An exceptionally good piece of work by Fordham Law School Criminal Law Clinic. Included in the piece is a great video, that I tried (unsuccessfuly) to include in this piece.  It’s really worth watching.

Dovetailing with my point about the harm caused by prosecuting a person for a heinous crime when they know they can’t possibly prove it, this piece addresses the impact of the process on normal people.  If you or someone you love has not enjoyed the wonder and majesty of the first 24 hours of the criminal justice system, it’s something you can assuredly live happily without.

Eugene Volokh of his Conspiracy writes about a 48 year old man, Harold Allen, of Narragansett charged with a rape that allegedly occurred 32 years earlier. The victim claims to have repressed memory of the crime.  There’s no physical evidence.  And a person has been charged in Rhode Island, where there’s no Statute of Limitations for first degree sexual assault. This is picked up by Above the Law. 

While Volokh, not inclined to be open minded about the possibility that a criminal defendant didn’t commit the crime, takes the view that this is going to be hard one for a jury, Above the Law tells it without any comment at all.  What’s wrong with this picture?

For those knee-jerk conservatives out there, for whom the possibility of the government doing any wrong is one step above sticking a needle through their eye, here’s the skinny.  The damage is done.  The harm has been caused and it is unfathomable to believe that the Rhode Island AG didn’t know it when they moved on this mutt case.  This man’s name is now in the papers (not to mention all over the internet) as a RAPIST!  Rhode Island is a small town state, and by now everyone there knows that this man is a RAPIST!

So what that there’s no evidence.  So what that this is based in “repressed memory” from 32 years ago (when the defendant was 16 years old).  The point is NOT whether a jury will convict this man.  Of course, if a jury even considered this case for more than 5 minutes, it would be a disgrace to the system.  The point is that the harm is done when a person is arrested and charged for a heinous crime and his identify as a criminal is revealed to the world.  The impact on his reputation, and on his life, is monumental.  His life will never been the same, no matter what happens.  From that moment on, regardless of the verdict, he will always be a RAPIST in the eyes of others.

This is not a case, as Eugene Volokh sees it, where one questions the likelihood of conviction by a jury.  This is a case where the harm to someone who could never be legitimately convicted has been deliberately caused by the State.  Is there no issue when the State uses its enormous power to deliberately smear someone, knowing that proof of guilt doesn’t exist?

The issue in New York, and around the country, of whether to do away with the Statute of Limitations in rape has been hot, and politicians are lining up to throw it away.  The primary source of comfort is DNA evidence, which they tell the public provides conclusive proof.  Here, there is no DNA evidence.   Even with DNA, only half a story is told (more about this another day).  So there you have it.  The power and might of the State used to smear one man.  And the worst the commentators can say is they doubt it’s sufficient to get a conviction?  I though better of Volokh.

I have never heard a prosecutor’s summation that did not include the words, “use your common sense.”  These words echo the jury charge, instructing jurors to use common sense. I hate these words.  They present one of the most insidious threats to justice imaginable.

Common sense is used for one purpose only, to instruct jurors to ignore the lack of evidence and take an inferential leap over the gaps in proof.  These words reflect the plague of our jury system, and its pretense of making findings “beyond a reasonable doubt.”

Consider the following:  Why else would the defendant be present in a house where a substantial amount of narcotics are stored.  Do you think he would be there if he didn’t know about them?  Use your common sense.

These words implore a juror to fit the circumstances, and more particularly the defendant’s conduct, into their personal paradigm.  If they wouldn’t do it, why would anyone else?  There are so many answers to this question that it is pointless to even begin.  Suffice it to say that the jurors are not the defendant, don’t live his life or walk in his shoes, and the defendant is not required to conform his actions and thought processes to those of any particular juror.  Or prosecutor. Or judge.

An appeal to common sense is a shorthand way of telling the jurors, make your decisions here like you do out there in your world.  The problem is that people invariably make decisions, even important decisions, about their lives based upon little or no information.  There is only one way to get to the Island of Conclusion, according to the Phantom Toll Booth:  Jump.

