For quite some time, I have been harping on the logical extrapolation of wrongful convictions in non-DNA cases based upon the post-conviction determination that an innocent has been convicted based on DNA.  In other words, if 10% of all people convicted where subsequent use of DNA proved that they were in fact innocent, what does this mean for the greater population where no DNA evidence is available?  By simple logic, at least 10% of these defendant are also innocent and wrongfully convicted.

For all the stories about DNA and wrongful convictions, nowhere has anyone made the effort to follow this problem to its logical conclusion.  Until now.  Thanks to New York Times legal reporter, Adam Liptak, a new study by UVA Law Professor Brandon L Garrett does just that.  it’s about time.

According to Liptak, Prof. Garrett “for the first time, systematically examined the 200 cases, in which innocent people served an average of 12 years in prison. In each case, of course, the evidence used to convict them was at least flawed and often false — yet juries, trial judges and appellate courts failed to notice.”

Now that I’ve been vindicated, I want to take this opportunity to have a chat with the judges who are reading this.  The rest of you, go chat amongst yourselves.

Are they gone?  Good.  Now judges, let’s be honest.  We know what the problem is.  Your calenders are full.  You’re underpaid and feel neglected and unloved.   While we all love to spout platitudes about our wonderful system, we know that innocent people go to jail and guilty people go free, so what difference does it make?  Like you’re supposed to put your own butt on the line to let some poor schnook go.  And of course, it’s not like we haven’t heard it all a thousand times before.  Let’s take a hard look at reality: Most of them are guilty and a few have to take one for the team.  That’s the best we can do, right?

Most of these poor schnooks have a mother, a spouse or a child who, for whatever reason, loves and needs them.  You are causing these people misery.  For some, unbearable misery.  You wouldn’t pull the wings off a fly, yet you will take a parent from a child’s arms without losing sleep. 

Right now, you’re thinking, “this guy is incredibly naive.”  Perhaps, though I plead guilty to being a bit idealistic.  My point is that going with the odds is not good enough.  That most are guilty does not mean that you toss them all in jail and let god sort it out later.  You know that cops lie, yet you will rarely call them on it.  Even when you do, to some small extent, you don’t come right out and say it.  Why?  Because they have coopted you into their system.  Admit it. You feel closer to cops than to real people.  You don’t want to start a war, or get a reputation, as a defendant-lover.  It’s just not worth it to you, and it will sink your career faster than calling the Chief Judge a twit.

Remember why you wanted to be a judge (this only applies to some of you, not the ones with low self-esteem who wanted to make other lawyers suck up to you)?  It was to do some good.  To make your lives worthwhile.  Have you completely lost that desire?  Has your integrity so completely disintegrated that you no longer care at all whether you’re an instrument for good or evil?  Look inside yourself, I know there’s still some small piece of that integrity left.  It’s the little voice saying, “stand up on this one.” 

So there’s still a few of you saying, “Hey, you knew the price when you made me a judge.  I’m a ‘go-with-the-flow kinda guy, and don’t try to guilt me into being anything else.”  Well, how about this.  Maybe you don’t have to take the path of least resistance.  Maybe you can go home tonight and feel some iota of pride in having broken out of the box.  You can do it.  You can show them that you’re better than everyone assumed.  When was the last time you were alone and felt proud of yourself?  It can happen.

Just think about it.  Someday, a child may come up to you and thank you. 

A while back, Dave Hoffman at Concurring Opinions raised the question of whether the blawgosphere was stagnant.  As a new-comer to the Blawg Nation, I responded that there was an old guard and a new.  This was taken up by Mark Bennett, who coined the phrase “practical blawgosphere.”  Mark really does have a knack for phrases.

Live and learn.  When blogs turned to blawgs (the mix of law to blogs, since the mix of web and log into blog wasn’t good enough), the population largely consisted of law professors and politically financed pundits.  This was to be expected, as this was cutting edge stuff and practicing lawyers, while called many things, are rarely cutting edge.  Over time, these pioneers grew into powerhouses of the blawgosphere., with tons of readers, some with advertising and groups that developed to keep the content flowing.  It’s not easy to put finger to keyboard on a daily basis.  And for a long period of time, the blawgosphere was theirs.  If you googled a topic, you found your way to one of these blawgs.  And the blawgers themselves formed their loose coalitions, friendships developed and cross-referencing was a must.  It created a synergy that benefited all, and elevated the blawgosphere to a real world populated by known entities.

