Monthly Archives: July 2009

If You Can’t Spank ‘Em, There’s Always The Taser

From both Balko and Turley, Tucumcari, New Mexico Police Chief Roger Hatcher did what he had to do. He just had to. It brought him no pleasure. It was for the her own good.

Hatcher shot a taser dart into the head of a 14 year old girl who just wouldn’t stay still.

Hatcher said be believed he had no other option.

“There’s a lot of issues,” Hatcher said. “She committed a delinquent act. She was running from police across traffic without looking.”

Hatcher said he chased her, ordered her to stop and “then did what I had to do.”

The problem begins not with Hatcher, but with the mother of this 14 year old, Stacy Akin, who brought her daughter to the police because they were having an argument over a cellphone. When they arrived at the police station, the daughter walked away, prompting Hatcher to go and find her. When he did, he chased the young woman and ran from him. According to Hatcher, this left him with no choice but to shoot.

The stories are unclear as to what this 14 year old girl did that was so terrible, so out of control, that it compelled her mother to bring her to the police. The mother somehow had enough control to get her in the car and take her to the station. One might anticipate that when the heat of the argument subsided, the mother still planned to serve her dinner (buy it at McDonalds?) that evening. So what deed of delinquency demanded detention? No one’s saying.

Mothers (and fathers), we understand that children can be difficult. We appreciate that some are more difficult than others, and that it be frustrating, tiring and wearing. No one said parenting would be easy. But shifting the burden to the cops to straighten out your kid probably isn’t the best way to deal with your frustration. Especially if you love your child, or even kinda like her. The police really aren’t well suited for substitute parenting. It’s not that they don’t love children, but that they don’t love yours.

Now, a thought for Chief Roger Hatcher. If you want to be a celebrity, try America’s got talent. Shooting 14 year old girls in the head with a taser guarantees you at least two things. Lots of people will quickly learn your name and you will be branded by this singular act of idiocy for life. Consider plan B. Let the kid run and, eventually, she will stop. Problem solved. A kid running really isn’t nearly as horrific a crime as you believe.

As for the much-maligned Taser, there remains a police policy problem that seems highly under-recognized. The constant theme of policy approving of the use of a Taser when there’s no justification for the use of force at all misses a big-picture problem; just because you have a Taser doesn’t mean you have to use it. It has become abundantly clear that the use of force is being left to the discretion of police on a totally ad hoc basis, and that discretion, particularly with the use of Tasers, is terribly lacking.

It’s bad enough that a mother was so incapable of handling her child that she felt the police would provide a better option than a stern talk. At least Stacy Akin didn’t spank her daughter first, thereby subjecting both mother and daughter to prosecution and potential tasing.

Brady Violations: Not Just A “Rules” Issue

Of the many aspects of criminal practice that sounds far better on paper than in practice, disclosure of Brady material is high on the list. Perhaps even the highest, given the critical nature of information exculpatory to the defense that never seems to find its way from the cop’s pocket to the prosecutor’s file to the defense lawyer’s table. Odd how Brady is so much more difficult to get out than, say, a confession or murder weapon. They so rarely lose those.

Over at PrawfsBlawg, Miriam Baer notes that efforts are underway to change how Brady is delivered:

Today, the Blog of the Legal Times reports that, “Amending the rules of criminal procedure to require prosecutors to disclose any exculpatory information to the defense will be considered during the October meeting of the Judicial Conference Advisory Committee on the Rules of Criminal Procedure,” which will no doubt spur the DOJ to step up whatever training and internal review it already had planned.

Last April, our trusted friends at the DOJ, embarrassed by its massive public failings to disclose Brady in cases big and small (like Alaska Senator Ted Stevens), decided to form a working group to find lasting ways to improve fulfillment of its Brady obligation. The judicial conference, on the other hand, pushed by Judge Emmet Sullivan who wasn’t satisfied with the idea of leaving it all in the hands of the DOJ, urged a change to Rule 16 to include Brady within its disclosure requirements, a move the DOJ argued was “unnecessary”.

Judge Emmet Sullivan of U.S. District Court for the District of Columbia wrote the committee in April urging it to re-examine amending Rule 16 to require the disclosure of any exculpatory information. In 2006, the Justice Department opposed the amendment, according to Sullivan’s letter. Justice lawyers argued then that modifying the U.S. Attorney’s Manual—to include a section on disclosure obligations—was sufficient.

