law requires that corporations providing medical services for profit be owned and controlled by doctors, to prevent business considerations from influencing medical decisions. Prison Health Services, the Tennessee company that has been delivering care since 2001 to the 100,000 inmates who pass through Rikers Island every year, is not run by doctors.

Officials with the State Commission of Correction, which oversees health standards in New York's prisons and jails, said state investigators informed them in August that they had tentatively determined that the city's multimillion-dollar arrangement with Prison Health was improper.

The agency investigating the contract, the State Department of Education, said late last week that it had not reached any "definitive conclusions" and declined to comment further. But the department, which regulates the practice of medicine in the state, has in the past found serious problems with the way Prison Health was doing business in the state.

"Based on information passed to our staff from S.E.D.," said James E. Lawrence, the Commission of Correction's director of operations, referring to the Education Department, "it's our belief that they've reached at least a preliminary conclusion of the legal status of P.H.S.'s contract in New York City."

State officials familiar with the city's contract with Prison Health have said that it appeared to violate the state law because it makes doctors at Rikers answerable to Prison Health executives in Tennessee. Prison Health hires all doctors at Rikers.

Prison Health officials defended the contract. "The State Education Department has given P.H.S. no indication that the contract is anything other than legal and appropriate," said Benjamin S. Purser Jr., Prison Health's vice president for ethics and compliance. "We are confident that their review will affirm this position."

The implications for the city of any formal decision that Prison Health's contract violates the law remain unclear. Last year, the company was among four companies that bid for the city jail health care contract, and all four were profit-making corporations. Lawmakers in the Democrat-controlled State Assembly have said a finding of illegality would require the city to address the state's concerns.

"Serious questions have been raised about the legality of the P.H.S. arrangement," said Richard N. Gottfried, chairman of the Assembly's Health Committee, who began asking state investigators about Prison Health in April, after The New York Times raised questions about the company's work in a series of articles. "New York City may well have to make major changes in how it provides health care in city jails."

At a meeting with lawmakers and investigators last spring, officials from the city's Department of Health and Mental Hygiene, which hired the company, cited a letter from Prison Health's outside lawyers that said the company's contract was legal because it made jail doctors answerable only to other doctors, said Michael Donegan, a lawyer for the State Commission of Correction who attended the meeting. It does so, city officials said, by requiring jail doctors to work for a Prison Health subcontractor, called a professional corporation, that is controlled by a doctor.

But Mr. Donegan, in an interview yesterday, said the city's argument was not convincing. "The contract provided for all sorts of controls by the parent company in Tennessee over the alleged professional corporation," said Mr. Donegan, who has read the contract. "Anything the P.C. could do, the corporation in Tennessee could undo, was my interpretation of the contract."

Since then, however, city health officials have insisted that their rigorous oversight ensures that city inmates receive high-quality care that is determined by doctors, not by Prison Health executives. They said they had structured the company's three-year contract renewal, signed in December, so that there is no financial incentive to deny or delay medical care.

Though city health officials have always maintained that the contract is legal, the State Commission of Correction said that investigators with the Education Department informed city officials late last summer that the contract was not legal.

A spokeswoman for the city's health department would not say if the city had been notified by the Education Department that there were legal problems with the contract. The spokeswoman, Sandra Mullin, said only that the department's understanding was that the state had not yet issued any finding on the matter.

City health officials, while broadly defending Prison Health's work at Rikers over the years, have nonetheless found fault with some critical aspects of jail health care. The city has faulted the company for its treatment of seriously ill inmates, including those with profound mental illnesses, and has prodded the company to improve its medical record-keeping, background checks for doctors and treatment of inmates on suicide watch.

Assemblyman Gottfried, who has pressed state lawmakers to create a public corporation, similar to the city's Health and Hospitals Corporation, that would provide health care to state prison inmates, said state law was "firmly rooted in a concern for promoting professionalism and accountability in delivering health care."

"We work very hard in New York not to have investor-owned corporations controlling health care," he said. "We rely very heavily on either the judgment of individual practitioners, who are acting as responsible professionals, or practitioners employed by carefully licensed institutions like a hospital or clinic.

"It's very important that State Education complete their investigation and make recommendations," Mr. Gottfried went on. "And if what's going on is not completely straight up with state law, I count on State Education saying that strongly and clearly."

