The facts, at least, are simple:  Joe Arpaio, the controversial sheriff of Maricopa County, Arizona, claimed that Federal law lets him arrest suspected illegal immigrants during street sweeps.  He provided a press handout that quotes extensively from “8 USC 1324(a)(1)(A)(iv)(b)(iii)”. He said that this text gives him authority to continue those arrests, despite the fact that Federal officials had explicitly rescinded an agreement that once allowed him to do so.

Rod R. Blagojevich has known prominence. As Governor of the Great State of Illinois, his oddly haired head graced many a press conference.  Blagojevich has also known notoriety, indicted for 16 counts, including the alleged selling of Barack Obama’s Senate seat.  And now, he wants to know celebrity from the lowest of all art forms?

From the New York Times :

Although Mr. Blagojevich has appeared on many television talk shows and recently published his memoir, his plan to appear with Donald Trump on the reality show “The Celebrity Apprentice” sent prosecutors to court on Monday, to seek limits on what Mr. Blagojevich might say on the show.

Quite an unusual and diverse group of people to desire surrounding a criminal defendant.  Do they hope that Blago and, say, Cyndi Lauper become quick friends, pals and confidants perhaps, and discuss the harshness of the government’s assault?  Maybe Strawberry can sympathize, given his vast experience with the criminal justice system.  Or better still, teach Blago the ropes, “just in case.”

Desperate times call for desperate measures.  Perhaps Blago, staring down the barrel of the government’s very big gun, has decided to go for broke, to risk ridicule and ruination of what little dignity he has left, in the hope that he will emerge from this show a more likable, more respectable, human being.  It could happen.

But it’s such a low percentage tactic that it borders on a Hail Mary pass into the endzone.  Has the passion to be a reality TV star, the next Balloon boy, bitten Blago, or is he laying the groundwork for his post-prison career?  I want to believe that there is some reason behind this choice, but it surely isn’t clear from where I sit.

When Chicago District Judge Joan Lefkow concluded that AUSA Rachel Cannon, a prosecutor in Patrick Fitzgerald’s office (the purist of all federal prosecutors), lied to her, the office’s response was that it was “truthful but inaccurate.”

Many ridiculed this response, and indeed it may well deserve such ridicule.  But at the same time, I understand it only too well.  I’ve made that argument too many times to not appreciate its merit.  It’s not that inaccurate testimony can’t also be false, but that courts make determinations that one witness is credible and that a witness who offers conflicting testimony is not every day.  In the simplest form, that reduced the latter to a liar.  Judges deal harshly with liars.

In my experience, the issue arises primarily when witnesses are called for the defense at suppression hearings.  Clients are often outraged by an agents claim of consent to search and vehemently denied that it ever happened.  Or perhaps it’s an allegation that the defendant made an inculpatory statement, when he swears that he said the magic words, I want to speak with my lawyer, and nothing else.

There are only two witnesses to what happened, the agent and the defendant.  One of these two stands accused of a crime.  The other has been taught in agent school how to testify in court, how to provide a narrative of his experience and virtues, how to remain calm under pressure and how he is the last bastion of protection between the heinous criminal and society’s virtuous mothers and daughters.  He knows the secret words that will make the search stick, and his few qualms about speaking them to save society from the bad guys.

A defendant will sit in my office and scream, “How can he lie like that?”  Well, it’s really quite easy.  Because he’s lying for the greater good, at least as he sees it, he suffers no moral dilemma in tailoring his testimony to meet the silly rules courts impose on police.  And because he’s been trained to do so.  He’s just plain good at it.

Calmly, I explain that there’s no red light that goes off when a witness is lying.  There’s no magic way for a judge to tell that the agent, the person whose job it is to stand between criminals and good citizens, is just a bald-faced lying sack of excrement.  The odds are fairly good that the agent is telling the truth, or at least the story that’s closest to the truth, and judges tend to go with the odds since they have no other way to decide credibility.

If you want to challenge the truthfulness of the testimony, there’s only one way to do it.  Put a witness on the stand to tell the truth, to challenge the testimony of the agent and say what really happened.  Sometimes, though rarely, there’s an independent witness who was present and can testify without the taint of being the defendant, the person with the most to gain from lying. 

