Monthly Archives: October 2009

The Verdict. Maybe. (Update)

Only a week ago, I posted of the ill-conceived request by defense counsel to poll the jury following a verdict of acquittal. That didn’t work out very well. Now the flip-side of the equation surfaces, in a case involving one of the most ridiculous instances of alleged judicial impropriety raised in quite some time, the case of Herman Thomas, the spanking judge.

The first charges against Thomas surfaced in 2001 when an inmate claimed that Thomas offered to help with the case in return for sex. Those charges were dismissed. But that wasn’t nearly the end of it.

Inmates then began claiming that Thomas forced them to strip down to their underwear and then spanked them. Others claimed he forced them to perform sex acts.

Creepy? Bizarre? Sick? All of the above? Absolutely, assuming he’s guilty of the allegations against him. So the former Alabama circuit court judge was prosecuted, as he should be, tried, as he should be, and acquitted. There they were, the members of the jury, sitting in the box, the entire courtroom on edge in silence as the verdict was read. The defendant, the spanking judge, was . . . Not Guilty.

But that was then, this is now. Via WKRG.com, three of the Thomas jurors have come forward to say that this wasn’t their verdict.

Three jurors in the sex abuse trial involving a former circuit court judge are disputing the verdict. The jurors say the vote was not unanimous.

One juror, who insists he voted guilty on all but two charges, says he was “shocked” when the verdict was read aloud. “We were railroaded,” said the juror, who declined to comment any further until after he meets with the district attorney this afternoon.

Never before has a juror claimed to have been railroaded, as far as I’m aware, but this raises a couple of questions. Given that the verdict was an acquittal, why didn’t the prosecution request that the jury be polled? In last weeks case, it was noted that the request to poll can become too routine, to the obvious detriment of the erstwhile acquitted defendant. Was the prosecution so shocked by having lost a trial that they went into brain lock and forgot?

And then, there’s the curiosity of why the three jurors now coming forward to complain that they were “railroaded” sat silently when the verdict of not guilty was announced. Not a whimper, an “ahem”. Nothing. If the jurors had voted for guilty, did this not strike them as a very good time to alert someone to a possible problem?

Let’s speculate, just for fun, that given the outburst of joy and relief following the announcement of the acquittal, the three jurors who claim to have voted for guilty didn’t feel that there was an opening for them to stand up publicly, express their shock and outrage and tell the world that the fix was in. Maybe they just didn’t want to be party-poopers (since everybody hates a party-pooper). Was there an alternative?

As much as the defendant is all hugs and kisses after an acquittal, and perhaps in some instances a quick spank on the backside, the prosecution tends to be a little down in the dumps. They collect their things, give the defense lawyer a nod, and shuffle out of the courtroom with their heads down. This would be a pretty good moment for a juror to go “psst” to the prosecutor, followed by “hey, buddy; that wasn’t the verdict.” I suspect that this would have interested the prosecutor at that particular moment. I suspect someone would have perked up.

Of course, this didn’t happen. The verdict was announced. Nothing to the contrary was said. No polling of the jury was sought. Time to start the party.

WKRG.com updated its report last night:

MOBILE, Alabama – 6:15 p.m.
District Attorney John Tyson, Jr. says he plans to file motions in the case, as early as tomorrow morning.

Unfortunately for DA Tyson, ineffective assistant of counsel is not available to the prosecution to get another bite. As for a collateral attack on the verdict, it should be dead in the water, just as it is when the defense tries to challenge impropriety in the jury room, not to mention that darned double jeopardy thing. It looks like a few of the defendants before Thomas weren’t the only ones in Alabama to get spanked.

Update: DA John Tyson changed his mind, after his three complaining jurors collapsed, and will not try to attack the verdict.

On Thursday, Tyson declined to elaborate on his discussions with the jurors. But he indicated one juror had trouble remembering the specifics of his vote. One woman declined to sign an affidavit, and refused any further involvement. One man also declined to sign an affidavit, not wanting to be the only person, Tyson said.

Asked whether he felt confident that the jurors’ seven not-guilty votes were unanimous, Tyson said: “I cannot prove otherwise.”

And why would that be?

He said any jurors who disagreed with the verdicts should have spoken up during court.

“This case is over,” he said.

Prosecutors did not poll the jury, confirming the verdict with each juror, at the end of the trial. “We just didn’t,” Tyson said.

And having muddled up the acquittal with the taint of a faulty verdict that will follow Herman Thomas forever, the case now dies with a whimper. Because the DA “just didn’t.”

Who’s The Toughest Hombre In The Courtroom?

Every once in a while, a defendant comes before the court on some minor offense, generally considered inconsequential in the grand scheme of things, but so filled with anger that he’s just not going to stand there and take it. These encounters invariably result in stupid outcomes, usually for the defendant. But not always.

