It was an astounding act of chutzpah when Willacy County DA Juan Angel Guerra, in the waning hours of his term as District Attorney, indicted the Vice President of the United States of America.  It was less than astounding when Judge Manuel Banales tossed the indictment.  But that doesn’t mean that Guerra wasn’t right.

By all accounts, including mine, this was a bizarre case from the outset.  Some believed it was a hatchet job by Guerra, as a way to get back for the 18 months he spent under indictment before the very same judge.  Others believe that, Guerra’s baggage aside, he had an indictment and it’s no different when it’s the VP than anyone else.  It ceased to matter when Banales tossed the indictment since Guerra’s term of office ends at the end of the month, and after that he won’t have the ability to indict anyone.

According to the AP Report,

“I suggest on behalf of the law that you not present any cases to the grand jury involving these defendants,” Administrative Judge Manuel Banales said in court while ruling that eight indictments against Cheney, Gonzales and others were invalid.

Why would Judge Banales take such a position? 

Even in defeat, Guerra saw the outcome as confirmation of the very conspiracy he had pursued. “I expected it,” he said. “The system is going to protect itself.”

Even the court’s order contributed to the circus.

Banales withheld judgment on whether probable cause existed for the Cheney and Gonzales indictments because they were not represented in court and did not present any argument.

It isn’t often when an indicted defendant gets the option to not appear.  I suspect many defendants would prefer that choice to the one where they are shipped off to jail on bail they can’t make, made to face the indictment and put on trial.  From now on, the “Cheney Option” may be favored by accused felons in Willacy County, Texas.

But as Grits for Breakfast points out in his review of the Brownsville Herald, despite all the nasty issues swirling around DA Guerra, opening him to ridicule and allegations of using his office for a personal vendetta, it doesn’t mean that the indictments weren’t legitimate.  Hey, even paranoids have enemies.

[Nueces County retired District Judge Michael J.] Westergren told The Brownsville Herald Wednesday that Guerra is the only one who has had the “gumption” to investigate privately owned and managed prisons and their lack of oversight.

“I certainly think it is a serious matter. It’s not frivolous by any means,” Westergren said, referring to Guerra’s case relating to private prison firms. He said there is “substantial support” to the allegations.

Opining that investigations into activities within the private prison system had been suppressed, Westergren said, “That’s not good.”

“It’s a nationwide problem,” said Westergren, adding that the incidence of death in private prisons is estimated to be substantially higher than at other facilities. “That’s pretty bad,” he said.

So Guerra is a nut, in a County that is more zoo than body politic, before a Judge who may be every bit as biased against Guerra as Guerra is against him.  That doesn’t make Cheney’s indictment wrong.  It doesn’t make him guilty either.  The question still remains whether former Attorney General Alberto Gonzalez covered up the death of an inmate, De La Rosa, to protect Cheney’s financial interest in Vanguard and it’s subsidiary private prison interests.  Is this just the tip of an iceberg of rampant conspiratorial abuse in private prisons?  Bear in mind, Cheney may be the headlines, but many others were indicted as well and all enjoyed the benefit of Judge Banales’ subjective decision to overrule the grand jury (not that there’s anything wrong with that).

But it looks like we’ll never know, unless some other District Attorney decides to pick up the ball and carry it toward the end zone.  Any takers?

Like wildfire, word of the ABA Blawg 100 spread across the blawgosphere.  I learned of it as I entered the subway on my way back from court yesterday, when the person in the glass booth, formerly known as the token clerk, smiled at me and waved me through without having to swipe my Metrocard.  “No need,” he bellowed, “because you made the ABA Blawg 100!” 

It’s an honor to be recognized, and for that I appreciate being on the list for a second year.  And I certainly don’t want to be ungracious about it.  But the discomfort I felt last year persists, plus this year’s list presents some new issues that should be aired.  Does this make me unappreciative?  Perhaps, but the truth is that I still had to swipe my Metrocard to get on the subway, my honor notwithstanding. I received no free ride.  When this latest hoopla dies out, I will still be a party of the same blawgosphere, with the same folks as before, and aside from another badge on my sidebar indicating that I was an also-ran,

The list is structured very differently this year then last.  Rather than being broken up into practice areas that make some degree of sense, it’s broken into strange and amorphous categories that don’t have any cognizable connection to one another.  “Crime,” the category that Simple Justice is in, is the closest to last year, but this year contains only 5 names.  Worse yet, of the five, one isn’t a blog at all, and another seems to be in the wrong category, since there is a separate category for law professors where all the other lawprofs were placed.