Brooklyn Lawprof and former SDNY prosecutor Miriam Baer’s idea is that the DOJ Office of Professional Responsibility should somehow beef up its efforts to improve compliance internally. But consider her notion of the problem :

You could conclude that professional misconduct rarely occurs among federal prosecutors, but that when it does occur, it is a doozy and the outcome is devastating for both the government and prosecutors alike. That’s why these Brady-type violations get so much press.

Pop Quiz: What missing from every aspect of the discussion of both this problem and its cure? That’s right, the defense. Ironic that Baer considers this a PR problem for the government, demonstrating neither concern for, nor acknowledgment of, the fact that defendants are actually being denied disclosure of Brady material.

Baer assumes it’s rare because the failure rarely comes to light. Is that because the government does, in most instances, fulfill its obligations, or because nobody knows when it doesn’t since the defense has no access to the government’s files. The point is akin to DNA exonerations, ignoring the 99% of cases where there’s no DNA involved to suggest that no innocent defendant is ever convicted in non-DNA cases as proved by the absence of proof of innocence.

The solutions to the Brady problem fall into two categories. Trust the DOJ or create a new rule that requires courts to trust the DOJ. While the new Rule 16 proposal has certain virtue, foremost of which is that it resolves the long-standing problem of when the government must disclose Brady, which it now holds to the very last second if it’s to be disclosed at all, rendering the defense incapable of investigating or making good use of the information. But it still doesn’t address the core issue: The determination of what is Brady is left to the discretion of the prosecution, and the duty to disclose it at all remains the decision of the prosecutor.

The proposed “solutions” are thus dependent on the answer to this question: Do you trust the prosecutor?

If we can’t trust the prosecutor, each and every prosecutor in every district throughout the country, to disclose Brady, to err on the side of disclosure, to disclose timely, then neither new rules nor procedures that continue to rely on the discretion of prosecutors will solve the problem. Clearly, former prosecutors and even judges who’ve been burned still seem to put their faith in the integrity of the government. Somehow, I don’t find this satisfying, but then nobody engaged in this discussion seems to think that the defense side of the courtroom should have any say in the matter.

Why does this remind me of an old joke?

Fair is Fair: Avvo Did Me Right (Update)

I’ve been tough on Avvo in the past, expressing my distaste for the vulgar Avvo Answers and bashing the time suck of callers and emails seeking free advice on a DUI in Phoenix. Oh yes, I’ve been tough on Avvo, which is why my fingers are in pain as I hunt and peck my way through this post.

Lunch with Avvo CEO Mark Britton was scheduled for 12:30 pm. At 12:14 pm, certified funds arrived at my office. I was retained. I was retained by a client who contacted me because he found me on Avvo. Oh, the shame. The humiliation. After all the things I had written about Avvo, all the hours wasted telling callers that I couldn’t represent them for free no matter what Avvo promised, here I was, retained by an client via Avvo. And lunch with Mark Britton mere minutes away. The shame.

Thoughts raced through my head as a made my way through the midday throngs. I could just keep my big mouth shut and say nothing. I could pretend my mouth was full should Mark ask me the “question”, or politely excuse myself and head to the men’s room. But no. No, it was a matter of integrity. If I am man enough to bash Avvo, I am man enough to own up to the truth. I got a client through Avvo.

That didn’t mean, of course, that I couldn’t have a little fun with it. So a plan developed, where I would whip out the check at the end of the meal as I adeptly grabbed the bill, and explain that lunch was on him. Ha! Wouldn’t I be the card, the funny fellow? I had visions of Oscar Wilde, wit running over.

Lunch with Mark was quite an interesting time. We talked frankly about the many of the Avvo issues that have been bandied back and forth. We talked about how Mark ended up as Avvo CEO, and what he was trying to accomplish. We talked about television interviews, and how the anchor asks a prolix 7 minutes question and gives 12 second for the brilliant answer. He was a great guy, and I enjoyed talking to him very much.

And then, out of the blue, I said it. I just came right out and told him. My feet shifting nervously, my lip twitching, I told him. I got a client from Avvo.

Mark smiled triumphantly. “Was it worth it?” he asked. “Was what worth it?” “The time you spend on the phone and answering emails.” Mark told me that if I think I got calls and emails, I should see what he gets. He suffers by a magnitude of ten, at least.

“No”, I finally told him, “it wasn’t worth it.” But it was just a fact of life. It’s not like these problems didn’t exist before Avvo, or that I was satisfied trading off the one case I took with the 250 that held no interest for me whatsoever. But it didn’t change anything. I got a case through Avvo. There’s no denying it. For all my criticism, I actually got one.