Dr. Thomas R. Frieden, the city health commissioner, has said that he would prefer to have a public hospital provide inmate health care, but that none bid for the job last year, despite his personal appeal to several hospital executives to do so.

Mr. Gottfried, a Manhattan Democrat, said he sympathized with the city's position - preferring public hospitals to profit-making corporations to treat inmates, among society's sickest people. But if Prison Health's contract is not legal, he said, the city will have to conform to the law one way or another.

The city and the State Education Department may already be working together on a solution before investigators announce their conclusions, Mr. Gottfried said.

"That's a good way to do things," he said. "You can often accomplish a lot that way."

    Investigators Called Rikers Medical Contract Illegal, State Panel Says, NYT, 22.11.2005, http://www.nytimes.com/2005/11/22/nyregion/22jail.html

In Rarity, Spitzer Drops Case

November 22, 2005
The New York Times
By JENNY ANDERSON

The New York attorney general, Eliot Spitzer, said yesterday that his office was dropping all criminal charges against Paul A. Flynn, a former Canadian Imperial Bank of Commerce trader who was accused of aiding illegal trading in mutual funds.

The move, which is rare for prosecutors, comes a month after the attorney general's office decided to drop the remaining four criminal charges against another executive charged in the mutual fund scandal, Theodore C. Sihpol III, a former broker with Bank of America. In July, in an unusual defeat for Mr. Spitzer, a jury in Manhattan acquitted Mr. Sihpol of 29 counts.

The back-to-back retreats dull some of the luster of an investigation that along with his inquiries into conflicts of interest among Wall Street analysts and into the insurance industry, made Mr. Spitzer's name as a crusader against corporate fraud.

Lawyers from Mr. Spitzer's office presented an order to Justice James A. Yates of State Supreme Court in Manhattan yesterday morning, arguing that the recent guilty pleas of two co-defendants, CIBC's civil settlement with regulators and additional information about Mr. Flynn's role in a trading arrangement that disadvantaged mutual fund shareholders provided enough grounds to dismiss the charges. Justice Yates approved the order.

The dismissal was seized upon by Mr. Spitzer's critics as a sign that he was retreating from prosecutions to focus his time and energy on capturing the Democratic nomination for the governor's seat. It also provided ammunition to critics who have claimed that Mr. Spitzer was more interested in the headlines generated by his tough legal stances than he was in carefully building cases.

"A prosecutor is allowed and indeed ethically obligated to drop a case if he or she no longer believes it is justified under the law or the evidence," said Evan Barr, a former federal prosecutor in the United States attorney's office in Manhattan. "But this decision begs the question of whether the attorney general's office conducted a sufficiently fair and thorough investigation of Flynn's potential defense prior to arresting and indicting him."

Mr. Flynn was arrested in February 2004 and charged with five felony counts, including larceny and securities fraud. The criminal complaint against Mr. Flynn, a midlevel manager, accused him of providing financing to two hedge funds, Canary Capital Partners and Samaritan Asset Management, so that they could trade in mutual funds after hours.

Calls to Mr. Flynn were not returned; his lawyer said he had no comment. CIBC also declined to comment.

Mr. Spitzer's complaint said that Mr. Flynn knew of the trading arrangement and aided the clients by offering to finance the hedge funds engaged in late trading and market timing - rapid trading that can hurt shareholders. Mr. Flynn processed those trades through Security Trust, an intermediary that was closed by federal regulators in November 2003.

Lawyers from Mr. Spitzer's office argued yesterday that many factors made them charge course.

Two co-defendants, Grant D. Seeger, the former chief executive of Security Trust, and William A. Kenyon, the former president of that firm, pleaded guilty in August 2005 to state criminal charges; they were not sentenced to jail time. In addition, CIBC paid $125 million in July to settle charges that it provided brokerage services and financing to numerous hedge funds engaged in market-timing strategies. The bank neither admitted nor denied wrongdoing.

"This corporate acceptance of responsibility has bolstered defendant Flynn's contention that his conduct in this matter was known and approved by his firm, at least in a number of important aspects," the attorney general's motion said. "While the extent of CIBC's knowledge of Flynn's conduct does not negate Flynn's legal guilt under the Martin Act, it mitigates his moral culpability and the societal need for a stigmatizing criminal conviction."

