Our founding fathers weren’t politicians.  They were farmers and lawyers and dry goods merchants.  It must have taken enormous fortitude to make the decision to break from England, knowing that they could well die for the effort.  Even if they survived, it was hardly clear that a nation would emerge.

Independence was about more than breaking away from King George.  It was about doing better than England.  They had an idealistic vision of a place where they could be free to pursue their dreams and goals.  Some kinks had to be worked out in the plan.  Some were slave owners.  Others were slave lovers.  Women served men.  The poor served the wealthy.  But freedom would trickle down over time, as each came to assert their right, just as our founding fathers did, to be equally worthy.

Yet for each step forward, there was a step or two back.  There were always those for whom the risks were overwhelming.  There were those for whom the status quo was too good to let someone spoil it.  But mostly, there were those for whom fear became their driving motivation.  Better to wear chains in safety than shed them in risk.

The American ideals that were taught to me as a child seem foreign today.  I was taught that it was better to let 100 guilty men go free than imprison one innocent man.  I was taught that a person could walk from one shore to the other without ever having to prove his identity to anyone.  I was taught that the police were here to protect us and that the courts existed to stop power hungry politicians from stripping Americans of their freedoms.  Freedom was always the central concept.  Freedom is what made America matter.

We still hear the word used constantly, but in a context that makes little sense.  Orwellian in usage, we are deluged with platitudes that command us to give up our rights to preserve our freedom.  We are bombarded by those who are supposed to be our guardians with explanations of why our survival depends on relinquishing our freedom.  To suggest that this path undermines our essential nature as Americans is too obvious.  To suggest that too many Americans will blindly comply to preserve our founding fathers’ legacy is too painful.

We have faced challenges to freedom before.  Lincoln suspended habeas corpus, but we survived.  FDR put Americans of Japanese descent into internment camps, but we survived.  Today, we hide enemy combatants at Gitmo and torture them.  Today, we must show an ID card upon demand of anyone from the police to the cashier as Victoria’s Secret.  Today, our private packages are subject to random search as we enter public transportation in New York City. 

It’s hard to say that our freedoms are more circumscribed today than they have been in the past.  But it is clear that they are, once again, under attack.  American history teaches that we are a country that can be manipulated by fear, with a majority of Americans willing to give up the rights that were worth dying for 231 years ago.  Perhaps we are unworthy of the dream.  Perhaps we just haven’t suffered enough to have earned freedom.

But history also teaches that someone or some group will arise to lay claim to the true American heritage of freedom.  Small men, such as those who currently hold the reins of power, will fade.  Heroes will emerge who will disdain the fearmongers and accept the challenge of telling the truth.  We will be given a better choice than bad and worse.  Someone will speak truth, even when it’s unpleasant, and we will be mature enough to listen to it and recognize it, even though we would prefer it be different.

Today is the Fourth of July.  Independence Day.  It’s a good day to think about the promise of America in the minds and hearts of great men.  And to question how we, ordinary people, have dealt with that promise.   Many will be saddened that 231 years have passed and we have not yet accomplished the dream.  Others will be heartened by the fact that some of us, indeed many of us, are still trying.  Don’t give up.  It’s a dream worth fighting for.

If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen.

— Samuel Adams  (Courtesy of Mark Bennett)

Bruce D. Spencer has completed a study for the National Center for State Courts to determine the accuracy of jury verdicts.  This study estimates that there is a 25% chance that a factually innocent person will be convicted.  That’s a rather breathtaking number.  One in four innocent defendants will be convicted after trial.

A thorough, and frankly quite balanced, discussion of this study can be found at Mark Bennett’s Defending People, See Also Anne Reed’s Deliberations on the”juries get it wrong” story.  One of the most interesting aspects of this study was the judge-jury agreement rate, which found that the judge was far more likely to wrongfully convict an innocent person than the jury, and that the jury was more likely to acquit an innocent person when the judge was also inclined toward acquittal.

While there’s no point in my rehashing what Mark has already written, I note that the impact of a judge on the likelihood of a jury erroneously convicting a defendant cannot be overlooked.  Obviously, the judge has a huge impact on both the evidence to come before the jury by dint of his rulings, but also the jury’s appreciation of that evidence because of the judge’s tone, commentary, facial expressions and non-verbal cues.

