Kevin O’Keefe reports that Martindale-Hubbell, the grande dame of lawyer raters, appeared to have given up.  Game over.  Pack your bags.  Time to mop the floor. It’s done.

It’s unclear that MH will stop listing its AV ratings, but apparently the bunch of folks at MH that decide on ratings have been told to seek new opportunity elsewhere.  That doesn’t bode well for the rating system as a whole. 

What does this mean?  Who knows.  Way back when, when Martindale-Hubbell was the only game in town and lawyers really didn’t have much access to information about other lawyers from other places, an AV rating provided some level of confidence that the lawyer was respected within his local legal community.  Whether well deserved or not, it gave some degree of security that the lawyer wasn’t a total mutt.

Today, things are different.  The internet provides a wealth of information about lawyers, and we can gather as much info about a lawyer from Seattle as we can about the lawyer in the next office.  Location is irrelevant.  Information is everywhere.  The old AV rating (and why did they ever pick “V” rather than “+”?) is more of a nostalgia thing than a meaningful indicator of competence, right?  Well, not exactly.

For better or worse, we took the Martindale Hubbell peer review ratings seriously.  We may have been wrong to do so, but we did.  Unlike the fluff of marketing ploys like SuperLawyers, there was a degree of faith in an AV rating that meant something across the boards.  We believed it to be real.  Maybe we just needed to have something to believe in, but we did.

New players entered the fray in the meantime.  Avvo made a big splash with its numerical ratings, but was subject to severe criticism from within the bar for its secret algorithmic methodology that burned younger lawyers and experienced lawyers who couldn’t be bothered to play its game. Then Avvo gave up whatever credibility it might have had by selling paid lawyer advertising on the same page as its putatively consumer-useful informational pages, reducing itself to just another “business model.”   And I thought Avvo had such promise.

Perhaps MH lost it’s purpose to Google, since searching a lawyer’s name provides far more information than MH ever could.  But aside from information overload, there is no way to determine the accuracy of this wealth of information, or to put it into some succinct useful form.  In exchange for volume, we gave up reliability.  There’s little way to tell whether our bits of information garnered from searching is the product of meaningful assessment or ignorance, or even hatred  and deception.  There’s a lot of junk online.

It’s understandable that Martindale-Hubbell, the dinosaur, moved too slowly to adapt to  a changing world and was doomed.  It’s just not clear that anything better, or even equal, exists or will come into being in the future.  Current evidence suggests that it won’t, and that we will be saddled with too many SuperDuperLawyer websites or Avvo-type magic-ratings, but no one in whom the profession can put its trust. 

So the Martindale-Hubbell age has past.  What are we going to do now?

Update:  Martindale-Hubbell has responded to “the rumors” of the death of its ratings, claiming the reports of its demise “have been greatly exagerated.”  So what does it mean when you fire all the people who handle the ratings?  They say they are “fully committed” to continuing the ratings, plus a whole lot of other new initiatives that will bring “transparency by practice area, narrative feedback and validated data from third parties that provides examples of an attorney’s experience.”  What that means is anybody’s guess.

To provide even more focus, we will name a new VP/ Product Champion of Ratings who will help us spread the message about our transformation. We are also increasing the current number of Martindale-Hubbell Specialists in the market in order to educate our firms about all the new offerings, including enhanced ratings services. We are adding a product marketing team for a more consistent flow of information and wider communication and we have expanded the current responsibilities of our inside Ratings Support team.

After careful consideration and a long period of deliberation, this change also included a change in the role and responsibilities of the ratings specialists. While this was a truly difficult decision, it is one that we felt necessary to best meet client needs.

After cutting through the rhetoric, I believe that this means they fired all the ratings people and replaced them with marketing people, who will now spread out across the country to bring us transparency through marketing.  After all, there is no better way to “meet client needs” then sell them stuff. 

While the criminal justice system is mediocre at dealing with cases that follow the usual path, it is absolutely horrible when a case comes along where things go systemically wrong.  Via Ken at Popehat, who revisits his childhood as an AUSA by remembering Sol Wachtler’s admonition about indicting a ham sandwich, comes this incredible story of a little screw up by the Jefferson County, Oregon District Attorney.

In a nutshell, the Jefferson County district attorney’s office prosecuted Simmons that fall on four counts of felony third-degree rape and two counts of felony sodomy for sex with his girlfriend dating back to September 2005, when he was 17 and she was 14.

But that grand jury declined to indict Simmons.  Apparently, however, nobody read that section of the indictment.

