Monthly Archives: August 2009

Plea Rejected, Thankfully

For anyone who loves children, justice and harbors any belief in the promise of America hidden deep within their soul, far from the cynical exterior we show the world, this one will bring a smile to your jaundiced eye.  From the New York Times via Doug Berman, District Court Judge Edwin Kosik of the Middle District of Pennsylvania decided to reject the sweet plea deal cut by state court judges Mark A. Ciavarella Jr. and Michael T. Conahan.

Those names strike a bell, don’t they?  Just in case anyone has forgotten, which would be a tragedy in itself, let me remind you just who these two individuals are, and why their names must be remembered.  These were the two Pennsylvania judges who sold children into prison, making millions in kickbacks.  Children, without prior histories of wrong and whose misconduct was often trivial, expected a stern lecture from the court and instead were hauled away to a private juvenile detention facility.  The take was $2.6 million.

The government, which doesn’t flinch when it puts a poverty stricken mother who turns mule to feed her starving children behind bars for 121 months, offered a plea to 87 months for the two titans of the law, substantially below the guidelines.  In lay terms, that means they would be out in less than 6 years at worst.  And even with this sweet deal, the arrogant scum tried to bully their way through the Pre-Sentence Investigation Report, refusing to explain their motivations, denying critical facts and refusing to accept responsibility beyond how terribly this affected them. 

How wrong was this deal?  Well, let’s see how it stacks up on the Bernie Scale.  They racked up a potential 2,183 children wrongfully sent to jail.  How much is a child’s life, a child’s belief in fairness and a child’s expectation that their society won’t abuse them so mercilessly, worth when compared to pensions and college funds for the grandkids?  Bernie took 150 years.  These scum get a deal for 87 months. 

To his enormous credit, Judge Kosik wouldn’t play ball.  He rejected the plea.



In a highly critical order, issued Friday, Judge Edwin M. Kosik of Federal District Court in Scranton, Pa., said he based his decision on the comments and conduct of the two men after they entered guilty pleas to serve 87 months in prison.

Judge Kosik said the presentence report prepared by probation officers found that Mr. Conahan “refused to discuss the motivation behind his conduct, attempted to obstruct and impede justice and failed to clearly demonstrate affirmative acceptance of responsibility with his denials and contradiction of evidence.”

“Defendant Ciavarella is less obstructive,” the judge continued, “but instead has resorted to public statements of remorse, more for his personal circumstances, yet he continues to deny what he terms ‘quid pro quo,’ his receipt of money as a finder’s fee, not withstanding the government’s abundance of evidence of his routine deprivation of children’s constitutional rights by commitments to private juvenile facilities he helped to create in return for a ‘finder’s fee’ in direct conflict with his judicial roles.”
Rejection of a plea agreement is a true rarity.  Rarely will a judge second-guess the government’s notion of a proper deal.  But this one was so offensive, so disgraceful, so utterly and inexplicably soft, that if ever the was a deal worthy of rejection, this was it.  And these two arrogant pieces of trash did everything in their power to demonstrate their unworthiness of the government’s “mercy”, the very thing that they laughed at when they busily sent children to jail as they rang up their receipts on their judicial cash registers.

The maximum sentence available for the crimes to which they pleaded guilty is 25 years.  Based on the Bernie Scale, it still falls well below the proper sentence.  But we don’t apply the Bernie Scale, though if ever a case cried out for retribution, this one does.  Nonetheless, application of the proper sentencing considerations of §3553(a) would make a 10 year sentence about right to remind any other judge inclined to sell his robe, conduct all too easily concealed behind a law and order facade that would be applauded by the mindless throngs, think twice.

Upon rejection of the deal, the scoundrels have two options.  They can withdraw their pleas and the case move forward to trial, or they can continue to sentence and the court will have a free hand to impose whatever sentence he believes proper. If ever a case called out for a good, well-publicized trial, this is it. 

But here’s the problem.  The same Assistant United States Attorneys who thought that 87 months for these crimes fit the bill will be the ones who would try these two despicable pieces of scum.  Will they do so with the zeal they would bring to the man who downloaded cartoon porn, or would it be closer to the gentle way they treat cops who beat and taser perps?  Which government will show up for trial?

These two judges, who were entrusted with the lives of children and sold them for a tidy profit, have done mindboggling harm to the belief that there is any justice to be found in the courthouse.  Will the United States Attorney for the Middle District of Pennsylvania add insult to injury?  Given the 87 month deal, I wouldn’t be the farm on our government doing the right thing.

