Archive for February, 2011

Justices weigh dispute over child-abuse cases

February 26, 2011 Leave a comment

Justices weigh dispute over child-abuse cases


Kroger AP – FILE – In this Sept. 20, 2007 file photo, John Kroger announces his campaign for Oregon Attorney General
By DAVID CRARY, AP National Writer David Crary, Ap National Writer Sat Feb 26, 9:23 am ET

NEW YORK – Eight years ago, a child protection investigator and a deputy sheriff removed a 9-year-old Oregon girl from her classroom and questioned her at length as to whether her father had sexually abused her. According to the girl, they wouldn’t take “no” for an answer, and she falsely incriminated her father.

On Tuesday, that incident will be the focus of arguments before the U.S. Supreme Court in a divisive case that has roused intense interest among those with a stake in child welfare issues.

The central question: Did the two men violate the Fourth Amendment’s ban on “unreasonable search and seizure” when they questioned the girl in that manner without a warrant, without her mother’s consent, and in the absence of emergency circumstances?

The 9th U.S. Circuit Court of Appeals in San Francisco, weighing a lawsuit filed by the girl’s family, ruled that her rights had been violated. The state of Oregon appealed, and the Supreme Court agreed to hear the case.

Oregon officials, supported by briefs from the U.S. government, 40 other states, and various law enforcement and child-advocacy groups, argue that requiring a warrant in such cases would undermine a proven method of investigating child abuse. They say investigators initially may lack sufficient evidence to obtain a warrant, and need the leeway to interview a possible victim without the parents’ presence, at a school or another site away from home.

On the other side, an attorney representing the Greene family will argue that the interrogation was unconstitutional, and a warrant should have been sought. In support of this stance, 18 friend-of-the-court briefs have been filed by 70 groups, ranging from liberal to conservative, which are concerned about overzealous child-protection policies and encroachment on parental rights.

One reason for the high interest: Experts say it’s the first major case involving child-protection services to go before the Supreme Court in 21 years.

The case stems from an incident on Feb. 24, 2003, when social services investigator Bob Camreta and deputy sheriff James Alford removed the 9-year-old from her classroom in Bend, Ore., to interview her in a school conference room about alleged sexual abuse by her father. According to her family’s court brief, the girl repeatedly denied that any such abuse had occurred, then changed her story after two hours of intensive questioning.

“Fearing that the school bus would leave without her at dismissal time, the frightened child decided to lie, just to get out of the room,” according to that brief.

The girl was removed from her home and placed in foster care; only three weeks later was she allowed to return to her mother, Sarah Greene. The charges against the father, Nimrod Greene, regarding his daughter later were dropped, although he did accept a plea agreement, entailing no jail time, to an earlier allegation that he had attempted to fondle the 7-year-old son of his employer.

Carolyn Kubitschek, a veteran of many child-welfare cases New York, will make her first appearance before the Supreme Court to argue that the girl’s interrogation was unconstitutional.

“What the police and child welfare people are asking is a very broad ruling giving them the green light to interrogate kids whenever they think it’s reasonable, without any court telling them, `No, you can’t’ … (and) without the threshold of it being an emergency,” she said in an interview.

The lead argument on the other side will be presented by Oregon Attorney General John Kroger, whose brief says the girl’s interrogation was justified and reasonable.

“The alternatives to an in-school interview are fraught with potential peril for child victims or are impractical,” Kroger argues. “Seeking parental consent is simply not a safe or viable option when the suspected abuser is a parent. Obtaining a warrant … without interviewing the child may be impossible or inadvisable.”

Kroger’s brief depicts child abuse as a “national epidemic,” affecting more than 750,000 children annually. It notes that parents are the abusers in more than 80 percent of the cases.

Among the groups supporting Kroger is the National District Attorneys Association. A member of its executive committee, District Attorney Joshua Marquis of Astoria, Ore., said the 9th Circuit ruling has had a chilling effect in Oregon, prompting some school districts to forbid the questioning of children by police or child protection workers without parental consent or a warrant.

Such interviews often are necessary, he said, because parents may have an interest in covering up wrongdoing, and physical evidence that might help justify a warrant often is absent in child abuse cases.

“Should we have a system that errs in favor of preservation of the family, or that errs in preservation of the child’s safety?” Marquis asked. “To me that’s an easy decision. … The most important thing is best interest of children.”

Like others involved in the case, titled Camreta v. Greene, Kubitschek is struck by the diversity of the groups supporting her side.