“Not the prosecutor, even though he signed the document 1 inch below the line that said ‘Not a True Bill,’ ” Richkind said outside the courtroom Tuesday. “Not the court clerk, who filed it. Not the judge, not Mr. Simmons’ defense attorney.”

Instead, all proceeded as if the 18-year-old had been indicted.

The problem, of course, is that the idea of a grand jury returning a “no true bill” is so shocking that it never dawned on anybody that it could possibly happen. Now this would just be an apocryphal tale of making sure the indictment was in proper order, but for the fact that the defendant pleaded guilty and everybody walked away.  By a twist of fate, though, someone happened to notice.

Simmons might have spent the rest of his life with two wrongful felony convictions on his record. But Greer, the jury foreman, happened to read a newspaper account of the plea deal. Shocked, he confronted prosecutor Steven Leriche, who in turn contacted Simmons’ then-defense attorney Jennifer Kimble.

Consequently, the court vacated the conviction for the unindicted crimes.  But that wasn’t the end of it.  The defendant was charged with misdemeanors for the same crimes, thus avoiding the sandwich of rotten ham.

Simmons retained Richkind, who filed a motion for dismissal of the charges on the grounds that they constituted double jeopardy. But another judge for the Oregon Circuit Court serving Jefferson and Crook counties denied that request. Judge Gary Thompson agreed with Assistant Attorney General Darin Tweed that the second prosecution was legal because the first one occurred in a court that lacked jurisdiction over Simmons — if only because the Jefferson County Grand Jury had not indicted him.

Richkind appealed that decision to the Oregon Supreme Court, which declined to take the case.

As Ken pleasantly points out, Youssarian had nothing on this catch-22.  Despite having been subjected to prosecution and being imprisoned, the court’s conclusion was that the lack of an indictment precluded its jurisdiction, thus rendering the entirety a nullity and providing the prosecution with a clean slate to go after the defendant as if nothing ever happened.  After all, what’s a little prison between friends?

The decision to permit the defendant to be subject to prosecution after being previously prosecuted under a defective instrument smacks of absurdity, and leaves one to wonder whether the attack on double jeopardy was somehow lacking or whether there is some quirk in Oregon law that could use a fix.  That the court assumed jurisdiction, even though it may not lawfully have possessed it, should have been more than sufficient to invoke double jeopardy.  This was a matter of harsh reality, though reality is often trumped by legal fiction.  And the fact that the Oregon Supreme Court refused review speaks volumes.

The lesson of this inane case is rather hard to explain.  The law presumes regularity, meaning that things happen the way that they are supposed to happen.  Procedural laws are written with normalcy in mind, and often fail to provide a mechanism to deal with unanticipated problems.  Lawmakers, of course, can’t anticipate all the screwy things that can happen in the course of legal proceedings, invariably leaving us with a mess without a solution.

This is where some of the broader legal concepts, such as due process and equal protection, usually come into play to save the day.  This case, apparently, fell through the legal cracks. 

Few of us expected a present from the former head of he Medellin cartel this holiday season, but Fabio Ochoa gave us one anyway.  Southern District of Florida Judge Marcia Cooke dismissed the first count against Ben Kuehne, the squeakiest clean lawyer in Florida, charging him with a money-laundering conspiracy for vetting the funds paid by Ochoa to Roy Black and concluding they were legitimate, when the government thought otherwise.

The defense moved to dismiss pursuant to 18 USC §1957(f)(1), and Judge Cooke agreed, holding that “the funds were for legitimate legal services.”  Despite the simple language, this holding is of huge importance for the criminal defense bar, and hence a present for all of us.

I can’t help but wonder whether this ruling might have been different had the government not made the horrendous tactical error of prosecuting Ben Kuehne for the crime, rather than someone whose reputation for integrity is less stellar.  While the law would have been no different, the fact that the government picked someone like Ben Kuehne as the target, creating such a huge groundswell of support for him and picking a lawyer who was so capable of putting together as strong a defense as possible, was a gift to the rest of us that rarely occurs.

