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Legal Precedent Doesn't Let Facts Stand in the Way
NY Times ^ | November 26, 2004 | SABRINA TAVERNISE

Posted on 11/26/2004 4:03:52 PM PST by neverdem

The case was familiar, if disturbing. A Bronx man had been accused of punching and threatening his girlfriend. But the woman refused to testify. Prosecutors, though, soon got a break. A Bronx Criminal Court judge appeared to stake out some novel legal ground just weeks after a United States Supreme Court decision. He ruled that prosecutors could use 911 recordings of the woman's anguished call for help as evidence, even though she would not testify.

Within weeks, prosecutors and judges around the country seized on the March 25 decision, by Judge Ethan Greenberg, citing it as important precedent as they wrestled with their own cases. In all, the decision would be referenced in 15 high-level court cases, from North Carolina to Nevada, and it was included in the 2004 edition of a widely used law textbook.

There was a problem, however, with the decision rendered by Judge Greenberg in People v. Moscat. None of the assumptions the judge based his opinion on were actually fact. The person captured on the tape in that particular case was, it turned out, a neighbor, not the victim. The call had been made some nine hours after the alleged assault, not while it was happening. And prosecutors eventually abandoned the case.

Defense lawyers and prosecutors alike say the judge was simply eager to be one of the first to interpret the Supreme Court's ruling, a way to get attention in the legal world. The judge says that prosecutors told him the victim was on the tape, an assertion that prosecutors deny. He says he is comfortable with the heart of his decision.

Whatever the case, none of this seems likely to blunt the impact of the ruling, which continues to have a legal life of its own. And in that, People v. Moscat provides an interesting window into the world of court decisions: how a ruling in March by a lower-court judge in the Bronx almost instantly traveled through a network of lawyers and judges eager to make new law, and how little it mattered that the facts of the case did not apply.

"Moscat is leading the charge," said Richard D. Friedman, of the University of Michigan Law School and a criminal law expert. Judge Greenberg's ruling "is the most frequently cited decision in the 911 area."

The Bronx decision came as courts across the country were wrestling with questions about how to prosecute crimes when accusers would not appear for cross-examination. Courts were trying to find the balance between punishing abusers and making sure they got the chance to challenge their accusers, a right laid out in the Sixth Amendment to the Constitution.

Shortly before the Bronx ruling, the United States Supreme Court took up a piece of this complicated world. It ruled in Crawford v. Washington, on March 8, that certain statements could not be considered evidence at trial unless the defendant has the chance to confront the person who made them.

The ruling shook up criminal courts across the country. Convictions were overturned. Statements that used to be allowed at trial were barred. In domestic violence cases, it had become common to prosecute without the victim's participation, a practice that emerged from a political push to crack down on domestic violence. The court's ruling made that tougher.

But the decision left open the question of what kind of statements could be considered evidence at trial, leaving lower courts to work out the meaning. A central area of confusion was whether 911 calls could be used in court. "Crawford left the outer boundaries so fuzzy," said Jeffrey L. Fisher, the Seattle-based defense lawyer who argued the case before the Supreme Court. "The natural instinct was to have a life preserver at sea - to say, someone here has dealt with the question."

Judge Greenberg was one of the first to try to make sense of it.

He wrote that the Bronx case was "an early opportunity for trial courts like this one to begin to work out in practice the meaning" of Crawford. He said through a spokesman that he had thought about the subject for days before writing the ruling, as it became clear that the victim would not testify and the trial could not proceed without the tape.

In his opinion, Judge Greenberg sought to define 911 calls under Crawford, arguing broadly that they should be allowed at trial, as electronic equivalents of "a loud cry for help," and that the clause in the Sixth Amendment that spells out the right of defendants to confront their accusers, "was not directed at such a cry."

Several weeks after the ruling, defense lawyers, bracing for a fight in court, listened to the tape. They could not believe what they heard.

"We were stunned," said David M. Jaros, the defense lawyer in the case, who works for the Bronx Defenders, a group that provides legal representation to the indigent. "All the essential facts the judge assumed turned out to be wrong. And those facts were the basis for his opinion."