In other words, a hanging judge (or even just a good ol’ judge who thinks the defendant guilty) is going to impart that message to a jury, and by doing so will dramatically increase the likelihood of a wrongful conviction of an innocent defendant.  The judge sets the tone, and that tone is a huge factor in how the jury will receive your evidence and argument.

Another factor that was not, and probably could not, be taken into account in the study was the skill level of the advocates.  As ineffective assistance is such a low, useless standard, it does little to provide a measure for counsel’s role in the conviction of the innocent.  Non-lawyers like to pretend that it’s the facts, not the lawyer, that makes or breaks the case.  They need to believe this, since the alternative turns trials into a lottery where the party with the best lawyer wins.

Lawyers, on the other hand, know that it is but one of the factors that make up the result, and it is the interplay of these factors that produces the outcome.  Even the best lawyers cannot overcome the worst facts, unless the prosecution screws up so badly that the facts no longer count (it can happen).  But a truly skilled lawyer can take a losing case and turn it around, whereas a mediocre lawyer can do nothing to stop the train from running over his client. 

Given that there are so many factors involved in the successful outcome of a trial, I can’t imagine that any study can account for all of them and thus provide us with a definitive answer as to how innocent people end up wrongfully convicted.  But they do.  They do a lot.  And that’s an important starting point.

The Scooter Libby affair will be the talk of political pundits for at least a full week, making it a story of huge interest to those who have yet to find a reason to question this administration’s judgment.  But for criminal defense lawyers, it will have a special impact.

I foresee defendant after defendant in federal cases asking, “but why do I have to go to jail if Scooter doesn’t?”  I can see them push their lawyer to argue to the judge the Scooter issue.  “Your Honor, when a high public official has abused his great power and position is allowed to walk amongst law-abiding citizens as if he did nothing wrong, how them can we possibly justify the imprisonment of the poor, who enjoyed none of the advantages and prestige…”

Your client will love the argument.  All the way to the Marshall’s holding cell.  It’s not going to work.

Does this not undermine the rationale for the sentencing guidelines, and their quasi-secret Booker subterfuge where we pretend they are only advisory while knowing full well that the only way a federal judge can insulate himself for swift reversal is to sentence within the guidelines?  Of course it does.  Bu this is not about maintaining judicial, or intellectual, integrity.  This is about recognizing an aberration for what it is.

The President commuted the sentence of one of his own.  He gave a statement that says otherwise, but we are not children.  We know what he did and why he did it.  The rest is empty rhetoric.  We know it.  Judges know it.  Must the judges say out loud, “grow up!”

There is no viable argument to be made that Scooter Libby’s situation has anything to do with our client’s.  There is no judge in this country who did not go to sleep last night sighing, wondering how many lawyers and defendants will pitch the unfairness of their going to jail and Scooter not.  And they knew with certainty, as they drifted off to their personal dreamworld, that they would sentence the defendant within the guidelines anyway.

And so the biggest problem for us, criminal defense lawyers, will be to explain to our clients that life is not fair.  That what happened to Scooter means nothing to them.  They are not Scooter.  They are not a close personal friend of the President and Vice President.  Their sentence will not be commuted, and they will go to jail.

As unacceptable as this may be to the idealist within each of us, who struggle to maintain a semblance of belief that we function daily in a system that has some socially useful purpose and at least tries to maintain an aura of fairness, our functional reality is that Scooter Libby is an irritable aberration.  Nothing more. 

Today, the guidelines will not crumble.  The courts will not shut their doors in recognition of the flagrant unfairness and hypocrisy of the situation.  Cases will be tried.  Pleas will be taken.  Defendants will be sentenced.  Families will be destroyed, and children left without parents.  And lawyers will don their summer suits and try again to argue on behalf of their clients in the hope that someone is listening.  Maybe today someone will.

President George Bush has commuted Lewis “Scooter” Libby’s sentence for lying to investigators about the CIA leak.  According to the President of the United States, 2 1/2 years is “excessive”.  Apparently, obstruction of justice is not as serious as it used to be.  Or perhaps, still is, but when done by somebody who isn’t responsible for making sure Dick Cheney’s shoes are tied.