Judge Cooke further held :

The dismissal of Count One of the Indictment does not prevent the Government from properly prosecuting attorneys for money laundering related crimes, nor does it totally negate criminal liability for an individual who may conspire to launder tainted funds to pay legal fees. The government’s concern that application of the § 1957 exemption would hinder or bar prosecution of anyone who had contact with tainted funds that were eventually used to pay criminal defense fees is unfounded. The Indictment, in Counts 2 through 6, also charges Defendants under 18 U.S.C. § 1956 with money laundering concealment conspiracy and concealment money laundering. There is no exemption contained in § 1956 for transactions necessary to preserve a person’s right to representation as guaranteed by the Sixth Amendment to the Constitution. None of these Defendants have moved to dismiss Counts 2 through 6. For good reason. Accepting the allegations in the Indictment as true, as required at this juncture, the crimes are appropriately plead and any further determination of the charges should be made on a Rule 29 motion.

This, of course, is entirely appropriate.  Lawyers are no more entitled to commit crimes, including money laundering, than anyone else.  But we should not be put at risk by simply accepting a fee for representing criminal defendants.

It’s been almost a year since news of Ben’s indictment broke, and has no doubt been a very unpleasant time for him.  Judge Cooke’s decision no doubt will make this a special holiday in the Kuehne house.  But for many criminal defense lawyers, the threat of prosecution for doing the job we are here to do has also haunted us over the past year. 

While we are happy to play by the rules, we need to know what the rules are.  This indictment changed them, and Judge Cooke’s decision has now changed them back.  With this decision, we have returned to some semblance of equilibrium, so criminal defense lawyers can again be retained to represent defendants without fear of prosecution.

This is a great victory for Ben, and through him, all criminal defense lawyers, coming to us via the largess of Fabio Ochoa.  Thanks, Fabio.

If you’re in it just for the money, law was a lousy pick.  After all, you could have been a hedge fund manager like Walter Noel, who is such an important fellow that he made the front page of the New York Times.  His secret to success, and success it indeed was, was to manage a “secretive hedge fund advisory company” that paid his company, Fairfield Greenwich Group, $500 million in fees since 2003.  Not too shabby.

And what did Noel do to deserve this bountiful compensation?  He invested his clients’ money with Bernie Madoff.  I could do that.  You could too.  It worked out pretty well for Noel.

Internal documents from Fairfield show that the firm has taken more than $500 million in fees since 2003 alone from the money it placed with Mr. Madoff. Nearly all those fees went to a handful of Fairfield executives, including Walter M. Noel, Fairfield’s founder, who used the money to build a glamorous life, splitting his time between homes in New York, Connecticut, Florida and the Caribbean.

Like Mr. Madoff’s firm, Fairfield was at least in part a family business. Four of Mr. Noel’s sons-in-law worked at Fairfield. But unlike Mr. Madoff, Fairfield’s partners, led by Mr. Noel, were not shy about spending their money and taking a high profile in wealthy New York society circles.

“The last few years, they really made a play to be a part of that New York-Southampton social axis,” David Patrick Columbia, the editor of NewYorkSocialDiary.com, said of Mr. Noel and his family. “It happened so fast that you really noticed them.”

Of course, he’s allowed.  Rake in $500 million and you can be pretty much anybody you want to be.  Southampton socialite?  No problem.  Caribbean jet-setter?  Welcome aboard.  Park Avenue Patron?  Why not?  There are so many doors that will open for half a billion dollars.

Now if I understand correctly, about the only thing that Fairfield Greenwich Group was actually supposed to do, aside from sending off the wire transfers and cashing the commission checks, was to track and verify the assets taken under wing. 

As it raised money all over the world, Fairfield also made detailed pledges about how it would monitor and track Mr. Madoff’s investments, the documents show. Now, investors and regulators are sure to ask whether Fairfield made good on those promises — or whether it was a facilitator of the Madoff scandal as well as a victim.

Of course, it’s understandable that they may not have had the time necessary to do their once a week due diligence,  It takes a lot of time to keep up with the maintenance on all those far-flung residences, not to mention decide what to wear to the next hot Hamptons party.  Busy people can’t always get around to the more mundane nuts and bolts of their work.  And who really cares, as long as the cash keeps flowing.

So next time you find yourself in the well, getting your butt kicked by some unduly officious government employee while your client whines about how used your fee to pay for juniors pampers, think of Walter Noel and wonder, does he get to keep the half a billion dollars?

It’s hard to say that a defendant has a “worst” enemy, since there are so many to chose from.  But at least we are well-equipped to deal with most of them, ranging from cops to witnesses to prosecutors to judges.  There’s one, however, that presents an entirely different sent of problems.  The defendant himself.