There were a handful of practicing lawyers who joined the ranks early, and were welcomed by the professors.  After all, the more people providing daily fodder from which each could work off, the easier it was to maintain daily content.   More importantly, ideas were flowing back and forth, and ideas were the coin of the realm. 

Over time, blawgs developed real personalities.  Some were very politically charged, while others simply had a certain tone that either pleased or inflamed others.  The law professors tended to right deeper, and sometimes more obtuse, pieces.  The politically motivated tended to go with juicier stuff, short and provocative.  Each would find its voice, and an audience would emerge from nowhere. And then one day, they were real.  People were listening.  People were reading.  They had an influence on thought.  This was a glorious thing.

And then the blawgosphere trickle down effect began.  Practicing lawyers began blawging their respective niches, offering up to the minute caselaw, news and analysis.  This is perhaps best described as the second wave of blawging, and the upstarts had to show a reason for their existence.  It was no longer enough to simply start a blawg the way the Little Rascals would put on a play. 

Simple Justice came into existence late in the second wave.  It’s about to enter its sixth month of existence, which would make it a huge success if it was a restaurant.  How it’s faring as a blawg remains a matter of time.  So far, it’s doing extremely well, doubling readership almost monthly.

When I started Simple Justice, I had no idea if anyone would come.  My purpose was clear to me; I’ve been writing for others for years, including op-ed pieces and letters for various Associations, to which others would put their name.  I’ve been fairly widely published, and there are a lot of “officials” who will owe their New York Times obits to me as a result.  My strength is my ability to crank out quality content quickly, not that everything I write is quality but I try.  When a day’s news required an op-ed in tomorrow’s paper, I had the wherewithal to make it happen no matter how many hours I spent in court that day.  There’s something to be said for that.

Keeping up with the news, with issues and with the penumbras of issues was a passion, I decided to try to put it to better use in a blawg.  The question that remained was whether anyone would bother to read it.  There is a certain amount of validation that we need to wake up every day and write something new. 

When I started, however, I had some great help that most newbie blawgers do not.  Andrew Lavoott Bluestone of New York Attorney Malpractice Blog, Eric Turkewitz of New York Personal Injury Blog and Nicole Black of Sui Generis were all instrumental in getting Simple Justice out there in the blawgosphere.  I want to take this opportunity to thank them for their help. These guys started the second wave of the blawgosphere, and without them I doubt there would be any Simple Justice.

Just as the old guard of the blawgosphere recognized their mutual dependence and synergy, so has the second.  Unfortunately, the same has not necessarily been true of the old and new guards.  The old guard has been slow to recognize and accept the newcomers.  In many instances, they have totally ignored their existence, and will often do stories that a new guard blawg did weeks before without any recognition or credit.  It’s kinda like being against immigration, as if the anglos weren’t the new kids on the block at one time.

I doubt that this reflects any “us against them” bias in the blawgosphere.  Frankly, I think it’s just a matter of time.  As natural selection weeds out blawgs that serve no purpose, or that people just don’t care to read, they will fall by the wayside.  Also, the amount of time and effort needed to keep up a daily blawg may force some blawgers to call it a day when their blawging gets in the way of their professional responsibilities. 

The problem is for the old guard is finding the time to locate, read and digest all the new content that finds its way to the internet.  There are only so many hours in the day, and a lot of them are already used up keeping your own blawg alive.  Time to pay attention to new ones is understandably hard to come by.  So once blawgs have some time to establish whether they will continue to exist, have something to add to the dialogue and are just worthy of the time, they will be noticed and accepted. 

Whether Simple Justice is part of this select group is up to you.  If you find it worth your time (whether you love it or hate it), come back every day and see what’s here.  If it provokes thought, leave a comment.  Become a subscriber and get your daily feed.  But one way or the other, let me know you are out there and I’m not in some big, empty room talking to myself.   And to those of you who have made it this far in this story (both of you?), thanks for reading Simple Justice.  I hope you come back and bring your friends.