Defense lawyers and prosecutors said the ruling came abruptly (it was dated March 25, the same day the defense asked that the 911 tape be barred) and seemed to indicate that the judge wanted to make a name for himself - a charge the judge, through a spokesman, denied.

Judge Greenberg said that the ruling was simply a pretrial finding on evidence and that he had taken care to state that prosecutors still had to prove that the tape met the requirements for evidence at trial.

But the decision had already taken flight, carrying all over the country the name of the Bronx case. In California, prosecutors cited it in an appeal of a case in which a 911 caller identified a gunman. A North Carolina appeals court judge quoted it in a kidnapping case. In Washington State, prosecutors used it in arguing an appeal of a domestic violence case that involved a 911 call.

John M. Tyson, the North Carolina judge who cited the ruling extensively in a ruling in May, said that he was surprised to learn the facts of the Moscat case, but that, simply put, Judge Greenberg's reasoning fitted. "We were looking for a legal precedent," Judge Tyson said. "Moscat was the case in point."

Legal history is not without cases of judges making decisions based on mistaken assumptions. In a landmark ruling for personal injury cases, Benjamin N. Cardozo, a Court of Appeals judge in New York, ruled in 1916 that a driver should be able to recover damages from a car maker, after one of the driver's car wheels collapsed.

But at trial, a more nuanced picture had emerged. The driver had been speeding and had hit a large patch of gravel in the road, said James A. Henderson Jr., a professor at Cornell Law School, who discovered the inconsistencies while studying the case for an academic article in 2002. "It's like an old friend you assumed you knew, and it turns out you didn't," he said, referring to the case.

Judge Cardozo "thought a good appellate judge should not let the facts of a particular case bind him," Mr. Henderson said. "The case was screaming for that new rule of law, and the facts were kind of annoyingly in the way."

Judge Greenberg's ruling, like Judge Cardozo's, is going down in the legal history books for its reasoning. Prosecutors and judges who cited it said in interviews this month that its legal thinking was sound.

The defense lawyer, Mr. Jaros, for his part, has made the unusual request that Judge Greenberg's opinion be taken off the books "in the interest of justice."

Prosecutors were unfazed.

"If the facts turn out to be wrong, it's an interesting historical footnote," said James M. Whisman, a prosecutor for King County, Wash., who has cited Moscat. "But I don't know that it changes much."


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Front Page News; Government; News/Current Events; Politics/Elections; US: District of Columbia; US: New York; US: North Carolina; US: Washington
KEYWORDS: decisions; domesticviolence; judges; lawyers; legalprofession; prosecutors; verdicts
Drop a dime with a 911 call.
1 posted on 11/26/2004 4:03:52 PM PST by neverdem
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To: neverdem

A judge is just a lawyer with too much power.


2 posted on 11/26/2004 4:14:17 PM PST by BenLurkin (Big government is still a big problem.)
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To: neverdem

So you lie on a 911 call then refused to testify. That way you can convict someone without risk of purgering yourself.


3 posted on 11/26/2004 4:36:03 PM PST by Always Right
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To: BenLurkin
A judge is just a lawyer with too much power.

Allowing him to reap judicial tyranny on the rest of us.

4 posted on 11/26/2004 4:38:17 PM PST by Mister Baredog ((DO IT NOW, if you haven't put up a flag on your FR homepage yet,PLEASE))
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To: Always Right
So you lie on a 911 call then refused to testify. That way you can convict someone without risk of purgering yourself.

It could get worse - think about 911 medical emergency calls - quite a bit of medical information is exchanged. This information as protected under medical privacy laws....until now it would seem.

5 posted on 11/26/2004 4:40:01 PM PST by Ophiucus
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To: Always Right
without risk of purgering yourself.

perjuring

They don't charge to use the spell checker.

6 posted on 11/26/2004 5:16:17 PM PST by PAR35
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To: Mister Baredog

The most notable example of this is the Roe v Wade decision ... based entirely on lies and false, fabricated statistics while ignoring a federal circuit decision that recognized the unborn as persons from conception onward rendered just a year or two prior to 1973. The subpreme court then solidified the lies with follow-up decisions to protect their earlier specious ruling.