Ordinary people assume constantly.  They have to, as there is no opportunity research everything they do, or sit back and withhold judgment until every detail is proven.  But that’s exactly what they should do at trial.  So the message is unclear:  On the one hand, we tell you to base your decision on the evidence in the case.  But on the other hand, where the evidence is missing, just resort to assumption as you would do otherwise. 

Most people believe that their common sense is pretty good.  They have some serious doubts that other people’s common sense is any good (or else they would be just like them).  But they feel confident that the conclusions to which they jump, based upon their life experiences, are the norm, and reflect sound and accurate thinking.  Of course, they are utterly wrong.  People make wrong decisions constantly.  If they didn’t, they wouldn’t need courts and lawyers.  Moreover, people make different decisions based upon the same data constantly.  This is what makes them “special”, but also proves their fallibility.  Reasonable people may differ, but they can’t all be right.

Getting a jury to stop assuming is difficult if not impossible.  It is simply how regular people think.  They are so used to making inferential leaps that they do it reflexively.  The prosecution knows this and exploits it.  They operate under the belief that most jurors are fairly law-abiding, and would not jump to the conclusion that  favors a defendant.  They prey on this tendency by their arguments of normalcy and regularity.  Occam’s Razor has its merit, but it’s not an ironclad guarantee.  On occasion, people do things outside the norm, and all questions of motivation cannot be answered by how you, Mr. Juror, would have reacted under those conditions. 

It has become my habit to try to use this prosecution weapon against them, by invoking common sense in my summation as well.  Unfortunately, it’s not always easy and sometimes just plain doesn’t work with the defense strategy.  I want the judge’s instruction to appear to relate to my summation, not just the prosecution’s, but there must be some credible basis to include this as part of my argument.  While there are some generic arguments that can always be made, fact-specific arguments that really nail down the issue are harder to come by.

One of the lines that I have used in the past is to tell the jury to anticipate that the prosecutor will tell them to use “common sense,” and that this is “prosecutor code” to ignore the lack of evidence and convict anyway.  I then implore them to use “UNcommon sense.”  Don’t jump to conclusions.  Don’t assume.  Don’t let the prosecution off the hook for failing to prove its case.  Expect more and demand it.  So when the prosecutor utters the words “common sense,” a bell should go off in the jurors heads that what she’s really saying is:  “This is where my evidence fails, and I’m asking you as good boys and girls to give me a free pass.  I’m the government.  Trust me.”

Mark Bennett recently posted about Traumatic Brain Injury (TBI).  While TBI has not been an issue for my clients recently, it leads me to a very significant factor that has, and is commonly ignored or overlooked.  I have come to realize that many of my clients suffer from mental disease or serious intellectual impairment.

Why does this matter?  Because it impairs their ability to accurately process things happening around them, to analyze the significance of their choices and to control the impulsivity that leads them to make bad choices, i.e., commit crimes.

This will be a factor that, I predict, will increase exponentially in the years ahead, given the statistics on autism and other organically-caused syndromes.  In those people severely affected, they are far more likely to be aware of their problems, although it means nothing as to their (or their parents or schools) having effectively dealt with or mitigated the problem. 

One of the big problems that have come before me is bipolar disorder, leaving defendants incapable of making rational choices or controlling impulsive urges.  They know right from wrong, and often appear quite normal in most regards.  But there are signs which, if you are attuned, smack you in the face.  There are other mental diseases as well, such as  obsessive-compulsive disorder or borderline personality disorder, for example.  The Diagnostic and Statistical Manual of Mental Disorders IV provides a list of disorders, as well as the medical criteria.

Lacking the professional credentials to start to list the identifying symptoms, the basic rule of thumb is this:  When your client’s ability to speak, behave or reason in a rational fashion shows signs of being particularly peculiar, have them evaluated.  For mental disease, a psychiatrist is the appropriate health professional to perform the eval.