Mutual fund trading cases have in general been triumphs for Mr. Spitzer. His office first disclosed in September 2003 that it had uncovered widespread illegal trading by hedge funds and mutual fund companies.

In the investigations that followed, Mr. Spitzer and the Securities and Exchange Commission forced an overhaul of the mutual fund industry through more than a dozen settlements and obtained nearly $3 billion in fines, restitution to investors and fee reductions.

While Mr. Spitzer's reputation has been forged by such settlements, the case of Mr. Sihpol, who was accused of enabling a hedge fund to make improper trades in mutual funds, tested his ability in the courtroom.

"It's hard to say if the Sihpol case had any impact," said Robert A. Mintz, a former federal prosecutor. "It's certainly not unreasonable to conclude that the A.G.'s office was looking long and hard at this case to avoid a back-to-back embarrassing defeat."

    In Rarity, Spitzer Drops Case, NYT, 22.11.2005,
    http://www.nytimes.com/2005/11/22/business/22fund.html

Illinois Law Offers Coverage for Uninsured Children

November 16, 2005
The New York Times
By MONICA DAVEY

CHICAGO, Nov. 15 - Gov. Rod R. Blagojevich signed a measure on Tuesday intended to allow all children in Illinois, including those in working-class and middle-class families, to obtain health insurance.

National experts on health care said the new law, which will offer discounts on premiums for those who qualify, was the broadest plan to insure children by any state.

Political leaders in other states, the experts said, are certain to be watching whether Illinois succeeds in expanding coverage to its 250,000 children who are now uninsured, about half of whom are not from the poorest families but from families earning more than $40,000 a year.

Mr. Blagojevich, a Democrat, said he hoped that the move would lead the way for a nation that needs to face a growing problem of middle-income families who cannot afford insurance premiums.

"It's about time that the middle class get some help and the working class get some help," he said in an interview. "Our kids come first, and what's the most important thing for kids? That they're safe and healthy."

Within hours of the signing on the Southwest Side of Chicago, residents submitted contact information to enroll online, though the benefits do not begin until July. By the end of the day, hundreds of people had written in, Mr. Blagojevich's office said.

Although few people here wanted to be viewed as opposing children's having insurance, a concept that one skeptical legislator compared to siding against motherhood or apple pie, Mr. Blagojevich has his doubters.

Critics of the program, which the governor says will cost $45 million in its first year, said they feared that such a sweeping offer could end up costing far more at a time when the state's budget is strained and that it might turn Illinois into a refuge for families from other states desperate to insure their children.

The critics also complained that the push for this bill, which sped through the Democratic-controlled Legislature, was a publicity stunt by Mr. Blagojevich, a first-term governor who might seek re-election next year and whose administration has received unflattering headlines over a federal inquiry into its hiring practices.

"This is the playbook of a guy who literally wants to turn the page and talk about something else," said State Senator Peter J. Roskam, a Republican from Wheaton who opposed the plan, saying it left numerous unanswered questions about eligibility and costs. "I think it's a landmark that's going to turn into a shipwreck."

Mr. Roskam added that the number of words in the governor's press releases on the program had by far eclipsed the number of words in the actual bill. The press release on Tuesday announcing the signing ran nine pages.

Aides to Mr. Blagojevich said the program, known as All Kids, was meticulously detailed and would work. Families who earn too much to be eligible for the existing state and federally financed health programs, including the widely available KidCare, may buy in to the new plan.

The state costs, the aides said, will be paid for by shifting the management of 1.7 million Medicaid recipients. Those patients will no longer go to any doctor on a list of eligible doctors, but to a single physician who will work on more problems earlier, saving an estimated $56 million the first year.

A family's costs for All Kids will depend on the household income. A family of four earning $41,000 a year will pay $40 a month for one child or $80 a month for two or more children. The co-payment for doctors' visits will be $10 each. A family of four earning $61,000 to $79,000 will pay $70 for one child and $140 for two or more children. The co-payment will be $15.

People with higher incomes and without insurance are also eligible, though the premiums increase significantly. To prevent people from dropping their insurance to switch to the state insurance, children will initially be required to be uninsured since Jan. 1, 2006, or in later years one full year without insurance.

Other states have tackled the same issue, but none have settled on a program as sweeping or comprehensive as the Illinois law, according to Diane Rowland, executive vice president of the Kaiser Family Foundation, a health research group.