“My decision to commute his prison sentence leaves in place a harsh punishment for Mr. Libby,” Bush said in a statement. “The consequences of his felony conviction on his former life as a lawyer, public servant, and private citizen will be long- lasting.”  (NOTE:  No mention of future as lobbyist)

Of course, the consequences of 121 months in prison to “ordinary” people, their wives, their children, their businesses, means absolutely nothing.  For these people, the word “excessive” will never be used.  Nor, for that matter, will the word “commute” except to refer to their trip back and forth to their prison job.

There can be no act of the executive that would demonstrate with greater clarity that the criminal justice system, and specifically the sentencing “guidelines”, is a farce.  It is not that Libby’s sentence was not harsh and excessive.  Indeed, it was pretty darn stiff. But it is merely one of thousands and thousands of unduly harsh and excessive sentences meted out by our federal courts under a set of guidelines, those “advisory” rules that emasculated the judiciary and turned them into numbers crunchers.  And so, Scooter Libby is sentenced right in the middle of the sentencing guidelines, as our Supreme Court has now told us, is inherently and presumptively reasonable.  You bet that’s harsh.

The right to commute the sentence belongs to the Executive, and our President has the absolute right to commute any sentence he wants.  It cannot be challenged or reimposed by anyone under any set of circumstances.  While Scooter remains a felon, he won’t be a guest of our BOP. 

The President had no choice but to commute Libby’s sentence today, after the DC Circuit turned down his request to remain free pending appeal.  It’s incredible how the courts treated Scooter Libby just like everyone else.  It’s incredible how this treatment has so outraged the President and conservatives.  It really sucks being on the wrong side of a blunt instrument.  And Cheney was outraged that Scooter didn’t get a pardon, as he directed the President to do. 

Imagine all the potential roommates in federal camps across the nation whose dreams have been dashed.  All they ever wanted was to have a Scooter.

Three little words that have become a football in the game of justice.  Nicole Black at Sui Generis posts about the reversal in People v Louree, 2007 NY Slip Op 04679, where the Court of Appeals reversed a plea because of a flawed allocution.  The trial judge failed to advise the defendant at the time that he would have to serve a period of postrelease supervision.

What is interesting is that the Court overcame the prosecution’s argument that the issue was not preserved:

In so deciding, we can not shut our eyes to the actual or practical unavailability of either a motion to withdraw the plea under CPL 220.60(3), or a motion to vacate the judgment of conviction under CPL 440.10 in these cases. If the trial judge does not mention postrelease supervision at the allocution, as happened here, a defendant can hardly be expected to move to withdraw his plea on a ground of which he has no knowledge.

While there are few decisions that truly belong to a defendant in the course of a criminal defense, those that do must meet the criteria of those three little words, knowing, voluntary and intelligent.  But what those words really mean changes from moment to moment, court to court.  For the Court of Appeals to take specific recognition of the fact that the defendant cannot be held to act upon the absence of information is a rather remarkable, and positive, event. 

It’s been my experience that most defendants, even those who have been around the block a few times, have no clue what is happening in court.  We all talk very fast, and use our common shortcuts, case names or sections numbers, or expressions, as we do our work.  Ask any defendant in the hallway to explain what the judge meant when he granted a Wade/Dunaway/Huntley hearing.  Or what he gave away when his lawyer waived 180.80 or 30.30. 

To experienced lawyers, this is routine.  To defendants, this is a foreign language talking about foreign concepts.  For the most part, that’s fine.  It’s the lawyers job to control strategy, and to explain what he’s doing to the client so that the client can appreciate what is happening with his life.  But when it comes to those few decisions that belong exclusively to the client, that’s another matter.

It has long disturbed me when a state trial judge puts the screws to a defendant by offering a plea bargain under the condition that he “take it now or it’s gone.”  Justice Harold Rothwax, one-time legal aid lawyer and later judicial avenging angel, loved to screw with defendants’ heads like that.  It was a whirlwind without explanation, where kids would bargain away the rest of their lives without the slightest clue what it all meant.  Often, the numbers were so good that the lawyer would whisper “just take it” because they would never get that offer again.  When Rothwax said now or never, he meant it.  Defendants then were forced to take a blind leap of faith, without any idea of the significance of perhaps the most important decision in their lives.

While courts paid lipservice to the concept of a knowing, voluntary and intelligent act, usually referring to a waiver of rights for which men had died many times over, it was largely to explain why a defendant’s obvious ignorance of what he was doing somehow met the test.  Like most legal rubrics, it was a hurdle to overcome rather than a right to protect. 

