Benjamin Arellano Felix is alleged by the government to be a Mexican drug kingpin.  That means he’s somebody the government really wants to convict.  Felix, disinclined to be convicted, retains a lawyer on his behalf named Jan Ronis.  That means the government really wants Jan Ronis off the case.  If he’s the lawyer Felix wants, then he’s the lawyer the government doesn’t want.

From the Los Angeles Times :

Prosecutors allege that lawyer Jan Ronis, who represents Benjamin Arellano Felix, once worked on behalf of a Mexican drug cartel. The judge says the allegations could create the appearance of a conflict of interest.

Federal prosecutors were attempting to get the attorney, Jan Ronis, kicked off the case in part because he allegedly worked on behalf of the Arellano Felix drug cartel to dissuade a witness from cooperating with U.S. law enforcement.

Judge Larry A. Burns said Ronis’ alleged cartel role, while unproven, was sufficient to create an appearance of a conflict of interest, and he also sided with prosecutors who said Ronis’ past representation of a potential witness in the current case posed a conflict.

As it turns out, Judge Burns and Ronis aren’t exactly unknown to each other.

Burns, who has known Ronis for 30 years and tried cases against him when he was a federal prosecutor, described the lawyer as a person of integrity who has always been truthful with him. But Burns said the allegations were an “elephant in the room” that could not be ignored and threatened to turn Ronis’ complicated role into a sideshow that could overwhelm the case.

A person of integrity?  Always truthful?  The government’s “potential” witness claims that Ronis was hired by “a top cartel lieutenant” (are there bottom cartel lieutenants?) who commanded that no one cooperate with the government.  Ronis says he’s crazy.

Ronis, after the hearing, denied the accusations, saying that he had never told the witness that he couldn’t cooperate and had no contact with the cartel lieutenant who allegedly hired him. “There’s no allegation that I ever talked to him or even knew him,” Ronis said.

A person of integrity.  Always truthful.  But the rat says otherwise.

A defendant is entitled to his Sixth Amendment right to counsel, and within that right is the limited right to counsel of choice.  It’s a tricky sort of right, critically important to the success of a defense given the nature of trust required to fight it out with the government, and the defendant’s belief that the lawyer at his side has the chops to fight.  But it’s a fragile right, with much potential for disruption.  And the government likes it that way.

This is a variation on the “house counsel” argument used back in the Gotti days when Bruce Cutler was smeared for doing too good a job for the Gambinos.  Whereas house counsel allegations suggest that the lawyer has become a part of the conspiracy, it stems from his representation of various people who are alleged to be joined together in crime, including those who have fallen to the floor and begged the government to let them feed a bit at its trough.

Actual conflicts of interest are one thing, hard to come by in that they reveal too much.  Potential conflicts are the stuff of prosecutorial dreams.  And when there is a cooperator in the backroom, claims of conflict abound.  As here, it takes only unproven and unprovable allegations to smear a defense lawyer.  The rat said so.  And the judge is suddenly overwhelmed by an excess of caution.

Mind you, this isn’t done in fairness to the government.  The government has no right to command that the defendant have a conflict free lawyer.  Oh no, this is for the benefit of the defendant, who might be too ignorant or unduly trusting to realize how his lawyer’s potential conflict could inure to his detriment.  They are only thinking of the defendant.

So Judge Burns is worried about elephants that could turn the trial into a sideshow and deprive Felix of a fair trial.  There is an easy answer, of course, since the judge gets to play gatekeeper at trial and could preclude the issue entirely and keep the prosecution focused on their case against Felix.  But then, that would leave Ronis free to defend Felix, and that wouldn’t do at all.

The problem that Judge Burns is going to have to confront is that he knows Ronis.  He says he’s a man of integrity.  He says he’s always been truthful to him.  And Ronis says, without equivocation, that the snitch is a wrong and it never happened.  Rat v. Lawyer.  Who will Judge Burns “believe”?

This is where Judges get to show how well they can dance.  Watch him shimmy.  Watch him shake.  Yes, that is the quick step combined with the tango.  Didn’t know it could be done, did you?

