Train crew needs training

Why do I feel as though I am in law school again?

Roosevelt Sims was a passenger on an Amtrak train, bound for Los Angeles. Amtrak personnel mistook the manifestations of his diabetic condition for drunkenness, and so, in the middle of the wilderness near Williams, Arizona, ejected Sims and his baggage from the train.

The story sounded familiar, so I reached for my old Torts casebook and found two cases where railroads were liable for putting passengers off at some desolate place with no station or other shelter. Missouri, Kansas & Texas Railway Co. v. Chilton, 7 Tex. Civ. App. 183, 27 S.W. 272 (1894); Hines v. Garrett, 131 Va. 125, 108 S.E. 690 (1921).

The railroad industry is a slow learner.

In fact, there is also the case of a bus company that was liable for injuries incurred by a passenger discharged at a dangerous point a few feet from the regularly designated bus stop. Parker v. San Francisco, 158 Cal.App.2d 597, 323 P.2d 108 (1958). Ditto for taxicabs, Ingham v. Luxor Cab Co., 93 Cal. App. 4th 1045; 113 Cal. Rptr. 2d 587 (2001).

The personal transportation industry in general, and the railroad passenger industry in particular, do not seem to be magnets for the mentally gifted members of the workforce. They seem to reward stupidity and dishonesty, and so, those who lack such traits have diminished prospects for career advancement. Employees who exhibit tendencies towards honesty and civility are penalized, and, if they remain, tend to retire at a rank not too much advanced from the one in which they were initially hired.

Some cases are meant to be settled early, and this seems to be one of them. But if the Amtrak lawyer who makes the decision came up through the ranks, then he (unlikely that it is a she) might be slow on the uptake and might allow the case, with the sympathetic plaintiff, to actually go into court.

If so, then the Mr. Sims not only has Chilton, Garrett, Parker and Ingham in his corner, but he also has the Americans with Disabilities Act going for him.

Garson Update:

The Dishonorable Gerald P. Garson reportedly has surrendered and begun to serve his prison term. He starts it seven days earlier, so he'll get out seven days earlier.


Update 5 July 2007:


The Dishonorable Gerald P. Garson is now officially New York State Department of Correctional Services Inmate No. 07A3709. According to the Inmate Look-up utility at the DoCS website, Garson's parole hearing date is January 2009, with earliest parole eligibility on 4 July 2009.

Glenn Winuk update

On 25 September 2006, the posting to this Blog discussed Glenn Winuk, the volunteer firefighter/EMT who died while performing rescue operations at the World Trade Center on September 11, 2001.

The 25 September 2006 posting was a bit skeptical and chary regarding the motives of Winuk's surviving family members in trying to qualify for survivors' death benefits under the Public Safety Officers’ Death Benefits Act. This is a function of my training and experience with the IRS, and not on account of any character flaws that the Winuk family members may possess. An IRS agent who cannot "think dirty" cannot effectively enforce the tax laws.

And, if Glenn's brother Jay is to be believed (his statement is, in fact, extremely plausible), the Winuk family has spent more money pursuing their legal remedies than they will collect from the death benefits. Notwithstanding my initial caution in the 25 September posting, it seems that the Winuk family really was in the fight for the principle.

It is with much gratitude that I now report the Winuk family's victory in the Court of Federal Claims. The opinion by Judge Marian Blank Horn makes for a good read in memory of Glenn J. Winuk, and also holds a magnifying glass over the miniature minds of the bureaucrats who fought tooth and nail to deny Glenn his rightful status as a public safety officer killed in the line of duty at the World Trade Center. When it comes to tending to the public treasury, some initial skepticism is healthy and appropriate, but, as Judge Horn noted:

"Chairman Biancanello and Chief Lottes of the Jericho Fire District properly certified that Glenn Winuk should be considered to have been a public safety officer killed in the line of duty during the 9/11 tragedy. That should have been the end of it."