The firing of 9 United States Attorneys has already claimed many casualties in the Justice Department, but it looks like its greatest impact will be the constitutional scheme of checks and balances.  The Bush administration’s latest assertion is that Congress’ contempt power miraculously disappears when the words “executive privilege” are spoken.  At that instant, the mechanics by which Congress enforces its ability to call officials of the Executive branch before it to answer questions publicly disappears.

But what does the understand about the invocation of privilege?  Apparently, not much.  It’s place in the prolix scheme of checks and balances is a little difficult to appreciate, particularly in a climate that has been so politicized for almost two decades, and hence the dangers of a road block that, from all appearances, requires nothing more than a President to mouth the words, is likely unappreciated.   Still, the public seems quite ready to accept the premise that the President ultimately retains all the real power in government.  To the extent that politicians demonstrate a little courtesy by listening to one another, it’s really no more than an inside joke.  Once the President puts his foot down, the game ends.

But how does this affect the legal system?  A commenter here queried why the police can’t just claim a privilege and put an end to the squabbling about manufactured probable cause.  This commenter didn’t appear to be antagonistic toward anyone in particular, just a real person asking a real question.  But the assumption underlying the question was a shot across the bow.  Secrecy in government, and secrecy by the police, are a mere stone’s throw away.  Rather than perceive police concealment as a very bad thing, will regular people see it as a “right” of the police provided that the end result is (at least from where they are sitting) a good thing?

First things first.  There is no such thing as police “privilege”.  They have no “right” to conceal.  Indeed, the Constitution provides just the opposite.  Disclosure is part of substantive due process, one of the most basic rights of citizens protected by the Constitution.  It demands that citizens be given fundamental fairness, including the ability to answer all charges against them.  To do this, they are entitled to know the truth, even when the truth cuts against the police.  While this may happen less often than we want, since non-disclosure of evidence that tends to hurt the police is observed more in the breach, it remains the duty of the police (via the prosecutor) to reveal.

Would regular people really want it any other way?  Well, one commenter at Grits for Breakfast wrote:

Criminals (alleged and/or accused) have so many “rights” that the system is weighted heavily in their favour, with all kinds of technicalities and sleazy defense attorneys making it easier and easier for them to get away with crimes. I don’t blame law enforcement agencies and their officers for using every means at their disposal to try and turn the tide in the daily war against crime.

Obviously, this guy has Tivo’d the Willy Horton commercial and keeps playing it over and over.  It harkens back to those days when constitutional rights were  turned into “technicalities” and the “war on crime” had supposedly turned out streets into the OK Corral.  Didn’t we learn anything since then?

This latest invocation of Executive Privilege, and its interpretation which suggests that the delicate balance between our three branches of government is subject to the approval of the Chief Executive may be bringing us back to those days when the public forgets its fifth grades civics lessons and puts its blind faith in the President.  The police are just a bunch of guys who work for him, so aren’t they entitled to claim privilege as well?  And why shouldn’t they be?

We have certainly had our share of police scandals, and New York has been in the forefront.  From the Serpico days, to the Dirty Thirty and DEA Group 33, to the State Troopers, the Crime lab and even Abner Louima, there is no doubt that when the police are left to their own devices, they can easily fall into the abyss of lies, deception and corruption.  Yet this is widely forgotten within minutes of the last news story.  I suppose when it happens with such frequency, we become too inured for it to sink deeply into our consciousness to have any impact. 

Will this idea that the Government has a privilege (a great word for its purpose, by the way) to conceal the truth from the public resonate?  Time will tell. In the battle of rhetoric, would the impact be different if it was called “The Executive Right to Conceal Information that Makes It Look Bad?”  I think so, and it would sit a lot better with me since its invocation would make clear what is really happening.  The Executive (or even the police) would be required to stand up in public and announce, “There is evidence that will make us look like lying, cheating, corrupt public officials, so we have decided that we aren’t going to tell you what it is.”  Fine, now ladies and gentlemen of the jury, go to your room and deliberate.  I could live with that.