Judge Burns will not call Ronis a liar.  But he will, with a sad face, announce that he must employ an excess of caution, if for no other reason than to avoid the appearance of impropriety, and disqualify Ronis as attorney for Felix to fulfill his critical judicial duty of assuring that the defendant receives a fair trial, unencumbered by distractions and conflicts that could undermine the legitimacy of the outcome.  He doesn’t want to do this, but he must.  It is the judge’s responsibility to protect the defendant’s constitutional rights.

And, ta da, the defendant’s counsel of choice is gone, and the Constitution is safe. The government can now call it’s first witness.

Any appellate court decision that begins with a scene from Twelve Angry Men, and Stephen Reinhardt’s opinion from the 9th Circuit in  Williams v. Cavazos does not disappoint.  The crime was somewhat pedestrian, your basic liquor store robbery gone south, leaving the owner dead on the floor.  The defendant, Tara Sheneva Williams sat in the car behind the wheel. 

During deliberations, there was one juror, Number 6, who wouldn’t go along with the program. The others weren’t amused.  Neither was the judge who, after questioning the jury foreman about the evils committed by Number 6 during deliberations, discharged him from the jury for bias.

Rather, the court found that the juror was “biased” for five overlapping reasons: (1) “the fact that he added his own words to the court’s instructions as to what the law is,” which “indicates where his mind is bent towards and that is biased against the prosecution in the matter”; (2) “his repeating of the severity of the charge in conjunction with his bringing up the subject of juror nullification,” which “establishes his state of mind that he’s bent in that regard, that he’s concerned about the severity of the charge, which means the severity of the punishment”; (3) when the judge “asked him what burden of proof he was relying on, he said it was a [sic] very, very convinced beyond a reasonable doubt,” which the judge believed to mean “higher than beyond a reasonable doubt because the charge is murder”; (4) the fact that “[h]e also disagrees with the felony murder rule”; and (5) the fact that “[h]e’s dishonest to me in stating that no juror including himself had discussed the severity of the charge, had not discussed juror nullification.”

[T]he record discloses a “reasonable possibility that the impetus for [Juror No. 6’s] dismissal stems from the juror’s views on the merits of the case.” At least seven jurors expressed the view that Juror No. 6 did not believe that the evidence was sufficient to prove guilt of murder beyond a reasonable doubt, thereby making a total of two-thirds of the panel…. The juror’s views regarding the insufficiency of the evidence were thus made known to the prosecution as the result of a rigorous inquiry into the thought process and reasoning of Juror No. 6. Neither the trial court nor the Court of Appeal, however, even mentioned this clear evidence regarding the juror’s views as to the merits, or acknowledged the strong possibility that Juror No. 6 was a holdout juror for legitimate reasons….

Two days after the jurors began deliberations, the jury foreman delivered two notes to the trial court. The first read: 

Relative to jury instruction 17.[41].1, I wish to inform you that we have one juror who: 1) has expressed an intention to disregard the law . . . and 2) has expressed concern relative to the severity of the charge (1st degree murder).

The second asked:

Is it legally permissible for a juror to interpret page 32 of the jury instructions to mean that the conspiracy should involve a plan to commit a specific robbery, rather than a general plan to commit robberies in the future?

The phrasing of these notes isn’t terribly consequential, as jurors aren’t expected to play lawyer and express their concerns in the manner of a lawyer or judge.  And that they give rise to a need for limited inquiry is understandable, particularly where a note suggests that a juror might have misunderstood the meaning of an instruction.  But the court’s response to the notes is what matters.

The first note, stating that the juror was “expressed an intention to disregard the law” requires that an inquiry be made, but that inquiry isn’t into the specific thought processes of the juror.

Accordingly, in deciding whether to discharge a juror mid-deliberation, the critical Sixth Amendment questions are whether, after an appropriately limited inquiry, it can be said that there is no reasonable possibility that the juror’s discharge stems from his views of the merits…

If anything, the court should reiterate its instructions to follow the law as given, and send the jurors back to work.  As to the second note, the court should reiterate the instructions on conspiracy to commit robbery.  And finally, the judge should remind the jurors of their oath to follow the law as given. 

What should not be done is the “rigorous inquiry into the thought process and reasoning of Juror No. 6” in order to ascertain why he doesn’t want to convict the way the court thinks he should.