Fair is fair. I didn’t hesitate to write when I had something negative to say, and I won’t hesitate to admit that I gained from my relationship with Avvo. Yes, I got a case from Avvo. A good one, too.

Lunch was over too soon. Mark grabbed the check when it arrived and said, “this is on me.” Thanks for lunch, Mark.

Update: Shortly after posting, the social media-crities and twitter-bells went nuts, with @adriandayton leading the way with this twit:

What? Social media works to find legal clients? @ScottGreenfield eats his words http://tinyurl.com/nqhmre

Now I have no doubt that Adrian was trying to have some fun messing with me, and I can’t blame him for that, given how little opportunity he has to crack a half-decent joke. But for those who may think that he’s serious, let’s bear one thing in mind. This is one client out of hundreds of telephone calls by people seeking free advice and free representation.

One case does not a practice make. One case is no big deal. Hundreds of phone calls and hours of wasted time is a much bigger deal. So if you’re keeping score, it’s Good Avvo 1, Bad Avvo 1000.

I hope that puts things in perspective. Now to all the social media acolytes, go find a real job and get to work.

Rights, Warnings, Weapons.

Over at Underdog, Jon Katz has a fascinating post about a case where a judge allowed a cop to testify about the defendant’s exercise of his right to remain silent.

At a recent drunk driving bench trial . . . the police officer testified that my client was silent when the officer asked my client on the roadside about what he had imbibed earlier that evening.

I objected to that line of testimony, on the grounds that my client had a Fifth Amendment right not to answer the question, and to have his silence excluded from evidence. The judge overruled my objection, on the basis that a Terry stop — Terry v. Ohio, 392 U.S. 1 (1968) — was in progress, and not an arrest.

The judge’s rationale was that the defendant’s Miranda rights had not yet attached, and therefore the underlying rights, including the right to remain silent, were not yet in play. At the same time, the stop was justified per Terry, giving the officer a right to inquire. A relatively sophisticated analysis, and, as Jon notes, totally wrong.

We possess our constitutional rights at all times. We don’t need the government’s permission or approval to exercise them. Indeed, they would be relatively worthless if we did. But the exercise of these rights is rendered meaningless if the very exercise itself can be used to impugn a defendant at trial.

So let’s parse this out a bit. We have the right to remain silent, whether subject to custodial interrogation or just a passing question. Miranda merely provides the timing for the cops to tell us of our rights, nothing more. So the police in Jon’s case were under no duty to provide Miranda warnings? That’s fine, and likely correct, but the timing of police taking a person into custody neither creates nor confers the initial availability of constitutional rights. The two issues are entirely distinct.

As for the Terry stop, it provides the police with a guide to their level of intrusiveness into the personal realm of people. They are allowed to ask questions. That doesn’t mean that we are required to answer them. It’s quite a significant distinction, and one that easily eludes certain robed decision-makers. By chosing not to answer, we do not open ourselves up to our silence becoming a weapon against us. We are exercising our rights as Americans. You don’t have something against Americans, do you?

But the final step in the process is the judge recognizing that the exercise of rights, which to an outsider can look as bad, if not worse, than a confession to kidnapping the Lindbergh baby, does not constitute evidence in itself. When a cop testifies, as he did in Jon’s case, as to silence when the typical juror would expect a law-abiding person to simply answer the cop’s question, the defendant is damned by his exercise of rights. If permitted, then the exercise of rights embodied in the Constitution are tantamount to a confession. Only guilty people invoke their rights.

The problem isn’t that the police officer is Jon’s case sought to use what he believed (wrongly) to be perfectly good evidence that the defendant was a bad person by his refusal to respond to the officer’s perfectly reasonable inquiry. The problem is a judge who put two and two together and ended up with 39.

Bear in mind, if the police can use silence as a weapon, as potent if not more so than a statement offered in disregard of one’s rights, then we’re left with one odd Catch-22. I hope Jon’s judge down in Maryland is paying attention to him. He knows what he’s talking about.

Mother of the Year Lost

In the shadow of Lori Drew comes Long Island’s own version of a monumentally out of control mother, whose way of handling a dispute between her child and another 9 year old reflects just how warped a parent can get. From Newsday :

Hauppauge social worker [Margery Tannenbaum, 40] has been charged with endangering the welfare of a child for posting a sexually suggestive ad on Craigslist directing callers to the home of a 9-year-old girl, Suffolk prosecutors said.

Police said the ad was posted in the “casual encounters” section of the Web site in February. “I need a little affection,” the ad read, according to a criminal complaint filed in court. “I am blonde and very cute! I’ll be waiting.” The first name of the girl, whom Newsday is not identifying, was also included in the ad.

