Monthly Archives: June 2009

The Right Way To Surrender (Update)

It seems like we’ve been waiting forever for the feds to arrest R. Allen Stanford for his alleged ~~Ponzi~~ Madoff scheme. Well, it’s finally happened, but it’s worthwhile considering the details.

Stanford, 59, was taken into custody yesterday by FBI agents who were waiting outside his girlfriend’s house in Fredericksburg, Va., said Dick DeGuerin, an attorney for the Texas financier.

“Federal agents in black SUVs surrounded his girlfriend’s house this afternoon, and just sat there,” DeGuerin said. “I told him to walk out and introduce himself. So he did, and he asked them, ‘If you’ve got a warrant, take me into custody. If you don’t, I’m going to Houston.’ And they did, so they arrested him.”

Regardless of what you think of Stanford otherwise, he was arrested with style. It’s not that being arrested is the new black, but if it’s going to happen, it might as well happen with class and dignity. And that’s precisely how it happened.

This isn’t because Stanford is such a classy buy, being a billionaire notwithstanding, but because he was represented by a real criminal defense lawyer, Dick DeGuerin. There was no slinking out the back door, or hiding in the basement. There was no hiding his head. DeGuerin had his client act with dignity. An arrest can’t go any better than this.

Now, if only that could be said of both sides of the equation. Since Stanford’s arrest has been impending forever, DeGuerin had long since advised the U.S. Attorney in Houston that Stanford would be available to surrender at any time. Yet, the choice was made to take him down in Fredericksburg, Virginia rather than Houston, where he was indicted, and to send out the troops to get him rather than allow Stanford to surrender. No class at all.

It’s not that the Stanford had a right to surrender, and that the agents had no right to go out and find him wherever he might be. It’s just each side had an opportunity to show what they were made of. DeGuerin wins. No contest. That’s what you get when you have a real criminal defense lawyer advising you.

Update: United States Magistrate Judge Frances Stacy has set $500,000 bond, secured by $100,000 cash, for Stanford’s release. The government (naturally) argued that he should be held without bond since he’s a billionaire, and (naturally) has access to billions. No doubt, people will rail about the bond given the accusations against Stanford, but they are absolutely dead wrong.

Stanford, through DeGuerin, made clear to the government that he was ready, willing and able to surrender at any moment. It was the government’s choice to eschew the offer and go out to arrest him despite the offer. Even then, Stanford offered himself to agents like a gentleman. It doesn’t mean he didn’t commit the crimes alleged, but it does mean that he didn’t flee. He had those same billions available to him before, and he (like everyone else in the country) was aware this his indictment was imminent. If he wanted to flee, he had every opportunity in the world. He chose to stay.

And that, ladies and gentlemen, is how it should happen, all around. Let’s see what happens with the government’s knee-jerk appeal of the Magistrate’s bond determination.

Search, Untethered

Whatever gave Steve Bierfeldt the presence of mind to record his interaction with some of the finest employees of the Transportation Safety Administration, it served to show how a little authority turns yesterday’s server at Dairy Queen into a crime fighting machine, even when that doesn’t happen to be their job. As you may recall, Bierfeldt caught the interest of TSA guards because he was carrying $4700 in currency onto a plane.

Now, with the help of the ACLU, Bierfeldt is suing Homeland Security Czar Janet Napolitano for the trouble. Via Patrick at Popehat, here is a copy of Bierfeldt’s complaint, which includes this curious paragraph:

It is well established that subjecting airline passengers to limited searches designed to detect weapons and explosives is consistent with the Fourth Amendment. But it is equally clear that such search authority constitutes a narrow exception to the Fourth Amendment’s basic prohibition of suspicionless searches, and that authority is carefully circumscribed to serve its limited purpose. As a matter of policy or practice, however, TSA has attempted to enlarge its authority, untethering it from the pressing but limited purpose of protecting civilian aviation.

I hate to be picky, but who told the ACLU that it’s up to them to give away my 4th Amendment rights? It is hardly well established that airline passenger searches are an exception to the 4th Amendment, nor does my 4th Amendment provide a “basic prohibition of suspicionless searches.” My 4th requires a warrant issued by a neutral magistrate upon probable cause. My 4th has no airplane exception. If I choose to go on a plane, I consent to being subject to a search for weapons and explosives. If I’m not in the mood for a search, I can turn around and walk toward the train station. But there is no new exception.

To the extent that we are subject to search upon seeking to board an airplane, it is an administrative search (rather than a law enforcement search) to which we willingly submit by virtue of making the decision to fly on a commercial carrier. No big deal, but no exception to the warrant requirement either.