From Lowering the Bar, South River Municipal Court Judge Emery Toth met his match in cab driver Esmanuel Buldoni:

The defendant, a cab driver named Esmanuel Buldoni (a.k.a., oddly, “Luis Martinez”), had been charged with three traffic violations. He was in prison at the time of his arraignment, possibly because he had failed to show up for a prior court date, and so the exchange took place over a video link to the courtroom. After Buldoni pleaded not guilty, he and the judge got into a dispute over why exactly Buldoni was in prison at the time. After a short exchange, Judge Toth ended the argument. “I don’t want to have an Oprah Winfrey conversation with you,” he said. “All right? . . . I’ll give you a trial date next week. See you around. Goodbye.”

Apparently, Mr. Buldoni’s salutation was less endearing. He then flipped Toth the bird and made the sound lovingly referred to as a “raspberry”. Certainly disrespectful on Buldoni’s part, and clearly not the way to persuade a judge to cut you a break, but similarly not so far out of the ordinary for a fellow in jail on three traffic violations that a bit of anger isn’t anticipated and something a judge could deftly handle. Judge Toth, however, was not about to laugh it off.

Toth: Let me explain something to you. . . . I’m a street guy. I didn’t get offended when you gave me the old fist up in the air. That’s OK. I didn’t really care about that. But when you give me raspberries walking out and you give me some kind of disrespect like that, I’m just telling you that’s contempt in the face of the court. You’re going to jail. You’re going to stay there for another 30 days.
Defendant: Appreciate it.

Toth: No, OK, I’m giving you 40 days, 45 days. I told you don’t give me any attitude. You want to give me the (indiscernible [but possibly “the old fist up in the air”]) and you want to give me the lip. You want to disrespect …

Defendant: (Indiscernible)

Toth: Sixty days. Get out of here. Sixty days. Give him 60 days.

Defendant: No, give me 70.

Toth: Seventy-five.

There’s nothing better than a bidding war with a judge, which ultimately bought Buldoni 180 days for contempt. On the one hand, one might surmise that Buldoni got what he asked for. On the other, one might hope that a jailed cab driver wasn’t the measure of appropriate judicial temperament. In other words, as offensive as an angry defendant might be, a judge is expected to keep himself out of the mud when challenged to a wrestling match.

The New Jersey Supreme Court was not impressed with Judge Toth’s handling of the situation, affirming the Advisory Committee on Judicial Conduct’s finding that he acted in an “undignified and sarcastic” manner.

Municipal Court Judge Emery Toth was reprimanded last month for violating the New Jersey Code of Judicial Conduct by “speaking disrespectfully and intemperately to a litigant” and for abusing his contempt power by throwing the litigant in jail after he responded.

While it’s hardly shocking that Judge Toth was offended by Buldoni’s contumacious conduct, the moral of the story is that one guy’s a judge and the other is an angry cab driver in jail for three traffic infractions. Even when the latter behaves poorly, the former is expected to maintain the dignity of his position, especially since only one of the two has the power of contempt.

The problem isn’t that Toth held Buldoni in contempt for his conduct, but that he threw the robe aside and rolled in the mud with Buldoni. Contrary to popular belief, it’s just not the way judge’s are expected to behave. Even in Jersey. Especially in Jersey.

Book Review: Protecting Court

Reading book after book about the misery, failings and injustice of the system gets, well, a bit wearing over time. So I was truly thrilled when I received a (free, FTC people monitoring for compliance) copy of Lt. Jimmie H. Barrett’s book, Protecting Court. Sure, it’s not exactly miles off the mark, but it was certainly a change of pace.

And Lt. Jimmie Barrett wrote one great book. Protecting Court is primarily a “how-to” manual for best practices in running a court, from the courthouse to the courtroom, and everything in between. The book is written in a very straight forward, clear and concise manner, easy and quick to read. And peppered throughout with historical examples showing the need for various types of security measures and the consequences of lax security.

Shockingly, after reading the book, it becomes clear that so many of the courthouses I’ve been in, despite the vast number of court officers, handguns and magnetometers, fall substantially short of providing real security in many ways. There’s far more to it than just putting a bunch of uniforms in the room, or the occasional perimeter walk.  Lt. Barrett provides an astoundingly thorough nuts and bolts approach, and with a sense of humor that finds its way through his straight-talking prose.

While this is obviously a must-read for those charged with courthouse security and administration, why would the trench lawyer care?  Three words: Officer, Judge, Defendant. These are the security priorities of the court officer, in that order. It explains much of the staffing, positioning, training and reactions of the officers to what’s happening in the courtroom. And no, I didn’t omit the lawyer’s sorry butt from the top three list. We’re way down there, with the rest of the riff-raff in the gallery. Best to know up front what to do if things go south in a courtroom.