What do you do when the defendant is his own worst enemy?  As a practical matter, we try to make, or keep, our clients happy.  Happy clients are cooperative clients.  They make our lives easier, our work more pleasant.  They like us better, and pay our fees.  They speak well of us and refer us to other clients.  Happy clients are good clients. But…

There are certain aspects of a defense that require a client to either perform a task, or forgo a task, in order to pursue a viable strategy.  We instruct them on what to do or not do, and the instructions are generally not terribly difficult to follow.  Yet clients often find it impossible to do so.  The problem then shifts back to the lawyer.  How do you deal with the client who is destroying himself?

It goes without saying that the lawyer is responsible for the successful execution of all tactical decisions necessary to achieve the agreed-upon strategy.  When the prosecutor tries to get in the way, it’s the lawyer’s job to find a way over, under or around him.  But when it’s your own client who keeps creating roadblocks, the situation grows hairier.  It’s no longer an issue of tactics, but one of ethics.

This is one of the many points where a lawyer differs from a businessperson.  From a business perspective, the client is always right.  We want to keep our clients perpetually smiling.  But we give up the long term happiness, prevailing in the case, for the short term happiness of telling the client that his latest act of destruction, undermining his own defense, is “okay, no problem, we’ll deal with it.”  The fact is that many of the things that a defendant can do to harm his cause cannot be fixed.  And they can be devastating.

This is one of those points where lawyers must decide what they really are, a lawyer or a businessperson.  The lawyer’s duty is to do what is in the best interest of his client, regardless of whether it pleases the client.  This can be a difficult matter to handle, and produce a very unhappy client.  No client wants to be told the harsh truth that his actions, the ones he does in contravention of instructions, or the brilliant ideas to help himself that he comes up with all on his own, are going to put him in prison. 

When the client resists, it can become a battle for control.  The lawyer, recognizing that it’s the client’s life and if he choses to ruin it, then he will pay the consequences, may well feel justified in throwing up his hands and letting the client destroy his defense.  After all, it is his life, right? 

But the most critical reason a client retains counsel is to exercise the degree of professional discretion necessary to protect the client from bad and destructive choices.  The client may be well intended, but that’s not going to save him from conviction.  This is when we are truly tested; Will we put the client’s interest first?

The ethical duty of a lawyer is to seize control of the situation, to assert his authority to defend his client and to do everything in his power to prevent the client from taking actions that are antithetical to his defense, no matter how painful this may be.  As I’ve told clients over the years who bristle and resist ceding control over their lives for a brief period of time to a lawyer, the choice is to have a nice lawyer now and lose, or a tough lawyer now and maximize your chance to win. 

Nobody ever said this was an easy job, or that we can ethically perform our duty while keeping everybody happy.  But when push comes to shove, and the choice is between fulfilling your true responsibility to your client even when it requires you to take a stand that will not make him love you and keep the client happy, the choice is clear if you’re a lawyer rather than a businessperson.

It is our job to protect our client from his worst enemy, even when the enemy is him,

Cal Berkeley Lawprof Chuck Weisselberg’s epic law review article, Mourning Miranda, is now available for all to read and consider, and it provides a vast wealth of background and issues to raise and consider for the criminal defense lawyer.  When first visited here, the article was noted as having debunked the notion that Miranda provided protection to suspects:

Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda’s safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court’s pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.

This is not merely an apocryphal tale about Miranda, beginning with the Supreme Court’s unempirical guesswork about how this silly little warning would somehow prevent police abuse of suspects and coercion of statements, and culminating in a sophisticated approach by police to use the clearly defined test to circumvent any benefit it might potentially have offered.  As we continue to seek solutions to the vexing problems of confessions, such as videotaping, and identifications, such as double-blind procedures, we cannot forget the lesson of Miranda.

Chuck explained that the Supreme Court, in developing this bright-line test, assumed that no defendant would ever make a statement again once the Miranda warnings were given.  Of course, they missed the boat by a mile on that one, For most of us, it’s hard to imagine that the Supreme Court, in developing a rule as fundamental as Miranda, based it entirely on assumptions lacking any empirical basis.  It was nothing more than an idea that struck them as good at the time. 

As carefully noted in the article, the assumptions underlying Miranda failed to prove accurate, in some instances inherently and in others as a result of law enforcement efforts to create interrogation schemes specifically designed to not merely circumvent the protections Miranda sought to provide, but to use Miranda as a weapon against defendants and to protect statements taken.  Once the rules were set in stone, figuring out ways to get around them was child’s play.