In California last month, Gov. Arnold Schwarzenegger, a Republican, vetoed a bill that would have provided access to coverage for all uninsured children in that state, saying that he believed children should be insured but that the bill failed to detail how to pay for the plan.

Massachusetts has a plan similar to Illinois's but less extensive, a comparison shows. Although Massachusetts offers coverage to all children, the coverage is limited for benefits like prescription medicines, eyeglasses, hearing aids, and mental health and substance abuse services.

Under the Illinois plan, a spokeswoman for the governor said, those benefits will have no limits.

"Other states are going to watch this very closely," said Alan R. Weil, executive director of the National Academy for State Health Policy, a nonpartisan research organization. "There is broad interest in covering kids, and there will be interest in following Illinois if the story there turns out to be good."

As officials elsewhere wait to see how the plan works and whether the state can afford it, some residents here say they have all the answers they need.

In Carol Stream, a suburb west of Chicago, Annette C. Akey said she was deeply relieved at the prospect of the new coverage. As owners of a real estate company who make about $60,000 a year, Ms. Akey and her husband reluctantly gave up family health insurance coverage as the premiums soared to more than $500 a month a few years ago, she said.

"It was a matter of paying the high premiums or keeping the business," Ms. Akey said.

Not long ago, though, their daughter, Katana, 6, became sick. Doctors concluded that she had a kidney problem and a heart murmur, Ms. Akey said, and a three-and-a-half day hospital stay left the Akeys $10,000 in debt and seeking a second mortgage on their house.

Governor Blagojevich, who has not announced whether he will run for re-election, dismissed critics of his plan. Although attention around the governor has in recent weeks focused on federal subpoenas for hiring records, he has said his administration has done nothing wrong.

He said he had been working on the children's insurance program for years.

"If they want to accuse me of doing it because I want to run for re-election, they're free to do it," he said in the interview. "I'm going to let my actions speak for themselves."

Gretchen Ruethling contributed reporting for this story.

    Illinois Law Offers Coverage for Uninsured Children, NYT, November 16, 2005, http://www.nytimes.com/2005/11/16/national/16children.html

Sex Offenders Held Illegally, Judge Rules

November 16, 2005
The New York Times
By ANEMONA HARTOCOLLIS

A judge ruled yesterday that New York State was illegally holding 12 convicted sex offenders in a mental hospital after they had served their prison sentences.

The judge, Justice Jacqueline W. Silbermann of State Supreme Court in Manhattan, found that the 12 men had been denied their right to an independent hearing and an examination by court-appointed doctors to determine whether they suffered from mental illness to the degree that they needed to be involuntarily confined to an institution.

She also said there had been no finding by court-appointed doctors that they posed a substantial risk to themselves or others.

Justice Silbermann did not order the men released immediately. But she directed Eileen Consilvio, executive director of the Manhattan Psychiatric Center, where the men are being held, to allow them to be examined by two court-appointed physicians as soon as possible. The offenders would be confined if both physicians found that they required involuntary hospitalization, she said; otherwise, they would be released.

The 12 were ordered held by Gov. George E. Pataki because, court papers say, he was frustrated with the State Assembly's refusal to pass a bill permitting the involuntary civil confinement of sex offenders.

Mr. Pataki told state officials to "push the envelope" and use existing law, which normally deals with the noncriminal mentally ill, to evaluate sex offenders before their release to determine whether they should be sent to mental hospitals.

"There can be no doubt that the governor and state officials have a very valid concern about the risks posed to the public by repeat offenders," the judge said. "Nevertheless, that some of the petitioners may involuntarily have been placed in the mental health system by executive fiat is a possibility which this court cannot ignore."

The state plans to appeal the ruling, a spokesman for the governor, Kevin Quinn, said yesterday. Such an appeal could result in a stay of the judge's order of court-appointed examinations.

"The court is granting convicted sexual predators more rights than law-abiding New Yorkers," Governor Pataki said yesterday in a written statement. "Without question, if this ruling is allowed to stand, it would jeopardize the safety of our children and communities throughout the state."

Justice Silbermann ruled on a petition filed on behalf of the 12 sex offenders by Mental Hygiene Legal Service, an agency created by state law and financed through the court system to represent patients in public mental hospitals. The agency contended that the offenders had a due process right under the United States Constitution to notice of their transfer from prison to a mental institution and to a chance to be heard before that happened.