As lawyers, as well as protectors and instructors to our clients when they appear before the court, an in-depth understanding of what drives court security, what officers are looking for and how they are likely to deal with it, allows us to be far more effective in both avoiding potential problems as well as assisting our clients to navigate the courthouse without causing themselves any additional problems. After all, by the time they call us, they already have enough on their plate without wreaking inadvertent havoc in the courtroom.

For judges, this book is critical, both for your own protection and, because you are in charge of your courtroom and, for better or worse, the court officers are going to take instruction from you, a working awareness of the implications of your directions to the staff.   As Lt. Barrett spells out, there have been many instances of judges harmed in the courthouse for lack of basic forethought and care. Not necessarily in criminal courts, by the way, but notably with domestic relations and custody cases, where tempers flare red hot. A judge’s off-the-cuff directions to security staff could substantially compromise safety if she doesn’t appreciate the rationale behind the security staff’s job.

Certainly no one wants a judge harmed, and the best way to help the staff assigned for your protection is to understand what they are doing and why. Without this knowledge, and particularly given the other concerns on a judge’s plate, lack of appreciation of courtroom security could have potentially terrible consequences. There’s just no reason for this to be, given that you can read this book and aid in the safety and security of your courtroom. An excellent example is why only the primary court officer should be armed, while everyone else in the courtroom, police officers included (and especially, as Lt. Barrett explains), should be without weapons.

On this note, Lt. Barrett points out that people’s concept of how to behave in court has gone the way of Judge Judy, with screaming judges and screaming litigants, who haven’t got the slightest concept of decorum or why they aren’t just as entitled to speak their mind as the judge, argument in the living room style. For the court officer, this is a nightmare, but with proper training, policies, procedures and understanding, everything can be kept under control and no one gets hurt. At the end of the day, even angry litigants go home in a well run courthouse, a competent security staff capable of ending minor incidents without escalation while maintaining a level of respect for the public.

While the price for Protecting Court is a bit high for the casual reader, it really is a terrific book, well written and, believe it or not, fun to read. Ah, what a joy to read Abbie Hoffman and Bill Kunstler’s antics in the Chicago 7 case, where they turned the courtroom into a circus. The good old days.   Protecting Court a great read and I recommend it highly for anyone whose living, and life, take place in a courtroom.

The Autistic Juror (Update)

A very interesting, and very troubling, question comes out of this thoughtful post about jury duty for people with autism. When Anne Reed of Deliberations fame twitted the link, it struck me as curiosity. After reading the post, however, it scared me by driving home a point aimed at the very heart of having a jury decide the fate of a defendant.

The post describes the process of jury selection, and emphasizes the reasons why serving on a jury presents particular issues for people with an autism spectrum disorder. The author describes herself as “high-functioning autistic.” For anyone who doesn’t appreciate the significance of the description, it means that she’s a person of normal to high intelligence, fully capable of functioning in the world without overtly displaying autistic symptoms. Yet, still autistic, even if you can’t see it at first blush, or without a keen eye for the particular manifestations she displays.

In a more holistic sense, this is a person who can, and should, be entitled to enjoy a full and wonderful life like anyone, with certain small concessions needed to accommodate her autism. But is jury duty a part of that life?

So, being a high-functioning autistic, I was worried that I would not be let off, since I fit a lot of the criteria that judges might tend to like in a jury (at least, in my state). For starters, I work a state job, so I wouldn’t need to per diem pay that others would need since I would get full pay anyhow. I’m over 18, I have sufficient English comprehension, I’m a citizen, I’ve never been convicted of a felony, etc. So, I was worried the response from the judge would be “autism, what is this madness? GET BACK IN THE PEWS! You’re here, aren’t you? You have a pulse, don’t you?! YOU ARE TOTALLY FIT FOR THIS!!”

Would being a juror be something interesting? Sure, I personally think it would have been cool to serve on a jury. But not at the cost of misconstruing the wrong verdict. I, along with, I’m certsin, other people on the spectrum, have a myriad of problems, and in a trial setting it can become glaringly obvious. My own main issues include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects (such as anime…), both of which impede on the function of a juror, which is to be an unbiased decider of the verdict. Or, me just wanting to not be sitting in the courtroom for whatever reason might compel me to leave (yes, I still have problems sitting still and will still rock in my chair, albeit rarely). I’d very likely have trouble discerning truth from fiction and would be a not-so-great or even disruptive juror.

I admire her frank recognition of her strengths and weaknesses. The problem, as noted, is that the weaknesses, the difficulty with non-verbal communication, difficulty processing figurative speech, distractability, are beneath the surface. She knows this about herself, but there’s a very good chance that it would never be notable during voir dire.