One might think that between the ACLU and the libertarians, someone would have a clue about the scope of the 4th Amendment, both as a matter of existing law and as a matter of how they interpret the vagaries of existing law. Do these two groups mean to suggest that good old probable cause is no longer needed for a search? Are they now in the business of adopting “well-established” exceptions that courts have yet to find?

What happened to Steve Bierfeldt was clearly a violation of his 4th Amendment rights, having no bearing on the TSAs function, no justification in law of any sort and basically just an excess of chest-puffery by former Dairy Queen servers with badges who were under the mistaken belief that they could manufacture a reason to search a citizen from whatever struck their fancy. He should sue, and he should win.

But please, ACLU and libertarians, don’t go around giving away 4th Amendment rights in the process. We have courts to do that.

Why Do The Supremes Bother?

In yet another 5-4 decision, the Supreme Court held that there is no freestanding substantive due process right to post-conviction DNA testing in District Attorney’s Office v, Osborne. It’s not the holding that’s surprising, as it’s largely based on the confused, and confusing, procedural failings at the state level.

What’s surprising is that the underwhelming decision appears to be generated for no better purpose than to smack the 9th Circuit Court of Appeals with reversal. When a court’s rationale is a gooey, circular mess, there’s usually a good reason. It’s because the court doesn’t really have much of a reason for its decision, but wants a particular outcome nonetheless. Osborne is such a case.

After reciting all the expected verbiage about what great evidence DNA is, Chief Justice Roberts proceeds to justify (as succinctly explained in the syllabus) the basis for the “no new rights” policy:

The Court rejects Osborne’s invitation to recognize a freestanding, substantive due process right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. In the circumstances of this case, there is no such right. Generally, the Court is “reluctant to expand the concept of substantive due process because guideposts for responsible decision making in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125. There is no long history of a right of access to state evidence for DNA testing that might prove innocence. “The mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303. Moreover, to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States. It would shift to the Federal Judiciary responsibility for devising rules governing DNA access and creating a new constitutional code of procedures to answer the myriad questions that would arise. There is no reason to suppose that federal courts’ answers to those questions will be any better than those of state courts and legislatures, and good reason to suspect the opposite. See, e.g., Collins, supra, at 125. Pp. 19–21.

To make it in even briefer, because the Court has never before held there to be an independent due process right to postconviction DNA evidence, the Court will not create one because it is “reluctant” to expand substantive due process rights where it hasn’t already done so. Plus, if the Court did so, then it would have to craft procedures, which isn’t its job.

Got it? Neither do I. If there already was a right, then why would the case be before the Supreme Court? And if the Supreme Court won’t decide whether there should be a due process right to post DNA evidence, then who is supposed to decide the parameters of substantive due process in the face of evolving technology? Feh.

While Osborne sits in prison for a rape conviction, which are curious Chief Justice notes limits his liberty interest since he’s guilty and imprisoned, and it’s not like guilty people have any particular interest in proving that they are actually innocent, the case will go back to the state court in Alaska for another shot at trying, via the nonspecific state procedures, to access the DNA. My understanding is that beneath the procedural surface in this case is a huge dispute between the defense and court about whether the right papers were submitted. Because Alaska has no procedure for handling this post-conviction relief, the defendant’s efforts to obtain testing were thwarted by constantly changing procedural requirements.

But the pressing question is whether Justice Roberts is of the view that there is a real Supreme Court hiding in a back room somewhere, awaiting a call to action when the Court actually plans to address issues and resolve grievances. That most states and the federal government have procedures in place hardly moots the issue of whether post-conviction access to DNA testing, as may prove the guilt or innocence of a defendant, is a substantive due process right. For the defendant, like Osborne, who is imprisoned in a state that doesn’t, the issue is very real and very important.

Sure, the Supreme Court is comprised of big picture guys, who can’t be bothered thinking about the plight of some guy named Osborne in Alaska, and certainly isn’t about to change the law of the land around this one poor schmuck’s rights. Fine, so don’t grant cert and let the Circuit decision stand. But no, they couldn’t tolerate that.

It’s questionable whether ten, twenty years from now, this decision would be of any worth whatsoever. The nation remains in the throws of trying to deal with emerging DNA technology and convictions that came down before it was available or before testing methods and procedures were improved. Perhaps these issues will all be suitably resolved over time, and problems with access to DNA will be old news. But for the moment, it’s not, and even if it’s only one man in a prison in Alaska, he’s still entitled to get one that makes some sense.

In response to the decision, the Innocence Project, representing William Osborne, put out a press release that said:

In states without adequate laws granting DNA testing, federal court can be the last option – as it was for Osborne. Less than a dozen of the 240 people nationwide who were exonerated through DNA testing received that testing through federal court. “Most people who need DNA testing to prove their innocence will not be affected by today’s ruling, but the small number of people who are impacted may suffer greatly. As a result of this decision, more innocent people will languish in prison and some may die in prison because they were prevented from proving their innocence,” [Peter] Neufeld said.

