Conviction Overturned Due to Defendent’s Lawyer Reading Magazines and Napping
On June 15, a New York judge set aside a conviction on the grounds that the defendant’s attorney had provided ineffective assistance of counsel.
For future reference, your lawyer may be providing ineffective assistance if he or she is sleeping or reading health-and-fitness magazines during trial.
Edward Trujillo, Julio Irizarry, and Jonathan Castillo were on trial for weapons charges after an incident in which one of them was (for some reason) shooting a nine-millimeter pistol into the air. (I suppose the problem with this is that the bullets have to land somewhere.) Officers found other weapons in the defendants’ SUV, and defendants were all indicted on weapons charges.
Irizarry was granted a mistrial based on an evidentiary issue. Trujillo wasn’t so lucky, but he did have another argument. Under Strickland v. Washington, a criminal defendant’s Sixth Amendment rights may be violated if the quality of representation was “below an objective standard of reasonableness.” Trujillo argued this had happened because, among other things, his counsel fell asleep at least three times during trial, read magazines while witnesses were testifying, and “gave a bizarre opening statement that caused the jurors to laugh.” With regret, the judge agreed.
The judge wrote that he had in fact seen Trujillo’s counsel “apparently sleeping at the counsel table” at least once. Saying he was aware that counsel had a “pre-existing medical condition” (he did not identify the condition, or the attorney), the judge noted he had called all counsel up for a sidebar to see if counsel was feeling well and to give him “every opportunity to revive himself, if necessary.” Presumably, counsel said he would try to stay awake, but failed.
The judge also semi-confirmed the magazine reading: “While the court cannot corroborate defendant Trujillo’s claim that counsel was reading a health and fitness magazine during the course of the trial, the court did observe a magazine fall to the floor during the trial proceedings and observed defendant Trujillo’s counsel pick up the magazine.” (This would be called “circumstantial evidence” that counsel was reading said magazine.)
Finally, it appears that the opening statement was indeed bizarre, and did indeed cause amusement:
Counsel for the defendant Trujillo did, indeed, give a bizarre opening statement. The beginning of counsel’s opening statement was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel’s opening statement and such laughter at a member of the bar created an unprofessional atmosphere. . . . [D]uring this trial, I found myself very uncomfortable whenever defendant Trujillo’s counsel addressed either a witness or the jury. It was impossible to predict what he was going to say.
The judge was clearly reluctant to criticize counsel, likely because of the undefined “pre-existing condition.” That is understandable. Although it would be more understandable if I could think of a pre-existing condition that can result in an irresistible urge to flip through a magazine while the other side’s witnesses are testifying. (I guess I should not be too critical since I may need to use this someday.)
Anyway, while this probably made the trial much more entertaining than most, the court held that Trujillo had not gotten “meaningful representation,” and set aside the verdict.
Mr. Castillo, who was apparently unfortunate enough to have a competent attorney, will be sentenced shortly.
Link: People v. Irizarry, 2009 NY Slip Op. 51258(U) (Supreme Ct. Kings County, June 15, 2009)
Link: ABA Journal
[thanks to kevin underhill via CC]
Blackberry v. Redberry: Trademark Lawyer Drafts a Letter
Let’s say you’re RIM, owner of the BLACKBERRY trademark. After years of trying to get into China market, just as you launch, you discover that a Chinese telecom giant has just launched its own wireless email product named REDBERRY.
What do you do?
Well, you could contact a great Chinese trademark lawyer like Spring Chang at Chang Tsi, and ask her what to do. This is what she’ll say (note – this letter was composed NOT at the request of RIM but at my request for purposes of the Trademark Blog, to illustrate what I think is a typical fact pattern confronting trademark owners):
Dear RIM:
1. Chinese Trademark registrations for BLACKBERRY registered by Research in Motion Limited – I confirm that RIM possesses around fifteen (15) registrations/applications of BLACKBERRY in Classes 9, 38 and 41 in P.R. China. The first registration was obtained approximately in the year 2001. Based on the aforesaid, I do not think we need to worry about a legal basis for a proposed action. ED NOTE: THIS WAS IN RESPONSE TO MY QUESTION AS TO WHETHER AN UNREGISTERED FAMOUS MARK CAN BE USED TO ENJOIN AN INFRINGEMENT – AN UNREGISTERED WELL-KNOWN MARK CAN BE USED IN THE PRC AS A BASIS FOR OPPOSING AN APPLICATION.]