Tannenbaum replied via e-mail to those who expressed interest, giving them the home phone number of the girl, who lives about a mile away in Smithtown, the complaint said.

The ad generated nearly two dozen calls from men seeking sex, police said.

A parent’s love and concern for her own child is one thing, admirable in its own way. But what drives a parent, especially a social worker, to create a scheme such as this to harm another child is beyond comprehension. Sure, we want to protect and defend our kids. It’s one of the strongest driving forces in a parents life. But the urge is to defend our own, not harm another.

The question is whether conduct of this ilk, so utterly shocking and bizarre, is a reflection of some greater disease that’s flowing through parents who have either lost touch with reality, abandoned all morals or are so filled with rage that they cannot control their most outrageous impulses.

Note that this was not a single instance of lashing out, but a well planned and executed scheme, requiring numerous parts over a period of time. Even if we try to explain it as moment of uncontrolled rage, it fails to offer any rationale for the ongoing engagement. Move by move, Margery Tannenbaum persisted in this disagraceful conduct, each time renewing her purpose in causing harm to a 9 year old child. To maintain that level of fury, and persist in this sort of irrational and outrageous behavior, over a prolonged period of time suggests some serious mental defect. There is no explanation. There is no justification. None.

In an online editorial, Newsday columnist Anne Michaud writes:

It kills me when parents act like this; in my view of the world, we are supposed to look out for children, even if they are not ours. We certainly should not be victimizing them. And this woman is a social worker besides — another supposed caretaker position.

Of course we should be protecting children, rather than affirmatively harming them, whether they are our own or not. Is there any question about this? But then, let’s remember that when it comes time to treat the next child offender like an adult, disposable and unworthy of saving. We truly need to return to the culture of caring for all children rather than only our own, and that includes the children who get in trouble as well as the cute and cuddly ones. They are all children, all worthy of our caring and concern.

On the other side of the equation, there is much to be said for the handling of this case, particularly in comparison to the horribly ill-conceived Lori Drew prosecution. Tannenbaum is being prosecuted locally for child endangerment, even though much of her conduct involved a computer, a lie and harm. Imagine, a prosecutor staying within the bounds of the law and his jurisdiction.

Prosecutors need not distort the law, abandon principle and abuse process to address the damage caused by this sick woman. While I hope Tannenbaum’s conduct, following on Lori Drew and the Texas Cheerleader mom, isn’t part of a growing trend of parents going off the deep end when it comes to their children, I applaud the prosecutor for dealing with it properly, and staying within the bounds of the law. At least somebody in this absurd case kept their wits about them.

Credit is a Two Way Street

Judge Richard Posner recently suggested an extreme solution to the potential death of the newspaper. Using the argument that there’s no reason to buy the cow when you can get the milk for free, Posner urged the expansion of copyright law to “bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder’s consent.” In other words, burn blogs to save newspapers.

But this assumes, as Posner does, that its only blogs that free-ride off the newsgathering efforts of “legitimate” media. While this is certainly the predominant flow, it’s not always the case, as was clear today when the New York Times published a story about Sonia Sotomayor’s foray into private practice under the name “Sotomayor and Associates.” It was a wonderful piece of investigative journalism, but for one detail. The news was unearthed not by the Times, but by blawger Eric Turkewitz at New York Personal Injury Attorney Blog.

Nowhere does the New York Times mention that Turk was the source of its “news”. At least when Turk uses the Times as a source, he links to the original story. The Times doesn’t return the favor.

This isn’t the first time that Turk has come up with a bit of news that ultimately made big headlines. He was well ahead of the curve on the Flea, and even his brilliant April Fools post about baseball conflicted Supremes tricked a few media outlets. When it comes to producing exceptionally significant blawg posts, Eric Turkewitz is one of the best.

So where’s the media love and appreciation? They don’t mind borrowing the work of blawgers like Turk, so why not return the favor by giving credit where credit is due?

I fear that the answer for “real” journalists is that they matter and blawgers just don’t. While Posner sees the blogosphere as the little people free-riding on the coattails of the hard-working legitimate journalists (and I don’t deny that some are indeed hard-working, and some are occasionally legitimate journalists), any rules he would impose ought to cut both ways. Not only does the Times free-ride off Turkewitz, but it does so without acknowledgment that some lowly blawger came up with news that they didn’t, and that they had to steal from a blawger to get the story.