If the majority of the Supremes didn’t want to be bothered with the plight of this small number of people, that’s fine. Then don’t take the case. But don’t take the case and then punt with an “it’s not my job” decision.

This decision goes nowhere, and certainly does nothing for poor Osborne, whose only point is to try to get his hands on the DNA to prove that he’s an innocent man. Even Chief Judge Roberts proclaims the glory of DNA for proving innocence. So where are they hiding the real Supreme Court, the one that actually decides things about due process? The one we have doesn’t seem to be of much use to anyone.

The Law, From the Cheap Seats

In the comments to my post about Stern v. Bluestone the other day, Josh King, Avvo’s general counsel, posted :

Another takeaway from this is the reminder of just how limited the concept of “commercial speech” is. Only advertising-centric speech qualifies; only narrowly-tailored rules can constrain it. Despite efforts by the NY state attorney licensing bureaucrats and others to expansively sweep all manner of attorney speech under the rubric of “attorney advertising,” there is a very real limit to their ability to do so. Something to keep in mind for lawyers who are concerned that their blogs need to comply with bar advertising rules.

In my ever-so-delicate manner, I replied to Josh that he was correct as of that writing, but he would have been wrong a week earlier. Josh responded that “[i]t’s been the law for almost 30 years.” This statement reflects one of the fundamental differences between litigators and non-litigators. Litigators see the contours of the law as ever-changing, the edge in a constant state of flux. Non-litigators see “The Law,” a firm and stable monolith of right and wrong, totally dependable, fixed and clear.

So why are all those lawyers and judges wasting their time in court?

This is a difference in perspective. I don’t disagree with Josh’s take, that it’s what the law “is” if one views the law as a constant. But trial lawyers rarely see the law as stagnant. Certainly, there is black letter law, issues conclusively resolved and reliable, but even these have a nasty habit of getting mangled in application. It’s a lot easier to be certain when it’s not your job to get the right judgment.

It’s long been something of a sore point with me when I engage a non-litigating lawyer in discussion over a disputed issue. These are the people you chat with when there’s a problem with a government agency, a corporation, any entity that has a lawyer “advising” them. These are lawyers who sit behind desks and opine to non-lawyers, explaining in somber tones what the law “is”. When they talk to litigators, they do the same, telling us how they “see” the law. It makes me cringe.

It’s not that they’re necessarily wrong (though they often are), but that they have this simplistic view of the law, as if whatever it says in the textbook must be true. Try achieving a resolution of a dispute with a guy who firmly believes that he knows the law, that there can be no disagreement and that he’s absolutely right. Only after a bunch of years and a ton of money will they come to realize that, maybe, just maybe, they were wrong. What would be funny if it wasn’t so sad is how they are shocked to learn of a crushing verdict when they were so certain of their correctness at the outset.

The problem with getting a firm grasp on the law is tolerance for ambiguity. Non-litigators are expected to know the law and be able to render opinions to non-lawyers as to what they can and cannot do. Nobody wants to hear a recitation of variables, but a bottom line. Is this right or wrong? That’s their job, and they do what’s expected of them. Whether they know in their heart that their very serious opinions mean nothing in the face of litigation is another matter.

Litigators, on the other hand, must have enormous tolerance for ambiguity, knowing that any case can be lost and the law is rarely, if ever, clear. Certainty, to a litigator, is a fairy tale for children.

So while Josh can blithely state that free speech for lawyers has been the law “for almost 30 years,” I have to chuckle. Josh’s opinion turns out to be right. It took a litigator to win the case make it so.

Etiquette in Charm City

Baltimore Circuit Judge Alfred Nance is, apparently, not a bad judge when it comes to giving a fair trial. There’s much to be said about that, since many judges are very pleasant while they screw the defense every way they can. Yet Judge Nance feels that it’s part of his job to bring put the “charm” in Charm City.

From the Baltimore Sun :

Baltimore circuit judge, who has three times been the subject of judicial disciplinary investigations, ordered a spectator to jail for 10 days for crying out “love you” to her handcuffed brother in the courtroom – and then reversed himself after a public defender spoke up on her behalf.

As Tamika Clevenger left a Baltimore courtroom Friday, she shouted, “Love you, Nick,” which set off Judge Alfred Nance. He ordered a sheriff to pull Clevenger from the hallway and found the 24-year-old in contempt.

Clevenger was cut loose a half hour later, but that doesn’t really undo the damage. And this was only one fit of pique that day.