2. Status on registration and use of the trademark REDBERRY – Our online research indicates that China Unicom released the REDBERRY push mail service on April 3, 2006. There is not much information revealed by our research regarding the actual use of REDBERRY as a trademark, and we are under the impression that it has not yet been used in a large scale. Meanwhile, our on-line trademark search reveals no REDBERRY trademark application/registration, in the name of China Unicon or any others. In a word, China Unicom has conmmenced the business use of REDBERRY but they would not have applied for/registered the trademark REDBERRY (unless they filed the application not long ago, like within 3 months or a little bit longer, in that circumstance, our search could not reveal the existence of the trademark applicadtion). To be prudent, an official search is likewise recommended.
3. Non-use attack concerns – Before contemplating any action against China Unicom, based on our registration for BLACKBERRY, we need to make sure that the client’s BLACKBERRY registrations in China are not vulnerable to non-use attacks (as some of them are registered for more than three years, but so far as I know, BLACKBERRY does not appear to have been introduced into China Mainland). [ED NOTE: DIFFERENT JURISDICTIONS HAVE DIFFERENT NON-USE TERMS. IN SOME JURISDICTIONS, RESUMED USE 'CURES THE DEFECT' BUT IN SOME JURISDICTIONS, DEAD IS GONE. OTHER VARIABLES REGARDING NON-USE IS WHETHER ADVERTISING WITHOUT MORE CONSTITUTES USE, AND WHETHER GOVERNMENTAL ACTIONS MAY EXCUSE NON-USE - ALSO, USE IN HK WILL NOT BE DEEMED USE IN PRC]
Please note that although BLACKBERRY is very famous in the US, Europe and many other jurisdictions, Chinese authorities will mainly consider its reputation and prior rights in China in determining a dispute. [ED. NOTE - THIS ILLUSTRATES A CHALLENGE IN FAMOUS MARK PROTECTION - DIFFERENT JURISDICTIONS HAVE DIFFERENT DEFINITIONS OF FAME - THE MOST COMMON DEFINTIONS BEING 'WORLDWIDE FAME' AS OPPOSED TO 'FAMOUS HERE.']
In other words, we can hardly resort to the international reputation of BLACKBERRY in an action againt China Unicom or other infringors, but rely on the prior registrations (and possible use) of the trademark in China. If the client is not sure about the actual use of BLACKBERRY mark in China, I suggest we take a very cautious attitude in determining the strategies in order to avoid possible offensive actions against our own registrations in China. [ED NOTE: MANY LARGE TRADEMARK OWNERS MAINTAIN TRADEMARK HYGIENE PROGRAMS TO ENSURE THAT IMPORTANT MARKS DO NOT BECOME VULNERABLE TO NON-USE ATTACK].
4. Proposed actions against infringement – Basically, if not considering the non-use attack issues, the client may consider
4.1 serving a Cease and Desist Letter to China Unicom in hope that they may give up the REDBERRY mark voluntarily.
4.2.lodging a litigation against China Unicom to force it to stop the use of REDBERRY. [ED NOTE: ALWAYS INQUIRE REGARDING URGENT vs. PERMANENT INJUNCTION RELIEF. ASK ABOUT FILING DEADLINES AND WHETHER BONDS WILL BE REQUIRED].