Of course, that will never happen per se, though isn’t the invocation of Executive Privilege the same thing but in language that puts lipstick on that pig?  We need to recognize that the public is only seeing the pretty lipstick, and may be unable to see the pig behind it.  But to ignore that this is making some headway in the public psyche would be to court disaster. 

I was having dinner at a friend’s house last night, and one of the other guests was a retired partner from Fried, Frank, a law firm at the core of Biglaw.  He was a very pleasant fellow, and had stories to tell.  In the relative scheme of things, I was still young enough to listen to his tales of the old days without interrupting.

Foremost, he was a gentleman.  He spoke with a certain precision that reminded me of a thoughtful, yet cautious, raconteur.  There was no chance of a colloquialism inadvertently popping out.  Even speaking, you could see him dotting his “i”s and crossing his “t”s.  I was absolutely certain that no contract ever left his desk with a typo, even if it meant having it redone 12 times.  It simply would have been unacceptable.

He spoke of a time when lawyers first concern was their dignity.  They were lawyers 24 hours a day, 7 days a week, and they acted like it.  They not only knew how to tie a four square, but the proved it on a daily basis.  Lawyers had an image to uphold.  They did not go out in a “t-shirt”.  That would have been unbecoming for a lawyer. 

Truthfully, it conjured up an image of refinement that, in the back of my head, seems very alluring.  I had always wanted to exude the sort of dignity that came so naturally to him.  Sometimes I tried, but I bet anyone who knew enough to appreciate it recognized me as an imposter.  My demeanor would always have its rough edges, no matter what airs I would put on.

I knew I was in trouble when our host served his “famous” barbecue ribs for dinner.  I love ribs.  But eating ribs can be a bit tricky.  I used to take dates when I was in law school to a rib joint on the east side of midtown Manhattan, because if I was going to spend money I didn’t have, at least I wanted to enjoy the meal.  It never occurred to me that eating ribs on a first date might present a problem.  I was not too bright in that respect.

So as a firmly grasped my rib, trying to be certain that it wouldn’t leap from my hand onto the hostess’ lap, I saw how a real lawyer does it.  With knife and fork in hand, he deftly stripped the rib of meat and cut off a small piece, just enough to eat without the possibility of mishap.  It hadn’t even dawned on me that you could eat a rib with a knife and fork.  What was I thinking?

As the evening went on, I learned a great deal.  I learned how the universe of lawyers to my Fried Frank mentor was made up of about 100 law firms, the smallest of which had about 50 partners and was labeled a “boutique” by definition.  I learned about how the concept of “portables” applied to all mobile lawyers, as there could be no reason to speak to a lateral if they didn’t bring a book worth twice what they were making.  The application of skills to law was a concern only for the junior associate, who had no portables and hence had to work his way into their good graces.  Somebody had to do the work, of course, but the business of law firms was still business.

And then there was the bottom line.  Regardless of all the things that we hold dear today, there was a baseline requirement that lawyers be gentlemen.  Not hold the door open for ladies type of gentlemen, but boarding school type of gentlemen.  Choate, Phillips Exeter, sort of thing.  Outsiders misunderstood that it was about race and religion, or even gender, in the old days. No, that had nothing to do with it, except of course that it was not too common for non-Wasp males to find their way into the college preps where gentlemen were trained.

I can remember my third year of law school, seeking and getting the occasional interview with a Biglaw firm.  I was embarrassed by my Robert Hall suit that marked me as a poor lawyer wannabe.  I asked my mother, can you loan me some money to buy a suit at Brooks Brothers for the interviews?  No, she said, we don’t have money to waste on such things.  Tell them that once they hire you, you’ll have enough money to buy a decent suit.  She didn’t understand.  If you didn’t know how to dress, then you would never fit in.  It takes years to learn to wear a pink shirt properly.

Criminal defense lawyers don’t belong in the hallowed offices of Biglaw.  We don’t eat properly.  We sometimes speak in plain English (or even other languages).  We laugh too loud, and usually come from public schools.  I asked where he thought a solo practitioner like me belonged in the scheme of lawyers.  He was silent for about a minute, and then said, “I really don’t know.”  He knew we existed, though he rarely came into contact with someone like me.  He understood that we played a role in the legal profession, but there was never a reason for our paths to cross.  There was no disdain toward solo practitioners, or criminal defense lawyers.  None at all.  We just had no place in Biglaw. 