“Ma’am, your talking is over,” Nance said. Turning his ire to the other woman, who had stood up from the bench in a strapless top, Nance said, “Young lady, step in the hall. The beach is three blocks down and to the right. It’s not in this courtroom.”

Part of the consideration of what makes a qualified judge is temperament. Given the scope of authority, not to mention harm, that a judge can do with a mere word or swipe of his pen, it is critical that the people in black robes show restraint in their attitude and demeanor. Nance is clearly lacking in the temperament department.

There is no question that a judge has the authority to control conduct in his courtroom, ranging from maintaining order to the appropriate decorum. It’s hardly unusual for spectators to engage in disruptive outbursts, and no one would question a judge’s effort to maintain an appropriate level of control. Removing askew baseball caps, shutting off cellphones, not screaming at loved/hated ones, are all issues that are properly addressed.

For anyone reading who isn’t a lawyer, you wouldn’t believe how some people dress to come to court, or behave once they are there, as if they are daring the judge to give them a smack. It is just mind-bogglingly inappropriate and foolish. It often borders on laughable, as if they were searching for ways to piss off the judge. But there are ways to deal with this that give rise to respect. A calm explanation of why particular attire or conduct is inappropriate, coupled with a warning for the next time, usually serves far better than knee-jerk contempt with a 10 day sentence. This guy’s nuts.

So why, one wonders, is he still sitting on the bench terrorizing people for their etiquette deficits?

“Attorneys are hard-pressed to complain because they fear retaliation,” said Page Croyder, a former deputy state’s attorney who ran for judge in 1998, in part, because of allegations of improper conduct against Nance. “Attorneys know perfectly well that nothing is going to happen to these judges.”

In 2000, a commission that monitors judges’ conduct interviewed four women, then current or former prosecutors, who complained of Nance’s explosive temper and said he had made comments about their appearance and touched their faces, according to a December 2000 Sun article. At that time, State’s Attorney Patricia C. Jessamy complained about his behavior.

The Commission on Judicial Disabilities issued a reprimand, finding that he had demeaned women in court and in chambers and had been “rude” and “hostile” to attorneys in a medical malpractice case.

No doubt Judge Nance was deeply hurt by the reprimand. The proof can be seen in how he’s mended his ways.

The combination of two factors feeds on each other. The impotence of the judicial disciplinary mechanism to control judges whose conduct is improper, but not so flagrantly wrong as to warrant their removal, combined with fear of retaliation by the lawyers who have to face these judges on behalf of clients. Disciplinary commissions complain that unless people bring grievances against judges, there’s nothing they can do. Lawyers complain that if they bring grievances, the commission does nothing of consequence, and the judge remains on the bench to pay them back for their insolence.

The public is confused by all of this. How is it possible that a judge like Nance can continue to “teach” charm school in his courtroom with impunity. There must be some constraint on out-of-control judges, abusing their power like petty tyrants. There must be, right?

The short answer is that there is little to be done to stop a judge whose improprieties fall short of corruption. Chances of a judge being removed for lesser improprieties, particularly issues of temperament, are slim, and any lawyer complaining will not only make an enemy of the judge, but will harm future clients in the process. It’s hard to payback an attorney directly. It’s far easier to make the client pay.

It’s one of the reasons that a guy with a blawg must highlight and challenge conduct like this, when the locals are either too afraid or too concerned for the harm that might befall their clients. We all want to see respect prevail in the courtroom. But respect should be shown by all participants, judge included.

The Death of Innocence

In the aftermath of the “shocking” DNA exoneration of convicted rapist Steven Avery in 2003, the Wisconsin Criminal Justice Study Commission was formed. It’s purpose, to put “a diverse body of experts and leading practitioners” in the same room and arrive at reform proposals to prevent this from happening. Yesterday, Michael O’Hear, one of four lawprofs on the commission, posted at PrawfsBlawg of its demise. No one was saved.

O’Hear conducts a fascinating post-mortem (I told you O’Hear was good) on this well-intended effort to improve a system which ultimately ran out of steam before accomplishing anything. Some of the reasons he points to are basic and institutional, such as the size (two or three dozen people from diverse backgrounds) and changing fiscal priorities. These are lessons that never seem to be learned when grand plans are made.

Another difficulty is that Wisconsin (like just about every other state right now) is experiencing great fiscal pressure, and all of our agencies are fighting tooth and nail to hold onto their budgets.In truth, our prosecutors are underpaid, and I can understand their resistance to any reform (e.g., increasing Wisconsin’s worst-in-the-nation compensation rate for court-appointed counsel) that would require a commitment of the state’s dwindling tax resources.

But the primary failure of the Wisconsin Commission is also the most basic. The two groups needed to reach consensus, prosecutors and defense lawyers, don’t agree.