To her credit, she emphasizes throughout her discussion the need to tell the court and attorneys of her condition, although her purpose in doing so is less to inform them of a gap in her qualifications to sit than to be a self-advocate for her needs and accommodations. Self-advocacy is an important aspect of dealing with autism; Unfortunately, it’s as much to serve her needs as fairness to the defendant.

Secondarily, while the author appears to have a firm understanding of her own issues and deficits, it’s similarly problematic that many high-functioning autistics will view themselves as more capable than they truly are. Self-assessment is not merely unreliable, but to a person who has spent a great deal of their effort in overcoming challenges, the belief in their ability to do whatever they want to do is a strong incentive to deny their limitations. It may be critical to success in some ways, but it may well cloud their self-image of their capacity to serve as a juror.

This isn’t to say someone who really, really wants to be on a jury regardless of their disability can’t or won’t be (though, again, it is best if you tell the judge so that they and counsel at least know about your condition). Chances are, you may or may not be picked, since in many states the counsel for either the defendant or plaintiff can ask for a juror to be dismissed without having to give a reason. And since most trials only need 12 jurors not everyone is going to be selected. But, if you ultimately are on a jury…

Therein lies the problem. While avoiding jury duty is nearly a national pastime, some people want to serve, seeing it as a fascinating opportunity to participate in an important civic experience. It’s wonderful that they feel this way, but it similarly lends a reason to minimize the problems they might face in fulfilling their obligation.

The typical question asked, even if a potential juror was to approach to tell the court and lawyers that they are a high-functioning autistic, is whether that will impair their ability to serve. If the person wants to be a juror, the answer will likely be “no, it won’t.” Holding a person’s life in your hands isn’t a game, a fun way to spend a few days for those who want to play. We don’t try cases so that jurors can enjoy the experience.

As a long-time supporter (well before it became fashionable) of people with an autism spectrum disorder and cognitive challenges, and one who has spent an enormous amount of time and energy trying to get others to recognize that these are human beings, entitled to enjoy and participate in everything life has to offer, it’s difficult to find myself on this conceptual ledge, a place where I’m forced to conclude that autistics shouldn’t go. But their right to a wonderful life must give way to a defendant’s right to be judged by a jury without any impediment to fair and sound verdict.

Granted, there are any number of other impediments that stand in the way of non-autistics serving on a jury, and I don’t mean to suggest that autistics alone should be precluded from jury duty. Rather, anyone who, for whatever reason, is unable to sit as a juror, with the ability to understand and process the proceedings, sit for whatever length of time is required without distraction, whether because the kids are coming home from school and there’s no one to let them in or because they lack the ability focus for prolonged periods, shouldn’t be jurors. People who take medication that makes them drowsy, impairs their cognitive ability, or alters their perceptions, shouldn’t be jurors. And, given the nature of autistic spectrum disorder, people who are autistic shouldn’t be jurors.

While people with autism should be able to do almost anything that anyone else can do, consistent with their functional abilities, serving as a juror just isn’t one of them. In the balance of rights, the defendant’s must prevail.

Update: I anticipated, when I published this post, that it would be controversial, and bring people out of the woodwork who had strong feelings on the subject. One, an anonymous commenter below who calls himself keith, wants to fight all day until he wins the battle. His point was made, and it’s not a point that is worthy of that much space or effort. It’s rather simplistic and replete with false assumptions.

But another comment, made on twitter by Jason Wilson, is more problematic:

Thx to @ScottGreenfield for reminding us that Autistics & retards should not serve on a jury. Super.

Aside from his attributing to me the use of the word “retards”, which reduces Wilson to an irresponsible liar, this is the sort of reaction that makes it impossible to discuss controversial subjects. He’s about it, where it becomes clearer that his comprehension is clouded by the fact that he’s the father of an autistic child. This is precisely why it’s important to discuss controversial subjects like this. Much like the crime victim’s view of prosecution is clouded by their personal rage, Wilson’s understanding of the law is clouded by his self-interest in his child.

As a father of an autistic child, I understand intimately the difficulties they face day in and day out. It’s a struggle, and they become very aware of their differences. Painfully aware. Which is why I applaud this post. If you’re AS, it’s these kinds of instructions that help you better cope with the world around you. Anyone who has a child on the spectrum or works with them understands this and understands that it works.

In the end, you should ask yourself whether you want someone who constantly assesses themselves in relation to the world around them, tries to do his or her best, and would like to serve on a jury, or someone who possesses strong “functional abilities” but doesn’t give a shit. Mr. Greenfield seems to prefer the latter.

Actually Jason, most realize that they aren’t mutually exclusive.

Regardless of how sensitive this might be to Jason Wilson, however, his attribution of retard demonstrates both a monumental flaw in his understanding, and a wholesale loss of crediblity. I’m sorry that this has touched a nerve with Jason Wilson, but that doesn’t give him leave to false attribute words to me. And it doesn’t mean that no one should be allowed to discuss his sacred cow.