Most of us in the blawgosphere, and I include myself in this group, go to great lengths to give credit to the source of our posts, whether it’s a hat tip to a reader who sent a lead or the newspaper that carried the story or another blog that brought it to the fore. Whatever it may be, we give attribution. Not only is it a matter good etiquette, but it’s the honest thing to do. There are a few, including some very well known bloggers, who simply don’t give credit, or credit “friends” when the source is obviously elsewhere. But the ones who do this, including some of the academics who are happy to glom ideas from trench lawyers but will only cite to scholars lest they be revealed as slummers, compromise their integrity. While the casual reader might not realize who the dishonest bloggers are, we know.

Internal disputes over sources amongst blawgers are hardly the same as when a newspaper like the New York Times, the Paper of Record, does the stealing. While Huff Po and Drudge may have pretensions of matching the big boys, ordinary blawgers aren’t playing in the same game as big time newspapers. I suppose that’s what makes it too painful for the Times to recognize that it needs a blawger like Turkewitz to come up with the information upon which its story relies.

But make no mistake about it. Turk is the source of the New York Times story, and the absence of his name, and his blawg, in the piece is a shoddy reflection of its journalistic integrity. Don’t ask the blawgosphere to love you when you won’t love us back, boys.

Unfollowed in St. Louis

One the mysteries of twitter is the accumulation of followers. Everyone seems to want them, more of them, always more, as if there is a prize at the end of the day. I assume it’s some validation of self-worth, for people who don’t get out much, unless one’s purpose is to get information out to as many people as possible, a la Alltop impresario @GuyKawasaki. But is the effort to collect followers real or a house of cards?

From the Riverfront Times, the test came in St. Louis:

A few weeks ago a local Twitter user, Rex Gradeless (Rex7) and non-local Twitterer Brandon Prebynski (Prebynski) of Indianapolis began promoting what they billed as the “St. Louis Largest Tweet-up Ever!” which was to happen last Friday at McGurk’s in Soulard. Well, by all accounts it wasn’t. I wasn’t able to attend myself but, Todd Jordan (Tojosan if you’re nasty) did, and he reported that there were about 19 people in attendance.

Having 19 people come to your party doesn’t sound so terrible at first blush, but consider how many were invited.

The turnout was especially disappointing since both Gradeless and Prebynski have thousands and thousands of followers on Twitter. Gradeless has over 60,000 followers all by himself. You would think that a twitterer that influential should be able to attract more than 19 people to a tweetup right? What could have possibly have gone wrong?

The problem appears to be the nature of one’s followers. Accumulation of numbers doesn’t speak to the “quality” of followers, meaning people who one would actually care about. It’s easy to get numbers, given how many people are spammers looking to build up their own numbers by following everyone in sight in the hope that they will follow in return. But these aren’t your friends. They don’t love you. They don’t care about you. They don’t even know who you are. If someone following you couldn’t care less what you have to twit, then what good are they as a follower?

Rex Gradeless is a law student who has joined the ranks of social media advocates, much like my young buddy Adrian Dayton, who has accumulated more than 22,000 followers. Both have impressive numbers, to be sure, if the numbers mean anything at all. But as the St. Louis tweet-up (don’t blame me, I don’t create silly twitter words) demonstrates, it’s a meaningless bit of self-deception promoted unceasingly by the twitter sycophants. How many of those followers have the slightest desire to meet their hero? How many of those followers would have followed our heroes if they didn’t follow them back? How many of those followers are busy trying to sell something to the same folks who are trying to sell them something in return?

What eludes me in all this is the compulsive need to accumulate followers. I guess this is the twitter equivalent of friends on Facebook, another subject of little interest to me. This isn’t to suggest, as the acolytes no doubt will, that I’m a twitter hater (or a Facebook hater, for that matter), but that I reject the notion that the accumulation of followers means anything whatsoever. Give me 10 followers with whom I actually want to interact and I’ll trade you 10,000 spammers.

And contrary to the contention of the inchoate twitter marketing guru wannabes, these huge numbers do not increase your odds of getting a date for Saturday night, unless you want to dress up like Ned Beatty and squeal like a pig. If you want to know whether you’re loved and admired by your followers, just ask Rex7.

I’ve been called a dinosaur and curmudgeon for throwing wet blankets on the youth of the law and their efforts to reinvent the wheel. Chatting with Turkewitz last night, who was getting a kick out of my provocative posts about the Slackoisie, particularly a second year law student’s “response” to my latest challenge to the failed work/life crowd, we commiserated at all the energy of these “go-getters” misdirected from worthy causes into such nonsensical endeavors as demanding their right to be slackers (all the while insisting they aren’t, by their own definition) and collecting twitter followers. Turk observed, “it’s like trying to explain chocolate to someone who’s never tasted it.” They’re young and full of life, and can’t possibly comprehend that there’s anything more to understand than what’s in front of their face at the moment.