Those on the prosecution side genuinely wished to avoid wrongful convictions and listened patiently to the information and arguments presented in support of proposed reforms.I heard no accusations that either side was intentionally seeking to subvert justice or otherwise advancing a hidden agenda.Rather, each side was convinced that the other suffered from a fatal cognitive blind spot.

On the defense side, the view was that police and prosecutors did not appreciate their own subconscious tendencies to ignore or downplay the significance of exculpatory evidence (or to exaggerate the significance of dubious inculpatory evidence) once they had settled on the identity of a perpetrator.

On the prosecution side, the view was that the defense lawyers and professors were making too much of a few high-profile DNA-based exonerations that were not truly representative of the operation of the criminal justice system.Police and prosecutors felt that defense-side concerns were speculative.In the absence of hard evidence of systemic failure, they saw no reason not to continue to rely on largely unconstrained police and prosecutor discretion to screen out innocent suspects.

This not only sums up the daily battle in the trenches, but makes one of the more painful points about the existing system. The system has developed to the point where it facilitates conviction. If you’re a defense lawyer, the thumb on the prosecution side is the problem that produces the conviction of the innocent. If you’re a prosecutor, you believe that everyone you convict is guilty and, aside from the minuscule oddball case, the system is working pretty darn well, thank you very much.

O’Hear attributes the inherent conflict to cognitive bias, each side viewing the same set of facts from its own perspective and absolutely positive that the other side just didn’t get it. As the genesis of the reform movement was DNA exonerations, which defense lawyers view as only a fraction of the problem, prosecutors were unmoved that these cases reflected a systemic failure (on their part and the part of law enforcement, naturally) rather isolated instances. Were these “ice cubes or the tip of the iceberg?”

My problem is that this fight will go on forever without a winner. If we were capable of ascertaining a real statistical basis for assessing how many people were wrongly, or overly, convicted, we would similarly be capable of preventing it. DNA exonerations are indeed the oddball, since DNA plays a role in only a fraction of criminal cases. But it has proven what defense lawyers have been saying forever: the system is substantially less than perfect, far less so than the public realizes.

This raises the question of how many innocent people the public is willing to sacrifice on the alter of law and order. Since the general public suffers from cognitive bias as well, believing as it must that the system generally functions satisfactorily and that cops, even in light of the multitude of videos now available and coming out daily proving that some fall far short of credible, are still more trustworthy than not. As defense lawyers know all too well, the message doesn’t strike home until it affects you or someone you love. Only then does the injustice of it all seem to matter.

The failure of the Wisconsin Commission reflects the governmental inertia and ambivalence toward reform. Despite the well-intended desire to “reform”, when one side at the table takes the position that there is nothing to reform, there is little to talk about. Hopes rise every time a new commission is formed, or as legislatures “finally” consider making significant changes to the processes that have encouraged and allowed the perpetuation of the problems. But when they end in a whimper, without any significant reform, or at best “camel” proposals that achieve nothing, few people seem to notice. We are left with essentially the same system, for better or worse. The status quo wins.

And people wonder why I am less than supportive every time I hear about a new “reform” commission. Did anyone notice the huge groundswell of anger and frustration from the people of Wisconsin at the failure of their commission to fulfill its mission? I didn’t.

Error Corrected, Error Revealed

When District Court Judge John Woodcock sentenced Quinta Layin Tuleh to 238 days in jail for the good of her unborn child, it presented a conundrum. Clearly an excess of authority on the court’s part, but certainly done with good intent. It’s hard to argue against a laudable purpose, like making sure that a pregnant, HIV woman receives adequate medical care so that her child might be born AIDS free.

But Judge Woodcock, after imposition of sentence, had a second chance to consider his decision when, during the hearing on a motion for bail pending appeal, he learned that she could be released and receive proper medical care. From the Bangor Daily News :

Testimony on Monday from Putnam and an agent with U.S. Immigration and Customs Enforcement allayed those concerns, Woodcock said in granting the motion for bail.

“I recognize that the sentence turned out to be controversial,” he said. “I can certainly understand how some have misinterpreted what the court intended to do in this case.”

Woodcock said that what he had wanted to do was “to step in between the prison system and the social [safety] net” to ensure that Tuleh remained healthy and that the child was born healthy.

While it’s doubtful that anyone “misinterpreted” what the court intended, Had it not been for the efforts of Tuleh’s counsel and the existence and willingness of the Frannie Peabody Center, providing support to people diagnosed with AIDS and HIV, it’s likely that the judge’s imposition of a sentence of imprisonment “for Tuleh’s own good” would have de facto stood, since even an expedited appeal to the Circuit was unlikely to have helped in time.

So, all’s well that end’s well? Not exactly.