Eric Turkewitz, the most glaring omission from last year’s list (along with the fact that it failed to include a single blog that discussed personal injury law), is now part of the 100, as well he should be after yesterday’s epic Blawg Review, a shoo in to win BR of the Year. But he’s in a category called “regional”.  Huh?  It’s like somebody read the blog title but never read the content, which is anything but regional.

But wholly missing from the list is any blawg by a Public Defender.  There are quite a few of them, and they are exceptionally good.  And they are entirely unworthy of mention, as far as the ABA Journal is concerned.  They include a website, an extremely good and fascinating website that I’ve posted about because I thought it was so terrific, but doesn’t happen to be a blog at all.  But they found no room for a PD blawg in the Crime category.  Not one.  Oddly, Blonde Justice is on the list, but this time was shunted off into the “Quirky” category.  What is meant by “quirky” is anybody’s guess, but Blonde apparently is more quirky than criminal.

This seems to be the new thing at the ABA Blawg 100.  It’s no longer about blawgs.  Not that there aren’t plenty of blawgs, written by lawyers, written for lawyers, thoughtful, interesting, funny, whatever.  There are.  And each reflects some lawyer somewhere giving his time and effort to provide posts for others who don’t put in that time and effort a place to go and explain why they are smarter then the blawger.  It’s a wonderful world in here, But the ABA Blawg 100 doesn’t see these blawgs. 

The point is driven home more clearly with the inclusion in the “podcasts” category (I kid you not, they have a podcasts category) of FBI: Gotcha, which is discussed more thoroughly here.  Not only is it not a blawg, but it’s open and notorious government propaganda.  And they have no room for a public defender blawg?

It is, without a doubt, nice to be back on the list, if only because one catches more than enough grief for doing this and a little appreciation from time to time makes me feel a little warm and fuzzy.  I still can’t shake the feeling that whoever created the list doesn’t really have much of a clue about the scope, breadth and nature of the blawgosphere, and inadvertently creates hard feelings within the ranks by the omission of great blawgs, far (by miles) of inclusion over others, or the insult of including non-blogs to those who work awfully hard to put out brilliant content.  I think some of the categories are silly, and that some of the blawg included within the categories don’t make any sense.  I’m not even going to touch the inclusion of Gerry Spence’s blog.

The ABA has gone a step further by providing blurbs about each of their selections.  I’ve read some of them, and think they are just awful.  I assume that they reflect someone’s concept of the blawg or non-blog website chosen, but certainly not mine.  As for the blurb written about Simple Justice, which attempts to be cute, it reflects at best a myopic and simplistic view of what I do here.  If that’s why they put me on the list, then it’s likely a mistake and they should remove me immediately and put a more worthy blawg in there.

The second stage of the ABA Blawg 100 process is to solicit votes, or the Beauty Pageant stage.  This is the part that I will not be involved in, as it’s demeaning and ridiculous.  Imagine, grown lawyers acting all humble while secretly begging for readers to “vote for me!”  The lawprofs are deep into this, as many posted about their inclusion within second of the list coming out, and seem to care deeply, very deeply, that they are on it.  Perhaps they get so little recognition otherwise that this matters.  Maybe it counts toward tenure.  I don’t know why they care, but they sure do. 

Plenty of other blawgs will be posting about this today, asking (begging) for your vote.  I am thrilled to pimp (h/t Randazza) for the blawgs that I believe do a great job, to the extent they appear on the list, and urge you to go to the Beauty Pageant and vote for them.  To do so, click on the category name or on this badge to go to the main page.

News: Vote for How Appealing, because Howard Bashman does more to help the blawgosphere than anyone else, and deserves to get some love.

Crime:  Vote for Defending People.  If I need to explain this, then you probably shouldn’t be reading Simple Justice.

Professors:  Vote for Volokh Conspiracy.  Oops, wait, VC isn’t in that category.  They put it in News instead.  Well then, second choice is Concurring Opinions, which is in a very tight race with a couple of others, like PrawfsBlawg and Turley.  I give the edge to Dan and Dave for depth, and especially because they have Frank Pasquale on their team.

Niche:  This is a tough category because they’ve mixed together blawgs that have absolutely nothing to do with one another.  Even so, the vote goes to Deliberations by Anne Reed.  Sorry Walter.

Technology:  Not my favorite category, but I’ll throw my vote to Kevin at Real Lawyers Have Blogs just because he works so darned hard at it.  Of course, he gets paid for it too, so don’t cry too hard for him.

