Talking with Counsel. The Second Circuit held that an order by the District Court, later rescinded, which prohibited a criminal defendant from speaking with his counsel after the first day of his cross-examination, did not violate the defendant's criminal rights under the circumstances of the case. In addition to rescinding the order, the Court had adjourned the case the next morning to allow the attorney to speak with his client. The attorney, however, took the position that the remedy was insufficient to cure the constitutional violation of not allowing him to speak with his client immediately after the day's testimony. The Second Circuit disagreed.

The decision in United States v. Andrews can be found here.

Update: Andrews will be seeking rehearing en banc, and, if that fails, review by the Supreme Court. Personally, I would not bet the farm on obtaining cert. or even a rehearing by the Second Circuit, but time will tell.

What's a picture worth? The plaintiff in Grace v. Corbis-Sygma, a photographer sued his agents and bailees for losing a large number of his pictures. After winning a six-figure amount after a bench trial, the plaintiff appealed, claiming that the award was not high enough. On appeal, the Second Circuit vacated the award and remanded the case to the District Court for a new assessment of damgages.

The decision can be found here.

Recusal. The Second Circuit overturned the conviction of two men conicted of a series of financial crimes based on the refusal of the district judge to recuse himself. The Court made clear that it was dealing only with the appearance of impartiality and noted that there was nothing suggesting that the district judge had acted improperly.

The decision in United States v. Amico can be found here.

No protest. The Second Circuit denied a motion to stay an order, denying a request for a preliminary injunction, requiring West Point to allow a demonstration on its grounds during graduation, where Vice President Cheney is to speak.

The decision in Sussman v. Crawford can be found here.

Converting a Kidney. I previously blogged on Colavito v. New York Organ Donor Network here. The Second Circuit had certified a question as to whether the intended recipient of an organ donation could bring a private cause of action for common law conversion or under the New York Public Health Law if he does not receive the organ.

The Court of Appeals held that the intended recipient of a donated organ might have a common law right to it under New Yok law, no such right exists for the specivied donee of an incompatible kidney. Also, under the Public Health Law, a party would only have a cause of action if he could benefit from the kidney. The kidney at issue was not compatible with Colavito. The decision of the New York State Court of Appeals can be found here. The Second Circuit granted summary judgment to the defendant

The Second Circuit's decision can be found here.

Procedural Hurdle. A convicted burglar sought habeas relief, challenging identity evidence that was admitted against him at trial. The petition had been denied by the District Court on the merits, but the Second Circuit, in affirming the decision of the District Court, did not reach the merits, holding that review was barred by independent and adequate state law grounds. The criminal defendant had not raised the issue at trial, barring him from raising it on appeal or in a habeas proceeding.

Judge Straub dissented, arguing that the criminal defendant had adequately raised the issue at trial and that the trial court had rendered a decision on the issue. Having set aside the procedural bar, Judge Straub found that the New York Appellate Division had unreasonably applied clearly established Supreme Court law relating to the issue. He would have granted the relief sought.

The decision in Garvey v. Duncan can be found here.

Feldman's to the right of me, Feldmans to the left of me. This is a non-substantive post. I just thought it amusing that both the criminal defendant and the United States were represented by Steven Feldman. Not the same Steven Feldman, of course, but still . . .

It's a sentencing case, and I'll give you the link to United States v. Ubiera, so that you can find out more.

Federal Jurisdiction. An interesting question of federal jurisdiction arose in a recent Second Circuit case. A student's IEP (individualized education program) provided that the student was entitled to a 1:1 paraprofessional, but only at the public school. The student attended a parochial school, and the parents asked for a due process hearing, seeking to have the services of the paraprofessional be provided to him at his private school. The hearing officer ruled in favor of the parents. The school district appealed to the New York Education Department's State Review Officer, who agreed with the hearing officer, except held that there was no obligation to provide the paraprofessional under IDEA (the Individuals with Disabilities Education Act). He did, however, find such an obligation under the New York State Education Law. The school district filed an action in the federal court, challenging the determination of the State Review Officer. The District Court upheld the decision of State Review Officer.

On appeal, the Second Circuit held that because there was no right to the relief under federal law, the Court lacked jurisdiction. Even if IDEA incorporates certain state standards relevant to this case (an issue not decided), this does not provide an independent federal question that would sustain a federal court's jurisdiction. Nor does the provision of IDEA that allows an aggrieved party from an administrative decision in a special education action to bring an action in federal court, allow such a party to bring an action where there was no federal question. To hold that the court had jurisdiction in such a circumstance would allow jurisdiction insonsistent with Article III. The Court decided that the case should be brought in state court and dismissed the action.

The decision in Bay Shore Union Free School District v. Kain can be found here.

Answer to Certified Question. In Highland Capital Management L.P. v. Schneider, the Second Circuit had certified the question of whether certain promissory notes issued by McNaughton Apparel Group Inc. to the Schneiders fall within the definition of a "security" as contemplated by UCC 8-102(15) to the New York Court of Appeals. The New York Court of Appeals held the promissory notes were securities under the UCC. In light of this ruling, the Court remanded the case to the District Court, which had held that the notes were not securities, for reconsideration of certain claims. In addition, the Court reversed the dismissal of one claim on which the District Court had held that the Statute of Frauds limited the damages, rendering the claim below the jurisdictional requirement of the Court. In light of the fact that the notes were securities, the Statute of Frauds limitation did not apply and the count was reinstated.

The decision in this case can be found here.