Facing one of the gravest abuses of the publics’ trust ever, let’s see how the government deals with it.  We’ve already got gutless court administrators and lawyers, both prosecution and defense, who have some explaining to do.  How many more cogs in the machine will fail before this case is over?

But we thankfully have Judge Kosik, who refused to allow this case to just quietly fade away.

Fear of Signing

The police have developed extraordinary means of overcoming good sense and persuading/manipulating people to say things to them that will inure to their great detriment.  It’s perhaps the most significant tool that ever existed in obtaining convictions, whether the speaker is guilty or innocent.  It’s one of the very few things that police do well, and they do it very well.  But signing one’s name to a piece of paper is another matter entirely.

People have, thankfully, a fear of signing.  Speaking aloud doesn’t seem to implicate the same level of permanency, of seriousness, as signing one’s name to a piece of paper.  Whether that paper is a written statement or confession, or merely an acknowledgment of the Miranda warning, or a consent to interrogation or search, the act of signing causes some different mix of chemicals in the brain that hits the limit of what people will do impetuously.

It’s for this reason that the Second Circuit decision In US v. Plugh is so significant.  By a 2-1 majority, the court held:



This appeal raises the question of whether a suspect in custody and informed of his rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), is entitled to the prophylactic bar prohibiting police questioning established in Edwards v. Arizona, 451 U.S. 477 (1981) (right to counsel), and Michigan v. Mosley, 423 U.S. 96 (1975) (right to silence), when he expresses uncertainty with regard to  asserting his Fifth Amendment rights while contemporaneously refusing to sign a waiver of rights form. We believe he is entitled to the prophylaxis and affirm the district court. By unequivocally refusing to sign the waiver form in response to a custodial agent’s instruction to sign the waiver form if defendant agreed with it, defendant in this case invoked his Fifth Amendment rights, and therefore his custodial agents were required to refrain from further interrogation.

Notwithstanding the equivocal nature of a defendant’s reaction to Miranda warning, a constant source of problems given that few defendants are bold enough to just say “no” or not speak at all, the refusal to execute a waiver of rights form has been held to constitute a sufficient invocation of the privilege against self-incrimination to stop further interrogation.

This has long been one of the most absurd fictions of criminal law, that a defendant’s failure to speak the magic words to terminate questioning reflects an equivocal position, allowing cops to use every manipulative weapon on their tool belt to get him to spill his guts and confess.  Only a judge could believe that an inartful attempt to invoke one’s right, to refuse to speak, is really equivocal.  People are scared to death to refuse to succumb to the demands of cops, and will do almost anything to avoid their wrath.  An affirmative refusal to comply is like begging for a good beating.  Nobody wants to be the recipient of a cop’s wrath.

But the refusal to sign the waiver form is a bright line test, and one that conforms to the will of most defendants, despite police pressure.  They will talk, but they don’t want to sign.

Don’t sign, and that’s that.  Let’s hope that this decision stands.

Life and Death in the Blawgosphere

The blawgosphere is much like any other place, assuming the place has only a digital existence. Over time, shiny new faces appear and old, wrinkled faces fade away.  At one minute to midnight last night, Skelly took his leave.  His blog, Arbitrary & Capricious, was well established and respected when I first stepped foot in the blawgosphere.  And now he’s decided to go on what he’s calling “hiatus”.

Skelly was funny, fascinating and always brought something new and interesting to the fore.   I remember once mentioning that I didn’t know how he kept finding such strange stories about Public Defender life, a realm that I saw only from the outside.  Skelly was on my original blogroll and has been there ever since.  Along with a handful of blogs, his is one that I’ve read every daily, every post. 

I salute Skelly and thank him for the effort, the great work and perspective he’s provided me personally.  Arbitrary & Capricious enriched the blawgosphere for me, and I will miss it and Skelly.  He’s left the door open to return, and I hope he finds that his juices keep flowing and call him back to blawging. 

Others have also been fading a bit lately as well. My very dear friend Gideon at A Public Defender, has been largely dormant, his time consumed by bigger fish in the trenches.  Norm of course goes in and out of the blawgosphere with the wind. It isn’t easy doing this.  It wears on you over time.

This seems a good place to devolve into a rambling discussion of blawgs, and why they aren’t going to be as meaningful and successful as Arbitrary & Capricious, or A Public Defender.  Kevin O’Keefe, one of the foremost promoters of the blawgosphere, recently predicted that there will ultimately a hundred thousand blawgs.  He may well be right, but not in the sense that they will fill the shoes of the blogs that brought people to the blawgosphere, that people read regularly, that people cared about.  They will have pretentious names and make arrogant claims of worthiness.  And no one will read them.  And they will stop posting one day and no one will care.  No one will even notice.  They will leave no footprints.