Hopefully, the Department of Justice will not appeal Judge Horn's well-reasoned and well-substantiated decision, so that Glenn Winuk's family can hold their heads up high in full knowledge that Glenn's heroic actions are appreciated, and that Glenn Winuk can have his hard-earned and dearly paid rest in peace.

Garson Update:

The Dishonorable Gerald P Garson's request for a stay of his sentence has been denied, and he supposedly will surrender this coming Tuesday 26 June to start his time in the slammer.

But it's still only Friday. Don't bet the mortgage money that he'll actually report to the clink on Tuesday! His cancer might act up, or he may get too delirious from his ethanol abuse problem, or find some other excuse. 'Tis many a slip 'twixt the cup and the lip. The only guarantee that Garson will serve time is if he actually serves the time.



UPDATE (23 June 2007):

I didn't get to read the 22 June issue of the New York Law Journal until after the computer was shut down for Shabbat, but on the first page, in the "In Brief" blurbs, it is reported that Garson has been given an extension to 5 July so that he can detoxify from his ethanol addiction prior to reporting to the slammer to serve his sentence.

On this one I have mixed feelings.

On one hand, it does little to adduce public confidence in the system. I have never really handled any criminal defense cases (except for two traffic violation matters which technically were criminal in nature), but my understanding is that extensions such as the one just accorded to His Dishonor are not available for the asking. Moreover, the New York State Department of Correctional Services does operate an 850-bed Willard Drug Treatment facility in Willard, NY, for nonviolent offenders. What's wrong with sticking Garson there?

On the other hand, Garson's clock doesn't start to tick for another 12 days, which means that he theoretically will remain in prison for an additional 12 days. And the condition of Garson's continuance, as I understand it, is that he be at an in-patient facility for his detox detail. Which means that the expense of the treatment should be underwritten from Garson's own purse and not by the taxpayers.

As mentioned earlier, "The only guarantee that Garson will serve time is if he actually serves the time." I stand by that statement.

Did they pay the duty?

Well, Varsha and Mahender Sabhnani now stand accused of keeping two Indonesian women as slaves. They have yet to be convicted of these very serious criminal charges, but the evidence is very compelling.

As usual, I shall leave the sensationalism to the tabloids, and view their situation from a taxation perspective.

Imprimis, this "innocent until proven guilty" presumption is a legal fiction which ensures that the government fulfills its standard of proof, namely, guilty beyond a reasonable doubt. The presumption has no application outside of the courtroom where a criminal proceeding is in the works (but in that courtroom, it is an absolute requisite for our system of laws). Specifically, in civil tax cases, the IRS need only make its case by some substantial evidence; the taxpayer (or non-payer, as the case may be) then must rebut the IRS determination by a preponderance of evidence. Not nearly the "guilty beyond a reasonable doubt" standard of criminal cases.

Article I, Section 9, Clause 1 of the U.S. Constitution reads: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person." Was such a tax or duty imposed by Congress? If so, is it applicable today? And if so, did the Sabhnanis pay it for their two slave girls?

Just wondering! Maybe some day, when I have nothing better to do (or, if I am retained for the purpose), I shall check this one out.

The Strange Ways of Justice

One matter in which I am ambivalent is the criminal prosecution of mobsters for murdering other mobsters. On one hand, we are supposed to be a society of laws, and the law needs to be enforced, else anarchy runs rampant in the streets and nobody's person, life or property is safe. On the other hand, it saves lots of public resources when the organized crime players impose disciplinary penalties upon one another, without the involvement of the already overburdened court system.

Once upon a time, the old mob did honor the line between mobsters and civilians, and if you stayed out of the mob's business then they would generally stay out of yours. This is less and less the case today. For this reason, I will have broad shoulders and state that even mob hit men who hit other mobsters ought be prosecuted by our criminal justice system. But understand that a part of me says we should let the mobster gangs kill one another in peace.

However, if you are going to make the law and order argument in favor of prosecuting the mobsters, then you must hold the prosecution to the same standards of law and order. Which means you must honor the defendants' constitutional rights to due process, and to have speedy trials.