It’s generally the case that a court, through its ability to rationalize its actions regardless of its true purpose, can screw with pretty much anything it chooses, including justifying its discharge of a recalcitrant juror, or one whose sensibilities goes toward nullification rather than conviction.  Remarkably, the 9th Circuit’s decision cuts through the rhetoric and gets to the bottom line.

Neither the trial court nor the Court of Appeal, however, even mentioned this clear evidence regarding the juror’s views as to the merits, or acknowledged the strong possibility that Juror No. 6 was a holdout juror for legitimate reasons….

The whole point of a jury, of twelve angry men if that’s what it turns out to be, is that each individual juror is entitled, actually required, to vote against conviction if he believes, for whatever reasons, that the evidence is insufficient.  That’s part of the instructions as well.  And a juror’s “bent” against conviction is every bit as legitimate a position as the typical juror “bent” the other way.

H/T Eugene Volokh

Bludgeon or scalpel?  From the ironically named Toledo Blade :

Since taking the bench in 2007, Judge [Stacy] Cook has seen hundreds of felony defendants.  Some she sends to prison; for others she orders time on community control.  And still others get probation with a few added requirements — such as a five-page paper on teen violence, or a report on closed-head injuries.

It’s a practice not seen elsewhere in the courthouse.  But in Judge Cook’s fourth-floor courtroom, it’s a method she believes is working.  “From years of practicing law, I felt that there was a huge missing link in getting people to understand what they did wrong, not just in committing the crime but where there was error in judgment,” Judge Cook said. “I’ve always thought people needed to understand that what they did sent out this ripple effect.”

The judge said that ordering papers is more than just busy work.  It’s an attempt to make defendants think of how their crimes affect others — in essence, putting their actions back into their lap.  But even more important, it’s an attempt to change a lifestyle.

Imagine a judge who could easily resort to the routine, sentencing defendants to a term of incarceration for some magical period.  No one would question her.  No one would challenge her.  No one would doubt that she earned her pay.  Even though no one was saved.

Jeff Gamso is rooting for Stacy Cook.

Judge Cook has ordered as many as 30 defendants to write reports on closed-head injuries and several others to document statistics of guns and violence among youth. At any given time, the judge may have a few of the ordered reports mixed in with the daily paperwork scattered about her desk.

As a special condition of community control, and if the essay is related somehow to the offense, the requirement is almost surely legal.  The question is whether it accomplishes anything.

And while she has no statistics and can’t say for sure, the judge said after a few reflective moments that the numbers for what she would consider serious violations seem to be low.

It’s not easy to figure out whether it works.  Then again, it’s pretty clear that incarceration isn’t doing a bang-up job of preventing recidivism. 

The problem is that tolerance for judges who think about what they do was, well, not always universal.  Gamso points out the old Danny Gears decision,

Another 5-4 decision.  Another scathing Scalia dissent.  The Supreme Court, in  Brown v. Plata, upheld the injunction, that overcrowding in California’s prison system reached the level of cruel and unusual punishment in violation of the 8th Amendment, and ordered it remedied within two years.

Hooray?  Well, yes, better than Scalia’s answer:

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.  One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

While the number, 46,000, may be a bit hyperbolic, Nino gets in touch with his activist side in recognizing that, hey, these are criminals. You can’t let criminals out of prison. Are you nuts?

But before we pat ourselves on the back and make toasts to the best legal system on earth, let’s consider some other numbers.

The special court’s decision, issued in 2009, addressed two consolidated class-action suits, one filed in 1990, the other in 2001. In 2006, Arnold Schwarzenegger, then governor, said conditions in the state’s prisons amounted to a state of emergency.

The majority seemed persuaded that the passage of time required the courts to act.

The Supreme Court’s decision derives from two actions, the older of which was commenced in 1990.  If it was a person, it would have come of age to celebrate the win with a stiff bourbon.  Here’s a nice photo, from Justice Kennedy’s majority opinion of how mentally ill inmates were housed awaiting the opening of a bed:

Somebody, some person, was made to live in this cage the size of a telephone booth for lack of anyplace else to put him.  In 1990.  Twenty one years ago.