The worst part of it was that defense lawyers are almost always complicit in the denial of knowing, voluntary and intelligent acts.  Their clients would look into the lawyers eyes, searching for some explanation of what was happening to them, and the lawyer would whisper, “don’t worry, just says ‘yes’.”  And everyone in the courtroom would pretend that the defendant understood what he was getting, and what he was losing, in the deal.

I applaud the Court of Appeals decision in Louree, and hope that it reflects a resurgence in recognition of whose life is at stake.  After a plea, the defendant goes to jail and the lawyer goes home.  It really does matter that each night, as the defendant thinks about the choice of taking the plea, that he truly understands what he did and why.  It’s his life, and his decision should be knowing, voluntary and intelligent.

The talk of the weekend was the iphone.  There were lines to get one, questions about its use, interest in this overnight icon of the electronic world.  No doubt this will be the flavor of the month in hot new electronic chic.  But not for me.

I won’t get an iphone.  In all likelihood, I will never even touch an iphone.  And that’s fine with me. Putting aside my general aversion to cutting edge technology, cellphones (with whatever bells and whistles come with them) reflect the worst of what technology has wrought. 

A new client asked me the other day to give her my cell number.  I swear she did.  It was jarring to hear those words come out of her mouth.  I had already given her my card with my office number and email address, but that wasn’t good enough.  She wanted my cellphone number.  No, she demanded it.

For many years, I would tell clients not to call me after 5 on a Friday as I would not respond until Monday morning.  They asked, “What if I’m arrested?”  “Then I will know where to find you on Monday morning,” I replied.  The idea was that I, too, had a life.  Being available 24/7 for their every whim tended to put a crimp in my time with my kids.  They mattered too.  In fact, they mattered more.

Clients understood this, and agreed to it.  They would give me some space, and had no expectation that it was fine to call me at any hour of the day or night, unless of course it was a real emergency.  Then I was always available for them.  But as we all know, 90% of the phone calls have nothing to do with emergencies, but with anxiety and the need for a little comfort and hand-holding.  But because the only way a client had to reach me was my office telephone number, I would listen to the message and make the assessment of whether they really needed me, or just wanted me, at any given moment.  The issue was theirs. The choice was mine.

And then came cellphones.  I had a relatively early one, which looked like something out of Get Smart, was huge, enormously expensive and worked poorly.  It was cool.  But since it was given to me by a client to use, I had it.  The client called me on it just once.  At $12 a minute, it was only used when absolutely necessary.

For the next decade, cellphones were secondary to beepers.  I never had a beeper.  I refused to be “beeped”, like some puppy at the beck and call of its master.  That was not for me.

Cellphones came into fashion.  Still expensive to use, people were reluctant to give out numbers, limiting them to their closest friend.  And not everyone had one, even though they were obviously becoming ubiquitous, so you could plausibly deny ownership.  Particularly if you were simultaneously taking on curmudgeon-like tendencies.

But those days are all gone.  Everyone has a cellphone from the age of 10 on.  Kids who don’t have food to eat have cellphones.  And they use them.  Everyone, it seems to me, uses them.

True story: I did a deposition representing an attorney (I represent a lot of other lawyers and their family members) who sat there through the EBT typing on his crackberry.  He looked like he was masturbating.  I finally called for a break, and grabbed his gadget and threatened to smash it on the floor unless he stopped.  The rest of the deposition, he looked like he was going through withdrawal.

So is this whole scenario nuts?  Do we really need to be accessible every second of the day?  Is it reasonable for clients to expect that they can call us at any moment, and reach us?  God no.  This trend is horrendous.  The expectation that we can be reached at any second is unreasonable.  And by doing so, we do a disservice to our clients and ourselves.

If I’m meeting with you, I will not be on the phone with someone else.  It is rude and counterproductive.  The person with whom I’m meeting deserves my undivided attention.  And I deserve his.  Clients meet me and, during the meeting, their phones will ring a few times.  I will tell them to either turn it off or the meeting is over.  My time is not captive to their cellphone.  And their time is not captive to mine.

I’m not going to get into the issues of cellphones in elevators or trains, where I am constrained to hear about bad dates or ill-fitting clothing.  Or worse.  I understand that kids can’t conceive of a world where they are not absolutely entitled to discuss anything they want in front of the entire world, or where disturbing others with their mindless chatter presents a problem.  But I don’t have to like it.  And I refuse to do it.