“Whether people are on the left or right politically, battered women or fathers’ rights groups, they all recognize that the family relationship is important, and children don’t exist in a vacuum,” she said. “They are not creatures of the state, and armed police officers can’t just remove them and question them without any constraints.”

Groups supporting Kubitschek and the Greene family range from the conservative Family Research Council to the left-leaning Southern Poverty Law Center. The two groups normally are at odds; the law center even has branded the council a “hate group” because of its position on gay rights.

Ken Klukowski, director of Family Research Council’s Center for Religious Liberty, described the Greene case as a “close call” due to the common interest on both sides in upholding the best interests of children. However, he said the issue of government encroachment on parental rights prompted the council to get involved.

“I have no doubt these school officials were acting with good intentions,” he said. “But they should not be exercising parental authority in this way without consulting either the parents or a judge.”

The brief filed on behalf of the Southern Poverty Law Center and several other legal advocacy groups argues that interrogations such as the one in Bend can cause lasting trauma to children and their families — including unwarranted removal of children from their homes to be placed in foster care.

“If an interrogation is conducted in a manner so deficient that it unnecessarily traumatizes the child and produces unreliable information … then the state has caused harm without actually advancing its protective goals,” the brief says.

Richard Wexler of the National Coalition for Child Protection Reform, which seeks to reduce the number of children unnecessarily placed in foster care, said Camreta v. Greene was distinctive in bringing together such diverse groups.

“What all these organizations are seeking is simply a guarantee that innocent children will have the same constitutional rights as suspected criminals,” he wrote in an overview of the case. “The Constitution is meant to protect citizens from harm, not to spare bureaucracies a little inconvenience.”


Bankruptcy Filings at Five-Year High, Led by Chapter 7s

February 25, 2011 1 comment

Bankruptcy Filings at Five-Year High, Led by Chapter 7s

Mary Pat Gallagher


The number of bankruptcies filed nationwide last year was the most since 2005, driven mainly by increased Chapter 7 filings, and New Jersey had one of the biggest boosts overall, according to the latest federal judicial figures.

But the increase does not necessarily translate into more business for lawyers, as so many of them are vying to get a share of the work.

The 1,656,340 petitions filed nationally in 2010 was 8 percent higher than the 1,575,624 in 2009, though well short of the record-breaking 2,078,415 in 2005. The majority of bankruptcies last year, 1,139,601, were Chapter 7s, according to figures released Feb. 15 by the U.S. Administrative Office of the Courts.

In New Jersey, bankruptcies rose 14 percent from 2009 to 2010, from 36,240 to 41,366, of which 31,879 were Chapter 7 filings.

Only 10 of the 94 districts saw a bigger bump than New Jersey and seven of them are part of the Ninth and Tenth circuits in the West.

The largest rise, 36.2 percent, was in the Southern District of Florida, and the sixth-largest, 18.9 percent, was in the Eastern District of Pennsylvania.

New Jersey’s Chapter 7 petitions for 2010 are the highest in the past decade, other than 2005, when a record 37,397 were filed as debtors scrambled to get in the door in advance of a change in the law that imposed a means test. That total was more than 35 percent above the 27,604 the year before.

New Jersey filings for all chapters totaled 49,583 in 2005.

The means test was one of many changes enacted as part of the Bankruptcy Abuse Prevention and Consumer Pro-tection Act of 2005. It was meant to cut back on Chapter 7 filings and push people into Chapter 13, where they would have to come up with plans to repay their debts rather than erase them.

The swell of Chapter 7 filings in advance of the legislation was followed by a sharp drop to 8,126 in New Jersey for 2006. They bounced back to 12,411 in 2007, and have climbed steadily since: 18,377 in 2008, 27,485 in 2009 and 31,879 last year.

The overall number of cases in New Jersey last year, 41,366, was essentially the same as before the 2005 spike, 41,253 in 2004.

Chapter 7 cases, however, now constitute a greater portion of the whole. While they made up 67 percent of all cas-es in 2004, they now comprise 77 percent.

Consumer bankruptcy lawyer Martin Wolf says that though bankruptcies are up, business is not necessarily boom-ing because so many more lawyers have flooded the practice in response to economic conditions.

“Everyone and their mother has now gone into the field,” says Wolf, a Newark solo and co-chair of the New Jersey branch of the National Association of Consumer Bankruptcy Attorneys.