It’s not as though California was unaware that it had a problem, but having created the problem by grabbing hold of every half-baked idea of imposing mandatory sentencing and three strikes and ever-longer, stiffer, harsher sentences, every politically beneficial tough-on-crime mindless knee-jerk opportunity to throw people in prison, it was stuck with the product of its own invention. 

That some very large number of people, most of whom are indeed criminals, will be unceremoniously freed over the next couple of years, is a scary proposition.  Not nearly as scary as Justices Scalia and Alito suggest, since under a slightly more thoughtful regime, they wouldn’t be in prison to begin with, or at least would have been out already, having completed sentences that a rational system would have thought appropriate.  The justices forget that the California prison system didn’t get overcrowded by accident, or because Californians are just more criminal than the rest of us.

But it took 21 years to reach this point, where a final decision has been made.  And it will still take another two to remedy the problem, assuming it actually happens.  After all, if California somehow fails to reduce its prison population sufficiently to satisfy the injunction, what exactly will be happen?  It’s not like the governor will be held in contempt and made to live in a caged phone booth.

If, as the majority concluded, the overcrowding of California’s prison amounts to cruel and unusual punishment, then those in the system have suffered it for decades.  Decades!  Our legal system is incapable of stopping cruel and usual punishment for decades.

If ever a case demonstrated the impotence of a legal system to right itself, to fix a problem, to address a failure of epic proportions, this is it.  Among our many platitudes designed to rationalize any situation, there is “justice delayed is justice denied.”  Tell all the inmates in the system between 1990 and, well, two years from now, how the system has vindicated their rights. 

To blame crazy politics for creating this situation over decades, layering one tough-on-crime initiative over another until the prisons are bursting at the seams, is easy.  What a bunch of pandering fools, no one looking at the consequences because they will come to pass tomorrow, and the politicians are only interested in getting elected today.  So the bill has finally come due.

We cannot forget that California took 21 years to pay the bill.  We ought to get some interest on this past due debt, but we won’t.  It will be surprising if they pay the bill at all.  And this is the best legal system ever.

Many years ago, people used to use these greenish, papers things to pay for stuff they would buy.  Some people would carry big wads of it around with them to make themselves appear important and impress their friends. 

Others, for personal reasons, preferred to keep it close rather than hand it over to people they didn’t know at these places called banks.  Still others had businesses where people would give them these greenish, papers things, and they would use some portion of it to give to other people to buy the stuff they sold.  This was called “normal” back then.

But that was years ago.

The problem was that the government hated not knowing who was walking about with these greenish, paper things.  It drove the government crazy.  Some of these people obtained the paper stuff from selling illegal drugs, or bodies, or from people who felt the need to gamble but weren’t very good at it.  But mostly drugs. The government couldn’t stand the idea that these people had this greenish, paper stuff and the government wasn’t getting its piece.  Eventually, it became too much for even a benevolent dictatorship to take.

About a generation ago, the government of the United States went to war against cash.  Borne was the presumption that currency was derived from crime unless proven otherwise.  There was no catchy name for this war, like the War on Drugs or the War on Terror, though it was connected up to both by negative inference.  But even it the wholesale absence of evidence that cash had any connection to any illegal activity, it was “guilty.”

The government began creating laws, rules, and actions, borrowing liberally from antiquated concepts like the “res” offends the sovereign, to invigorate civil forfeiture.  Where once, the maxim was “the law abhors a forfeiture,” it became essentially overnight, that cash was dirty, and was forfeited to the government unless you could prove otherwise.

And, conveniently, it meant that the government got to keep it. 

Radley Balko posts this investigative report from Nashville:



Despite a certain humor in hearing various fingers of law enforcement fight over the authority to take cash, even in the absence of any wrongdoing, the fact that the police have made the seizure of currency a basic function is inexcusable.

The particular scam shown in the video is a favorite, typically targeting cars with out of state license plates from places where drugs are likely to go and from which cash is likely to return.  The drivers, stopped on an interstate far from home, especially one reputed to be a bit less accommodating of foreigners, people of color or with last names ending in vowels, and happy to use weapons, are least likely to put up a fight on the side of the road.  They fear the consequences when asked whether they have anything to hide, or would mind a quick search.  There is good reason to be afraid.