A second problem that has come to me with surprising frequency is low intelligence.  We’re not talking about a person who falls within the category of retarded (a word I despise but one that still serves a purpose, unfortunately).  Rather, people who are incapable of analytical or abstract thought because they fall short (for whatever reason) of the level of intelligence of an average person.

Too many lawyers limit their interactions with, and concern for, their clients to the criminal case in front of them.  By doing so, they ignore the person in front of them, with these problems that have caused misery in their lives and, in a very real sense, led to their current problems.  By ignoring this cause/effect piece, a lawyer is only doing half a job.  It is quite likely, given the socio-economic, family and educational worlds in which they functioned, that no one has every bothered to figure out why the client is “a little weird.”  You may be their one and only hope to find someone who cares enough to figure out what causes your client to engage in inappropriate conduct.

This is what I consider the holistic approach to lawyering, looking beyond the criminal case to the cause of the client’s anti-social behaviors.  Be it anger, frustration, inability to distinguish choices in real time sufficient to avoid bad ones, this is a chance to actually do something to really help a client.

And what does it do for the criminal case?  Often, prosecutors will change their attitudes towards a case when you can provide hard medical date to show what drove your client to engage in the underlying conduct, and you’ve gotten your client into treatment.  Suddenly, the defendant is not simply bad, but sick. 

Even if the prosecution continues, it can be used as a critical factor in sentencing.  Notably, these problems do not negate criminal responsibility, as the client is fully capable in a rational moment, to distinguish right from wrong or legal from illegal.  But it does negate the malevolence of the offense, and suggests an alternative to incarceration that will truly provide help to the client instead of merely warehousing him.

The biggest stumbling block is that many prosecutors and judges know and understand so little about mental illness, and their appreciation is so simplistic, that they have a steep learning curve.  They must be taught that all people with mental disease or impairment are not drooling idiots.  They similarly can’t appreciate why, if the client suffers from mental disease or impairment, they don’t fall into the legally incompetent classification. 

To the simple-minded, there is no spectrum of disability.  It’s all or nothing.  We still have a long way to go in our society to learn and appreciate the significance of mental disease and impairment, but it will play a huge role in the future as the problems we are seeing in our youth today manifest as adults tomorrow.  Keep it in mind.

Anne Reed brings us yet another great piece about lawyers in the jury room.  As Anne jokingly calls it, “News Flash.”  But it’s an obvious problem that we need to confront.  In my last trial, the full panel of 45 had more than a dozen lawyers.  Some old, some young.  One a senior partner in a Biglaw firm.  One a renown defense attorney. What a motley crew.

As my mind slowly came to grips with this, I immediately understood the problem.  Even though the judge instructs the jury, there are a lot of questions.  Lawyers will know the answers, and because we are such a friendly, helpful bunch, will illuminate the instructions.

Second, lawyers are trained to follow a logical train of thought.  Note that I say trained, not necessarily any good at it.  But when they speak, their flow will carry some weight with the other jurors.  They can’t help it.

Third, lawyers tend to be more biased than anyone else I’ve ever met.  This is particularly true when they have a captive audience to whom they can pontificate about their views of crime, criminal justice, death penalty, etc.  And lawyers do so love to pontificate.

Thus, by allowing a lawyer on my jury, I must presume that I am entrusting my client fate to one person, who will then bring the others around to his point of view regardless of whether that’s his intention.  Laypeople defer: “You’re the lawyer, is he guilty or not?”

But that’s the easy part, recognizing the problem.  The hard part is trying to figure out whether the lawyer is with me or against me.  Before anyone suggests the obvious, I can always use my peremptory challenges to get all the lawyers off the jury, but that eats up most of my challenges and I am still left with all the ordinary juror issues and bias. 

And so we voir dire the panel.  Like that helps.  They know what to say.  If they want off, it’s obvious.  If they don’t, they are going to look like the most reasonable people on earth, free of any prejudice and 110% interested in pristine justice.  Spare me.

   Q.  Mr. Smith, if you had to give the benefit of the doubt to one side or the other, which would it be?

   A.  It would have to be for the defendant, since the People have the burden of proof beyond a reasonable doubt.  If they fail to meet that burden, I would have no choice but to acquit.  That’s the law.