This is exactly what happened in the case of People v. John Sinagra, 2007 N.Y. Misc. LEXIS 4160, 2007 NY Slip Op 51180(U), N.Y.L.J., 6/15/2007, p. 23, col. 3. Citing the 16-year delay in prosecuting Sinagra for murdering Patrick Porco, some other wiseguy mobster who was a suspected snitch, Justice Gustin Reichbach dismissed the murder indictment against Sinagra. Sinagra is now at liberty, and, having proven himself capable and qualified, can now take on other contracts to exterminate 6-legged, 4-legged or 2-legged vermin.

For those of you who are too young to remember, Gustin L. Reichbach, who now wears black robes and sits on the bench of the New York Supreme Court in Kings County, was the key SDS agitator behind the student riots that effectively shut down class registration at Columbia University in 1968.

Reichbach presumably received (and may even continue to receive) royalties for "The Bust Book: What to do Until the Lawyer Comes," which he co-authored along with several other anarchist radicals, including cop-killer Kathy Boudin.

Miscellaneous Briefs

Got some papers to grade and work to catch up on, but here are some miscellaneous briefs, in no particular order:


A. The Dishonorable Gerald Garson was released on bail a few hours after he was led away from his sentencing in handcuffs. See prior post.

My speculation: On account of his health issues, perhaps Garson wants to figure out a way to not have to die while he is incarcerated. Brooklyn DA Hynes is continuing his investigation of corruption in the courts. Perhaps Garson and his attorneys are looking into ways for Garson to sing for his freedom.



B. On account of severe financial and budgetary problems, the NAACP is going into retrenchment mode, and will cut back on its staff and close some of its offices.

Hey, isn't this racist? Shouldn't Jesse and Fat Al and Barack Hussein Obama be leading the protest march?



C. Christopher Woods, of Harlem, is suing Novartis, claiming that after drinking Novartis's dietary supplement "Boost," he was afflicted with a persistent erection.

So, pray tell, just what is he complaining about?

If I were Novartis's CEO, I would litigate the case to its fullest, and charge the legal costs to advertising expenses. It would be money well spent!

Trading Time

Well, folks, the latest big league player trade seems to have given good value for value.

The bad news: Dr. Jack Kevorkian has been released from prison, and is now back in the game of suicide legalization.

The good news: The Dishonorable Gerald P. Garson, of whom this blog recently posted, has been led away to jail in handcuffs to serve his 3 - 10 year sentence. Brooklyn ex-politico Clarence Norman went along with ex-Judge Garson in the trade.

My two comments on this "player trade":

A. The only assurance the public has that Garson will serve his full sentence, without any parole, probation or pardon, is for him to actually serve the time. Garson's bench bum buddy Victor Barron, who was sentenced to 3 - 9 years for bribery, only served about 4, with work release to a half-way house facility after less than 2 years behind bars. I would be very, very surprised if Garson does anywhere near the maximum.


B. Having been born, raised, and attended law school in a jurisdiction other than the State of New York, this initially confused me, so I shall give the reader the benefit of my experience. In New York, that tribunal known as the "Supreme Court" is in fact the lowest court of general jurisdiction. Separate "Supreme Courts" are to be found in each of New York's counties. In normal states, such tribunals are called "Superior Courts" or "Courts of Common Pleas" or "Circuit Courts." Not so in New York.

In the Empire State, the cases go from the Supreme Court, to the Supreme Court Appellate Division, to the Court of Appeals (actually, this is an oversimplification; there are other inferior courts (in one if not both senses of the word) of limited jurisdiction, the busiest of which is the Civil Court of the City of New York.

But to people who have not spent much time in New York, the term "Supreme Court" conjures up august images of pomp and splendor associated with high-ranking tribunals. Like here, where Garson is referred to as an "Ex-N.Y. High Court Judge." Please, stop insulting the judges who really do sit on the high courts (or, wait a minute! Some of them are not much better than Garson or Barron!).


