As a public service, I occasionally present some newsy stuff that criminal defense lawyers ought to be aware of.  Just so you know.

A “Not Guilty” Box:  Don’t go to verdict without it.

From Law.com, Wayne County, Michigan, Circuit Judge Annette Berry liked to prepare her own verdict sheet.  Why this is remains unclear.  Maybe it has little smiley faces on it, or gives her courtroom that homey feel.  I dunno.  But there’s one thing her verdict sheet neglected to include, the little box for “not guilty.”  You know, just in case.

“The verdict form was defective, requiring reversal, because it did not give the jury the opportunity to return a general verdict of not guilty,” the three-judge panel wrote in its opinion on Tuesday. “[B]ecause of the way the verdict form was set up, the jury was not given the opportunity to find defendant either generally not guilty or not guilty of the lesser-included offenses in violation of his constitutional right to a trial by jury.”

Of course, silly little mistakes like this can happen.  After all, there are a ton of details that a judge must address, and it’s perfectly understandable that something as perfunctory as a “not guilty” box on the verdict sheet could fall through the cracks.  But then, it would probably have not been quite as ridiculously embarrassing if Judge Berry hadn’t been so jerky and arrogant when everyone else in the courtroom figured out that she screwed up.

“The jury foreman actually got up and had some confusion. He was stuttering about … and before he could get a question out, the judge said, ‘Just tell me which box you checked,’ ” Gentry said. “And then the judge accepted that as a verdict.”

Gentry said that during jury deliberations, the prosecution and defense also expressed concern about the verdict form, and asked the judge to issue a new one. But she said no, he said.

When everybody else in the courtroom is telling that there’s a problem, there’s an awfully good chance that there’s a problem.  What are the chances that Judge Berry will make this mistake again?  What are the chances that she should be given the chance?

The Financial Suffering When Defending Prosecutors

When Judge Emmitt Sullivan ordered an investigation into the government’s impropriety in the Ted Steven’s case, we all cheered.  Hooray!  Investigation!  Woo hoo!  But how many thought about the little side details, like who defends our prosecutors?  And, more importantly, who pays them and how much do they get?

The WSJ Law Blog did, and they give details.

And that’s where the BigLaw juggernaut comes into the picture.

The DOJ is footing the legal bill for the prosecutors ─ or at least part of the bill ─ and the lawyers have hired some of the nation’s top firms for help, according to this post in the Legal Time’s BLT blog.

The BLT notes that the DOJ will reimburse the prosecutors up to $200 per hour in legal fees, not to exceed 120 billable hours per month, for a total reimbursement of $24,000 per month. Now, $200/hr is roughly a paralegal’s rate at many top firms, but, still, all works is good work in this economy, especially such a high-profile assignment.

You did catch that little detail in the last sentence, about the Biglaw paralegal’s billing rate, right?  Can you imagine the suffering, the pain, a Biglaw firm must go through to perform a public service?  Lawyers working at a rate barely sufficient for a paralegal?  Oh, the humiliation.

Of course, since CJA lawyers get $110 an hour, which I believe is only slightly less than the billing rate of the guy who sweeps the floors and empties the shredding machines at Biglaw, it may bring our erstwhile defenders some comfort.  Not much, but some.  At least they aren’t paid like the real criminal defense lawyers who have to represent the icky criminals.

I can’t speak for anyone else, but I feel better knowing my dedicated public servants in the DOJ are receiving the finest criminal defense Biglaw has to offer at a special discount rate.  A penny saved is a penny earned, you know.

If a Crime is Committed in the Woods and No One Prosecutes…

Also from the WSJ Law Blog, Contra Costa County, California, District Attorney Robert Kochly has announced that because of severe budget cuts, he has to lay off 20% of his staff.

On Tuesday District Attorney Robert Kochly told his county’s police chiefs that beginning in May, his office will no longer prosecute a host of misdemeanors because he has to lay off 20% of his staff, or about 18 prosecutors.

Which infractions won’t be prosecuted? The list includes non-DUI traffic offenses such as driving with a suspended license and reckless driving, simple assault and battery, lewd conduct, trespassing and shoplifting.

Even some felony drug cases involving smaller amounts of narcotics won’t end up in court. That means anyone caught with less than a gram of methamphetamine or cocaine, less than 0.5 grams of heroin and fewer than five pills of ecstasy, OxyContin or Vicodin won’t be charged, according to the Chron story.

So here’s the thing.  It’s one thing for the DA to find himself forced by budgetary constraints to engage in prosecutorial triage.  But wouldn’t you think this is the sort of thing he would want to keep quiet?  I suspect that the non-prosecution of shoplifters is going to seriously affect purchasing decisions at malls throughout Contra Costa County.

But all isn’t roses for criminals, you know.

But bad boys (and girls) shouldn’t get too cocky: “Core” misdemeanors offenses involving domestic violence, drunken driving, firearms and vehicular manslaughter will still be prosecuted. And the Mercury News reports that the police department says it will still make arrests for all misdemeanors, meaning suspects could spend time in jail, even if they aren’t punished by prosecutors.

(Note to self:  Let WSJ know that prosecutors aren’t supposed to be the ones who punish criminals.)  So the cops are going to arrest “suspects” to make sure they spend time in jail even though they aren’t going to be prosecuted?  Nothing to see here, folks.  Just keep moving.