Update 2: Jason Wilson has since apologized for the “implied attribution,” which I appreciate.

Kuehne Dismissal Affirmed

Just a brief update to the Ben Kuehne saga, discussed here, here and here. The 11th Circuit has affirmed the dismissal of the first count of the indictment by Judge Cooke. The court rejected the government’s argument that 18 U.S.C. 1957 (f)(1) was “nullified” by the decision in Caplin & Drysdale, holding that legal fees paid by tainted funds were forfeitable and a companion case to Monsanto.

The Government argues that the exemption in § 1957(f)(1) has been “nullified” or “vitiated” because, shortly after the provision was enacted, the Supreme Court held in Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 626 (1989) that the Sixth Amendment right to counsel does not protect the right of a criminal defendant to use criminally derived proceeds for legal fees. However, Caplin & Drysdale, which addresses a different statute governing the civil forfeiture of criminally derived proceeds, has no bearing on § 1957(f)(1) and indeed supports the conclusion that such proceeds have been statutorily exempted
from criminal penalties. The Government has pointed to no principle of statutory construction—nor indeed to any legal principle—that supports the conclusion that a statutory provision may be “nullified” by a Supreme Court decision on a completely different issue, absent any indication that Congress intended such a result.

The upshot is while legal fees are subject to forfeiture, the lawyer is exempt from criminal liability, which the Judge Barkett’s opinion calls “an absurd result.” As David Oscar Markus asks at Southern District of Florida Blog,

Now let’s see if the government does the right thing and dismiss the rest of the indictment against Ben…

Or will they, having suffered a decisive loss, persist in some misguided, childish effort to preserve their dignity?

H/T Brian Tannebaum and Ellen Podgor at White Collar Crime Prof Blog.

A “One Man Innocence Project”

A fixture in central Pennsylvania, though not exactly a household name elsewhere, Pete Shellem was an investigative journalist working the court and justice beat. Not someone who called himself an investigative reporter, but someone who actually investigated things he thought were wrong.

Who, you ask? This Pete Shellem.

Patty Carbone: She was released from prison in 1998, 11 years after her conviction for killing a man she said abducted and tried to rape her. Stories by Shellem questioning the evidence and pointing out that the victim, Jerome Lint, had tried to assault another woman helped secure her release.

Steven Crawford: He spent 28 years in prison after a jury found him guilty of killing a childhood friend. In 2002, Dauphin County prosecutors dropped charges against Crawford and set him free based on a series of stories by Shellem about new evidence in his case, and problems with earlier work by the state police crime lab.

Barry Laughman: Laughman, who is mentally retarded, claimed he was coerced into a confession. Shellem tracked down DNA in Germany that proved Laughman did not kill an 85-year-old distant relative known as Aunt Edna. In 2004, Laughman was released from a life sentence after 16 years in prison.

David Gladden: Shellem wrote a series of stories exposing gaping holes in the case against Gladden, including the fact that a key informant had reasons to lie and that serial killer Andrew Dillon lived next door to the victim. The stories caused a man to come forth and counter Dillon’s alibi. Prosecutors decided to release Gladden in 2007.

Ernie Preate: Preate, then the state’s attorney general and a candidate for governor, was convicted of campaign-related mail fraud in 1995, after a series of stories by Shellem and former Patriot-News reporter Pete Shelley. Preate now works on behalf of prison-reform groups.

Jay Smith: Smith was sentenced to death in 1986 for the murders of teacher Susan Reinert and her two children. He was freed six years later by the state Supreme Court, which ruled there had been prosecutorial misconduct.

Do you remember Pete Shellem, writing for the Patriot-News in Harrisburg now? He was a reporter whose work changes lives, notably for former state Attorney General Preate, who called Shellem a “one man Innocence Project.” I didn’t know who he was until yesterday. I’m sorry that I didn’t, because Pete Shellem was someone worth knowing and admiring.

Pete Shellem, dead at age 49.

Patriot-News investigative reporter Pete Shellem freed a number of innocent people from prison.

H/T Reader Brian

Now This is Real Police Work

Ladies and gentlemen of the jury: This . . . is proof. This is what the prosecution should have produced for you if they had any case at all. No, not asking you speculate and guess, to use your “common sense” to make up for the fact that there is no evidence, not a shred of evidence at all, that the defendant committed the crime.

Do not accept it. Do not close your eyes to the evidence and imagine proof where none exists. This is what you would have seen if there was any evidence to convict the defendant at all. They’ve got nothing. Nothing!

Heheheheh. From Make My Mood via Ed at Blawg Review.