But even when an independent witness exists, they are often reluctant to testify for fear of police retaliation, or have skeletons in their closets with which they’ll be beaten to a pulp, or just don’t make good witnesses.  It’s really quite hard to provide credible testimony, to answer questions under pressure. Few people do it well, despite hours of preparation and practice, and a bad witness can prove disastrous on the stand.  One mistaken answer, born of nothing more than confusion and fear, can sink a defense.

There is a witness of last resort, however.  He’s the defendant, the last person you want to put on the stand and your only hope.  the defendant, by definition, is the least credible person in the room.  Presumed guilty, despite all rhetoric to the contrary, he’s tainted from the very first word.  But in a world of limited, and usually bad, choices, it’s the defendant or nothing.

Cut to the decision: “I find the agent credible, and find that the testimony given by the defendant was false and self-serving. Motion denied.”

Like it or not, this will be the outcome more often than not.  It’s just the odds, even when the defendant’s testimony is picture perfect (itself a rare occurrence).  What this means in a federal case is that the government will argue at sentence that the defendant should receive a two point enhancement for obstruction of justice.  Even if the judge is disinclined to abide the guidelines, there remains the issue of dealing with defendant who took the chance, testified on his own behalf, and told a story that directly conflicted with the agent.  Someone was lying, right?

The argument at sentence must be made, and should be made.  One position is that the defendant should not be penalized for exercising his constitutional right to testify on his own behalf.  It’s invariably a loser, since there’s no right to testify falsely.  It’s my practice to argue that the finding of credibility by the court is not a conclusion that the defendant lied, but a conclusion that the government agent was a more credible witness than the defendant.  Having found for the government, and it being within the court’s province to find fact, that fact thereafter being legally conclusive, it’s too late to contend that the facts are other than what the court says they are.

That doesn’t mean, however, that the judge is so certain of his decision, so staunch in his belief, that he is simultaneously certain that the defendant lied to his face.  If he believes that the defendant lied, he will exact a price.  But if he believes that there is room for misunderstanding, or even a crack in the veneer of the government’s case, there is an opportunity to argue that the defendant did not lie: he was being truthful, though inaccurate.  And only inaccurate because the court found otherwise.

My experience is that many judges, despite the certainty with which they pronounce their decisions, aren’t so foolish as to believe that they possess the power to tell which witness has told the truth.  Some even realize, in their hearts, that agents gild the lily, tailor the testimony, testily for the greater good.  It doesn’t make the defendant innocent, for agents can frame the guilty as well as the innocent, but it gives the judge pause to remember that his judgment may not be more perfect than others.

Granted, it’s hardly as satisfying to argue that the testimony of a defendant, which you believe to come closer to the truth than that of the agent, was truthful but inaccurate rather than the only credible recitation of what transpired.  The impulse to insist that the agents manufactured a story to overcome the defendant’s constitutional rights is strong, and we’re wired to persist in positions we believe to be true.

The irony of arguing against the obstruction of justice enhancement, as viewed from outside the office of Patrick Fitzgerald, is that it may truly present an instance of deliberate deception, since we maintain the belief that the agent lied, the defendant told the truth and the court was dead wrong in its decision. 

This leads me to be circumspect in my criticism of Rachel Cannon, who may well have known that she was lying to Judge Lefkow, or may simply have believed that she was doing what she had to do.  It’s doesn’t make it better, but it makes it more understandable.

It has been more than six months since I was forcibly removed from my old job as a deputy prosecutor.  Since then, times have been extremely tough.  Unemployment is not a way to survive; it is a way to suffer.  I can only barely make ends meet at this point, and I grow ever more desperate each day.

Since leaving Port Angeles, I have been unable to find work, and my past continues to haunt me. 

I recurring refrain at Simple Justice is that I wish I had an editor.  My writing here is frequently filled with typos, missing words, mixed tenses and metaphors and the improper use of indefinite articles. Yes, I realize it. No, I’m not proud of it.

Some have suggested that sloppy writing here must be a reflection of my legal work.  It’s not.  Like most lawyers, I labor over my briefs and motions.  My blawg posts, on the other hand, are cranked out with some alacrity.  They are merely stream of consciousness musings.  They were never intended to be anything more, even though others might have difficulty accepting this proposition because they spend a great deal of time writing, proofing, editing, rewriting and hand-wringing over their posts.  I don’t begrudge others their way, and refuse to care if they begrudge me mine.