“At the time of the sentencing, I had no clear understanding of what the community could do,” Woodcock said. “I had no specifics.”

This sentence is the most problematic of the bunch. It reveals that the judge, acting upon his own assumptions, decided to put a woman in jail because he had no clue what alternative were available. In other words, jail was the default for ignorance. That’s outrageous.

There was no reason in the world that Tuleh’s counsel should have anticipated that the judge needed to know how Tuleh’s medical care would be handled. It’s wholly outside the scope of the judge’s authority, and bears no connection to any cognizable sentencing factor. If the judge, despite the fact that medical care is beyond the scope of his authority, demanded to know how she would deal with pregnancy, the method of finding out is relatively clear: Ask someone. Ask defense counsel, for example. Let Tuleh’s lawyer know that this seemingly irrelevant factor is weighing heavily on the court’s mind, and no doubt he would provide the court with the information needed.

What happened instead should send shivers down your spine. The judge just guessed, based upon his own limited personal knowledge. He essentially made it up. And that became the basis for a sentence of incarceration.

To Judge Woodcock’s credit, he was open about the purpose of his sentence, albeit after the fact. At least this presented an opportunity for the defense to address this hitherto unknown issue that the judge, by himself and without any factual basis or investigation, addressed in his sentence. It happens routinely, however, that judges make assumptions, never known to the parties. No chance to challenge, to correct, even to know what’s going on inside the judge’s head.

While federal judges deserve, and are given, ample credit for their intelligence, they don’t know everything. There’s a wide world of information out there, and no matter how smart or worldly, even judges need to seek hard facts to fill the gaps of assumption. The requisite information should be subject to the same adversarial testing if disputed as any other claimed fact.

What should never happen is a judge admitting, after his error is shown, that he acted without a “clear understanding.” No matter how brilliant a judge thinks he is, it’s never within his authority to simply assume that he inherently possesses sufficient information to make secret assumptions as here. At least Judge Woodcock had the integrity to admit it.

H/T Doug Berman

One Camera Too Many

Investigative journalism has brought us some remarkably important stories. Would there have been a Watergate with Bernstein and Woodward? Not likely, and it toppled a regime. But that doesn’t mean that a camera in the hands of every journalist is by definition a good thing.

Tara Rosenblum, a News 12 reporter in the employ of Cablevision, proved the point when she sought to manufacture a story at Holy Cross Catholic Church in New Rochelle. From New Rochelle Talk :

With lights blazing and cameras rolling, Tara Rosenblum, in what could pass for an homage to [Anchorman character Ron]Burgundy’s co-anchor Veronica Corningstone, pushes her way into a meeting room at Holy Family Church and interrupts an in-progress, closed 12-Step meeting in a grand-standing stunt she grandiosely bills as “The Confrontation”. She is also trespassing and when asked to leave refuses and continues to question the people. You can just barely hear it over her shouted questions but you can make out a man’s voice saying politely “please leave”.

It seems that Rosenblum learned that the church was simultaneously hosting CYO basketball in its gymnasium and a Sexaholics Anonymous meeting elsewhere at Holy Cross. Having “staked out” the place, she goes in for the kill.

As noted by Robert Cox in his New Rochelle Talk post, the production value, intended to make this travesty appear melodramatic, apparently the next best thing to substantive when an investigation turns up a turd, News isn’t mean to be film noir, and bad journalism isn’t made better by sound and lighting effects. But that’s a reflection of bad production taste. What of Rosenblum’s total lack of journalistic integrity?

She asserts at one point that there is a known pedophile amongst the group. How she would know such a thing with an anonymous group is a mystery, though she later claims there are multiple sex offenders in there. Details matter when one purports to be a journalist.

But even more to the point, this is an anonymous 12 step meeting of people who are trying to deal with a problem. Granted, sexaholics sound funnier to most people than alcoholics, and hence might make the children watching twitter with evil glee, feeling far less inclined to take a critical view of Rosenblum’s attempt to “out” the anonymous participants. But these are people making an effort to deal with their problems, not people on the prowl for young children. People go to these programs for a socially critical purpose, and do so under the belief that their identities will remain anonymous. And yet this twinkie thinks that’s an invitation to push her way in with the camera rolling?

There is no suggestion that any child has in any way been harmed, or even that harm of any sort has been threatened, at Holy Cross Church. Had there been such a suggestion, perhaps this group might be worthy of journalistic interest, though the handling of such a story in this fashion could never be justified. But this was an invention by Rosenblum, wholly without justification.