(Actual Q & A from P.I. lawyer whose wife was a prosecutor)

So we resort to our own obvious lawyer prejudices in deciding who is the most evil lawyer on the panel.  Personal Injury lawyers hate criminal defendants.  Gone.  Biglaw is establishment. Gone.  Young lawyers just finished school, and may still remember Con Law and Crim Law.  Maybe.

But of course, there’s also the particular circumstances of the case, and the defense strategy, to factor into the equation.  If the prosecution’s case is an appeal to the stupid, then we want smart people on our jury.  A lawyer might qualify.  But if they have strong evidence, particularly evidence that requires an attention span of more than 12 seconds, the lawyer may be able to follow.  Maybe.

For the record, I was going to challenge the Biglaw senior partner, but the prosecution beat me to it.  As he was told to go, he left the box, gave me a big wink and a thumb’s up.  I was floored.  So much for conventional wisdom.

So we clearly know the problem, and the problem is very real for any lawyer who tries cases.  But we are no closer to a solution with lawyers than with understanding the hearts and minds of any juror.  Any ideas?

I received an email the other day (as, I assume, did any number of my fellow blawgers) from a woman named Tracey.  It read:

I learned of your site through the poll on the Austin Criminal Defense Lawyer blog–congratulations! I wanted to let you know about my legal blog, inthiscase.com, which posts true stories about people’s experiences with the legal system. I thought you might be interested in some of the criminal experiences…

Being an open minded and curious fellow, I paid a visit.  The first thing I noticed was that Tracey wanted me to check out here blog, but didn’t include mine in her blogroll.  If I’m worth soliciting for your website, then at least show me the courtesy of including my blawg in your roll.  Okay, so that’s a little rude, but so what. 

I then read her content.  What there is of it.  Hey, I always want to hear about people’s “criminal experiences,” right?  Well, Tracey’s language was a little imprecise.  This blog, inthiscase.com, invites people to write about their personal miserable experiences with the legal system.  OMG, these are the stories that we listen to day after day from clients about how unfair, how terrible, how unjust it all is.  And Tracey thinks we want to voluntarily read more of this? 

We’ve all been there a thousand times over, and frankly we’ve all experienced far worse than any of the stories on this website.  These stories are, to be blunt, unbearably common to a criminal defense lawyer.  Even when we’re paid to hear them, it’s painful.  To read them voluntarily would be torture.  So why am I writing about this?

After some due deliberation, it occurs to me that Tracey’s website does have some real potential, though not as a read for lawyers. One of the things our clients desperately need is catharsis.  Their experiences, though often pedestrian to us, are overwhelming to them.  They need to vent, to let out that anger and frustration they feel when first confronted with the absurdity of the criminal justice system.  Tracey provides a place to do this.

Send your clients to this website (it looks like it could use the content anyway) and tell them that there’s a place where they can write all about how awful and unfair their experience has been.  How bad the cops treated them.  How the judge was rude and uncaring.  How the prosecutor was mean and wrong.  All the stuff that clients think happened only to them, and never happens on those Law and Order TV shows where the cops and the system are a perfect reflection of truth and justice.  Not only is it cheap therapy, but it will free up the lawyers’ time to actually represent their clients rather than hand-hold. 

Just one caveat: Make sure that they don’t give their names.  The last thing we need is one more place for our client’s to confess, and you know that it will be “used against them.”

In a very unfortunate decision, Matter of Moran, by the Appellate Division, Fourth Department (located somewhere in the wilds of upstate New York), we now know that blatant self-promoting puffery by a lawyer on his website constitutes “constitutionally protected hyperbole.”  This decision was picked up by Legal Profession Blog, and then Law.com’s Inside Opinions.