For the first choice, it could be efficient in terms of time and cost, if the cease and desist letter actually works. While, the outcome of a cease and desist letter is normally unpredictable because it depends on the counterparty’s attitude. [ED. NOTE: THIS IS GOOD GENERAL ADVICE BUT IN THIS PARTICULAR SITUATION, MY HUNCH IS THAT BECAUSE CHINA UNICOM LIKELY DIDN'T SELECT THE MARK BY ACCIDENT, IT IS UNLIKELY TO BE PERSUADED BY A LETTER]
For the second choice, more factors need considering carefully and more research is needed. At present, we need to consider at least the following main issues:
a. China Unicom is a telecom giant, we need to consider as whether its background and power could affect the suit [ED NOTE: GOOD ADVICE IN ANY COUNTRY]
b. we need to carefully study the use status of the BLACKBERRY trademark registrations so as to avoid the non-use attack directing at our existing trademark right;
c. we need to carefully study the use status of the REDBERRY and BLACKBERRY mark in Chinese market so as to see whether we may claim unfair competition;
d. we need to research as whether the trademarks of the parties constitute confusingly similar as as to cause misleading; if yes, infringement of trademark right could be established.
Hope the aforesaid could address your concerns, and we are looking forward to discussing with you further.
Best regards
Spring
ED NOTE: ALWAYS ASK FOR A LIKELIHOOD OF SUCCESS AND A COST ESTIMATE.
UPDATE: I am told by Samuel the Blog reader that this is a press release from China Unicom that states that it chose REDBERRY because “it continued the familar Blackberry name and carry on the color red in Unicom’s visual identity.”
[thanks to Martin Schwimmer via CC]
Planning Your Digital Estate: Dealing With Online Data After Death
All grown-ups know about the importance of estate planning. Even if we don’t always heed the good advice, we know that we need a will, life insurance, and an estate plan, and we know what we need to do to ensure that our money and property is distributed efficiently and in accordance with our wishes. But how many of us have given much thought to our digital estate? Riddle me this- what happens to your blog if you die? What happens to your Facebook account? What about Twitter, MySpace, and most importantly, eHarmony? The answer depends largely on how well you’ve prepared. While the law has developed a few hundred years of precedent addressing what happens to your real property and livestock, it has not yet evolved to effectively deal with questions of online data or identities.
Email Accounts
As a general rule, you own your email and electronic correspondence and you can leave this to whomever you choose in your will. However, if your family or executors don’t know your email passwords, they may have trouble retrieving it. Email providers have struggled with how to deal with this issue and to balance privacy and security concerns with giving access to grieving families. In 2004 the family of Justin Ellsworth, a young Marine killed in Iraq, tried to get access to the contents of his Yahoo! account. Yahoo! refused, and a prolonged lawsuit resulted. The court ultimately ordered Yahoo! to provide the family with copies of the emails contained in the account, although they didn’t actually get electronic access to the account itself. Other web-based email providers have taken a similar approach, albeit without having to be forced by the courts to do so- Gmail and Hotmail will both give access to email contents upon proof of death and proof of relationship.
It’s quaint to think of your email archive like a long forgotten box of love letters from the war, pages yellowed and corners tattered. But the reality is a little more complex- do you actually want your family to be able to read your email after you’re gone? I’m not sure that I do. While some old messages may bring some joy or shed some light on aspects of my life, there are a lot of messages that are nobody’s business but mine. Do you want your family to have access to ribald jokes and gossip sent between friends? To e-fights (or e-love, for that matter) between you and your lover? To receipts from all those adult sites you subscribe to? Probably not. But do you have a plan in place to make sure this doesn’t happen?
Facebook and Social Networking Accounts
Facebook and other social networking accounts are a little different than email accounts as the information on your profile isn’t as private as your emails- your profile is accessible and viewable by anyone who you’ve granted access. Your profile also appears as a friend of countless others, and will continue to appear until the account is either closed or your friends delete you. I’ll admit to a bit of e-voyeurism on my part- when I hear about a young person killed in the news, I have on at least one occasion searched for their Facebook profile just to see if it was still there and, if it’s an open profile, what has become of it. It’s morbidly fascinating to see the last few days of banality in someone’s life documented when you know the outcome. Silly status updates seem much more ominous, tagged pictures a little more haunting. For friends of the deceased, their Facebook page may be a source of comfort or a constant reminder of the loss. But how do you deal with it? Can you bring yourself to just delete your lost pal from your friends list? When is it appropriate? Who decides what happens to the account?