The ramifications of this one twinkie’s efforts for people seeking help are obvious. Should people attending 12 step meetings fear being outed by every fifth-string pseudo-investigative reporter, avoid seeking help and fail to make the effort to address their problems? Should church’s stop providing the rooms for these meetings to be held because they serve a wider community with programs for teens as well as adults? Maybe Cablevision would like to offer up its executive suite for use by 12 step programs? I’ve been in the executive wing of Cablevision’s offices. They’re very elegant and would do nicely for the next Sexaholics Anonymous meeting. The list goes on.

Clearly, Tara Rosenblum lacks the intelligence, discretion and basic good taste to be allowed outside with a camera crew. She’s dangerous. If Cablevision feels constrained to keep her on the payroll, perhaps they could find another job more suited to her skills. Like answering Jim Dolan’s phone.

H/T The Turk (who is not, I repeat, not one of the individuals in Rosenblum’s video, no matter how great the similarity.)

The Language of the Law

When the Supremes decided FCC v. Fox Television, the “fleeting expletives” case, much was made of the Court’s use of “F-word” and “S-word” (Turd Ferguson: I’ll take sword for $200, Alex) in the decision rather than the actual word spoken. In a speech before the 2d Circuit conference, Justice Ruth Bader Ginsberg spilled the beans on what really happened behind the scenes.

During her speech Friday Ginsburg reviewed the Fox case and said, “the words, I’m told, were spoken” at the 2nd Circuit argument. Then came the disclosure. Matter-of-factly she added, “the lawyers were alerted that some of the justices might find that unseemly, so only the letters ‘f’ and ‘s’ were used in our court.”

So the shift was predestined to protect the sensitive ears of the justices. This brought the ridicule of two of the boldest legal scholars, Jay Wexler and Howard Wasserman. Wexler called the justices “prudes”, while Wasserman took the more substantive approach of challenging the sanitization of the courtroom:

It is precisely within the “hallowed” walls of the courtroom (and the classroom, I would add) that we can and should truly deliberate and reason about how we should understand these matters, openly mentioning and discussing things that we might not (or should not) mention in society itself. The courtroom is the last place in which anything that is the subject of a legal dispute should be deemed too unseemly for full discussion and consideration, which necessarily presumes that the unmentionable must be mentioned.

Both Wexler and Wasserman make a point to use the specific words in issue liberally, both to desensitize and to demonstrate that they are mere words, carrying no pain of death upon sight or hearing.

While I’ve no doubt that somewhere in this vast land there are people who have never uttered either word, I’ve never met one. Both words are, for better or worse, rather common. I’ve taken the liberty of having both my children, at a tender age, speak the words aloud to get them over the taboo and to teach them, as Wasserman does, that they are mere words and carry no greater weight than others. But I then explain that people find the words jarring, particularly out of the mouths of children, and will think poorly of them for using such words. I explain further that the language has many other words that can be used to express their thoughts, and that these words aren’t needed to make their point clear. Curses won’t hurt them, but won’t help them either.

No matter how hard I try, I can find no flaws in the reasoning of either Wexler or Wasserman. And yet, if I was arguing the case before the 2d Circuit or the Supreme Court, I would not have used the particular words involved. In fact, there is likely no reason to use the requested euphemisms, nor even Justice Scalia’s personal choice, “golly-waddles”.

It’s true that there is something about the courtroom, even the lowliest, dirtiest, smallest trial courtroom, that evokes a sense of formality in me. Much like my compulsion to wear a suit and tie in court, even though I could get away with a sports jacket and perhaps a turtle neck, too many years of formality have made it impossible for me to suddenly treat the court like the playground. I can’t do it.

It’s not that I have specific respect for individuals I’ve known for years who later don the robes. They didn’t get any smarter, taller or better looking. They tend to be the same jerks they were before, and usually are far more offensive. But I still call them judge or your honor, even if there is the slightest hint of an edge to my voice. I can’t help it.

So I am absolutely persuaded by Wexler and Wasserman that it was both wrong, and foolish, for the court to instruct the lawyers arguing the “fleeting expletives” case to avoid using the actual words upon which the justices would render a decision. No court should demand that reality be sanitized to protect the sensibilities of its judges. If anything, the judges should be desensitized so that their delicate sensibilities don’t interfere with their ability to rationally decide the cases before them.

And yet, I still wouldn’t have said the words. And you won’t find them in this post. I trust that no one will miss the point because of the omission.

A Talk With Judge Chin About Bernie

Sentencing date for Bernie Madoff is fast approaching, and the United States Attorney for the Southern District of New York has submitted statements from 113 victims of his fraud. The statements consist of letters and emails, some straightforward and some in multiple parts, with varying requests and copies to Senators.

One email, from a fellow named Ed Hamilton, is only copied to the judge, but directed at Ira Lee Sorkin, Madoff’s lawyer, offering an argument about how Madoff’s crimes pale in comparison to those perpetrated by the government by suckering in the public to invest in a corrupt system, supported by media silence. It can be found at page 33 of the submission, and was copied to everyone from the President to the WSJ Law Blog.