While the lawyer, James Moran, was suspended for other reasons, including loaning $700,000 to clients for non-litigation related purposes (showing that he wasn’t doing too badly with his puffery), the Court stated:

“Respondent also admitted that he posted language on his website suggesting that potential clients should seek out the ‘best lawyer’ and setting forth criteria for determining whom the ‘best lawyer’ might be. In addition, he set forth his own credentials, including that he was a certified trial specialist. …  We conclude that the posted language contained no demonstrably false information and was, at most, constitutionally protected hyperbole.”

Now, you’re probably pulling out your pocket Constitution right now, looking to see where the word “hyperbole” appears in the First Amendment.  Trust me, it’s not there, although there is a reference to emanations and penumbras. 

Before I finally succumbed to creating my own website, I googled to see what others had done.  It was, to be kind, shocking.  The first half dozen lawyer websites I stumbled across were worse than patently offensive; they were flagrantly false and deceptive.  It appeared that the best substitute for competency is the willingness to openly prostitute oneself and the knowledge of how to use google search terms. 

You doubt me?  Well check out one of my favorites, the lawyer profile of the most prolific promoter in New York criminal defense:

R*** B**** founded The B**** Law Firm with one goal in mind:  to  win cases.  Mr. B***** is an experienced New York criminal defense lawyer handling all types of criminal cases.   He personally obtained hundreds of victories in criminal court before even completing law school– while working under the District Attorney’s Office.  He went on to continue his legal career working as an attorney in one of the country’s most prestigious law firms.  Mr. B**** has appeared as an expert criminal defense consultant on FOX News Live

Having proven beyond any doubt how unhip I am, let’s consider jurors.  Anne Reed has posted about jurors who coordinate their outfits, such as the red, white and blue rows in the Padilla trial in the Southern District of Florida.  Some good friends of mine, Andy Patel and Donna Newman, represented Padilla in the early days, and I assure you that neither would color coordinate their clothing to wear their patriotism on their sleeve.

I have never had the pleasure of a color coordinated jury, for which I am eternally thankful.  The very idea is truly disconcerting.  What does it mean?  What does it say about your jury?  Beats me.  According to Anne, it could mean something (like they have bonded to such an extent that they will act as one) or nothing (they’re bored and wanted to do something fun).  Think about it, but not too hard.

But even if there is no message intended, there is a message.  First, they have gotten along well enough to coordinate something.  Put 16 lawyers in a box (12 plus 4 alternates) and they would argue about whether to wear clothing at all.  That’s not good. 

Or perhaps they are bored, but their solution is to have a little fun.  A happy jury is one that doesn’t want to end it’s day by putting someone in jail.  That’s good.  But, of course, happy juries still convict despite conventional wisdom.  Even jurors with tattoos and piercings convict, despite their desire to portray themselves as rebellious.  (It’s a counterculture appearance, not necessarily a counterculture mindset).

I’ve never bought into the concept that anyone has truly mastered jury selection, or knows what really happens in the hearts and minds of jurors.  People make a living saying they do, but my experience suggests that it’s a load of crap.  While we can occasionally read someone right, we never nail it down 100%.  It may bring us a measure of comfort to believe that we understand who we have selected and why, but our final grade is the verdict.  Even the best of us gets an occasional F.

It would cause me some distress to see my jury arrive in coordinated attire.  I was going to say “freak me out,” but I would be showing my age again by using such an unhip phrase.  I picked 12 individuals, and that’s what I want them to be at the end of the trial.  Something would definitely be wrong, especially in New York where no one agrees with anyone else about anything.  But I would get over it, because there would be no other choice.  But you can bet I would find some argument for mistrial based on juror misconduct.  Unless they were all wearing T-shirts that read, “Free the Chicago 7.”  I could live with that.

When I first started practicing law, I wore a white shirt, a suit and tie everyday.  That’s what lawyers did.  That’s how lawyers looked.  I was a very clean cut lawyer, particularly for a criminal defense lawyer.

Some clients made fun of me.  “Greenfield, you sleep in a suit?” Ha, ha.  My clients were a bunch of cut ups.  But the issues today are very different.  Very different.  Carolyn Elefant writes about a woman who was admonished to remove her tongue stud by a senior partner at her law firm.