Passing the Smell Test

So judge, tell me when you last smelled a bunch of fresh, raw marijuana on the street? What? Never? You mean you never smelled the “pungent odor” that you keep finding credible? Not even once, and yet you put your judicial seal of approval on the same words uttered by a cop to justify his warrantless search time after time? Not even once.

From the Fourth Amendment Blog, a district court in Kansas approved a curious search in United States v. Hairston:

Defendant also contends that the officer’s statement that he smelled raw marijuana is not credible given that no raw marijuana was ultimately found in the vehicle. But the Court finds Trooper Walker’s testimony credible on this point. “An officer’s detection of the smell of drugs in a vehicle is entitled to substantial weight in the probable cause analysis.” Trooper Walker testified that he had been through two training classes and the Kansas Highway Patrol training academy, where he learned to detect the smell of raw marijuana. He also estimated that he smelled raw marijuana four to five times per month during traffic stops, in the course of his duties as a trooper. The fact that Trooper Walker did not ultimately find marijuana, and instead found cocaine, does not dissipate his credibility for purposes of the probable cause analysis.

The rationale isn’t entirely crazy. After all, if the car held a substantial quantity of raw marijuana, which was since removed from the car, the smell could linger, right? So you get the smell, giving rise to probable cause, but no pot. It could happen.

Except there is one small detail that’s simply assumed by the court, just as it’s assumed by judges in courts everywhere. It’s become a mantra, so utilitarian and pervasive that it’s taught in cop school. You see, burnt marijuana has a distinct odor, as anyone who has been to a concert or walked down a Manhattan street at lunch time knows only too well. But raw marijuana is entirely different. It has a “pungent odor.” I know because every cop who has ever based his search on the smell of raw marijuana so testifies.

The last time I crossed a cop at a suppression hearing on this, the police officer testified that it had a “poignant odor.” I asked the judge, “What did he say?” The judge said, “poignant”. I wanted to be sure that the judge picked up on that word. The cop was a nice enough guy, a bit dumb but he hadn’t laid a hand on my client, so he was aces in my book.

Having had occasion over the years to discuss the smell of raw marijuana with those who are intimately familiar with the odor, and who are actively engaged in its packaging for purposes of transportation, and who know very well what they are doing, I’m informed that there is nothing to smell.

There is nothing particularly distinct about the odor of raw marijuana from that of many other types of cut vegetable matter. What is distinct is the smell of vegetation emanating from a Nissan Maxima with ground effects on 168th Street and St. Nicholas. Very few legitimate farmers reside there, and even fewer bring their work home with them.

But those engaged in the business have learned a trick or two. They package their wares in heat sealed baggies, with the air sucked out of them, and then placed inside large tupperware containers, all for the purpose of making sure that there is no odor, pungent or otherwise, to be smelled.

And yet, whenever marijuana is found, you can bet your life that the officer will testify about how he smelled the pungent, or poignant, odor. Even with the introduction into evidence of the packaging, the heat sealing, the whole shebang, all designed to make absolutely certain that no smell escapes, the testimony prevails.

Even if the defendant testifies that there was no smell, zero, zippo, nada, the testimony prevails. Not only does the officer, with a nose that any dog would envy, smell something when there is nothing there to smell, but he can tell with sufficient certainty to establish probable cause that the smell is that of raw marijuana. How does he know? It’s pungent.

Over the years, certain mantras have come to be accepted as rote by the courts as facially sufficient to justify a search. The trick is that the claims are irrefutable, lacking any basis in objective proof and entirely dependent on the subjective testimony of the officer. This was the way with the old dropsy cases, which courts finally got tired of hearing and started rejecting. Every street encounter used to involve a dropsy, where the defendant would discard a package of drugs upon seeing an officer approach, thus abandoning it for search purposes while entitling the officer, based on his observation of the dropsy, to arrest. It was a great justification, and happened almost constantly.

But it rarely happens these days. Is it because defendants stopped dropping things? Nope. It’s because courts decided that they had enough of the lie, and stopped accepting it at face value. The cops just pushed the envelope too far, and it became an embarrassment. So now they have a few different allegations in their playbook to justify their searches, so they won’t fall back on the same one every single time. Cops learn too, you know.

Who’s to say that the cop didn’t smell what he says he smelled? After all, he was there and he says so. And a cop wouldn’t lie. After all, it’s not like the judge has any clue what the raw marijuana, packaged in heat sealed baggies within airtight tupperware containers might smell like. So he just has to take the cop’s word for it. And that word is “pungent.” Or “poignant.”

We’re Just Lawyers

In a comment to a post the other day about dealing with trolls, Deborah made a point about how we forsake the opportunity to provide a therapeutic opportunity for trolls, those people with such sad and empty real lives who find comfort by interacting online in a counterproductive fashion, when we cut them off. I responded that blawgs aren’t the psychiatrists couch.