One of the most dangerous precepts was that Miranda need only be administered when a suspect was in custody, a concept so vague (and made continually vaguer as caselaw developed) that it rendered protection meaningless.  The Court believed that a defendant who was not in custody, believing themselves free to leave at any time, would have no problem exercising that right and taking a quick walk toward the exit.  Of course, few believe themselves free to leave, and most feel quite certain that any attempt to exercise that right will have dire consequences.  It’s a gaping hole exploited intentionally by police.

Similarly, the invocation of rights under Miranda has itself become a bit of an inside joke.  While the courts have held that it doesn’t require “the discrimination of an Oxford don,” it does require “an unambiguous or unequivocal request for counsel,” or “the officers have no obligation to stop questioning him.”  Litigation over the specific words of a suspect’s request are legion, and makes one wonder whether an Oxford don could manage to invoke his rights. 

By placing the burden of precision on the suspect, the Court made another assumption, that defendants wouldn’t find it so painfully difficult to speak with words, “I want to speak with a lawyer,” that has borne out.  The fact has been proven over and over that suspects submit to the shield in ways a Supreme Court Justice, and a criminal defense lawyer, will never quite understand.  Any bright-line test that fails to recognize this reality is doomed to fail.

As we continue to consider and address the ongoing problems with interrogation and identification, and advocate for new bright-line tests, it is critical that we understand and appreciate what went so horribly wrong with Miranda to avoid falling into the same trap.  While many contend that videotaping interrogations is a critical solution, some of the same techniques now used to undermine Miranda will be easily adapted to make this not only a dubious solution, but one that will provide conclusive evidence against defendant. 

Let’s face it, lawyers and cops love bright line tests, but for different reasons.  The tests provide a clear dividing line that removes the dreaded element of judicial discretion from determinations of constitutional violations, and lawyers don’t trust judges enough to leave it up to their good judgment.  That’s our issue. 

Cops, on the other hand, love easy to remember rules, both because it makes their job simpler and because rules, once clearly set forth, provide the limits of hurdles for them to find ways around.  Anyone who believes that police won’t figure out a way to circumvent the intent and then use a rule requiring videotaped confessions against defendants, you won’t feel the same after reading this article.

Regardless of whether your interests are in attacking statements taken from suspects or considering the various other issues confronting criminal defense lawyers, spend the time to carefully consider this article and Chuck’s admonition:

It will be not be easy for judges, officers, and lawyers to let go of Miranda. For over four decades, this icon has occupied the center of interrogation law and practice. Yet Miranda’s protections are more mythic than real. At some point myth must yield to reality.

Miranda launched a forty-year experiment in reforming police practices. I think the Court was right to try; sometimes there can be no progress without experimentation. Now, four decades later, we know that a set of bright-line rules is not a panacea for the issues endemic in police interrogation.

I cannot stress sufficiently the caution of rushing headlong into the fray with the next magic bullet solution without considering the lessons of Miranda.  Be careful what you wish for, as we have been stuck with Miranda for 40 years, there’s no end in sight and rather than put an end to the interrogation of suspects, it has become a favored weapon in the law enforcement arsenal.

The Texas Tornado (and New York Steak Aficionado), Mark Bennett, follows up on a comment by J-dog Rosenberg that raises one of the more hairy, and bizarre, aspects of defending people.  Why do some defendants insist on their innocence, pushing their attorney to act upon a piece of evidence that will conclusively prove their guilt? 

Walter Reaves, at Waco Criminal Law, relates his experience dealing with this phenomenon.  His theory is that some defendants convince themselves of their innocence, reality notwithstanding.

So why do people insist they are innocent, when there is no doubt they are guilty? I don’t have any scientific support, but I think that are some people who can actually convince themselves of something. The more they tell themselves they aren’t guilty, the more they believe.

Of course, I also think that are people who just don’t believe their lawyer (yes, its really true). If you tell them the tests are accurate, and its going to prove their guilt, they aren’t going to believe you. Maybe some just feel like they don’t have anything to lose, and want to roll the dice – even the odds against them are astronomical.

While I’ve seen the former, and generally attribute it to a problematic psychological state, it’s beyond the ability of a criminal defense lawyer to address.  We can speak with our clients until there are no more words left, but if they insist on providing us with misinformation, we are left with no choice but to work with it. 

In many instances, reason compels us to ignore the client’s pleas of innocence and not engage in a strategy that will conclusively prove our clients’ guilt.  Of course, this requires the lawyer to make a judgment call as to the accuracy of the defendants information, and we may be wrong in our assessment.  This could well be the most serious error a defense lawyer can make, believing our client is lying to us when he is telling us the truth, even though it may appear to be so outlandish that its strikes as impossible.