I don’t blame the Rex7s and Prebynskis of the world for trying to rack up more followers than anyone else. It’s a hobby, like collecting rubber bands. But there’s no prize at the end of the game. They would do better to spend their time getting a taste of chocolate. Then they would understand.

H/T Venkat

Courting Confrontation

In the world of criminal defense lawyers, one of the most significant positive changes coming from the Supremes has been the expansion (or re-expansion, according to your religion) of the Confrontation Clause. Beginning with Scalia’s earth shattering Crawford decision in 2004 and culminating, at least for the moment, in this term’s decision in Melendez-Diaz v. Massachusetts.

What it means is that we get to cross-examine living, breathing people rather than pieces of paper or tapes, that say what they say and can’t be challenged. Before that, the rule was that the Confrontation Clause was secondary to a “firmly rooted exception” to hearsay, an out of court statement offered for the truth of its contents.

What’s forgotten in the mix is that right to confront witnesses, worthy of inclusion in the 6th Amendment to the United States Constitution, wasn’t applicable to the states until Pointer v. Texas in 1965, when it was held to be so fundamental a right as to be worthy of incorporation under the 14th Amendment due process clause.

David Bernstein at Volokh raises an interesting argument that Scalia’s originalist position on the Confrontation Clause, that it means what it says as it was understood in 1791 by the guys who passed it, may be baloney. Not because the founders didn’t have such an understanding of confrontation, but because it quickly devolved to become another rule swallowed by its exception. As an aside, a “firmly rooted hearsay exception” was whatever the court decided it to be, whether business records, excited utterance, etc. The notion was that if the hearsay statement was deemed sufficiently reliable, the hearsay came in and the Confrontation Clause was forgotten.

The problem, per Bernstein, is that Scalia looked at the wrong Amendment in determining what the proper originalist understanding should be. Rather than 1791, when the 6th was passed, he contends that the correct understanding should be that of 1868, when the 14th Amendment was passed, which gave rise to the incorporation doctrine. At that point in time, when due process per the federal Constitution allowed for its rights to be passed along to the states, the Confrontation Clause was understood to be toothless, such that it was this relatively tepid right that was intended to be imposed upon the states, rather than the robust right originally passed.

Beyond the fact that I do not believe in the originalist view of constitutional interpretation, I nonetheless find Bernstein’s proposition wrong. The passage of the 14th Amendment incorporation doctrine carried with it all the baggage of the bill of rights, as they were originally intended and as they had since developed. To the extent one wants to pretend that we know what long-dead people had in mind, and further to the extent that we pretend that this large and diverse group of people were of identical motivation and understanding (a ridiculous notion, but one that serves as a foundation for the originalist perspective), they were well aware that the rights were subject to change, expansion, contraction and reinterpretation. And still they passed the 14th, knowing that the past saw change and the future would as well.

Of course, Bernstein’s proposition is purely academic, since the hard fact is that the Supremes have revitalized the Confrontation Clause to a great degree, although it’s “testimonial” versus “non-testimonial” distinction left the door open to much mischief and confusion, From the perspective of trying a case, the purpose of the creator of hearsay evidence, as well as his understanding of the use to which it would be put, has little relation to whether a defendant can mount an effective challenge to traditionally “reliable” hearsay which is nonetheless wrong.

To those who aren’t in the position of having to contest the substantive accuracy of a piece of paper or a tape recording, the enormity of the problem may not be apparent. The fact is that people sometimes lie when they tell a story. Even if not lying, people can be mistaken. It’s hardly an unusual thing. When the font of testimony sits on the witness stand, we can question their senses, memory and comprehension abilities.

When their evidence is reduced to a writing, it is fixed forever. We can question whether the person actually wrote what was on the paper, or whether the paper was altered, but we cannot question whether the person who wrote the paper but is not before us at trial actually saw or comprehended what he says. Ironically, it elevates human frailty to perfection, making it immune from challenge, no matter how wrong it may be.

If you’ve ever been forced to try a case where critical challenged facts are proven by evidence admitted via hearsay exception, you can appreciate how devastating this situation can be. No matter how hard you stare at a piece of paper, the writing doesn’t change. No matter how inaccurate the content of that writing may be, it remains a untouchable testament. And if a defendant is entitled to due process, then Scalia’s interpretation of the Confrontation Clause returns a crucial right to its place in the due process arsenal. Regardless of how we got back there, it’s clearly one of the best things to come out of the Supremes for the purpose of defending against false accusations.