"Some guys reported finding out in the van on their way there" that they were going to a mental hospital instead of being released from prison, Sadie Ishee, a lawyer for the agency, said yesterday.

After their sentences were up, the 12 were confined to the Manhattan Psychiatric Center on Wards Island between Sept. 23 and Oct. 21. Some were then transferred to the related Kirby Forensic Psychiatric Center, a high-security institution on the island that is also directed by Ms. Consilvio.

Ms. Consilvio failed to explain why the men, "alleged to be mentally ill and in need of hospitalization," had not been hospitalized during their incarceration, the judge said.

Two of the prisoners were diagnosed with antisocial personality disorder, but the judge said that according to the American Psychiatric Association, 75 percent of the prison population meets the criteria for the disorder.

Another of the offenders said that his medical evaluation had consisted of a 10- to 15-minute interview conducted by teleconference and that one of the examining physicians admitted that she did not want to send him to a psychiatric hospital but that a directive "had come down from Albany," according to court papers.

"The court takes no issue with the state's belief that each of these men poses a danger to society," Justice Silbermann said. "However, even persons acquitted of violent crimes by reason of insanity may not be civilly committed to a mental hospital solely because they pose a danger to society. A showing of mental illness and a need for inpatient care and treatment is also required."

Mr. Pataki has been considering a bid for the 2008 presidential nomination, and the question of whether sex offenders pose a continuing danger to society has been a divisive political issue. But Mr. Quinn denied yesterday that the governor's order for state officials to review the cases of New York's nearly 5,000 sex offenders before they are released was politically motivated.

"That's just ridiculous," Mr. Quinn said. "The governor has been fighting for almost eight years for the Assembly to act on legislation that the governor had advanced that would give the state clear authority to civilly confine sexual predators." The State Senate, he said, has overwhelmingly passed such legislation, but the Assembly has not brought it to a vote.

Donna Lieberman, the executive director of the New York Civil Liberties Union, said yesterday's ruling underscored the principle that politicians could not override the law in making decisions about how to treat even those who might be dangerous to society.

"It is entirely appropriate for a court to require politicians, including the governor, to follow the procedures set down in the law," she said.

    Sex Offenders Held Illegally, Judge Rules, NYT, November 16, 2005, http://www.nytimes.com/2005/11/16/nyregion/16ruling.html

DeLay Case Turns Spotlight on Texas Judicial System

November 8, 2005
The New York Times
By RALPH BLUMENTHAL

HOUSTON, Nov. 7 - Hauled into court alongside Representative Tom DeLay, the Texas judicial system is also on trial.

One of only seven states to elect all of its judges on partisan tickets, Texas, some critics say, all but invented the million-dollar judgeship.

With prosecution and defense objecting to a string of judges, the DeLay case has produced a conundrum: can a partisan Republican defendant appear to get a fair trial from a partisan Democratic judge, as revealed by the political contributions the judge made? Traditionally, the focus has been on the money the judges received.

"Judges in Texas swing the gavel with one hand and take money with the other," said Craig McDonald, director of Texans for Public Justice, a nonpartisan group that tracks the influence of money and corporate power in the state.

Mr. McDonald called the campaign gifts to the judges legal yet highly suspect, and traced the ballooning costs of judicial races to the assault on Democratic power in Texas by the presidential adviser Karl Rove.

Thomas R. Phillips, chief justice of the Texas Supreme Court from 1988 to 2004 and an opponent of partisan judicial elections, linked the trend to events long before Mr. Rove's efforts. "We were probably the first state in the nation to make judicial races as expensive as hotly contested regular political campaigns," he said.

In the prosecution of Mr. DeLay, the powerful Texas Republican and former House majority leader who faces charges involving illegal corporate campaign donations, the question of judicial impartiality was answered in the negative. The judge, Bob Perkins, who was shown to have made about 30 contributions totaling $5,255 to Democratic candidates and causes since 2001, was replaced at a hearing in Austin last Tuesday, setting off a round of judicial hot potato.

The next to be handed the case, the district administrative judge, B. B. Schraub, a Republican, recused himself after a Democratic challenge. The case then went to the chief justice of the Texas Supreme Court, Wallace B. Jefferson, a Republican and perhaps the most partisan of all, who quickly handed off the case to an appointee, where it remains apparently for good.