But if we accept the defendant’s claims, and they prove false, resulting in our creating the very evidence that destroys any possibility of a successful defense, we want to bang our head against the wall.  Even though we may not be omniscient, the notion that we have locked the prison door on our client is something that few defense lawyers can shake off.  It’s just not what we do, and we take failure hard.

I think there’s a corollary to Walter’s second point, where clients grasp at straws in the hope that the test will somehow produce a false negative and exonerate him.  After all, if he’s going down anyway, why not bet the long shot?  The corollary is that defendants, for all years that Perry Mason was broadcast on television, harbor a belief deep down within their darkest heart that criminal defense lawyers are still lawyers first, vested in the system, and will abandon their zealous representation of defendants if they believe they are guilty.  

Defendants want us to believe they are innocent, and by so believing go to extreme lengths to win their case. 

Somehow, our belief that they are innocent will push us to find that magic bullet, that secret key, that will save them from their fate.  It’s not merely that they do not subscribe to the idea that we defend people who are guilty just as hard as innocent, but that we move heaven and earth for the innocent, while the guilty only get lip service and a bill for legal fees.  This is a harshly cynical view of the law and criminal defense lawyers, but it comes from a select group of people whose lives are the very foundation of cynicism.  Can you blame them?

The element of trust between lawyer and client is fundamental to our ability to defend.  But it isn’t always an easy thing to develop, particularly for lawyers who do higher volume of representation.  Trust takes time.  Trust takes communication.  A half hour with a client isn’t sufficient to create a bond, where the defendant will believe that his attorney is really there to defend him, guilty or not.  And if the client doubts that his lawyer is on his side, and happens as well to be guilty, all forms of mischief can follow.

We may not be able to improve the situation for clients who are psychologically impaired, and believe themselves innocent in conflict with reality, but we can help those who doubt that criminal defense lawyers are really on their side by taking the time necessary to develop a relationship of trust.  Some will be easier, and some will never buy into what we do.  But as long as we’re representing criminal defendants, they must recognize that guilt and innocence are wholly irrelevant to our representation.  And some criminal defense lawyers could stand being reminded of that from time to time as well.

It’s not always a pleasant task, developing trust with certain clients, and takes time away from the other tasks that keep our days full, but may ultimately prove key in making the decision of whether to demand that the DNA in a rape kit be analyzed before the trial.  We need to make sure our clients understand that we are better at creating a reasonable doubt of guilt than proving guilt conclusively.

Via Douglas Berman at Sentencing Law & Policy, a scholarly article by Lawprof Stephanos Bibas of Penn Law School and formerly an AUSA in the Southern District of New York, seeks a mechanism to assess prosecutorial discretion:

Prosecutorial discretion is a problem that most scholars attack from the outside.  Most scholars favor external institutional solutions, such as ex ante legislation or ex post judicial and bar review of individual cases of misconduct.  At best these approaches can catch the very worst misconduct.  They lack inside information and sustained oversight and cannot generate and enforce fine-grained rules to guide prosecutorial decisionmaking.  The more promising alternative is to work within prosecutors’ offices, to create incentives for good performance.

Always an issue with criminal defense lawyers, who harbor the belief that there are far too many prosecutors who take advantage of the fiat of their position despite our claims of the blindness, the injustice, the harshness of their attitude and approach.  Given that charging and plea authority in the hands of young prosecutors is the most significant factor in determining the parameters of the outcome of a prosecution, short of a total acquittal, it’s hugely significant that prosecutors exercise discretion appropriately.

But that’s not what caught my eye.  This did:

A better solution is to collect and aggregate feedback from a variety of sources, including peer prosecutors, supervisors, judges, defense counsel, victims, defendants, and the public, as eBay does.  This information, appropriately weighted and discounted, could better encourage prosecutors to serve all their constituencies.

Few of us have given sufficient thought to eBay as the model for assessing the criminal justice system.  Don’t scoff.  You never know where the next great idea comes from.

I can see it now, click on the docket number and check out the crime.  The outcome of the case can replace the price on the feedback page, unless of course there actually is a price (which could present other issues).  And then the comment. 

Great prosecutor, gave deft 5k1 for nothing.  Coop was total crap! AAA++++

The AUSA can have a feedback score, with little colored stars to show how many defendant’s he’s covered.  But not all feedback will be positive, of course.