It was only a matter of time before Young Shawn Matlock, Republican, was caught.  Yesterday was high day.  Bereft of his uniform of bow tie and sport coat, in the image of Tucker Carlson, Young Shawn looked like any other kid who wore his baseball cap askew.  To some, this is a sign of gang membership.  To others, an indication of a deeper, more insidious, problem.

As he pulled over with the police cruiser’s lights a’blazing, the officer could clearly see his hands in constant motion, as if concealing a weapon, or perhaps hundred of vials of crack, from view.  The cop knew this would be a tough one, the sort of stop that could mean that he might not be coming home for dinner that night. 

But he was a pro.  He kept his cool and knew what to do.  As he approached the driver’s side door, he stayed clear of the swing.  There was no way he would fall into that rookie trap just because this gang-banger was a white boy.  His weapon remained holstered, at least for the moment, but his worn, rubberized grip told the story of many hours on the range, making sure that his first shot would be the only one he needed.

In a firm but polite voice, he asked for the paperwork.  But his eyes scanned everything inside.  It only took half a second to see the opaque plastic bags, the type favored by couriers because they were free for the taking at any Lowes store.  It was time for back-up, and he knew that he had a good man nearby.

Back off for now, the cop told himself.  There will be time to make my play, and I’ll do it on my terms.  All the while, Young Shawn grew increasingly restless, agitated.  He’s probably hopped up on some of his own stuff, the cop thought to himself.  This crack-baby will be needing another fix any minute, and then he’ll lose his cool.

He went back to the RMP where he could keep an eye on his pigeon.  He let his mind wander to thoughts of overtime.  My wife will kill me if I don’t get home on time tonight, he thought to himself.  She’s having her folks over and she knows I’ll do anything to not be there.  But work is work, and I’m not letting baby-face Nelson get away.

His back up arrived, and it was time to make his move.  If this kid was faster than he thought, the last thing he wanted was to be lying on the ground bleeding and for no one to know.  If he was going to get a casket with a flag, the kid was going down with him.  It was a matter of dignity.  He was ready.

He approached the car cautiously, with his back-up going to the blind side.  With the car windows open, it was an invitation to take a free look and see the butt of the gun sticking out from under the seat.  Now there was time for more than a quick sweep, and he had no plans to let a kilo go unnoticed.

“Step out of the car.”  Okay, this was the first step in risky business.  Would he flee?  Would he fight?  We’ll see.  But the kid was docile.  He just did as he was told.  Maybe the kid was high on heroin, not crack?  “Mind if we take a look in the car?”  Let’s watch him squirm, ready to spring the “What do you have to hide?” follow up that makes them all collapse like quivering babies.

“What are you looking for?” Ah, a wise guy.  This punk is inches from belligerent behavior, and I’m just the guy to explain the facts of life to him.  C’mon, you little shit.  Give me a reason.  Any reason.  “Son, you made furtive movements, you’re in a drug prone location and you’re out of place here.”  Now you can either let me search or get a lesson in good manners.  Your choice.

“No, I do not consent to a search.”  Oh, I knew it.  This kids been lawyered up before.  Some mutt commie defense lawyer told him the drill.  But who’s going to know he said the magic words?  Am I gonna tell? 

Then I saw the fear in his eyes.  He looked like he was about to cry.  This kid wasn’t a gangster.  No, he’s just another dopey wannabe with the stupid hat and the white-boy swagger when he thinks he better than a cop.  Now that he’s about to get a licking, he’s ready to roll up in a little ball and hide under mommy’s skirt.

There’s nothing here.  False alarm.  If I hadn’t seen those tears welling up in his eyes, it might have been different.  But he’s got the stupid backward hat to pretend he’s a little tough guy when he’s just another puff ball.  We’ll just give him a ticket and let him go running back to mommy so he can tell the story of how he toughed it out with the cops. Heh, he just needs a little scare to remember who’s boss, and he’ll be licking cop shoes next time we see his ugly face around here.