And few people are equipped to fight for the return of their money.  The fight must be conducted in a far away land, is best done with the aid of a knowledgeable lawyer (which means there is new money spent to get back old money) and risks being singled out as a drug dealer/ terrorist when the claim and demand are filed.  Having walked away from the seizure without an arrest, most people are reluctant to tempt fate by demanding its return.

Even if they show the nerve to challenge the seizure, the standard of proof for the government to keep the money is probable cause. It doesn’t get much easier, particularly when the negative inference is applied and the burden is on the claimant, rather than the cops, to prove the money is clean and lawful. 

Years ago, television advertisements sought to induce people to put plastic in their wallet where once greenish paper stuff reigned supreme.  Today, it’s only a matter of your favorite color plastic, because it’s not like law-abiding people would ever use cash.

About to embark on another summer season of law students and fresh-faced lawyers starting internships, summer associateships and new jobs, Ori Herstein at  PrawfsBlawg and Orin Kerr at Volokh Conspiracy have offered some sage advice on how to conduct oneself.

Since most law student and new lawyer readers here are neither headed to Biglaw or chambers, there are some things that don’t apply as well, such as eating the fish at Big Fancy Dinners, but others that you ought to consider.  With that in mind, my two cents for those whose summer will be spent working in criminal law.

1.  Use Three Senses Rather Than Five

Most of us have five senses. Some think they have six.  If you put yourself in the latter category, there’s no helping you. Stop reading.  If the former, you need to focus on sight and hearing.  Just pay attention and listen to everything around you, even when it’s all happening at once.  You can learn an enormous amount, both right and wrong, by watching and listening. You learn nothing by speaking. 

You think your thoughts are better, deeper, smarter than others?  Then speak, but be quite certain you have something useful to add.  Criminal lawyers love nothing better than to tell war stories.  It’s one of our worst characteristics, but at least lawyers who have been through the mill a few times have some stories to tell. You don’t.  No matter how fascinating you think your tales of law school experiences are, they aren’t. Don’t be tempted. You have nothing to contribute.

The third, and most important sense, is touch.  You may have little to offer on strategy, tactics or grasp of circumstances, but your grasp of a heavy bag will be sincerely appreciated.  Or grasp of a coffee cup. You’re young, strong and perky. Use it to your advantage and put your energies toward something where you can contribute. It will be appreciated, especially if no one has to ask. 

2.  Everything They Told You in Law School was a Lie

The lawprofs mean well, and they were no doubt sincere when they praised Scalia/Douglas and explained why he was right and the others were, well, wrong.  At the ground floor, there are no 37 pages opinions running through the course of legal precedent from the beginning of time to that very day.  There is no parsing of the latest Supreme Court decision, noting that one point is mere obiter dictum and another is the limited/expansive holding of the modest/activist judge.

The words you tend to hear most are granted or denied, coupled with “move on.”  Don’t cry.  Don’t get angry and upset, and explain why how unfair it all is.  We know.  Dwelling on it is unproductive, as there is always another battle to fight around the corner.  When one fight is done, win, lose or draw, we move on to the next.  Wallowing is time wasted that is better spent preparing.

You will begin to wonder, very quickly, why you bothered going to law school at all.  Real judges don’t seem anything at all like the ones the lawprofs talked about, day after day, or the guys who wrote the decisions you were forced to read and regurgitate.  This is because there isn’t a whole lot of law in the trenches, and they manufacture a sanitized version on appeal so that it doesn’t look so foolish to people reading later.

Do not spend your time getting caught up in this, explaining to others your shock and disappointment, crying in your beer, getting all emo and disillusioned.  A lot of law students and young lawyers are lost quickly when they learn this point.  If you realize it going in, you’re a lot less likely to grow tedious and annoying in your epiphany, and a lot more useful in help to deal with ugly battles.

3.  Nurse Your Beer

Everybody has their flaws.  Some more than others,  There is a time honored tradition within criminal law of drinking heavily after court.  Not all lawyers do this.  Some use drugs.  Some just aren’t into altered states of consciousness, but enough do to make this worth mentioning.  As a law student, your drinking chops are likely in pretty good shape, but you are now dealing with pros.