Over the past year, a number of things people call blogs have appeared, some of which are produced lawyers I know.  They have heard the siren call of the blawgosphere and wanted to get their piece of the pie.  I haven’t mentioned them, because I don’t want to constantly speak ill of new blogs.  But they aren’t worthy of a mention.  They offer nothing. 

We don’t need a hundred thousand blawgs repeating yesterday’s news in a paragraph.  The claim that if you start a blog, people will read it is a lie.  No one has the time to read a hundred thousand blawgs.  No one needs to read the same rehashed news stories a hundred thousand times.  The same is true of blogs describing court decisions, It’s been done to death.  I’ve read your blogs and saw nothing there.  Some of you are great lawyers, but your blawgs suck.  There’s no necessary correlation between the two.  You will soon tire of posting, since there’s no reason to blawg when no one reads it.  And your blawg will fade into oblivion.

In the end, there will never be more than 50 blawgs that matter.  There may be thousands around, but only 50 that get read. Maybe. And I’m not including those blawgs that facially exist to promote your business.  They will invariably fail.  This is the biggest lie of the blawgosphere, that you can use blawgs to puff yourself and gain clients.  I’m offended by those whose blawg is a flagrant advertisement.  You are the trash of the blawgosphere, and do the most harm to its vitality.  Not only will I not help to promote you, but I will out you and denigrate you whenever possible. 

Don’t tell me you can’t think of anything worth blawging about.  I leave a half dozen posts on the table almost daily.  There is so much out there to write about, to think about, to add value to.  If you can’t think of something to write about, then blawging just isn’t for you.

And then there’s your voice.  I write like a criminal defense lawyer.  My views are clear and strong; no one reads my posts and wonders what I really think.  You may think I’m dead wrong, or a blithering idiot, but you won’t think I’m wishy-washy or pointless.  This upsets people.  Some accuse me of being controversial to attract readers.  Some say I’m too intense or over the top. Some call me a barroom bully.  I couldn’t care less.  I don’t write to attract anyone or please anyone.  If I’m not your cup of tea, then don’t read me. No one makes you and you’re not doing me any favors.  But don’t ask me to tone it down and stay within your comfort zone.

I’ve got little tolerance for people who have never had an original thought, or are scared to death of expressing an opinion for fear that it will offend someone, or want to be loved and admired to fill the gap in their psyches left by mommy’s neglect.  Grow up. Grow a pair.  Talk to people over a beer, and they know everything, have an answer for everything, have an opinion on everything.  Ask them to put it in writing and they quiver like a bowl of jello. 

But if you post something that I think is foolish or wrong, don’t whine to me that I’m mean to call you on it.  And bear one thing in mind: Some of you just aren’t that bright, even though others might not be aware of it until you’ve written a post expressing your deepest thoughts.  Once you’ve done that, you’ve proven to the rest of us that you’re a dolt.  If you don’t want us to know, don’t write. If you think you’re brilliant nonetheless, then take the heat that comes along with expressing your thoughts.  But just don’t whine about it. 

And for God’s sake, don’t send me an email telling me that I’m too mean to you.  If I thought I was too mean, I wouldn’t have written whatever I wrote.  If I wrote it, I think I’m being just the right amount of mean.  If you don’t like it, write something mean about me in return.  You won’t be the first.  But you won’t do it, because you’re gutless and thoughtless.  This is why you bring nothing to the blawgosphere. It would negatively impact your carefully crafted internet persona.  We couldn’t have that now.

Kevin uses the term “thought leader” all the time.  I hate the phrase, and it makes me bristle whenever I hear it.  But the alternatives, thought follower, or worse still, thoughtless, characterize most of the blawgosphere, and particularly the self-promoters.  If you’ve got nothing to add to the discussion, or are afraid that expressing your thoughts will scare away business, then do yourself a favor and go away.  You’re wasting your time and no one will read your blawg. 

The blawgosphere needs people like Skelly.  And Gideon.  And Norm.  These are the people who breath life into the blawgosphere, and breed thought and interest and curiosity.  They make others think.  If you can’t fill their shoes, then be a reader if you want, but don’t blawg.  And if you can’t stand the heat, then stay out of the blawgosphere.  You’re not Skelly.