And so, Young Shawn Matlock drove away, ticket in hand, toward the nearest Board of Elections office, where he was last seen filling out a form to change his voter registration to a new political party.  Or was this all a dream?

Addendum:  To avoid any confusion, the foregoing was a total figment of my furtile imagination and bears absolutely no semblence to reality.  Really.

I’ve posted before about how people without kids are unaware of how the youth of today is learning about some surprisingly serious issues as part of their cartoon culture.  The things that adults discuss have become the fodder for some very funny, albeit disturbing children’s entertainment.

Thanks to Nicole Black at Legal Antics for bringing us yet another example.  Go take a look now.  I’ll wait….Okay, now that you’re back, let’s talk about it.

The curious aspect is that this will become a simple piece of the reality puzzle for our children, who will find it neither shocking nor troubling when it happens for real.  On the one hand, the message is clearly that this is wrongful conduct.  On the other, does it not inure children to such conduct?  How shocking can it be when they see it on cartoons.  It becomes a fact of life, and kids tend to accept facts of life at face value.

I can’t decide whether indoctrinating kids is a good thing or a bad thing.  There are cartoons today where the heroes fight to protect the environment from evil polluters.  Of course, there is also a show called Bobobo-bo Bo-bobo where the protagonist fights with his nose hair.  Don’t ask, but I won’t let my son watch it.  Also, bear in mind that using children’s programming to influence their views of right and wrong, good and evil, is a two-way street.

What do you think?  By the way, if you didn’t get enough of Family Guy from Niki, try this

Grits for Breakfast has a great post outing a question from a Texas prosecutor forum about agents removing the license plate from a car provided by a snitch so that they would have probable cause to stop the car later, and still keep the snitch out of the case.  No need to rehash the discussion, as Grits has already done the work.  One aside, though, about this line from the AUSA:

AUSA is also concerned that he may have to “reveal” that this PC was pre-orchestrated to the defense and that an informant was really involved.

Isn’t it nice to know that AUSA is actually thinking about Brady/Giglio, even though he has somehow managed to take this absolute mandate and turn it into some sort of fuzzy little “maybe” thing.

This post got me thinking about Whren v. United States, one of those cases that has done monumental damage to the integrity of the law and respect for justice.  Justice Antonin Scalia, writing for the Court, held that a police officer’s subjective motives do not invalidate a vehicle stop and search when there is a credible objective basis.

Whren was all about pretext stops.  There are stops where the cops wanted to stop a car because they suspected there were drugs inside (for good, solid reasons like there was a black man driving), but have no reasonable suspicion to do so.  So instead, the cops would look for a justification to stop the car, ranging from the concrete (broken tail light) to flights of fancy (lane change without signaling) as an excuse, and then bootstrapping the stop into a quasi or full blown search.  More often than not, the cops would play the “do you have something to hide) card and get a consent search born of fear and submission to the shield.

Before Whren, it was unconstitutional to use a pretext to stop a car.  Post Whren, it was good, solid police work.  Whenever these police hunches brought a bag of crack to court, the merits of pretext searches were widely applauded.  Of course, nobody knows how many law-abiding citizens were stopped and searched and released for every drug courier who was caught.  But hey, there are trade-offs in life, right?  And it’s not like they would stop you or me, so what’s the big deal?

It’s not that Justice Scalia’s logic is flawed.  It’s that his cynicism toward defendants, and his blind faith in police, are the foundation of this horrible decision.  This all starts with the dreaded “automobile exception” to the Fourth Amendment, itself one of the least understood and most abused exceptions ever employed to eviscerate freedom from unreasonable searches.  Courts have turned this exception into a mantra: Whenever a car is involved, the warrant clause magically disappears. Poof!  Search at will.

The last protection standing was the pretext stop.  Frankly, what is most amazing about Whren was the honesty of the cops and prosecutor in admitting that it was a pretext stop.  Before Whren, the simple solution was for the cop to put on a puppy dog face and testify, “I never dreamed there were drugs in the car.  I was just stopping them for an unsafe lane change.”  That said, all was forgiven and the case went on.