Myspace advises that their policy is to allow access to a deceased’s account upon verification of death, and a significant number of Myspace profiles remain active as memorials. There’s even an entire website dedicated to the Myspace profiles of the recently deceased. Facebook’s approach has been more restrictive- the original policy was to delete the account of a deceased one month after death. This was a controversial approach, and the family and friends of many deceased users protested. Facebook has since revised this to allow for the “memorialization” of accounts, where the accounts remain open as a tribute. There’s even a form you can use to report a user who has died. However, Facebook won’t release login information, so the account can’t be accessed, changed or updated and your final status update may forever remain “MGL is going to stuff his face with hot dogz!!!”.
Blogs and Online Content
An additional consideration for managing your digital estate arises for those of us who run blogs. Much like social networking and email accounts, online service providers such as Word Press and Blogger are reluctant to release login details, even to an executor. If your blog is hosted on your own server or through a third-party hosting service, the task of accessing the site is further complicated and in some cases may be close to impossible. And consider this- many bloggers set up articles to automatically post at a certain time in the future, allowing them to continue regular posting even while busy or on vacation. It is quite conceivable that a blog could continue to be updated and appear to be “live” even when the author isn’t. In one case, a blogger who committed suicide intentionally set his blog to continue posting after his death . Heck, I could be dead right now and you’d never know!
If you’ve got a blog, you’ve also got intellectual property including copyright to your writings and any trade-marks associated with your site. You may also have photographs, music, and other works that are published and maintained online. Copyright generally lasts for 50 years after the death of the author, so there’s a significant tail period of copyright protection that vests in your estate and, just like any other form of property, IP can be given to a specific individual in your will. If the will does not specify who gets your intellectual property, the standard rules of distribution apply. Exactly how much this IP will be worth varies greatly, but even more important than the monetary value may be the continued control and moral rights respecting your content. We each have preferences for what will happen to our content once we join the dearly departed, but without proper instruction to your executors or beneficiaries there is no way to know what will actually happen.
Planning Ahead for Life 2.0
For some people, this mishmash of postmortem procedures may suit you just fine. But if you’re like me, you may find them inadequate and unreliable. If that’s the case, here are a few suggestions for getting your e-affairs in order.
First, find a “digital executor”, someone who you trust to carry out your wishes with respect to your online personas. Who you choose may depend on what you want done- if you want your emails wiped so your wife doesn’t find out about your girlfriends, she may not be the best choice and a trusted and close friend may be a better option. It is also important to make sure that this person has the technological know-how to carry out your wishes. While it may make for an awkward situation, let this person know ahead of time that he or she has been selected as the lucky contestant to take care of your online estate.
Next, create a “digital will” telling your executor what you want done and giving him or her the information needed to carry out your wishes. This doesn’t remove the need for a real will, doesn’t require the help of a lawyer, and is likely not legally binding in any way. Instead, it’s a way to provide clear information on your wishes with respect to things that may fall outside your will (or just be overlooked) and make the processes much easier for all involved. Prepare a list of your email and social networking accounts along with your login data and brief details on how to access the accounts. If there is anyone from your online contacts that you want notified, write it down along with any other special instructions, such as what you want done with email and other data. Make it clear what data you want destroyed, what you want preserved, and how you want your representative to deal with your online presence. This list is going to contain very sensitive information, and you don’t want it falling into the wrong hands- don’t just jot it down on a piece of paper or save it on your hard drive. Consider keeping it on a password encrypted USB drive that you can update regularly and keep somewhere safe, but make sure your digital executor will know where to find it and what the password is. Don’t include banking information or accounts- your executor will be able to access your accounts without your online sign-in info, and having this data compromised could be disastrous.
Finally, it is important to remember that I totally made up the idea of a digital will and executor. They don’t exist at law, and your real will can override any designations you make. With that in mind, this is a good time to update your will to include specific provisions for who will take ownership of your intellectual property and any data that you leave behind. Discuss the options with your lawyer and let her know that you’ve made separate arrangements for access to your accounts, and see if there are any other changes that need to be made to give effect to your wishes.
Now if you’ll excuse me, I’m off to think up a witty and profound quip to have left as my final Tweet…
[thanks to money grubbing lawyer via CCAND]