In his view, many newcomers are “amateurs” who are not up to the task.

Inexperienced lawyers are less likely to push back against Chapter 7 trustees who have become more aggressive in hunting down assets, says Wolf, who has been practicing bankruptcy law in New Jersey since 1995.

They are also more inclined to file petitions when it might be in the interest of the client to hold off, he says.

For instance, it makes sense for people who are underwater on their mortgages and facing foreclosure to postpone Chapter 7 until after the sheriff’s sale so the sale costs can be discharged along with the rest of their debts.

“If they file too soon, they will still be on the hook for expenses from the foreclosure because title is still in their name,” says Wolf.

High volume and recent concerns about the integrity of foreclosure proceedings have slowed things down recently, says Wolf. As a result, even though he has seen an uptick in clients, he is filing fewer cases.

The same concerns about filing too soon apply to people who expect to keep running up debt because they do not have a job or health insurance, says Wolf.

Based on his experience, that means that as high as the number of Chapter 7 debtors now is, additional people need to file and could satisfy the means test but are waiting until they get back on their feet before wiping the slate clean.

Gary Norgaard, of Stern, Lavinthal, Frankenberg & Norgaard in Englewood, notes that filing prematurely can be costly because debtors cannot file another Chapter 7 for eight years.

He also points out that the 2005 law made filing bankruptcy more expensive; lawyers are charging more because they have added obligations and clients also have to pay to satisfy new counseling requirements. The added expense is probably deterring some debtors who would otherwise file, in his view.

Norgaard says has not seen cases delayed by the increased filings.

“We have the capacity to deal with it,” Chief Judge Judith Wizmur, based in Camden, says about the filing in-creases. She notes that the district is fully staffed with bankruptcy judges and, in any event, most work in consumer cases is handled by the panel of Chapter 7 trustees, whose numbers have remained fairly constant.

Arthur Abramowitz, of Cozen O’Connor in Cherry Hill, who chairs the State Bar Association’s Bankruptcy Section, says business filings have been flat or negative. For example, Chapter 11 cases in New Jersey fell from 432 in 2009 to 345 in 2010, a 20 percent drop.

Wolf says companies are filing in other districts instead.

He also notes an accelerating trend of businesses that enter Chapter 11 being less likely to reorganize and emerge as going concerns. Many are forced to convert to Chapter 7 or liquidate because lenders are less willing to loan them money, says Abramowitz.

DWI Conviction Entered in Face of Reasonable Doubt Is Reversed

February 25, 2011 Leave a comment

DWI Conviction Entered in Face of Reasonable Doubt Is Reversed

Charles Toutant

New Jersey Law Journal

February 24, 2011




An Essex County judge who shifted the burden of proof to the defendant in a drunken-driving case and convicted her despite finding reasonable doubt was reversed Thursday by a state appeals court.

The Appellate Division rejected the state’s request for a limited remand, on the theory that Superior Court Judge Robert Gardner merely spoke imprecisely. “The fact-finder found a reasonable doubt yet convicted defendant nonetheless. If we remand to the fact-finder for clarification, we would be inviting the court to make a finding inconsistent with its stated finding of reasonable doubt,” the appeals court said in State v. Driscoll, A-5842-08.

Patricia Driscoll was pulled over after a Fairfield police officer saw her driving very slowly on Route 46. She also struck a curb and ran a red light. Driscoll failed field sobriety tests, could not recite the alphabet beginning with the letter “K,” seemed disoriented and staggered while walking.

A breath test yielded a reading of zero alcohol in her blood, but a urine test revealed the presence of codeine and butalbital, a barbiturate.

Convicted in municipal court, Driscoll appealed to the Law Division. There, the state contended that she was guilty because she was under the influence of a narcotic. She was taking a drug called Fioricet, which contained codeine and butalbital, to treat chronic headaches, and Paxil, which enhanced the effects of the codeine and butalbital.

The defense presented testimony from Driscoll’s treating neurologist, Nabil Yagzi, who said her erratic driving on the night of her arrest was the result of Lyme disease, fatigue and a condition called presyncope, which causes dizziness, disorientation, loss of balance and mild cognitive dysfunction.

Yagzi testified that the Fioricet, which he prescribed, would not affect Driscoll’s driving because her brain had adapted to the medication regimen through long-term use.