So in a very real sense, Whren took the lying cop out of the closet and allowed him to tell the truth.  His stop was a scam.  He couldn’t have cared less about the broken tail light.  He had a hunch and he was going to find an excuse to stop the car no matter what.  On a practical note, if a cop follows a car, any car, long enough, he’s going to find a basis for a stop.  Did you touch the center line going around a curve?  Did you not signal early enough?  Did you go 1 mile above the speed limit?  The possibilities are endless, sine we’ve criminalize everything except breathing while driving.   And even if you drove perfectly, do you think the officer might “objectively” observe you doing something wrong if he really wants to?

So there you have it.  The final nail in the coffin of search and seizure law when it comes to automobiles.  And of course, once the car is stopped, the search (including the search of all sealed containers) is just a moment away.  We could get into the “furtive movement” rationale, one of my personal favorites, for justifying a full blown search when nothing else comes to mind, but this is all just legal rhetoric since most courts abandon all analysis as soon as the equation is car + stop = search.

Getting back to the Grits issue, so the police manufacture the post Whren pretextual justification for a stop in advance so that they don’t have to waste time waiting for an objective reason to come along, or have to make up some amorphous and vacuous reason that lacks hard proof.  It’s just the next baby step to speed up the process.  And after all, it’s not like there wasn’t dope in the car, right?  But I still think it’s wonderful that the AUSA is “concerned” that he might have to disclose this scheme to the defense.  Now what can we do about that?

Update:  Found this.  Thought it was worth your time:

Atlanta Falcons QB Michael Vick has found himself in a dog fight.  According to ESPN, he’s out there now interviewing lawyers to beef up his defense.  Let’s face facts, Vick (not to mention the Falcons) have a lot to lose here.

So where does a star NFL quarterback go when he accused of being a hot dog?

The Vick camp has solicited recommendations and is believed to have interviewed at least one prominent defender from the prestigious Washington, D.C., firm of Wilmer Hale.

Screeching halt.  Wilmer Hale?  Prestigious?  Do they have a dog killer defense team?  Given Michael Vick’s last string of bonuses (amount to something like $37 million), he can afford to hire anybody he wants.  But that begs the question, why Wilmer Hale?

Sure, they no doubt do the white collar defense thing, where they march you into the US Attorneys office, bring in a few Starbucks lattes and work it all out like gentlemen (provided the best dresses gentleman doesn’t mind the next 36 months at quiet federal camp).  But dog fights are a specialty.  And I bet they don’t get many dog fighting cases at their fancy Washington offices.  If they did, you would probably see some stains on the carpet to prove it.

So, I offer this piece of unsolicited (and uncompensated, though Mike, feel free to send a few grand if it helps you any) advice.  Get a real lawyer who knows how to defend people accused of real crimes.  You can keep the fancy Washington-type guys if you need a front or want to impress your friends, but the person up front needs to know how fight.  This dog doo is not a tea and crumpets deal, this is war.  Don’t go in there unarmed.

Oh yeah, I forgot to mention that if you need a recommendation, call me.  Collect if you have to.

Gideon is  running a poll on The Most Evil Legal Principles.  If you haven’t already, go there and vote for your fav.  But this seems to be a good time to tell you about this absolutely true story of how appeals court post-argument conferences go.  The reason I know this to be true is that my friends brother-in-law, who know a guy who’s a bagman for a mobster who has his a deadbeat clerk who listens in, says so.  How much more reliable could it get?

PJ:     So what are we gonna do with this one?

AJ1:   Can you believe this schmuck (trial judge) let the prosecutor get away with this crap?  Again?

AJ3:   Didn’t you tell him at the last judge party to shut that punk down?

AJ2:   He was so busy complimenting the fit of my robe that he wasn’t listening.

AJ4:   Focus, focus.  The defense lawyer didn’t preserve so we’re safe.

AJ2:   He objected, what are you talking about?

AJ4:   You call that an objection?  He just yelled out objection and hearsay.  He didn’t mention a single law review article or Supreme Court decision.

AJ3:   Aw please.  Like the schmuck has ever read a law review.  I wonder if he was awake when it happened.