Jerk, coerced 121 months b/c co-D flipped & lied. Do Not Use This One!!!!!!!

Of course, it’s not like you can pick your prosecutor, so the system may have a flaw in that regard.  And what about a Rule 35 motion, where a miserable plea ended up with a decent cut in sentence after the fact?

Feedback withdrawn by mutual consent

That could raise some eyebrows on the street. 

The system requires that a degree of discretion reside in the hands of prosecutors.  The fairness, propriety and utility of the criminal justice system depends in large measure on how they exercise this discretion.  Many prosecutors are young, naive and deeply sheltered from reality.  This isn’t a fault, but a fact.  One can only expect so much understanding from a young person who has just emerged from law school or a clerkship and has been given people’s lives to play with.

While the eBay feedback system raises fun images in my mind, particularly given how much I enjoy eBay to find those antiques I so love, I don’t imagine any feedback a defense lawyer might leave will have much of a positive impact on a young prosecutor.  As for judges, it would be my hope that they might express their thoughts during the course of the prosecution rather than wait until afterward to play a role. 

I can’t imagine any defendant being satisfied with learning after the fact that the shipping cost was too high.  And whether or not the description was accurate will inevitably be a product of outcome, hardly a good way to judge the exercise of discretion.

“For the children” is a rallying cry for subversion of rights that usually causes an alarm to go off in the frontal lobe of libertarians and criminal defense lawyers alike.  A therapist used it here a couple of days ago, bringing down a rain of criticism that shocked him, because he thought it was a powerful justification.  While the knee-jerk reaction is to evoke immediately harsh scrutiny on any claim that a law is vital “for the children,” there are indeed times when it’s true.

Radley Balko at the Agitator told this horrible story about a 12 year old that makes the point, though coming from the opposite direction than one would ordinarily expect.

[Dymond Milburn] a blue van drove up and three men jumped out rushing toward her. One of them grabbed her saying, “You’re a prostitute. You’re coming with me.”

Dymond grabbed onto a tree and started screaming, “Daddy, Daddy, Daddy.” One of the men covered her mouth. Two of the men beat her about the face and throat.

What would you do if this was your child?  If you’re anything like me, the possibility that you would do these men as much harm as possible to protect your child is strong.  There is nothing more worth fighting for than my child, and there is no risk I wouldn’t assume for my child’s protection. 

As it turned out, the three men were plain-clothed Galveston police officers who had been called to the area regarding three white prostitutes soliciting a white man and a black drug dealer.

After the incident, Dymond was hospitalized and suffered black eyes as well as throat and ear drum injuries.

Three weeks later, according to the lawsuit, police went to Dymond’s school, where she was an honor student, and arrested her for assaulting a public servant.

Her father was arrested as well, presumably for trying to protect his child.  As it turned out, the police made a mistake and were two blocks away from the location where they should have been.  They concede the error, but as usual contend that the officers behaved properly and followed all procedures.

Law and order types will explain that the police, albeit mistaken, were just doing their jobs.  While this is questionable as a matter of fact, given that three police officers couldn’t manage to seize a 12 year old girl without beating her and causing her substantial harm, let’s assume that this is relatively accurate.  Are we, as a society, prepared to sacrifice an innocent child on the alter of police compliance?

Consider: Had Dymond been carrying a stick of some sort and been perceived as presenting a threat of harm by a weapon to the officers, causing one to pull out his handgun and demand compliance, would her father have been justified, watching this from his front door, in using his legal sidearm to shoot and kill the officer?

Most people would struggle with this hypothetical, as no one would want to see an officer killed over a mistake. On the other hand, from the father’s perspective, a man (regardless of whether or not he knew the man to be an officer) appears to be about to shoot and kill his daughter.  Does the hypo change if the bullet about to strike his innocent daughter comes from a police officer’s weapon?

If the answer is that no civilian can justifiably shoot and kill an officer in the performance of his duty, would you have Dymond’s father left with a dead daughter by dint of a police mistake while he stood there doing nothing.  Is anyone ready to let an innocent child die to avoid a violent confrontation with police?

Radley entitled this story “another isolated incident,” noting the irony of how these situations are invariably described as “isolated” while comprising nearly daily fodder for the blawgosphere.  We have a never-ending stream of isolated incidents.  That mistake happen is obviously true, and possibly beyond the control of police officers as they, like us, are human.  But how mistakes alter the dynamic is important to recognize.

