No Comfort for Nechama

Nineteen-year-old Nechama Rothberger was driving a car in Brooklyn when it collided with a moped driven by Tian Sheng Lin, who was making a delivery for the Chinese restaurant where he was employed. Mr. Lin was critically injured when he was thrown from his moped, and has been declared brain-dead by the medical experts. Ms. Rothberger, it seems, was texting on her cell phone at the time. Mr. Lin's family has retained David Sobiloff as counsel.

Ms. Rothberger now stands charged with some misdemeanor offenses in connection with the incident, but, in the event that Mr. Lin succumbs to his injuries, one can easily imagine a scenario where the charges are upgraded to manslaughter. Lee Kimmel, Esq. has apparently been retained to defend Ms. Rothberger on the criminal charges. It is not yet clear which attorney will go to bat for Ms. Rothberger and/or her family (if the car was owned by her parents) in the civil lawsuit that Sobiloff will no doubt institute.

Sobiloff's job, of course, is to squeeze as much money as possible out of the Rothbergers, with as little delay as possible. Kimmel's job is to minimize Nechama's criminal liability. And whichever attorney is retained to defend in the civil suit will be tasked with financial damage control. Because I am not involved in either the civil or criminal case, I can sit on the sidelines and make some comments, in no particular order:


1. First and foremost, my primary sympathies lie with the victim and his family.

2. Having posited Comment No. 1, I will note that some very strident comments are now being made regarding Nechama Rothberger. Based upon conversations this past holiday with people who have some familiarity with the Rothberger family, Nechama is, to be sure, a slightly sympathetic defendant. She is not an evil person. She does not seem to be pretentious or arrogant. She apparently is a good young lady who made a very, very stupid decision that has wrecked the lives of two families. As the father of a child not all that much older than she, I can easily identify with her parents.

3. More along these lines, note that the photo of her in the New York Post, as she leaves the precinct station after her mother posted the bail, depicts her wearing a "Kids of Courage" sweatshirt, which she presumably was wearing at the time of her arrest. Kids of Courage is a benevolent organization that helps very sick children. She apparently has some sort of connection with the organization, perhaps as a volunteer.

4. There should be some criminal consequences for Nechama. The upper limit was set earlier this month by the Brooklyn DA's office, when then NYPD officer Andrew Kelly, who, while driving under the influence, fatally struck a pedestrian, pleaded guilty to Vehicular Manslaughter in the Second Degree. Kelly gets 90 days in prison plus 5 years probation. Kimmel, unless he is also brain-dead, will no doubt argue his client should be held to a lesser standard than Kelly, who, as a NYPD officer, should have known far, far better.

5. Every dollar expended in Nechama's criminal defense is out of the picture when the civil suit comes along. The more serious the criminal consequences which are visited upon Nechama, the lesser her earning power in the workforce will be. A good word from Mr. Lin's family might convince the Brooklyn DA's office to go for a plea bargain involving probation without jail time, so that she can go forward, complete her education, and go earn some bucks to pay the Lin family.

6. Were Lin and his family legally in the country? Was Lin authorized to be employed? This should not affect the criminal aspects of the matter, but it might be relevant in the amount of damages the Rothberger family gets slapped with.

7. Ditto for whether Lin was wearing a helmet.

8. Ditto for whether Lin has properly discharged his income tax obligations.


This is a very tragic matter for all concerned. Two families have been devastated. Nechama -- whose name is derived from the Hebrew word for "comfort" -- has given everything but comfort on account of her lack of thoughtfulness.

A Matter of Degree

I've got to run and make final preparations for the Festival of Sukkot tonight. My wife has just e-mailed me some more items for the shopping list. We are having guests.

And so, I wish everyone Chag Sameach Sukkot!

But before signing off, I feel inspired to post my thoughts on a recent legal development:

Ayal Rosenthal, a CPA with PriceWaterhouse Coopers (for the uninitiated, PwC is a major accounting firm), copped a guilty plea on some insider trading charges, and got a 60-day sentence. Rosenthal was enrolled in New York University's MBA program at the time, and had even worked there as a Teaching Assistant in a Professional Responsibility course.

NYU decided that Rosenthal was unworthy of an MBA degree, so Rosenthal sued. And Judge Lewis Kaplan, sitting on the bench of the Federal District Court of the Southern District of New York, upheld NYU.

I am no great fan of NYU. They do get quite snotty from time to time (and I have been professionally involved in a case in which questionable ethics on the part of certain key players in the upper reaches of the NYU hierarchy played a role). NYU, then, does not have the firmest standing to deliver the morality lecture.

But Rosenthal is no better than NYU. He, too, has a nefarious arrogance about him, and he needs humility more than he needs an MBA degree.

In my book, Rosenthal and NYU are in pari delicto (Latin for equally at fault). And where parties are in pari delicto, the courts tend to leave the parties as they stand. The pari delicto theory did not play any role in Judge Kaplan's rationale, but the result is the same.

NYU's denial of Rosenthal's MBA has, in a broad sense, ever so slightly prevented my own MBA (not from NYU) from cheapening in value.

Judgment without being Judgmental

We're coming off of Yom Kippur, and heading into Sukkoth. I have completed the Yom Kippur fast, and have done about 90% of the work on my Sukkah. My main malady now is fatigue.