AJ1:   Who cares?  It’s not the judge’s job to know the law.  He’s not appealing. 

AJ2:   Hey, even the schmuck knew it what the objection was.  It’s not like we haven’t smacked him 3 times for the same thing already this year.

AJ4:   But the defendant is a complete skel.  If he didn’t do this, you know he did something else to deserve it. 

AJ3:   So what it they couldn’t find the gun and the eyewitness is some low-life rat who’s paid with a daily fix and would name his momma if it would buy him a high. 

AJ1:   True, Are we gonna let this guy walk the streets?

AJ3:   So we just pretend the evidence was overwhelming no matter how bad it stunk.  Circumstantial evidence is just as good as any other.

All in unison:  HARMLESS ERROR!

pj:      Next case…

Anne Reed’s discussion of District of Massachusetts Chief Judge Young’s call to arms over the death of trials compels further distinction between its implications for civil cases and criminal.  Amongst the factors cited by Judge Young are settlement, arbitration and resolution.  These concepts have very different significance to the civil litigant than the criminal defendant. 

In a civil action, as much as most litigants believe their position to be absolutely and unequivocally correct, there is almost always room for disagreement.  The relative fault, or the relative value of the damage or injury, leaves a fairly wide path for compromise.  It’s said that a good compromise is one where nobody is happy.  But regardless of the degree of happiness, all sides can move on when it’s over.

The idea of compromise in a criminal case is fundamentally different.  There are two outcomes.  The defendant prevails (whether by acquittal or dismissal) or the defendant is guilty.  There’s no half guilty.  The closest one comes is a plea to a quasi-criminal disposition (such as a “B” misdemeanor that is pled down to an infraction in New York).  Acquittal is something that happens after trial, so that doesn’t help us.  Dismissal is the holy grail, coming after suppression or the sudden recognition by the prosecution that it has no case.

So what of the criminal defendant who is innocent?  Let’s assume, for the sake of argument, that there is no suppression issue and the prosecution believes it’s got the goods.  Where’s the middle ground?  There is none.  At least, there is none that has any legitimacy.

Too often, the only “resolution” for the innocent defendant is to take a plea to a lesser offense in order to avoid the harsh consequences of conviction.  This is the plea of convenience, and flies in the face of all we deem holy.  Some will urge it upon their clients under the “discretion is the better part of valor” theory of defense.  Is this a compromise?  In a sense, but we’re putting innocent people in jail ONLY because it’s better than putting them to death.  There’s no legally and intellectually legitimate middle ground available.

One of the things I tell my clients, who profess their innocence but have a desperate (and well founded) fear of going to trial, is that there is no option to tell the judge, “Never mind, let’s just call it a draw, forget the whole thing and go home.”  Once they’re stuck in the system, it becomes an all or nothing proposition.

While a plea bargain is a resolution to a guilty defendant, what of the innocent defendant (or the defendant who has been grossly overcharged)?  The options are a plea of convenience or trial, which all its unknowns and costs.  But what if those two options were chopped down to one?

This is the real heart of darkness for the accused.  They retain counsel with the blind faith that the attorney’s license assures them that he has the ability to fight the case to the bitter end.  If the secret truth is that the attorney lacks the ability or wherewithal to try the case, a little detail that has been concealed from the defendant, then the outcome is a forgone conclusion.  There will be no trial.  There can be no trial.  The defendant would be going into battle unarmed, and he will most certainly be slaughtered.

So the defense lawyer, with his secret intact, will urge the innocent defendant to take a plea of convenience.  He will use his fiduciary powers of persuasion to convince the defendant that he must avoid at all costs the draconian penalties that a harsh society has mandated be imposed for his crime.  This is remarkably easy to do, as clients need to believe that their lawyers care for their welfare and will accept what they say if the lawyer has any persuasive ability at all. 

And so, unlike the civil case where the worst that can be said is that the client paid too much, or received too little, but lived to fight another day, the innocent defendant was denied those glorious rights guaranteed by our Constitution because one person, a lawyer, pushed the client into a hole from which he will never emerge to cover his own fears, inexperience and inadequacies. 

This is the real price of the death of trials.