Quirky:  As much as like Blonde Justice (and I do) and as much as I dislike (and I do), vote for Quizlaw.

Careers:  While Law21 is a great new blog, and Carolyn Elefant’s My Shingle is the only marketing blawg that keeps things honest, vote for What About Clients? because Dan Hull has got the biggest pair in the blawgosphere, and never shies away from saying what needs to be said.

Students:  I can’t help you on this one, as I’ve never read any of the blawgs.  You’re on your own.

Podcasts:  The only thing I can suggest here is don’t vote for FBI:Gotcha, a disgraceful inclusion. Talk about lipstick on a pig.  Aside from that, who cares.

Regional:   Another mix of apples and oranges that makes it silly to have to chose, but chose we must, and I chose Eric Turkewitz’s New York Personal Injury Law Blog, because Turk is one of the best, funniest and most astute inhabitants of the blawgosphere.

And so it goes.

Yesterday was the effective date of new Rule 60 of the amended Federal Rules of Criminal Procedure. I remind you of this not because it’s cause for a party, but to prevent any potential embarrassment when you ask the judge to exclude the most significant witness against the defendant from the courtroom so that their testimony won’t be tainted by the other government witnesses. 

Historically, the “victim”, by whatever name he or she was known, was not permitted to sit in the courtroom and listen to the parade of government agents on the stand testify about the case.  This was to make sure that the victim didn’t alter his testimony to conform with that of the witnesses who preceded him.  After all, there is no one in the courtroom with a greater desire to convict then the victim, and most victims, absolutely certain that the defendant is the man who “did it to him,” will do anything to assure a conviction.

The parade of agents notwithstanding, it is the victim’s testimony that closes the deal.  The victim identifies the defendant as the one who did it, with sufficient drama and certainty that no one could doubt.   The victim describes in chilling detail the defendant’s cruelty, avarice, or malice, so that the jury learns to hate the defendant as much as the victim does.  The other witnesses are the appetizer.  The victim is the main course.

For this reason, we isolate the victim from the other witnesses, preventing the victim from listening to their testimony and then altering his own to match it.  The victim’s untainted testimony, free from modification, is what provides the integrity of the testimonial and adversarial process; it either stands up on its own or falls.  But this quaint notion, I’m afraid, is now an anachronism.

Rule 60 provides:

(2) Attending the Proceeding. 

The court must not exclude a victim from a public court proceeding involving the crime, unless the court determines by clear and convincing evidence that the victim’s testimony would be materially altered if the victim heard other testimony at that proceeding. In determining whether to exclude a victim, the court must make every effort to permit the fullest attendance possible by the victim and must consider reasonable alternatives to exclusion. The reasons for any exclusion must be clearly stated on the record.

The generic rationale for excluding victims in every trial will no longer suffice, and the new test, that the defense must prove by “clear and convincing evidence  that the victim’s testimony would be materially altered if the victim heard other testimony at that proceeding,” is essentially impossible to meet.  There is little possible basis to contend that one particular victim would be specifically inclined to alter the testimony.  How can you prove that someone else would almost assuredly lie?

The proponents of victims’ rights, like Judge/Professor Paul Cassell who testified in favor of these changes, has carefully crafted the reasoning to evoke a tear.  This has been a topic of discussion here numerous times before.

Crime victims are absent from the Federal Rules of Criminal Procedure. Yet this is not because victims lack vital interests in criminal cases. As the CVRA recognizes, victims have vital concerns throughout the criminal process. This section recounts the absence of victims from the federal criminal rules, then contrasts that absence with the aims of the victims’ rights movement. The movement has argued successfully before state legislatures and Congress for the recognition of crime victims’ rights-with these efforts culminating in the passage of the CVRA, protecting crime victims’ rights in the federal system.

It sounds so kind and thoughtful to demonstrate concern for the victims, those “forgotten” people in the criminal justice system.  But the argument is wrong.  The victims are very much included, as the witnesses who provide the critical testimony against the defendant.  They are the central focus of the trial.  They are at the epicenter of the system.  The problem is, to victims rights advocates, that they aren’t there on equal footing as the other two players in the adversary system.

They shouldn’t be.  The prosecution does not represent victims, and it shouldn’t.  The defendant should not have two independent adversaries, and he shouldn’t.  The existence and deployment of criminal laws is not to vindicate personal rights of any individual victim, but to reflect society’s hedge against criminal conduct. 