Gardner, in deciding to let Yagzi testify, said he would rule whether Yagzi “produced a reasonable doubt or not with regard to the allegations alleged against the defendant.” But after hearing Yagzi’s testimony, Gardner said the defense “has the burden of proof with regard to raising the defense in this matter.”

In his oral opinion on June 16, 2009, finding Driscoll guilty, Gardner said he did not find Yagzi’s testimony credible. He said Driscoll’s actions on the night of her arrest were consistent with symptoms of fatigue and headaches as well as drug or alcohol intoxication.

“As a reasonable doubt exists as to the etiology of the observed symptoms, the defendant cannot sustain the burden of proving beyond a reasonable doubt the defense offered in this case,” Gardner said.

On appeal, Driscoll maintained that Gardner committed plain error by imposing a burden of reasonable doubt on her and convicting her after concluding reasonable doubt existed. The state, on the other hand, argued that the trial judge did not intend to impose the burden of proof on the defendant, but was confusing in his verbiage.

But Judges Edith Payne and Ellen Koblitz refused to discount the trial judge’s findings of reasonable doubt.

“Findings are not formulaic phrases lacking serious import. When the trial court finds a reasonable doubt, we accord great weight to that finding. We do not accept that a finding of reasonable doubt is merely a poor word choice or result of some confusion in the court’s mind,” the panel said.

The panel said Driscoll “had a prescription for a medication that explained the presence of drugs in her urine. This evidence could have easily raised a reasonable doubt in the fact-finder’s mind.”

The state has not decided whether try to seek certification from the Supreme Court, says Assistant Essex County Prosecutor Maria Guerrero, who argued the appeal.

“My reading of the transcript is that the judge was not trying to shift the burden of proof to the defendant. The court did not agree,” Guerrero says.

The state’s contention that Gardner misspoke when he imposed a burden of proof on Driscoll fell flat because he made the same statement three times on the record, says defense lawyer Scott Kobil of Latham & Watkins in Newark, who took the case as a pro bono assignment.

D.C. Judge Dismisses Suit Challenging Health Care Law

February 22, 2011 Leave a comment

D.C. Judge Dismisses Suit Challenging Health Care Law

Updated 8:45 p.m.

A federal judge in Washington today sided with the Justice Department in dismissing a suit that challenged the Obama administration’s health care reforms, adding to the divide in the federal judiciary over the constitutionality of the controversial legislation.

The plaintiffs in Washington federal district court sought a declaration from Senior U.S. District Judge Gladys Kessler that the individual insurance mandate in the health care law is unconstitutional on the ground it violates religious freedom.

Kessler called the individual mandate a “critical element in Congress’s comprehensive plan to reduce the spiraling health care costs that this country has experienced and is expected to experience in the future.” Click here for the 64-page ruling.

Kessler granted DOJ’s motion dismiss the plaintiffs’ amended complaint [.pdf], which was filed last July. A copy of the Justice Department’s motion to dismiss, signed by Civil Division trial attorney Eric Womack, is here.

A lawyer for the plaintiffs, Edward White III of the American Center for Law and Justice, said the ruling disappointed the plaintiffs and that they are planning an appeal.

The plaintiffs include a 62-year-old self-employed resident of North Carolina, Margaret Peggy Lee Mead, who has not had health insurance for about 18 years. Mead and two other plaintiffs intend to refuse medical service for the remainder of their lives. Two plaintiffs in the suit said they want to pay for medical services with their own money.

Three of the plaintiffs, including Mead, believe “God will provide for their physical, spiritual and financial well-being,” Kessler wrote.

The health care law, Kessler said, will not impose a “substantial burden” on the exercise of religious beliefs. The judge said it’s unclear how the law “puts substantial pressure on plaintiffs to modify their behavior and to violate their beliefs, as it permits them to pay a shared responsibility payment in lieu of actually obtaining health insurance.”

Kessler said the individual mandate provision “serves a compelling public interest and is the least restrictive means of furthering that interest.” The government, the judge said, “has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.”

The litigation, Kessler noted, is one of many similar suits in federal district courts around the country.

“The controversy surrounding this legislation is significant, as is the public’s interest in the substantive reforms contained in the Act,” wrote Kessler, appointed to the federal trial bench under President Bill Clinton. “It is highly likely that a decision by the United States Supreme Court will be required to resolve the constitutional and statutory issues which have been raised.”