Norm Pattis took this down the road much farther, with a couple of hard rights and lefts in the process, to note that the facile nature of communication, particularly email, has enabled the client to engage in an immediate, and often constant, barrage of burdens and demands on the lawyer. This alone could be chalked up to merely an awkward time waster, with questions such as “what’s new” only hours after the last query, with no intervening occurrence that might explain the query.

But increasingly, that’s not what the emails have to say.

In a significant number of cases, enhanced communications requirements press lawyers into roles for which they are not suited: counselors required to validate the feelings of clients.

And so does the practice of law grinds to a halt in many an office encumbered by both the perceived need to validate the anger, fear and frustration client’s in litigation experience and the expectation that this need be met instantaneously. How many of you have received an email in the morning raising a concern only marginally related to the case you are working on, with a follow-up hours later on why the first e-mail wasn’t answered? I simply do not know how to cope with the avalanche of human need that inundates my firm.

The nature of what we do necessarily involves some very deep, very vulnerable feelings on the part of clients. Any lawyer who fails to recognize that, and expect it, is in the wrong business. Still, that doesn’t offer much of a solution about how to deal with it. It ranges from basic hand-holding to intensive psychotherapy. The former can suck up an enormous amount of time from the day, time that can never be recaptured and is needed to perform the functions that clients have paid us to do. The latter is far beyond our abilities, and we are neither adequately prepared nor functionally competent to provide clients with the therapy they need.

Often, it’s not just the client, but the client’s spouse or parent who needs an outlet for the fear or rage, Some lawyers curry favor with the client or family by happily spending a substantial amount of time patting backs and wiping tears. While this is almost obligatory for anyone dealing with the human condition, it becomes a secondary (or primary, according the extent of the demands) function for the lawyer who believes that its a proper part of his job or something he does particularly well. This may be an example of narcissism, these lawyers believing that they have ability to address the therapeutic needs of clients and their family.

Ironically, this is not merely a criminal defense lawyer problem, as Norm notes:

Just last week, I was speaking to two prosecutors about a criminal case. They expressed exasperation about the rage, anger and ever-present need of victims who were trying to transform the criminal justice system into a tool of private vengeance. The prosecutors bemoaned the impact of new victim’s rights laws that required them to consult victims before exercising their judgment.

To the extent that we’re ill-equipped to deal with the problem, prosecutors are even less so. At least we have a financial motive to keep our clients content. Prosecutors don’t work for victims, no matter what victims seem to think, and victims have no incentive to be reasonable or rational. This is understandable, but makes them impossible to deal with when their rage takes over.

My imperfect solution to the situation is somewhat different than Norm’s, who hands the problem off to staff or lets the emails sit unread. I hold hands to the extent that it doesn’t interfere with my function as a lawyer, both in terms of time and advice. I will not allow empathy to stand in the way of telling a client what they need to know, even if it doesn’t help their psychological state. I don’t sugar coat. And I don’t use the time allotted to listen to angst when it’s needed to write a motion. I’m the lawyer. My job is to do the lawyer things needed.

When the demands exceed my time, conflict with my function, or surpass my therapeutic skills, I have a frank discussion that I cannot satisfy their needs. They need therapy. They need someone to talk to, a person with whom they can express their fear and rage, their frustration and emptiness. I am not that person. I’m just a lawyer.

As Deborah suggests, we should feel badly about the lost opportunity to help others, and I sometimes do. Helping others is certainly one of the most important reasons to pick criminal defense as a practice area, and without it a lawyer will serve his clients poorly. But we are not trained as therapists. No matter how good we are at practicing law, it doesn’t mean we’re worth a damn at fixing clients psychological issues. Indeed, we could do a lot of harm in our well-intended but inept effort to be overly helpful.

There are people out there who are educated and prepared to help. Use them. Refer to them as needed. Help your clients as much as possible, but not by playing half-baked psychotherapist. As hard as it may be to accept this proposition, we’re just lawyers.

The Case For Bong Water

Blame the person who first came up with the idea that the weight of drugs would make a fine basis to enhance the degree of the crime. Why quantity rather than quality? What makes four ounces a magic number? Who really thinks the guy at the bottom of the foodchain is more of a criminal than the guy at the top? Weight is just a problematic basis to categorize drug crimes, yet somebody decided that weight would provide a clean, clear dividing line and it’s been used ever since.

In the beginning, there was pure weight. And it was good. It made sense, because the person with a kilo of 92% pure heroin was certainly more guilt-worthy than the person with 43% pure heroin. The former would be stepped to make twice as much, while the latter was the crap sold to street junkies.