What distinguishes a pro is the ability to imbibe heavily while keeping their wits about them.  You may be good on the “heavily” side, but not so good at remaining neatly groomed as time goes on.  In law school, drooling was considered relatively normal.  Among professionals, it’s frowned upon.

The person standing next to you at the polished oak bar doesn’t want your drool on them.  You don’t recognize that person to be your boss, so you don’t really care, especially at that moment and under those circumstances.  Unfortunately, that person is a judge.  Just because they don’t wear their robe 24/7 doesn’t mean they aren’t a judge.  She will remember that you drooled on her.  She may hold it again you. She may hold it against your boss for not keeping you under control.  She may hold it against your boss’ client because she’s that type of judge.  Don’t drool, meaning keep yourself under control.

4.  Be Polite At All Times

Eventually, you will become a trusted and respected member of the bar. You will get to know folks, and they will get to know you.  At that point, you can pick and choose who you deem worthy of your respect.  At the moment, you have done nothing to make yourself worthy of their respect.  Yes, all human being are worthy of respect, blah, blah, blah, and you will find that most lawyers will treat you quite nicely. That’s because we’re just nice people.  Not because you’ve done anything special.

Remember that you are not their peers.  Do the unthinkable, and use a level of formality until invited to do otherwise.  Call them Mister of Mizzzzz until they’ve told you to use their first name. They will, but it’s their choice.  And judges are called judge or your honor all the time, even in the bar.

The lawyers you work with will likely treat you as one of the gang. This does not mean they’re your BFF.  Criminal lawyers tend to be a far less formal bunch than, say, Biglaw or judges.  We’re not particularly official or officious, but that doesn’t mean we’re teeny boppers either.  Feel the camaraderie, but respect the experience.  You are sucking up their time and attention, and this is a gift they give to you.  Appreciate it.

No doubt there are other things to consider, and many of the admonitions that Ori and Orin offer apply as well.  This is an opportunity to find out what you just bought for your quarter mil, so enjoy it in the sense of gaining an appreciation of the life you chose. 

Brian Garner is not just the editor of Black’s Law Dictionary, but the person’s whose name is invariably preceded by “legal writing guru.”  That gave him the opportunity to interview 8 of the 9 sitting Supreme Court justices, and ask them their thoughts on legal writing.  He’s posted the interviews here and the transcripts here.

Tony Mauro called Garner’s interviews “something close to a national treasure,” and no doubt they are with such gems as:

Justice Antonin Scalia offers his test for deciding whether legal lingo should be excised from a brief:  “If you used the word at a cocktail party, would people look at you funny? You talk about ‘the instant case’ or ‘the instant problem.’ That’s ridiculous. It’s legalese. ‘This case’ would do very well.” Garner and Scalia, by the way, are collaborating on a second book, this one about legal interpretation, due out later this year.

And there’s plenty more good stuff in there, a most-read for all of us.  That said, however, Gerard Magliocca at  Concurring Opinions makes an observation that puts it all in perspective.

The headline is that the members of the Court think that briefs are too long.  “Lawyers somehow can’t give up the extra space,” Justice Ginsburg said, “so they fill the brief unnecessarily, not realizing that eye fatigue and even annoyance will be the response they get for writing an overlong brief.”

If you substitute “Justices” for “Lawyers” and “opinion” for “brief,” you get a terrific description of the Court’s output most of the time.

Being a reader of more Supreme Court decisions than I care to admit, Gerard’s snark hit home.  Some are nearly incomprehensible, straining rhetoric beyond the breaking point and going on forever before getting to anything that matters.  If at all.  The more words used to express an idea, a test, a burden, a holding, the more confused the opinion gets. 

In the blawgosphere, we discuss, even argue, about what a decision means all the time.  And then we wait, sometimes for years, to find out if we’re right.  Or we wait for another Supreme Court decision, maybe a decade later, explaining what they meant in a prior decision because nobody had a clue what do with the earlier one.