Justice Carol Edmead of the New York State Supreme Court, New York County, has come down with a number of notable decisions of late. Before Carol played the politics and got herself a black judge's robe to wear, she assisted me in obtaining a particular elusive credential as an attorney, so it pleases me all the more that she is proving to be a credit to the bench. She has called her cases as she sees them, let the chips fall where they may, and kept her personal and political biases in the irrelevant column.

One such case is Matter of Urban Justice Center v. New York Police Department, decided about 3 weeks ago. It is a relatively lengthy read of legal mumbo jumbo, necessitated by the very technical nature of the issues involved. To spare the reader's time, I shall distill its essence as follows:

The Urban Justice Center, a non-profit legal and social services corporation, has a "Sex Workers Project" division whose reason for being is to protect the rights of the so-called "Sex Workers." SWP is now studying the legal ramifications of certain types of sexual behavior which do not involve penetrative contact, including the so-called "BDSM" (bondage, dominance, sadism and masochism). To such end, SWP has requested, under New York's Freedom of Information Law, certain documents from the New York Police Department. The documents consist of the NYPD's training manuals as to arrests for prostitution (Category 1) and memos and manuals of policies and investigation records of bondage and domination establishments (Category 2). The NYPD denied the request, and UJC/SWP's appeal fortuitously hit Justice Edmead's chambers.

Justice Edmead upheld NYPD's denial of the Category 1 documents, in light of the risks to the integrity of the NYPD's operations and the safety of its officers. Category 2 documents were required to be produced, however.

Okay, I know, I know -- The profession, and all of its specializations, have been around from time immemorial. But the UJC's employees and directors, as reflected on its Form 990, seem to be heavy on the left side, and many are connected with the ACLU. And if there is one thing this recovering liberal Democrat has learned over the years, it is that the ACLU has an agenda which is influenced more by political orientation than by the grand principles of liberty [for all you ACLU watchers, I deliberately allowed my membership to lapse after Skokie]. Accordingly, I cannot help but wonder whether SWP will (if it has not already) cross that line which demarcates the separation between protecting the victims on one hand, and encouraging and enabling the abominators on the other.

The case, then, carries lots and lots of baggage and "guts appeal." Justice Carol Edmead fulfilled her noble purpose by keeping the police honest, while not allowing UJC to obtain one more Post-It note of paper from NYPD than any other group would be allowed to obtain.

Rosh HaShanah 5771 (Wrap-up)

We had an interesting Rosh HaShanah. It is two days, but this year, the next day was our religious Sabbath, which meant 3 days of not doing certain tasks. Accordingly, I have just caught up on my e-mail backlog (and my snail mail backlog, for that matter).

We frequently have guests for Shabbat or the holidays. This year, our guest was of the canine species. Due to a series of miscommunications, there was a misunderstanding as to who would take care of my son's roommate's sister's Yorkshire Terrier. About 2 hours before candle lighting time (signifying the beginning of the holiday), there was this Yorkie whose mistress had left town, and whose mistress's brother and roommates were about to leave for their respective Rosh HaShanah hosts, neither of which was conducive to bring the Yorkie for the 3-day period, thus leaving the Yorkie (named Maxine) with no place to go for Rosh HaShanah. My wife agreed that we would take Maxine (after consulting with me, of course).

And so, our son dropped Maxine off with us while he was en route to his Rosh HaShanah destination (the home of a Rabbi who had been a teacher of his when he was in junior high school, whose wife is terrified of dogs). Maxine was very well behaved and dispositioned, and it was certainly a pleasure to have her.

My son has returned home. He is now doing his laundry, and will probably stay the night before returning Maxine to her mistress (or, more likely, to his roommate, who is Maxine's mistress's brother).

One of the members of our congregation is now ill, and in no condition to come to services to hear the Shofar. So I walked the 2.5 miles to his house and sounded my own Shofar, just for him and his wife. It was good to see them, but I am quite concerned about his condition.

After the end of Shabbat, I decided to go running a few miles. This layoff of 3+ days without any significant aerobic exercise (that aforementioned 2.5 miles walk plus 2.5 miles return was the closest thing to aerobic exertion I had) is beginning to take its toll. The run did me good.

Next Shabbat happens to be Yom Kippur, so there will be none of the usual eating. Until Yom Kippur, we are in a period of penitence. Accordingly, earnestly I ask forgiveness from all whom I have wronged, and, in turn, grant forgiveness to those who ask it of me in earnest.

Wishing a Shanah Tova, a Good Year, to Everyone!

Rosh HaShanah 5771

I haven't the time for an extended posting. In a few hours, the sun will set (it already has done so in the Holy City of Jerusalem) and the New Year, 5771, will be upon us.

This past one has had its plusses and minuses for me and my family. I hope and pray that 5771 will be a good one, without some of the negatives that have anguished us.

The holiday will be Thursday and Friday, and then, we go directly in to Shabbat, my religious Sabbath. Accordingly, it will be three days without doing certain types of work (including turning electric switches on or off, going online, accessing my e-mail, swimming, driving, et cetera). It will be a challenge, but I look forward to it.

I wish all a very happy and healthy New Year.

L'Shanah Tovah Tikatevu!!