The last man standing was Pat Priest, a 65-year-old semiretired judge from San Antonio. He is a Democrat, and he acknowledged making campaign contributions himself, but only of $150 each to three candidates for the Texas House last year.

"That's it, I'm a tightwad," Judge Priest said in an interview.

With District Attorney Ronnie Earle, a Democrat, making no move to challenge him, Judge Priest has quickly taken over the case. He scheduled a hearing for Nov. 22 on motions by Mr. DeLay's lawyers to quash the indictments or move the trial out of Austin, in Travis County, a Democratic holdout against the state's notable Republican swing that started in the 1990's.

The attack by Mr. DeLay's lead lawyers, Dick DeGuerin and Richard Keeton, on Judge Perkins's appearance of impartiality based on his political giving broke new legal ground, many experts said. "I'm not aware of another time this was ever raised," Mr. Phillips said.

Mr. Earle called the move unprecedented and disputed the defense characterization of the case against Mr. DeLay as political. "This is not a political case," Mr. Earle said. "This is a criminal case."

After Judge Perkins was removed last week by a visiting judge, C. W. Duncan Jr., Mr. Earle challenged the impartiality of Judge Schraub, the Republican administrative judge, to name a replacement. Judge Schraub turned the matter over to Chief Justice Jefferson, who was named by Gov. Rick Perry, the state's top Republican, and who had ties to the fund-raising group Texas for a Republican Majority, which was indicted along with Mr. DeLay.

Mr. Earle, who has been reviled by Mr. DeLay as "a partisan zealot with a well-documented history of launching baseless investigations and indictments against his political enemies," sought Justice Jefferson's recusal as well. But the justice declined, saying he had already named Judge Priest to take over the case.

Judge Priest said that he expected to keep the case, but that "each side can voice opposition if they're offended by my presence."

George Shipley, a Democrat and former political consultant in Austin, called Judge Priest's selection "tainted," as "the fruit of a poisoned tree." He asked in an interview "if there is one standard for all Texans and another for Tom DeLay because of his power?"

"Tom DeLay stands guilty of judge shopping in the most egregious and abusive form," he said, "and DeGuerin knows this."

Mr. DeGuerin, in turn, ridiculed Mr. Earle. "He broke his own record for bringing three indictments in four days by bringing two recusal motions in one day," he said. "I think he's exhausted, all that running around he did."

The complaints against the Texas judicial system have a long history. In 1987, "60 Minutes," in a program called "Justice for Sale," showed Texas Supreme Court justices taking hundreds of thousands of dollars in campaign donations from lawyers appearing before them. Eleven years later, "60 Minutes" found that little had changed.

In 1998, Texas for Public Justice issued its own report, finding that the seven Texas Supreme Court justices elected since 1994 had raised $9.2 million, of which 40 percent came from interests with cases before the court. A survey taken for the court itself, the group said, found that nearly half of the judges themselves thought that campaign contributions significantly affected their decisions.

    DeLay Case Turns Spotlight on Texas Judicial System, NYT, 8.11.2005, http://www.nytimes.com/2005/11/08/politics/08texas.html

Outside Court, Fierce Debate on State Law

October 6, 2005
The New York Times
By JOHN SCHWARTZ

WASHINGTON, Oct. 5 - The oral arguments before the Supreme Court on Wednesday over Oregon's Death With Dignity law focused narrowly on issues like the relationship between the federal government and the states.

But outside the courtroom, on the plaza in front of the building, the focus was broader: on the passion and the outrage that have fueled the debate over assisted suicide and other emotionally charged questions about the end of life.

Those who support the Oregon law say the terminally ill should be able to choose the time and manner of their death. Many who oppose the law believe that ending life is morally abhorrent. Still others see the case as a jumping-off point for other issues.

The case, Gonzales v. Oregon, is about the efforts by the Department of Justice to prosecute doctors who prescribe suicide drugs under the Oregon law. The law, which was passed in 1994 and went into effect in 1997, allows terminally ill patients who are likely to die within six months to acquire lethal doses of drugs, often sedatives, from doctors.

Oregon is the only state with such a law, though similar measures have been under consideration in Vermont and California.

The case arose after John Ashcroft, then the Bush administration's attorney general, ordered the Drug Enforcement Agency in November 2001 to use a federal antidrug law to prosecute doctors who participated in the Oregon plan.