But two things happened in the past few days to make me give this some greater thought than usual.  The first was a very kind email from Ed Adams, editor of the ABA Journal, to whom I haven’t been overly kind recently with my critique of Legal Rebels.  Ed was thoughtful enough to send me an email noting some errors in one of my posts, together with appropriate corrections.  He qualified his email in the hope that I wouldn’t be offended by his taking such liberties.  Quite the contrary. I very much appreciated his help, as I have with others who have similarly noted mistakes in my posts.

You see, it’s not that I want my posts to have typos, grammatical errors or, worse still, missing words.  Indeed, I am frequently interrupted during my brief writing stints by the demands of life, and I return to the keyboard and mindlessly leave a blank where a word should be.  It makes me cringe later when it’s brought to my attention. 

It’s not that I don’t care about the editing deficits, but that I can’t edit myself. I rarely read anything I’ve written here.  I write it. I spellcheck it. I post it.  Aside from my superhuman typing speed, this is how I manage to post as much as I do.  No time wasted agonizing over content or the mundane details of language.  Given my process, my posts are remarkably error free.

But one occasional reader, Mister Thorne, who I’ve previously discussed here and who is an editor of lawyers, makes me feel guilty for my slovenly ways.  It’s not that he tries to do so, as much as knowing that he stops by and obviously sees my faults with his critical eye.  This struck home in the comments to his post yesterday.

Responses to “Blawgs — Anyone can have one; everyone can’t”

1. Bob Ambrogi Says:
   18 October 2009 at 16:10
   

   How did an astute editor such as you let Greenfield get away with “chafe”?

   
   
2. Thorne Says:
   18 October 2009 at 17:17
   

   I don’t have enuf red ink to keep up with Greenfield!

I suspect that Thorne’s retort was written jokingly.  I suspect that Ambrogi’s comment was not.  He’s certainly correct that I misspelled chaff, a mistake that I remedied as soon as I read the comment, but Bob neither sent me an email nor left me a comment pointing out the error.  Instead, he took it to Thorne to point out my error.

Bob Ambrogi is both lawyer and chronicler of the blawgosphere, writing a Legal Blog Watch column on alternate days, previously with Carolyn Elefant and now with Bruce Carton.  Both Carolyn and Bruce appear to keep a keen eye on a broad spectrum of the blawgosphere.  Bob seems to focus a much narrower group, largely ignoring criminal law blawgs.  But even when a criminal law issue arose, and even when the news was broken at Simple Justice, Bob tended to source his mention to secondary or tertiary sources.  I got the distinct impression that Bob didn’t like my blawg, and wasn’t going to give me any credit no matter what.

I did write a post once that was critical of Bob, and shortly thereafter was invited to appear on a podcast with Kevin O’Keefe about twitter.  I knew Bob was miffed at my criticism, but I thought that was behind us.  Most lawyers are tough enough to take a punch, and punch back if they feel warranted. I link to Bob’s posts with some frequency.  Still Bob rarely recognized my existence, at least as far as I knew.

Mind you, the lack of link love, whether intentional or a product of my imagination, didn’t exactly slow me down or alter my methods.  I didn’t write for the benefit of Bob Ambrogi, or anybody else for that matter.  But it would have been a bit less disingenuous, if he’s got a bone to pick with me, to have had the balls to do so to my face rather than in the comments of Thorne’s blog, a locus where the chances of my picking up on it were infinitely less than had he posted here or even at his own blog.

It’s cool with me if Bob isn’t a fan.  He’s in good company.  But it’s disturbing to learn that he’s got something to say behind my back.  If that wasn’t his intention, perhaps he should consider a more forthright approach to noting my mistakes.  After all, as a pundit of Legal Blog Watch, I would think he can tell the difference between the front door and the back.

Dang, I hope there are no typos in this post.  But I won’t go back and look, so I’ll just have to check Thorne’s comments to find out.

Popular myth suggests that comedians, who use biting humor to critically assess and reveal our foibles, would make darn good public officials.  Al Franken, the man of a thousand recounts, proves the myth has legs. 

At a Senate hearing on an amendment to preclude the government from hiring contractors who impose mandatory binding arbitration on their employees on issues such as sexual assault, Franken stared down a lawyer for Halliburton/KKR, who had taken the position that it was done for the good of the employees to provide them with an expedited means of addressing their grievances, suggesting that employees who were raped did better with private arbitration than they would in court.

Though not a lawyer, Senator Franken has the opportunity to examine witnesses at the hearing, and he makes surprisingly good use of his authority. 