But Congress, dear Congress, in passing the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act (yes, that’s the complete name of the CVRA), could not help itself from enjoying the political gain from appealing to the needs of victims.  Who could say “no” to victims?  This was a political slam dunk.

The only problem is that new Rule 60 creates a new victim, one that no one was concerned about at the time.  The integrity of the criminal justice system.

So when you rise to argue to the jury that the testimony of the victim has been irreparably tainted by him sitting in the courtroom, listening intently to the testimony preceding him, and tailoring his testimony to match up perfectly with that of earlier witnesses, anticipate the objection.  Expect the “sustained”, or at least the cautionary instruction that the victim is permitted as a matter of law to be present for the testimony.  After all, why concern yourself with the legitimacy of the victim’s testimony when there are emotions to be played? 

So don’t be surprised when you see the victim sitting in the front row throughout the trial.  It’s his right.  That it comes at the expense of the defendant’s right to a fair trial is old news, as of yesterday.

As a die-hard New York Giants fan, it’s hard to take off my blue helmet and put on my lawyer hat to rationally discuss wide receiver Plaxico Burress.  This is even more true when he retained Ben Brafman, who successfully defended Puffy Daddy, to make his problems to away.  But with the Giants 11-1 after beating the pants off the Washington Redskins, it’s time to admit the truth.  Burress is a big, tall bone-head who’s going to jail.  Here’s the prediction: He’s taking a bullet for shooting a bullet.  You heard it here first.

Special treatment?  He’s already getting it.  You didn’t see a special news alert in the middle of the game to show SWAT teams busting into Burress’ New Jersey mansion, did you?  Most shooters don’t get a gentle knock on the door, and a request for permission to speak with the perp. 

The “why’s” behind the street-cred stupidity things are obvious.  Plax is a street guy who happens to play ball, and carried a gun to “protect” himself from the other street guys who might be inclined to prove that they are as tough as him.  No, it’s not a very good reason, but Burress didn’t ask for our advice.  That he had an itchy trigger finger and was safety-challenged is a matter for the J-dog to address; apparently Burress didn’t take a decent gun safety class.  Of course, a lot of people carrying illegal weapons don’t,  But the newspapers reported that he did, at one time, possess a legal Florida carry permit, so it’s possible that he should have known better.

New York State has some very tight gun laws.  Falling well within the gaping hole of Heller, Burress took his gun on the road, so the potential safe haven of home defense isn’t readily available to him.  I wouldn’t put it past Ben to fashion an excellent argument that this was still a defensive possession, even though in a bar in Manhattan, but that would create an untenable situation for the thousands of other gun possessors who similarly claim that they only carry for safety.  Every defendant says that.

There used to be a loophole in the gun law so that a defendant could receive a sentence of probation on a first offense.  That was closed when the Lege realized that they stood to be embarrassed when some kid on probation shot up a bodega, and then mandated jail time for a weapon.  He could even do prison time.  It could happen.

Granted, Burress has yet to be charged or arrested, though Brafman says he will surrender today.  Maybe there’s a great story behind this accidental self-shooting.  Maybe Ben will find a spin that makes some inkling of sense.  He’s a very imaginative fellow, not to be underestimated.  But it seems like there’s too much water under the bridge already to change the story now. 

The most curious side story to this is that Cornell Medical Center failed to alert police to a gun shot wound when Burress showed up for treatment Friday night.  A Giants fan in the ER perhaps?  A phone call from the Maras?  Most people find hospitals rather unwilling to risk problems with their patients, but apparently the hospital bearing Sandy Weil’s name is the place to go for gun shot wounds from now on.  It could be a new marketing strategy, since hospitals are competing for patients with good insurance.

Plaxico Burress is being roundly condemned for being a malcontent, a bad boy and an idiot.  Why?  He’s a wide receiver.  There’s no ethic tests for being a wide out.  He’s expected to catch footballs, and he does that awfully well.  People continually overlay a duty on sports figures to be better, nicer, smarter then they are.  He was known to be street when they signed him up, and it’s not like they forced him to take classes in being a better person.  Sure, there’s a morals clause in the contract, but nobody can read the contract while they are counting up the signing bonus. 

In the grand scheme of things, Burress was stupid, but not a whole lot more stupid than plenty of others.  He wasn’t venal, like Michael Vick.  He didn’t pull out the gun to shoot someone.  This is a malum prohibitum offense, and not a crime of moral turpitude, unless stupidity implicates morality on the back end. The only person harmed by his itchy finger was himself.

And my beloved Giants.  While they can still win without him, it would be better if he was with them on the field catching the fade into the corner of the end zone. 