New Jersey Defensive driving courses

February 22, 2011 5 comments

Defensive driving courses

Most road accidents are caused by driver error. To reduce the likelihood of being involved in an accident you need to understand the concept of “defensive driving.” This course will provide you with standard accident-preventing techniques.

Upon completion of the defensive driving course:

  • Two points will be removed* from the accumulated points you currently have on your license
  • You may also qualify for an insurance rate reduction (contact your insurance agent for more information)

*Point credits for state-approved, New Jersey defensive driving course curriculum only. Check with course providers before registering.

See a list of state-approved defensive driving courses below or take an online course.

Approved classroom course providers
State-approved defensive driving course providers are listed in a random order for customers to select a school which best suits their needs.

School Address Contact Telephone
AAA – South Jersey 700 Laurel Oak Road
P.O. Box 1953
Voorhees, NJ 08043-9053
Arlene Nastarowicz 856-783-4222
A-1 Peck/Sears Driving School 366 Route 46 East
Mine Hill, NJ 07803
James Peck 1-800-822-7640
Driver Safety Program
358 W. Dewey Ave
Roxbury Twp.
Wharton, NJ 07885
Patricia Davenport 1-888-227-7669
American Safety Institute, Inc. 9009 Mahan Drive
Suite 501
Tallahassee, FL 32309
Danielle Peterson 1-800-800-7121
Avanti Industries LLC 11D Brookside Heights
Wanaque, NJ 07465
Walter Mann 973-650-2375
Aware Driver Course 304 Park Avenue South, 11th Floor
New York, NY 10010
Gary Alexander 800-660-8908
Comedy Defensive Driving School 208 West State Street
Trenton, NJ 08608
Inquire with rep. 1-800-356-9705
Defensive Driving Course, Inc. 430 Watchung Ave. Plainfield, NJ 07060 Alison Abdelaziz 908-577-0281 or
The Driving Center 390 Amwell Rd., Bldg. 3 Suite 301 & 302
Hillsborough, NJ 08844
Michael N. Ferrara (908) 281-3876
Driving Dynamics 54 Birch Ave
Little Silver, NJ 07739
Paul Hubbard President 732-219-0404
Driving School
Association of NJ, Inc
2561 Yardville-Hamilton Square Road
Hamilton, NJ 08690
Dan Gaskill
DTA Program for Driver Improvement Driver Training Association, Inc. 433 Broadway – Suite 202 Saratoga Springs, NY 12866 Bill Crounse 1-800-243-2196
Garden State Safety Council 176 Terry Road
Smithtown, NY 11787
William Bonds
Gold Cross Safety Corp. 508 Main Street
Boonton, NJ 07005
Daniel P. Lanktree 973-402-8910
I Drive Safely 294 La Moree Rd.
San Marcos, CA 92078
Customer Service 800-723-1955
The NJ Motorcycle Safety Program, Experienced Rider Course NJ Ride Safe
NTSI 201 Edward Curry Ave
Suite 206
Staten Island, NY 10314
Rosemary DeFresco 718-720-6868
New Jersey Safety Program, Inc. 105 Idolstone Lane
Aberdeen, NJ 07747
Sharon Medoro 1-800-386-6562
New Jersey State Safety Council 6 Commerce Drive
Cranford, NJ 07016
Susan Rohoman 908-272-7712
USA Training Company, Inc. 1194 Hyland Blvd.
Staten Island, NY 10305
Gregg Silberman
State Coordinator
AAA – North Jersey Auto Club 418 Hamburg Turnpike
Wayne, NJ 07474
Dayna Bonazzi 973-956-2201
AAA – New Jersey Auto Club 1 Hanover Road
Florham Park, NJ 07932
Judy Demby 973-245-4860
AAA Mid-Atlantic 700 Horizon Drive
Hamilton, NJ 08691
Inquire with rep 800-374-9806
Last updated: January 20, 2011

Approved online course providers

State-approved defensive driving course providers are listed in a random order. Web site links are provided as a service for customers to select a school which best suits their needs.
Online Course Contact (e-mail)
A+ Comedy Defensive Driving Course,
by Traffic Safety Consultants, Inc.
U.S. Interactive
A Comedy Defensive Driving Course,
by Improv
American Safety Council
American Safety Institute, Inc.
Driving University
Fast and Stress Free Traffic School
Garden State Safety Council
I Drive Safely
National Safety Council
National Traffic Safety Institute (NTSI)
A Better New Jersey Online Defensive Driving School
A & A Safe2Drive
Last updated: January 21, 2011