No, Al wasn’t very funny.  But then, the gang rape of Jamie Leigh Jones wasn’t very funny either.  Nor was her being held captive in a shipping container under armed guard.  Nor is her 4 years of fighting Halliburton’s refusal to face the consequenes in court.  There just isn’t much funny about any of this. In fact, the whole thing is pretty sick.

Try as I might, I cannot find a rationale, a love of business so strong and deep, that could justify supporting Halliburton’s efforts to insulate itself from public scrutiny, to deny Jones the ability to seek redress in court.  Of course, I similarly find Halliburton’s handling of its employees in Iraq, in fostering the atmosphere where a female employee is gang raped and then the assault in concealed, to be incomprehensible. 

There are lines that should never be crossed, and this is one of them.  To argue that a corporation should be able to impose a condition of employment that would preclude someone gang raped from going to court is offensive.  Perhaps this doesn’t strike the Halliburton folks as sufficiently beyond the pale to warrant the tossing of its contract of adhesion requiring arbitration, but it does Al Franken.  And me too.  There’s just nothing funny about what happened to Jamie Leigh Jones, and nothing funny about the fact that it happened on the public dime.

H/T Jim Walker via Rick Horowitz

“There is absolutely no doubt in our minds that this was a hoax,” Larimer County Sheriff Jim Alderden said at a news conference in Fort Collins. Richard and Mayumi Heene planned the caper for at least two weeks, he said, and are likely to face felony charges.

The sheriff added that some entertainment media might have been complicit, but he refused to identify them. One outlet, he said, had already paid the Heenes in connection with the balloon launch.

The Heenes deny wrongdoing.

Even though it’s taken me a week to find the time to get to it, South Carolina criminal defense lawyer Bobby Frederick’s post, The Scarlet Letter, has remained a source of some concern.  Bobby decries Doug Berman’s call for “transparency” in the criminal justice system:

Because I am generally a fan of criminal justice transparency and often fear that expressed concerns about privacy are overstated, I generally favor the notion of having all serious criminal offenders subject to basic registration requirements. (I am troubled, however, by criminal laws that threaten severe punishments for a failure to keep a registration updated forever.)

The key to sound registry requirements, in my view, is ensuring that these registries are accurate and can include information about the age of a conviction and true nature of the offense conduct. (This recent commentary at The Atlantic, titled “Too Much Information, Not Enough Common Sense,” speaks to some of these concerns.) I wonder if any public policy or law reform groups are working on model criminal registry legislation. A well-considered basic model for all these types of law would like be a real contribution to sentencing law and policy.

His point is well-taken.  I can’t imagine anyone who wouldn’t want access to such information in the protection of a loved one.  Of course, it would also be available for a myriad of other uses, including employment, housing, education as well.  I have no doubt that some believe it should, and are only too happy to use this information to protect themselves from potential harm and embarrassment.  And there is that potential.

To the extent that most of us remain part of the unconvicted group, this will prove to be an “us” against “them” choice, with the good guys taking the normative position that it’s more important to have access to information about the bad guys to protect themselves from potential harm than to allow the convicted felon a chance to rejoin society.  Acceptance of this normative view is the product of a generation of fearmongering, highlighting the  horrors of the convicted felon next door and ignoring those who have quietly and peacefully rejoined society as hard-working, law-abiding citizens.

Sex offender registration, itself a plague on society both for its breadth by including people who pose absolutely no threat of harming anyone, to its impossible limitations forcing registrants to live under bridges, at least had the particularized rational basis that child molesters were incapable of controlling their urges, prone to re-offend and their victims were society’s most vulnerable.  Even so, it’s clearly gotten out of hand, producing enormous societal harm in the process.

To extent the registration concept to all serious felonies, lacks much of this claimed basis.  It’s another instance of remembering the rubric while forgetting the rationale.  This isn’t to say that it wouldn’t be desirable on the part of a parent to know whether a daughter’s date has a felony conviction, but that its broader impact would be devastating on the ability of a large swathe of society to make a mistake, pay the price, and turn over a new leaf.

It’s really a normative choice between fear and a second chance. I believe that individuals who have been convicted of a crime and paid their debt to society deserve a second chance.

I couldn’t agree more with [Google’s Rick] Klau (also a lawyer) that “Microblogs are complementary, not competitive, [they are] a driver of attention and engagement back to the blog.”