Does this brand me as a technological Philistine?  I suppose it does.  But I wear that mantle with pride.  You will not find me on line to be the first on my block to get a new iphone.  In fact, I am perfectly happy with the free phone they give me when I renew my contract.  It gets calls. It makes calls.  And it probably does other things, but I will never know.  And no, you can’t have my cellphone number.

Jimmy Breslin, commentator extraordinaire at every newspaper in New York at one time or another, coined a term for his wife, Ronnie Eldridge, a New York City council member.  Jimmy called her an “Official Woman.” 

An “Official Woman” was someone who elevated the rules above all else.  She was a grocery clerk with a list, and if it wasn’t on the list, it didn’t exist.  She would put on an official voice and pronounce things.  Her chest would suddenly swell with self-importance as she would dictate the way things had to be done, and how they could not possibly be done any other way, because those were the rules.  She couldn’t think outside the box; She was the box.  There was no arguing with the official woman because she was right, about everything, and anyone who thought otherwise was wrong.  Of this, she was absolutely certain.

And while the term was “Official woman,” it applied to all regardless of sex.  Or age.  Or stature.  We all know people like this.  Some readers of this post ARE people like this, but they won’t realize it, because they are “Official Women.” 

Even though I am posting, I’m really sitting on the beach in Montauk, reflecting on my dealings yesterday with the “Official Woman” in charge of petty matters at Gurneys Inn.  A simple matter where their staff made a stupid mistake became a major problem because of the intervention of an “Official Woman.”  She wasn’t actually involved in the matter, but couldn’t stop herself from intervening because she was an “Official Woman.”  Now that I’ve used the phrase enough to burn it into everyone’s conscienceness, I’ll move on.

In every “system” like criminal justice, we deal constantly with the “Official Woman.”  Getting anything done requires us to do so, and dealing with them is part of our job.  They are like a roadblock, created by the system to assure that nothing intelligent or useful happens easily.  Instead of solving problems, they are the problems and demand that you pay homage to them before your task can be completed.  Whether it is filing a paper, or seeing a file, they cling to the most rigid application of their rules as if it was the very air they need to survive. 

In law, there is an expression for this:  Remember the rubric and forget the rationale.  It is the comfort of the ignorant.  It is bureaucracy’s way of putting us in our place.  It is the vengeance of the system.

So how should we do it?  The first reaction is to try to engage them in a rational discussion.   This is invariably a total failure.  They don’t discuss rationally.  They have rules.  There is no discussing the rules.  The rules are the rules.  While we know that there are reasons behind the rules, they do not.  The rules are the reasons in themselves.  If they want 3 copies in black ink, then that’s what you must give them.  Not 2, not 4.  Not gray ink nor blue. 

The next inclination is to reach out and strangle them for being so mindless.  But this too won’t help.  Someone will always stop you before you complete the job, and they will just be angrier (they are always angry, unless and until you have told them how wonderful they are and what a great job they are doing with their clipboard). 

You can always get into an argument with them, which will inevitably grow louder in short order as your frustration with their intransigence grows.  But they will win, because they are wrapped in their rules and self-importance with shields them from anything you might say.  You will naturally lose this argument, because you understand the pointlessness of arguing with a wall.  And when you give up, the official woman will glare at your smugly, knowing that she was right, as she always is, proven by your giving up your foolish persistence.

Ultimately, you must do as the “Official Woman” demands.  But that’s not the end of my saga.  There is one person who is always capable of reigning in the “Official Woman.”  You see, official women are rarely at the top; They are clerks, middle-managers, who serve someone.  You need to identify the individual at the top, who (like you) has the capacity to think and understand that the official woman does not. 

You can talk to this person, and they will deal with you like a human being.  They will help you.  They understand that the rules are means to and end, not the end itself.  If you find this person, they will tell the Official Woman to accomplish the task, and she will comply.  Because whatever this person says becomes the rule, and the Official Woman must follow the rules or die.

There is only one flaw to this path of accomplishing whatever task you are trying to accomplish.  You will eventually have to come back and deal with the official woman again, and she will hate you forever for having managed to do so without having succumbed to her authority.  Imagine how much easier and better life would be without official women.  It will never happen.