What this issue should remind us, however, is how a constitutional right, with a relatively clear purpose well-grounded in reason and practice, gets muddled up over the years as court after court fashions facile exceptions until the rule is rendered meaningless. Crawford was the exception, with the Court returning the rule to its roots. What’s become of search and seizure under the 4th Amendment, for example, informs us of just how much damage courts can do over time. chipping away bit by bit until there is no rule left.

And Heidgen Sits and Waits (Update)

One of my earliest posts at Simple Justice was about Martin Heidgen, the first person to be convicted of murder for having driven drunk. The results of his conduct were horrible.

His actions resulted in a horrific crash with a limousine driving a wedding party, and resulted in the deaths in the limo driver, Stanley Rabinowitz, 59, and flower girl Katie Flynn, age 7.It is impossible to forget the image of Katie’s mother holding the severed head of her daughter afterwords.Let there be no mistake, this was a tragedy of untold proportions.

But horrible results don’t dictate the crime. It’s all about the conduct, not the outcome, and the Heidgen case was an extreme example of prosecutorial overreaching. The problem is that Heidgen was sentenced on Wednesday, February 28, 2007. The appeal has yet to be decided. The appellant’s brief has yet to be perfected. More than two years have elapsed, all the while Martin Heidgen sits in prison serving his 18 year sentence as a murderer.

Much has happened since Heidgen’s conviction. The case of Alberia Valencia was decided by the Appellate Division, Second Department, the same court that will hear Heidgen’s appeal. There, the court rejected the “depraved indifference” theory of assault upon which the conviction rested, the same theory (though applied to second degree murder) that was used against Heidgen. Valencia was sentenced on February 23, 2007, five days before Heidgen.

Heidgen was represented at trial by Stephen LaMagna, who I noted at the time was way over his head in a case of this magnitude. But following the conviction, he was unwilling to let go of his grip on this high profile murder case. More than two years later, LaMagna is nowhere to be found. What exactly happened is unknown, but two things are clear. No appeal has been completed and Martin Heidgen is now been appointed an 18b lawyer, Sergey Mikhlin from Coney Island Avenue, Brooklyn. Ironically, Mikhlin was a Nassau County ADA until 2007, perhaps overlapping his time as a prosecutor when his client was being prosecuted by his own office.

Based upon Mikhlin’s website, his practice seems to be geared toward doing drunk driving cases for the Russian community. What experience he has in appellate work or murder cases is wholly unclear. On a promotional website called , Mikhlin highlights his work on “Criminal Law, Drunk Driving & DUI Law, Traffic Law.” He’s obviously got enough extra time to do an occasional indigent appeal.

In an effort to find out what became of LaMagna, and the status of the appeal, I tried to contact Mikhlin but received no response. This is troubling in a case where the legal ramifications of an appeal are so enormous, with so many questions unanswered and so much time lost.

Many people wonder how the law goes so far astray at times. Perhaps what’s happened in the Heidgen case provides an answer. While it was front page news, the lawyer representing Heidgen was too caught up with enjoying the high profile to recognize that he was over his head and needed help. He flew solo, and lost. Then comes the promised appeal, and the case falls off the radar until the hard work gets done. In the meantime, the money runs out, and the thrill of being in the newspapers wears off. The lawyer quietly bails out of the case, leaving the now indigent defendant to dangle in the wind. In his place is an attorney of unknown experience in appellate or serious criminal work. It’s now up to this new lawyer to carry the ball.

Will Sergey Mikhlin be up to the job of handling the Heidgen appeal? Who knows. A case of this magnitude, this importance, and not only is it far behind schedule, but it’s almost entirely a shot in the dark at this point. And that’s how the law goes wrong. Twice.

And so, along with Martin Heidgen, we all sit and wait. No matter how horrible the outcome of Heidgen’s drunk driving, this murder conviction must be reversed.

Update: Information has since been obtained via the Nassau County Assigned Counsel Plan that Mehklin is no longer on the case, but that his assignment was not for the primary appeal but an ancillary proceeding. No one knew what that proceeding might be, unfortunately.

As to the primary appeal, I know understand that Heidgen is being privately represented by Jillian Harrington of Rochman Platzer Fallick Sternheim Luca & Pearl in Manhattan. So why have more than two years elapsed without an appellant’s brief? A darn good question, and I look forward to finding out the answer.