7 posted on 11/26/2004 5:20:19 PM PST by MHGinTN (If you can read this, you've had life support from someone. Promote life support for others.)
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To: BenLurkin
A judge is just a lawyer with too much power.

BINGO.

None of the assumptions the judge based his opinion on were actually fact. The person captured on the tape in that particular case was, it turned out, a neighbor, not the victim. The call had been made some nine hours after the alleged assault, not while it was happening. And prosecutors eventually abandoned the case.

Welcome to the GestapoInc. Sieg..Heil! Sieg..Heil!

8 posted on 11/26/2004 5:55:27 PM PST by Indie (Ignorance of the truth is no excuse for stupidity.)
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To: Ophiucus
"Legal history is not without cases of judges making decisions based on mistaken assumptions. In a landmark ruling for personal injury cases, Benjamin N. Cardozo, a Court of Appeals judge in New York, ruled in 1916 that a driver should be able to recover damages from a car maker, after one of the driver's car wheels collapsed.

But at trial, a more nuanced picture had emerged. The driver had been speeding and had hit a large patch of gravel in the road, said James A. Henderson Jr., a professor at Cornell Law School, who discovered the inconsistencies while studying the case for an academic article in 2002. "It's like an old friend you assumed you knew, and it turns out you didn't," he said, referring to the case"


So, how does that relate to the recent Firestone SUV tire flap?
9 posted on 11/26/2004 5:55:38 PM PST by Woodworker
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To: Ophiucus
"Legal history is not without cases of judges making decisions based on mistaken assumptions. In a landmark ruling for personal injury cases, Benjamin N. Cardozo, a Court of Appeals judge in New York, ruled in 1916 that a driver should be able to recover damages from a car maker, after one of the driver's car wheels collapsed.

But at trial, a more nuanced picture had emerged. The driver had been speeding and had hit a large patch of gravel in the road, said James A. Henderson Jr., a professor at Cornell Law School, who discovered the inconsistencies while studying the case for an academic article in 2002. "It's like an old friend you assumed you knew, and it turns out you didn't," he said, referring to the case"


So, how does that relate to the recent Firestone SUV tire flap?
10 posted on 11/26/2004 5:56:23 PM PST by Woodworker
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To: neverdem

Lawyers and judges suck.


11 posted on 11/26/2004 6:12:34 PM PST by ladyinred (Congratulations President Bush! Four more years!)
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To: neverdem

Here is some info on prosecutorial corruption going on all over the country.

http://www.publicintegrity.org/pm/


12 posted on 11/26/2004 6:22:50 PM PST by patriot_wes
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To: patriot_wes

Thanks for the link. I'm pretty sure this judge was elected by the Bronx Democratic Party machine. Where I voted one judge had their name as the nominee for the all of the only three parties named for that row.


13 posted on 11/26/2004 6:36:41 PM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: cyborg; Clemenza; Cacique; NYCVirago; The Mayor; Darksheare; hellinahandcart; Chode; ...

FReepmail me if you want on or off my New York ping list.


14 posted on 11/26/2004 6:38:04 PM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: FormerACLUmember

ping


15 posted on 11/26/2004 6:39:03 PM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: MHGinTN
The subpreme court then solidified the lies with follow-up decisions to protect their earlier specious ruling.

Yes, the previously undiscovered right to privacy hidden away in the Constitution and discovered by the Warren court 200 years later.

Without Roe v Wade the states would have continued their individual determinations, just like capital punishment.

16 posted on 11/26/2004 11:06:59 PM PST by Mister Baredog ((DO IT NOW, if you haven't put up a flag on your FR homepage yet,PLEASE))
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To: Mister Baredog; MHGinTN
Not to mention the fact that in RvW, "Roe" wasn't even still pregnant by the time the case arrived in SCOTUS, at which point she would have lost standing to continue pursuing the case. Not that it mattered to them; they just went ahead and heard the case anyway. So yes, there's quite a parallel attitude between that and this present idiocy: "Women are such poor helpless things that we constantly have to change the law for them!"
17 posted on 11/27/2004 1:53:21 PM PST by inquest (Now is the time to remove the leftist influence from the GOP. "Unity" can wait.)
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