After the arguments on Wednesday, groups in favor of and opposing the Oregon law offered comment in front of the court building.

Eli D. Stutsman, a lawyer in Portland who was the chief strategist in passing the law, said he was pleased that much of the discussion had focused on whether the federal law, the Controlled Substances Act, should govern the use of suicide drugs. The intent of the drug law was "to prevent drug trafficking, drug diversion and illicit drug use," he said.

Other proponents of the Oregon law said it does what Justice Sandra Day O'Connor urged in a 1997 case, Washington v. Glucksberg. While Justice O'Connor agreed with the majority that states could constitutionally prohibit assisted suicide, she also said thorny end-of-life issues were best worked out in the "laboratory" of the states. (If Harriet E. Miers, President Bush's choice to be Justice O'Connor's successor, is confirmed before a decision in the current case is handed down, neither she nor Justice O'Connor will participate in the decision.)

Kathryn Tucker, who argued the Glucksberg case and is director of legal affairs for the group Compassion and Choices, a national organization that favors the Oregon law, said the Justice Department was trying "to shut down the laboratory of the states."

One of the most vocal opponents of the Oregon law did not come to Washington. Reached by telephone at his home, Dr. Kenneth Stevens, of Physicians for Compassionate Care, said that if anyone had crossed a line, it was not Mr. Ashcroft but the State of Oregon, which had come up with new uses for potent drugs. "Oregon is saying that Oregon should control Oregon's portion of the Controlled Substances Act," Dr. Stevens said.

On the plaza in front of the court, activists from the group Not Dead Yet showed their opposition to the law. Carrie Ann Lucas, an advocate for people with disabilities who lives in Denver, said she came to Washington because she believed that the medical system would abuse such laws. "People with disabilities are devalued by doctors, by nurses, by hospitals and by H.M.O.'s," she said.

In a narrow sense the debate was over states' rights, Ms. Lucas said. But because the civil rights of people with disabilities were at stake, she went on, that should tip the balance against the Oregon measure.

It may not be the ideal case for discussing such issues, she said, but "it's the case we have."

    Outside Court, Fierce Debate on State Law, NYT, 6.10.2005, http://www.nytimes.com/2005/10/06/politics/06death.html?ex=1137646800&en=ebccc3ab1ca1a2c9&ei=5070

Florida Governor Signs Deadly Force Law

Tue Apr 26, 2005 06:22 PM ET
Reuters
By Michael Peltier

TALLAHASSEE, Fla. (Reuters) - Florida Gov. Jeb Bush signed a new anti-crime law on Tuesday that allows people to kill in self-defense without first trying to flee.

Supporters say the law is a logical extension of common law that allows homeowners who fear for their lives to use deadly force to defend themselves from an intruder in their homes.

The new law expands that doctrine to include people in public places who feel threatened and could be subject to death or great bodily harm.

"To suggest that you can't defend yourself against a rapist, who's trying to drag you into an alley, or against a carjacker who's trying to drag you out of your car is nonsense," said Marion Hammer, a former president of the National Rifle Association.

"The ability to protect yourself, your children or your spouse, is important, no matter where you are."

Critics of the new law, called the "Stand Your Ground" bill, have few objections to allowing people to protect themselves in their homes but say the bill will create a "Wild West" mentality in public, where residents may shoot first and ask questions later.

"There are going to be a lot of repercussions," said Rep. Eleanor Sobel, a Democrat. "You could have someone reaching into their pocket and if the person felt threatened he could shoot."

Like many states, Florida courts have ruled that homeowners have a right to defend themselves in their homes. Florida courts have expanded the doctrine to include employees in their workplace and drivers who are attacked in their automobiles.

Outside the home, however, courts have ruled that most victims must at least attempt to escape before using deadly force, a provision gun advocates say puts victims at greater risk. The new law removes that requirement if a person has a reasonable fear of death or great bodily harm.

"All this bill will do is sell more guns and possibly turn Florida into the OK Corral," Rep. Irv Slosberg, a Democrat, said during recent debate on the bill.

Florida Governor Signs Deadly Force Law, R, Tue Apr 26, 2005 06:22 PM ET, http://www.reuters.com/newsArticle.jhtml?type=domesticNews&storyID=8303755