So the big trade has been consummated: Garson for Kevorkian! But if Garson's health issues act up while he is in the big house, maybe Dr. Kevorkian ought to be brought in to treat him.


UPDATE: Garson was released on bail a few hours later, pending arguments as to whether he should stay free pending his appeal.

Tuberculosis Vaccine for CBP

As an invited witness at a hearing on Wednesday 23 May 2007 before the House Ways and Means Committee, Colleen M. Kelley, the President of the National Treasury Employees Union, attempted to stop the IRS from farming out the collection function to private debt collectors, and spoke extensively about the effectiveness, diligence and competence of the IRS workforce. I'm 100% behind her on that score. While nobody actually likes the IRS, most rational people understand the necessity for collecting the taxes. And during my time with the IRS, I certainly never encountered any IRS employee of any rank or position who had any misconceptions whatsoever regarding the intended function of the IRS. Social unpopularity comes with the job.

Understand that the real test of an effective union is how well it can protect the rights of its membership after the contract has been negotiated and is in place. Federal employees are not permitted to strike, and their salaries and benefits are largely determined by Congress, and not at the bargaining table. But the unions can make a big difference in the quality of work life, and in job security. Queen Ranavalona of Madagascar forbade her subjects to appear in her dreams, under pain of death, and similarly, Federal supervisors and managers have often destroyed employees' careers, reputations and lives based upon little more than unsupported speculations in their fictive imaginations regarding the employees' alleged wrongdoings. This is especially true at an agency such as the IRS, where there is a culture of secrecy, and the Personnel Management people take a laissez faire attitude towards the actions of management. NTEU helps to level the playing field for the non-supervisory employee.


Shortly before Colleen Kelley's testimony at the Ways & Means hearing, the NTEU was designated as the representative union for the employees of the Bureau of Customs & Border Protection. This, of course, was a feather in Kelley's cap, and was also good news for the CBPers, for the NTEU is probably the most effective union representing Federal employees, and, while by no means devoid of the leftist partisan politics typical of labor unions, does not reek of the leftist stench quite as much as most other unions.

But with the triumph of winning the representation battle come the burdens and responsibilities of representing the employees who are members of the bargaining unit. And so, Colleen, as president of the NTEU, has been infected by Andrew Speaker's case of tuberculosis. Specifically, the CBP inspector who disregarded the warning and allowed Speaker to cross the border at Champlain, N.Y, is now one of Colleen's boys, and the NTEU must now defend him in whatever disciplinary actions may be taken against him. Quite appropriately, neither the NTEU nor Colleen Kelley are publicly discussing the case.

The Andrew Speaker affair has all kinds of interesting -- and troubling -- angles and perspectives. As it implicates the NTEU, I see it as follows:

"The unidentified inspector explained that he was no doctor but that the infected man seemed perfectly healthy and that he thought the warning was merely discretionary, officials briefed on the case told The Associated Press." Unlike the IRS, the CBP does not have a definitive collective sense of what its mission really is. There is now pressure on CBP to get all of its employees on the same page of the script with regards to its purpose an mission.

And what better way to do that, than to make an example of the poor, clueless shmuck who perfunctorily let Speaker into the country with his TB infection? CBP is now erecting the gallows for a public hanging. How well the NTEU controls the damage while, at the same time, keeping its hands reasonably clean, is now Colleen Kelley's big test.

JFK Airport Terror Plot

Everyone and his brother and sister are now buzzing the MSM and the blogosphere with the story about the JFK airport (actually, it's still Idlewyld as far as I am concerned) terror plot. For now, I only wish to emphasize the following point:

According to the Indictment, specifically, Paragraphs 21 and 29 thereof, DeFreitas had been planning this even before the Muslim attack of September 11th 2001.

So don't give me this milorganite about how going into Iraq causes everyone to hate America! They hated us and were planning to attack us even before September 11th, 2001!