Indigent Corporations Are People Too! New Jersey Court Holds That Indigent Corporations Are Entitled To Appointed Counsel, Just Not Public Defenders

 by:  Peter J. Gallagher (@pjsgallagher)

Anyone who has watched Law & Order or any other police procedural probably knows the Miranda warnings by heart, including the part about the perpetrators having the right to an attorney and the right to have an attorney appointed to represent them if they cannot afford one. But, did you ever stop to consider whether an indigent corporation that is charged with a crime has the right to have counsel appointed to represent it? Probably not, right? (For me, it is hard to imagine Detective Lennie Briscoe (played by the great Jerry Orbach) slapping the cuffs on Enron and wise-cracking about their misuse of special purpose entities and mark-to-market accounting.) However, this question was recently addressed by the Appellate Division in an interesting opinion that offered a primer on both the history of the right to counsel under New Jersey Law and the public defender program before answering the question.

In State v. Western World, Inc., the defendant, Western World, Inc., was a corporation that operated “Wild West City,” which is, as the name suggests, a western heritage theme park. Western World was indicted in connection with a shooting that occurred during the reenactment of a gunfight. The indictment originally named Western World along with its president, one of its employees, and the entity that owned the land on which the theme park operated. In exchange for the dismissal of the indictment as to these other defendants, Western World agreed to plead guilty as an accomplice to one count of the indictment (third-degree unlawful possession of a handgun). As part of the plea agreement, Western World waived its right to appeal, except as to the “limited question of whether a carry permit was required by the actors under the facts of [the] case.” Western World was subsequently sentenced to one year of probation and required to pay a $7,500 fine. Western World was represented by private counsel throughout this process.

Approximately one month after Western World entered its guilty plea, its counsel wrote to the regional office of the Office of the Public Defender (“OPD”), indicating that Western World wanted to appeal the issue reserved for appeal as part of its plea agreement and also appeal the fine imposed upon it at sentencing. Counsel indicated that he would not be representing Western World because he had not been paid. He further indicated that the judge that accepted Western World’s plea indicated that it would be entitled to a public defender if it could not afford one, but that Western World had been “turned away by the Public Defender’s Office.”

 

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“Warriors . . . come out to playyyyyy” (or “What Are The Insurance Implications Of Driving Your Mom’s Car To A Street Fight?”)

 by:  Peter J. Gallagher (@pjsgallagher)

 

One of the most ridiculously entertaining movies of the late-1970’s/early-1980’s was “The Warriors.” You need to watch it to fully appreciate how ridiculous and entertaining it was but it involves a running battle between street gangs through a post-apocalyptic-looking New York City. (To give just a glimpse of how ridiculous it was, the members of one of the gangs, the “Hi Hats,” were dressed like mimes.) The quote in the title of this post is one of the two most well-known lines from the movie (bonus points if you know the other one, answer below).

I was reminded of “The Warriors” when I read the opening sentences of the Appellate Division’s recent decision in Cannon v. Palisades Insurance Company:

“This case involves a street fight between two groups of combatants, some of whom were employed as telemarketers with two local companies. Not surprisingly, the challenge to fight, the acceptance of that challenge, and negotiations over the combat site were all done telephonically.”

A gang of telemarketers could have easily fit into “The Warriors.” Regardless, with an opening sentence like that, I had to read the rest of the opinion. Ultimately, the facts of Cannon are unique and not likely to be useful to you in any future matter. But, that doesn't mean you should not read on, and read the decision yourself if you have the time.

 

Continue reading ““Warriors . . . come out to playyyyyy” (or “What Are The Insurance Implications Of Driving Your Mom’s Car To A Street Fight?”)”

If You Ever Wondered What “Accompany” Means, Justice Scalia Has Your Answer

by:  Peter J. Gallagher (@pjsgallagher)

  The two or three of you Those of you who regularly read this blog or are familiar with some of the posts and articles I have written know that I am a fan of Justice Scalia. Not necessarily his judicial philosophy, but his written opinions – both for the court and in dissent – which are almost always entertaining and compelling even if you disagree with his conclusions. This morning, the Supreme Court released its opinion in Whitfield v. United States, where Justice Scalia, writing for a unanimous court demonstrated again why he is one of the Supreme Court’s most engaging authors.

Whitfield was a tragic case that reads like it was ripped from a law school exam question. Whitfield was fleeing police after a botched robbery when he entered Mary Parnell’s home through an unlocked door. “Once inside, he encountered a terrified Parnell and guided her from the hallway to a computer room (which Whitfield estimates was between four and nine feet away . . . ). There, Parnell suffered a fatal heart attack. Whitfield fled, and was found hiding nearby.”

Whitfield was found guilty of a number of federal offenses, including one that makes it a crime for a suspect who is “avoiding or attempting to avoid apprehension” to “force[] any person to accompany him without the consent of such person.” Whitfield appealed his conviction, arguing that this statute requires “substantial” movement and his movement with Parnell did not qualify. The Fourth Circuit disagreed and Whitfield appealed to the Supreme Court. In a unanimous opinion written by Justice Scalia, the Supreme Court affirmed the Fourth Circuit’s decision and upheld Whitfield’s conviction.

 

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Today at SCOTUS – [Insert Bad Fish Pun Here]

by: Peter J. Gallagher (@pjsgallagher) 

 In an interesting case this morning at the US Supreme Court, the Justices will be asked to determine whether a fish is a “tangible object.” No. Really. That is the issue in Yates v. United States.

The Sarbanes-Oxley Act, which was passed in the wake of the Enron scandal, makes it a crime to “destroy, mutilate, conceal, or cover up any record, document, or tangible object” with the intent to obstruct a federal investigation. It is unlikely that Congress had fish in mind when it passed the Act, but this is nonetheless the federal law that was used to convict John Yates — captain of the Miss Katie, a commercial fishing boat out of Cortex, Florida — for throwing 72 red grouper that were allegedly below the legal limit back into the ocean.  

 

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Funny, I didn’t see the double homicide in the seller’s disclosure!

by:  Peter J. Gallagher

 

Do sellers of real estate have a duty to warn potential buyers about murders or suicides that occurred at the property they are trying to sell?  The answer in most states, somewhat surprisingly, is no.  As MSNBC reported in a recent article, “3 BR, hot tub, 3 murders: How homicide homes hold their secrets,” only two states – Alaska and South Dakota –  require that sellers’ agents  reveal whether a homicide or suicide occurred in the property within the previous 12 months.  According to the article, five other states – Connecticut, Delaware, New Hampshire, North Dakota, and Oklahoma – require that agents “truthfully answer the question” if a prospective buyer asks about “past bloodshed.”  The article further reports on a study, which showed that so-called stigmatized homes languish for longer on the market and ultimately sell for less if their macabre history is revealed, either by sellers or through the grapevine.

Finally, lest you think potential buyers are just being overly paranoid, consider the tragic ending to the story of the man profiled in the MSNBC piece:

Days after closing on his dream home – a brick colonial near the Washington, D.C., school he was toiling to save – principal Brian Betts learned of his property’s ghastly past.

Inside the house, 11 months earlier, an intruder had shot and killed a 9-year-old girl and her father. Horrified, Betts demanded the transaction be rescinded. When that effort failed, he invited two ministers to pray over his new place. Then Betts tried to paint over the grim history, refinishing the woodwork and refurbishing the kitchen.

 Seven years later, in April 2010, a robber shot and killed Betts in his bedroom.