Those who apologize for the police, and see their errors as having no discernible impact on the propriety of reactions by civilians, are hiding their heads in the sand.  While we may have a constitutional right to defend ourselves, I would argue further that we have a moral obligation to do so, and our children as well.  No one should be compelled to suffer a dead child because a police officer erred.  In this case, the worst that came of it was an arrest for assaulting a police officer, which can be easily dismissed by any prosecutor who isn’t entirely brain-dead.  A dead child can’t be fixed as easily.

But when the police make a mistake and put the life of an innocent person at risk, they create the potential harm that befalls them.  As such mistakes happen regularly, it presents a very real legal scenario.  I would propose that the proper rule is that any action taken to protect the life and physical safety of a person, particularly a child, from police engaged in the mistaken performance of their duty should be fully protected to the same extent it would be against any other person.

The primary fault belongs to the police, who alone are responsible for their error.  It provides an incentive for police to be accurate in determining that the individuals against whom they act are the correct ones, at the correct address, for the correct reason.  Civilians cannot do this for the police, and should not suffer the consequences of each “isolated” incident of harm following police mistakes.

The rationale for this rule is that we need to have it “for the children.” 

Update:  From the Agitator, one of the police officers, Sean Stewart, who attacked Dymond Milburn named Galveston 2008 “Officer of the Year!”  Perfect.

An email came in late yesterday from Alan Tannenbaum, the attorney representing the borrowers who sought victim status in the prosecution of Phillip Coon.  Attached was discussed earlier, this was the latest effort by the Victims Rights militia to get a third table in the well.  They had been rebuffed by the Magistrate Judge.  They had been rebuffed by the District Court Judge.  But third times the charm, and they finally obtained the love they sought from the 11th Circuit, in a 2-1 decision.  Mandamus granted.  Oy.

Upon reading the offending decision, I immediately cruised over to the Volokh Conspiracy to see whether Paul Cassell was gloating.  Indeed he was, as he was fully entitled to do having finally persuaded two out of five judges to conclude that the earth was flat.  It’s not easy to do, you know.

In a ruling released today, the Eleventh Circuit held that borrowers were protected “victims” under the Crime Victims Rights Act (CVRA) because they suffered financial harms because the became legally obligated to pay the point that Coon skimmed off the loan and had to pay interest on the point. The Eleventh Circuit stated: “The CVRA does not limit the class of crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the charging document. . . . Under the plain language of the statute, a party may qualify as a victim, even though [he] may not have been the target of the crime, as long as [he] suffers harm as a result of the crime’s commission.”

This pretty much captures the depth of rationale of the decision.  Of course, that’s the problem.  The CVRA doesn’t require that the victim be named in the charge, but it does require that the victim be a person “directly and proximately harmed.”  18 USC 3771(e).  Well, that’s a problem, since there is no rationale by which the Coast Bank borrowers can show this.  After all, they agreed to pay the points on the mortgage, accepted the deal, and by definition believed that this was a satisfactory deal or they would not have completed their purchase.  Where the points go afterward has nothing to do with the borrowers.

So how does the 11th Circuit explain away this little detail?  The conclusory statement trick:  “On the face it, petitioners were victims.”  Well then, that’s that.  They are victims because they are victims.  Welcome to Sophistry 101.  If we call a cow a horse, feel free to milk it.

But then, does it really matter that this group of borrowers is now entitled to have an active role in the criminal prosecution of Phillip Coon? According to Cassell:

The ruling is an important victory for crime victims. It means that all those who have been harmed by a financial crime are entitled to be protected in the federal criminal justice system. As a result, all such victims will be entitled to confer with the prosecutor on the charges, to obtain restitution for the crime, and to make a statement at sentencing about the proper punishment for the crime.

In fact, it means much more than that.  It means that they are entitled to oppose plea agreements, sit through trial testimony in advance of taking the stand, and to have legal standing to intervene in the prosecution when things don’t go their way.

Whether it means that “all those . . . harmed by a financial crime” will be given standing as “victims” under the CVRA has yet to be seen.  Some circuits disagree with others.  But given the wealth of financial crimes these days, the implications of this misbegotten decision on the integrity of the criminal justice system could be huge and devastating.  If you thought that courts gave short shrift to the defendants’ constitutional rights before, just wait until the victims get their turn.

But as much as I abhor this decision, I congratulate Alan Tannenbaum, who prevailed in this case and believes that his efforts serve the greater good.  Disagree though I might, I respect his effort and integrity.  I just wish he would have lost.