“I felt so embarrassed,” recalled Wool, 32, who now works for Dr. Tattoff, a chain of tattoo removal studios. “It made me feel like I’d done something bad.”

Unfortunately, Carolyn takes a noncommittal stance, asking the readers what they think.  Does anyone wonder why this woman works for a chain that removes tattoos?  Is there a hint there?  While Carolyn’s question comes across as neutral, one has to assume that by merely asking the question, her bias is revealed.

The quote above came from an LA Times article, “Better hide the tattoo if you want the job.”  The article reflects the impact of today’s flavor of “cool” in the workplace.  Unlike Carolyn, however, the article reflects a clear bias in favor of today’s hipiosity.

Nearly 50% of Americans between 21 and 32 have at least one tattoo or a piercing other than in an ear, according to a 2006 study by the University of Chicago and Northwestern University. Men and women alike say their tattoos make them feel sexy and rebellious, a 2003 Harris Poll found, while the unadorned of both genders see body art as unsightly and think those with tattoos and piercings are less intelligent and less attractive

July 5th.  The fireworks are over, and our patriotic fervor has faded with the barbecue embers.  After a day off and a day of good feelings, it’s time to return to our real world.

In contrast to yesterday’s post, remembering the insane leap of faith that gave birth to a nation, The Consumerist posted about a problem someone had trying to return a bra to Victoria’s Secret (note the reference from yesterday).  The customer returned with unworn bra, receipt and credit card in hand, but was turned away by a highly trained cashier because the customer lacked a driver’s license.  It seemed that the computer at VS required a driver’s license number, and no other number would do, to process a refund.  The customer has a green card, issued by the government of the US of A, but the cashier refused it.  The customer left, crying and empty handed.

The VS story isn’t the point, however.  The point is the comments in response to the story.  The first bunch reflected my greatest fear about Americans.  They “explained” that non-drivers can obtain a non-driver’s license that will do the job.  They have been so totally indoctrinated to follow the rules that it was inconceivable that they disobey the cashier at Victoria’s Secret.  The only issue in their minds was how better to follow the rules.  Had the cashier told them to jump 3 times and turn around on their left foot, would they have done it?

This knee-jerk response represents a mindset of compliance.  Lemmings would be jealous.  The very idea of “disobeying” the cashier was anethma.  It wasn’t that they wanted the consumer denied a refund, but that the mechanics of getting what is due is through the most obsequious conduct possible. 

This is a critical bit of information in understanding and appreciating why innocent people get convicted.  We, by our nature as lawyers, forget that our response to cashiers telling us what to do is to bristle and refuse.  For the most part, we are mavericks, ill-inclined to stay in line because some twinkie says so.  Indeed, it’s almost an invitation to us to challenge pretend authority, especially when it’s some pimply-faced cashier whose world view is encompassed by a 2 page sheet of the Rules of a summer employer.  We all know this person:  She’s the one who begins a sentence with “Our policy is…”

These are rules of inconsequence.  And still people compulsively comply.  Imagine then the force that propels people to adhere to the rules that our government imposes.  Not compliance upon pain of compulsion or punishment, but compliance because any other response would be unthinkable.  Docile appeasement is not good enough.  It’s closer to the Stockholm Syndrome, where we grow to love the rules, want the rules, enforce the rules ourselves.

So as you argue to a jury of twelve that there is some possibility, no matter how remote, that one individual’s failure to abide the rules that the government tells us required and expected of all good citizens, think about what you’re asking them to do.  Noncompliance in a compliant society is unthinkable.  This may be a greater wrong than the whatever deed your client is accused of.  He must stay in line, even if he’s going to rob the cashier. To do otherwise would be anarchy.

Here’s a little game to play.  The next time you are waiting on line,  listen to the employee tell your fellow waiters what to do.  Count how many people happily comply.  Count how many compliant people thank the employee for telling them what to do.  Add these numbers together and multiply by the age of the employee.  Then divide by 231.  The answer will be either “1776” or “1984”.  It’s uncanny.  Give it a try.