But like all good things, people learned how to play the system, both the suppliers and dealers and the criminal defense lawyers who defended them. Force the crime labs to double or triple their work, often an impossible task at all and at best a way to clog the pipeline so that nothing got done quickly enough to indict someone before release, or try someone before the speedy trial clock ran. And then the cross-examination of the laboratory technician, if he showed, was brutal, calling into question every aspect of testing to the extent that no one knew how much drugs were involved in the pure sense. Ah, it was a fun time.

So the lawmakers wised up. Pure weight turned into aggregate weight, the weight of actual drugs plus whatever else might be found in the evidence bag. It had its conceptual flaws, but then no one forced the bad guys to deal or possess drugs in the first place, so who cared if it was less than fair to them? They always had the option to not commit a crime in the first place, right?

Which brings us to Minnesota v. Peck, from the Minneapolis Criminal Law News.

The Minnesota Supreme Court, in a 4-3 decision, has now ruled that Bong Water (water which had been used in a water pipe) was a “mixture” of “25 grams or more” supporting a criminal conviction for Controlled Substance crime in the first degree. The crime is the most serious felony drug crime in Minnesota, with a maximum penalty of 30 years in prison for a first offense.

What’s interesting is that we’ve gone from the marketable drug to the mixture of marketable combined with the flotsam and jetsam of drugs, to the water through which a drug passes, of absolutely no value nor harm. Though the water may test positive for marijuana or hash by dint of the drug having passed through it, it serves to neither provide a source of salable drugs nor a high. It is the most extreme literal translation of aggregate weight, wholly disemboweled from the purpose of the criminal law.

My blawgospheric neighbor, WindyPundit, who isn’t exactly keen on criminalized drugs in the first place, does some quick math to appreciate just how absurd the literal construction is.

Let me make this clear: If you mix an illegal drug with an ounce of water, you can be charged with having 1 ounce of a drug mixture. Then, if you dilute the drug by adding another ounce of water, you can be charged with having a larger amount—2 ounces—of the drug mixture, even though in both cases you had the exact same amount of the actual drug.

And he points out that the introduction of water into the weight calculations isn’t exactly a novel idea:

This is not an isolated example of bizarre legal thinking :

…a guy dumped his meth in the toilet. The cops scooped the water out, weighed it, and used the weight of the toilet water as the basis for his prosecution. Since they scooped more than 600 grams of water out of the toilet, that put him over the limit for a 1st degree felony.

The jury gave him 85 years in prison…

This is, the Court said, what the legislature intended.

That Windy is a tough man to please. After all, is it the cop’s fault that the fellow chose to mix his meth with toilet water? Or with bong water?

One dividing line in applying an aggregate weight standard is that it includes only that which the defendant chose to mix into the drugs. This might seem obvious, but I’ve had cases where the cops did the aggregating (such as sweeping up the floor of a grow house to bag the loose detritus, and added about ten pounds of soil and dust bunnies to the mix), and argued that aggregate weight shouldn’t include whatever the police decide to toss into the bag.

The flip side to this argument is that it’s fair game to include whatever the defendant added to the drugs on his own, that being entirely his choice. On some occasions, that would be water, a very weighty, and utterly useless if not counterproductive substance from a drug dealing perspective. There’s just no market for meth-infused bong water.

The majority in the Minnesota v. Peck case performed a routine application of the law, there being no requirement that the substance now containing a scientifically detectable amount of meth need be of the sort that would interest anyone. The dissent recognized the elephant in the room, that this application was facially absurd.

And though it is obviously absurd, the dissent suggests in a footnote (4) the ironic problem down the road. If they were to hold that the meth, mixed with water, was not a “mixture” as criminalized but a by-product of use outside the purview of the law, what’s to stop some enterprising dealer from supplying bulk meth in liquefied form mixed with water, to be cooked out later for distribution? Crazy? Perhaps, but who would have believed that somebody would come up with a way to cook cocaine and baby laxative into little rocks to be smoked by crackheads? These guys can be very imaginative. Don’t underestimate them.

While the outcome in Minnesota, not to mention Austin, clearly go well beyond the legislative, and rational, purpose behind criminal drug laws, and produce absurd results, the problem can’t be so easily dismissed. Laws rarely offer sufficiently broad coverage that they can account for every crazy thing that people come up with, whether those people are drug dealers or high court judges.

And if you want to know how things could get worse, or more absurd, consider the implications if those who promote the notion that all laws should be written in their simplest form, comprehensible to the basic high school sophomore with no greater complexity or comprehensiveness than would fit in words of no greater than two syllables. Talk about a disaster.

Of course, we could hope that courts would exercise some reasonable degree of discretion to avoid absurd results, a backdoor to legislative inapplicability despite the absence of overt ambiguity, or perhaps a general application of the Rule of Lenity to rules that “common sense” suggests should never apply. But then we’re back to the problem with “common sense”, the one thing we’re assured is unique to the individual, no matter how cold his heart.