For the most part, they tend to follow a familiar formula. The writers are in their twilight years. Their savings disappeared in an instant. Their lives, their plans, their goals, turned upside down. They express their anger, horror, misery at being left destitute despite a lifetime of work and saving. The vast majority of writers aren’t celebrities or fabulously wealthy, but our next door neighbors who worked hard, saved and invested.

Many end up invested with Madoff through a variety of feeder funds. These people neither expected nor received irresponsible returns. Some explained that they were getting 6% or 9% returns, meaning that the good people with whom they thought they were investing were taking the difference between Bernie’s promises and the victim’s single digits. While a few had large positions and endowed medical schools, most had rather modest investments. The vast majority had their entire life savings invested.

There a bunch of letters from people who have formed a group called the Ponzi Victims Coalition, apparently believing that they can carry greater weight through numbers. They are sought to obtain ancillary relief from the Senate Finance Committee for Madoff victims, via the IRS and SIPC, with some success. The government included copies of their letters to the Senate in the package.

In Exhibit B are the requests to speak at the time of sentence. These are people who believe that their personal knowledge, experience, rhetorical skills, will have be especially persuasive. Some are willing to travel across the country to have their say.

There is one theme that pervades the letters. They believe that Bernie Madoff’s open plea is part of some shifty scheme to beat the system, to gain sympathy for himself and his family, and to trick the court into imposing a lenient sentence. They are scared that Bernie’s going to pull off one last scam. They want him in prison forever. They want him to die there.

The letters are very personal, many providing financial and health details that really shouldn’t be broadcast on the internet. They are filled with the anger and frustration of real people. And strangely, they are remarkably pedestrian. They are victims of crime, economic circumstances, the many maladies that ordinary people suffer. Each victim, standing alone, sounds very much like the victim of any crime, suffering the consequences and seeing their plight as the most horrible thing that can happen to a person.

Having read these letters and email, what’s a judge to do?

Clearly, these letters serve a critical cathartic need for many victims. To the extent that they allow the victims to feel that they are participating in the process, their voices heard, their circumstances considered, their anger released, these letters and emails serve a valuable purpose.

Whether you feel sorry for the victims or see them as complicit in Madoff’s crimes, as greedy people seeking to cash in on the scheme for their own ends, isn’t relevant. The letters tell the story of normal people, who have suffered greatly as a result of Madoff. Even if they are less than pure, the consequences have dwarfed by a huge magnitude whatever guilt one imputes to them. And for many, the letters make clear that they had no responsibility whatsoever. They received no disproportionate returns and never knew that their money ended up invested with Madoff.

But there is nothing in these letters that Judge Chin didn’t already know. In spades.

Many of the letters suggest that Madoff is a murderer, for having murdered the dreams and efforts that the victims accumulated over a lifetime. They write that he murdered the futures of children and grandchildren, who expected their college tuitions to be paid. They want Bernie Madoff to be sentenced as a murderer.

Such exaggerations struck me in the opposite way from that intended. It reminded me that Madoff was not a murderer, and that his victims lost only money, not lives or loved ones. Ask the family of a murder victim whether it’s the same, and they will no doubt be happy to explain the difference between the loss of money and the loss of a child or a father.

Another thing that struck me was the expectation that their financial futures were secure, until Madoff came along to change everything. This came across poorly because of the times, an economy that has ruined many lives, depleted savings and rendered well-intended people destitute. There are many in similar situations as the Madoff victims, but with no face to stare at and hate.

It’s not that Madoff’s victims haven’t suffered, but that they aren’t alone in their suffering. It’s not like the rest of America is having a party. Financial suffering is pervasive; the Madoff victims have someone to blame while the rest have angst with no particular villain.

But I don’t imagine that any of this will change Judge Denny Chin’s mind when it comes time to impose sentence. Bernie Madoff will go to prison and will, in all likelihood, die in prison. It’s inconceivable that he or Sorkin would believe otherwise. The magnitude of the offense, combined with his age, presents few other options.

It’s impossible to explain what sentence billions of dollars of loss by fraud should merit under 18 USC 3553(a). There’s simply no calculus that has a grounded basis. But to the extent that it must reflect a degree of seriousness that exceeds the sentences imposed and upheld on others who engaged in large scale fraud, it will likely exceed any life expectancy Bernie might have. And Judge Chin cannot impose life plus cancer, so the pleas that the judge make Madoff suffer like they do will never be adequately fulfilled.

But the letter and emails helped these individuals to release their feelings of anger and frustration. They served their purpose.