Dear Sir, Please Help Me

While criminal defense lawyers have long been the recipients of letters from “innocent” prisoners seeking their help, email in conjunction with the culture of free legal advice has generated a new phenomenon that, while similar in some ways, is far more dangerous and potentially ruinous. The blind email with full blown explanation of their “crimes”. I get these almost daily, and it scares me.

In a post yesterday, I referenced a problem with the type of client who cruises twitter in search of a lawyer. While less accurate for more obscure practice areas, one has to wonder why someone would need to scour social media in search of a lawyer engaged in one of the more common practice areas, contracts or criminal defense, for example. There are a ton of them out there, and one can barely walk down the block without tripping over a lawyer. As for finding a good one, a twit is hardly a basis for a recommendation. Nor is a website, all of which tout their owner as the next best thing to slice bread no matter what the actual competency might be.

One source of the problem as it’s come across my computer is Avvo, which inspires people to ask people they don’t know for free answers, with the assumption that it’s there for the taking. I get a ton of calls from people who have found me on Avvo, not one of which has ever produced a case that I was interested in taking and almost invariably from people who have no funds to retain counsel in any event. This comes as no surprise, given the header on Avvo’s website reads “Find a lawyer. Free legal advice. Lawyer ratings. Avvo.” The suggestion is about as clear as it could be.

But it’s the emails that shock and disturb me. Emails from people I don’t know, and who don’t know me, disclosing their deepest secrets. Telling me all about what’s happened to them, and what they’ve done. Why would anyone send an email to another person they don’t know revealing such things about themselves? Because I’m a lawyer? Is that alone sufficient reason to feel comfortable confessing their secrets?

Brian Tannebaum at My Law License, has a little fun with the latest edition of Super ~~Burgers~~ Lawyers, a stroke of marketing genius designed to suck cash from lawyers desperate to have something hard to prove their worthiness.

But in Gainesville, Florida, apparently two Super criminal defense lawyers, are prosecutors.

Yes, Alachua County Assistant State Attorney Jim Colaw is a Super criminal defense lawyer, devoting 100% of his practice to criminal defense. Only problem is that he’s a prosecutor, and always has been I hear.

Not to be out done, Gainesville Federal Prosecutor Francis (Frank) Williams, is also a Super Duper criminal defense lawyer.

Most troubling, is that the way I verified these two were prosecutors, was by checking the Florida Bar website. Super Lawyers, did check this website, I trust? Colaw’s email address is “sao8” as in “State Attorney’s Office 8th Circuit, and Williams email is the well known “usdoj.gov” that is assigned to all federal prosecutors. They, work at the United States Department of Justice.

Does this demonstrate a monumental failing with Superlawyers? You betcha. All the protestations by the cashiers at Superlawyers won’t change this flagrant screw up and make them credible, but then the lawyers who use something like this marketing gimmick to sell themselves already know that it’s only purpose is to market. No one wins a case by telling the jury that they’re a Superlawyer.

On the other hand, what of the poor, desperate fellow who comes across this “accolade” and believes it’s real? What if he emails his confession to a federal prosecutor? Even though I will not become involved in these blind email proposals, I would never rat out the sender, despite the fact that there is no attorney/client relationship created. A prosecutor isn’t likely to share my feelings. Should he receive an email disclosing an act of violence or harm committed against another, chances are awfully good that he’s going to take that email and put it to good use. And there’s no reason why he shouldn’t.

I am not a fan of the concept of using the internet to blindly thrash about in search of a lawyer to begin with. From the clients’ perspective, you are as likely to find the right lawyer this way as you are to find the right stock to purchase by throwing a dart. Maybe less so.

From the lawyers’ perspective, the people searching for lawyers online are the ones who can’t find a lawyer through ordinary channels, the predominant reason being that they don’t have the ability to retain counsel and are searching for that one great lawyer who will take him on pro bono. If you’re searching for pro bono work, one twit to that effect ought to keep you busy for a lifetime. If you have to work for a living, however, this isn’t going to be the route you want to take. People who can afford counsel are not usually constrained to search very hard to find a lawyer.

I’ve no delusion that anything I write will stop defendants from seeking out lawyers willing to take on their cause for free. Indeed, it could happen, as we would all be happy to serve the higher cause in those rarest of rare cases, where an innocent person is imprisoned and we can truly help. But no, most of us will not go diving into cases (especially in far flung jurisdictions, a point ignored by most emailers who neglect to mention that they are in jail on the other side of the country) blindly, and you emails will not result in lawyers rushing to your rescue.

But whatever you do, please don’t tell your story to anyone you don’t know. The recipient may very well be a “Superlawyer”, but one who works for the other side. And believe me, he won’t help you.