Judicial Reports: LexPress: 'Improper' But 'Immaterial'

By Lily Henning

Posted 10-27-06 

 
A judge's ex parte coaching session is deemed inconsequential to the case, litigation proceeds on video games and eminent domain, and a Supreme Court judge is brought to tears.

 

EX PARTE EXCEPTED
An “improper” conversation between Queens Supreme Court Judge Jaime Rios and a prosecutor won’t win a convicted murderer a new trial, Brooklyn Supreme Court Judge Matthew D’Emic ruled yesterday. Lawyers for Tyrone Johnson were hoping that the wrongful termination lawsuit filed by a secretary against Rios, her former boss, would ultimately help their client. But D’Emic decided that the conversation that Rios had with prosecutor Eugene Reibstein in Johnson’s murder trial was not “material enough” to merit a new trial for the man, the Daily News reports. The conversation, in which Rios allegedly coached the prosecutor, came to light in the suit field by the ex-secretary. (That suit alleged a few different things, among them — including that Rios had an improper relationship with an assistant district attorney — but not the one who prosecuted Johnson.) “The conversation ... started properly but certainly drifted [and] strayed into improper territory,” D'Emic wrote in his 12-page decision. But those comments would not have changed the outcome of the case, because they occurred months before the trial and were inconsequential. Johnson was eventually convicted and sentenced to 20 years to life for the murder of club owner Leroy Vann. Johnson’s lawyer, star defender Ron Kuby, says he will appeal the ruling.

 
GAME ON
A lawsuit led by an 86-year-old grandmother against the makers of one of the best-selling — and violent — video games around can go forward, a federal judge in Manhattan rule yesterday. The New York Post reports that Bronx resident Florence Cohen bought the game “Grand Theft Auto: San Andreas” for her teenage grandson, only to discover later that it contained hidden sex scenes that could be viewed with easily accessible software. The game was rated for “mature” audiences, not the more stringent rating of “adult”, for players over 18. The rating was later changed to adult after the scenes were discovered, but not until after the game had been on the market for more than a year. In a ruling issued yesterday, Manhattan federal Judge Shirley Wohl Kram refused the request by gamemaker and distributor Take-Two Interactive Software and Rockstar Games to dismiss the class action lawsuit, which was filed last year. Wohl Kram will next decide whether the suit can proceed as a class action, which would entitle buyers of the game across the country access to damages.

 

IMMINENT SUIT PAIN
Opposition to the Atlantic Yards project made its way to federal court in Brooklyn yesterday in what The New York Times calls a “widely anticipated” maneuver. Plaintiffs are challenging the state’s authority to use eminent domain power to acquire the Brooklyn property where the $4.2 billion development is slated to go. The 10 people who filed have refused negotiations to buy their homes or businesses, according to developer Forest City Ratner. “The Atlantic Yards proposal is premised on the abuse of eminent domain,” said Matthew D. Brinckerhoff, the plaintiffs’ lead lawyer. It would mean “the taking of one citizen’s property to benefit a powerful and influential private citizen,” he said. The complaint was assigned to Eastern District Judge Nicholas Garaufis and Magistrate Judge Robert Levy, reports Tom Perrotta in the New York Law Journal, noting that the Supreme Court’s controversial 5-4 ruling last year in Kelo v. City of New London left open channels through which the plaintiffs can sue the state. Local government can use the power of eminent domain to take property for private development — as long as it is in the public interest. In a concurring opinion, Justice Anthony Kennedy wrote that the use must be “rationally related” to a public purpose. The plaintiffs say the project does not meet that requirement.

 

JUSTICE WEEPS
The victim's impact statement in a horrific baby-shaking case was so sad, reports the New York Post, that even Manhattan Supreme Court judge Bonnie Wittner was brought to tears. The infant apparently suffers permanent brain damage due to a nanny's violence. "Nothing I can say can comfort you," said Wittner to the distraught mother, before sentencing the nanny to 10 years in prison. "I hope that by your participation in these proceedings, and being able to express yourself, it gives you some comfort."

 

LEXBLOGS

Over at the group political blog, Room Eight, a former Brooklyn leader weighs in on the judicial debate with an editorial called "Judge Dread." Retired Councilmember (and former counsel to the Brooklyn Democratic Party) Ken Fisher offered a frank assessment of New York's judicial selection struggle: 

 
"During my tenure as party lawyer, I was a defender of the status quo, intoning the wisdom of the electorate as the final arbiter of qualifications. With a little distance, I realized that the system was not designed to necessarily pick the best judges," he wrote.

 
Fisher promises that more political columns will follow. Judicial watchers need to keep an eye on his blogging byline...
 

Ben Smith offers his two-cents on judicial selection at Daily Politics. His post generated some intense feelings in his readers, prompting City Councilman Lew Fidler to respond to an anonymous critic in the comments section of the Daily News blog.

 

Posted by Dirk on October 27, 2006 10:57 AM to Judicial Reports