Doreen Giuliano was prepared to do anything to help her son, John Giuca.  And she did, according to the New York Times,  Going so far as to create a false persona, with dyed hair and a buff body, so that she could go undercover to investigate juror misconduct and free her innocent son. 

In an interview with Vanity Fair, she described how she befriended a juror from the trial, cooking for him, smoking “weed” with him, and ultimately getting juror Jason Allo to spill his guts about how he was dishonest during jury selection and should never have been on the panel.  All the time, Giuliano recorded the interaction.

While Lloyd Epstein, Giuca’s lawyer, may yet have his hands full using Doreen’s recording, she is nonetheless hailed as a hero for going above and beyond to do everything in her power to free her son from 25 years in prison for a crime she says he didn’t commit. 

Gideon posts about this story approvingly.  How could anyone disapprove of the idea of exposing impropriety?  You can’t.  I can’t.

But that doesn’t mean that there isn’t a serious dilemma lurking beneath the surface of this story, and it’s the problem that gives rise to the difficulties in taking evidence such as this, put together at great personal effort and possible risk by Mom Doreen, and using it in court later.

The lifespan of a juror runs from voir dire to verdict.  After the verdict, the judge thanks the jury warmly for performing this civic duty and sends them on their way.  In rare instances, jurors may do television interviews afterward, but that’s entirely their choice.  They otherwise return to their work, their home, their lives, with the trial being nothing more than a memory.

But what if jurors were stalked after the trial, by mothers or brothers or baby mamas.  What about fellow gang members or conspirators?  What if the stalkers weren’t inclined to ingratiate themselves, which takes time and effort, but rather the threaten or worse?  Maybe just buy a post hoc juror’s “admission” of wrongdoing?  Maybe a combination, for those who prefer a “fist in the velvet glove” tactic?

What makes Doreen Giuliano a hero is that in her son’s case, proof of guilt was quite poor and the target of her undercover operation ultimately admitted his wrongdoing.  Her choice was vindicated by the outcome.  But outcomes are risky business, and what if he hadn’t done anything wrong?  Then we are left with a potentially psychopathic stalker who obsessively went after an innocent juror in her son’s case.  The story in the Times would have been very different, likely ending with a picture of Doreen doing the perp walk instead of a glam “after” shot. 

It would be irresponsible to argue that, in the name of policy, Doreen Giuliano should happily sacrifice her son and leave the wrongful verdict alone.  As a mother, if not a human being, she has as vested an interest as one can get in achieving justice for her son, and doing whatever it takes to get there.  She did, and the fact that she gained evidence of wrongdoing on Allo’s part does vindicate her decision.

But the next mother, brother, baby mama may not.  They may latch on to a regular person who told no lie to remain on a jury, who did no wrong and simply believed in the verdict rendered.  What happens to this person when they find out that they have been the victim of stalking by the family of the defendant?  What becomes of the jury system when potential jurors consider that this is a possibility, and that they don’t want to put themselves or their families at risk of becoming the target of a defendant’s loved ones?

While some may suggest that it may be an influence in jurors favoring a not guilty verdict, just to be sure that no one comes after them later, this is not the experience that trials lawyers have in the well as jurors come forward to express their feelings on being selected.  When they fear post-trial consequences, they ask to be released.  They don’t want to be there, and their fear of the defendant colors their vision of the trial.  They start with the presumption that the defendant is a danger, and it’s reflected later in their verdict.  In other words, potentially good jurors will be lost to the pool out of fear.

Even if jurors were to lean more favorably toward a not guilty verdict out of fear, this bodes poorly for society.  There’s a reason why we have laws to prevent dangerous people from doing as they please, and we want them convicted and taken off the street to protect others, including our families.  We, criminal defense lawyers, want to be protected from violence, just like anyone else.  We aren’t nuts, or at least we shouldn’t be.

So our praise of Doreen Giuliano’s tenacity has to be tempered by the potentially disastrous impact of others deciding that this is how hero’s do things.  when the court considers what to do with her recordings, and whether they should result in Giuca’s freedom, he will most assuredly consider the impact of rewarding Doreen’s conduct on future mothers and jurors, and encouraging others to go undercover (or worse) to stalk trial jurors.  While Giuliano has no reason to put the policy issues ahead of justice for her son, the judge does.

Whether the judge will be able to find a way to tiptoe down the middle of this line between policy and injustice has yet to be seen, but the story itself will serve to encourage others to be a hero like Doreen Giuliano.  The jury is still out on whether this will be a good thing.