Maybe the reasons briefs grow long and windy is that no one is clear what the Supreme want from them, what they already know and don’t. Maybe it has to do with getting slaughtered for leaving out something that everyone thinks is obvious, but that some justice will conclude is waived if not expressly spelled out, at great length.  And maybe, just maybe, words don’t always convey the same message to the Nine, and need to be written differently, explained differently, to meet their points of view.

Regardless of how well or poorly advocates present their arguments, the best way to teach lawyers how to write, if they’re doing such a lousy job of it, is by example. 

Don’t tell me the moon is shining; show me the glint of light on broken glass.

I’m watching and waiting.

Alan Feuer’s article in the  New York Times paints a grim picture, but one that needs to be seen.

The lawyers — there are more than 1,000 in the city — occupy a difficult and middling spot in New York’s crowded legal cosmos, somewhere between the chauffeur-driven celebrities who moonlight as trial-coverage pundits on TV and the earnest young altruists at Legal Aid. They are creatures of the courthouse, where they spend so many hours in proceedings or waiting in hallways for their cases to be called that they are known to justices and janitors alike.

While sometimes thought of as the 97-pound weaklings of the criminal-justice system (“If someone said my name and ‘18-B’ in the same sentence, I’d probably commit suicide,” a more highly paid lawyer said), they are, in a sense, the heart of that system, serving the city’s neediest defendants for what usually amounts to little pay.

Yet this was an article that was close to never being written.  In his research, Feuer sought out lawyers willing to talk about how the recession impacted their practice, and what the future, or lack thereof, would mean to them.  Nobody wanted to be the poster boy for failure. 

While sympathetic to those lawyers who braved the hard work and uncaring judges, and without even mentioning how defendants treated their free lawyers neither respect nor appreciation, Feuer wanted to put a face on the desperate straits of New York City’s criminal defense lawyers, some exceptionally good lawyers, some less so.  it was a struggle. 

Feuer sought out lawyers whose practice consisted primarily of 18B representation, private lawyers defending the indigent and paid by the county.  But lawyers are a proud bunch, ego being one of the few constants necessary to do the job, and no matter how bad the economy or long the 18B checks languished, they keep a brave face. 

There’s no point in complaining, as no one wants to hear it, and the idea of being profiled in the New York Times as a starving lawyer flew in the face of careful efforts to craft a successful persona, the sort that paying clients would seek out to retain.  Going on the record for this article was like committing economic suicide.  Or worse still, conceding defeat.  Who wants their name to become synonymous with failure?

Lawyers, even (especially?) those doing indigent defense, are still subject the influences of finance in world of noble beliefs.  Ivan Vogel, who was brave enough to stand up for what he does, and the situation he’s in, may have cut the frills from his practice, but that doesn’t make him any less a tiger in the courtroom, or a savior to the poor he defends.  Sadly, there isn’t always a direct correlation between quality and caring and cash.  Life isn’t fair, a theme that dominates the story as well as the lives of all involved.

Not long ago, it was possible to earn a decent living — or at least to pay one’s bills without unnecessary travail — as an 18-B lawyer, most of whom, in flusher times, could count on supplementing their low-yielding indigent work with lucrative private clients. With the economic downturn, however, many complain that remunerative retainer cases are harder to find than ever, and that the defendants who do hire private lawyers are increasingly unwilling, or unable, to afford substantial rates.

Historically, indigent defense filled in the gaps.  It gave new criminal defense lawyer, often fresh out of Legal Aid or a District Attorney’s office, a cushion to enable them to start a practice, get the chops needed to run it and practice law, and allow them pay the rent.  As they developed a name to go along with their skills, privately retained clients would come and success would follow.  For others, for whom the telephone never rang, they would survive on 18B, though it was never intended as a primary source of income. 

It’s very different today.  The number of cases is a fraction of what there were 20 years ago.  While the cost of a mid-level criminal defense hasn’t change much,, and may in fact be lower than it was, it’s still more than most defendants can afford.  And that left 18B to fill in the time and cover the costs.  At $75 an hour out of court, pre-tax, it wasn’t enough.  The numbers don’t work.

And these are the halcyon days compared to what’s on the horizon.

On Feb. 3, 2010, however, the Mayor’s Office of the Criminal Justice Coordinator issued its request for proposals, seeking to increase “the administrative efficiency and cost effectiveness of indigent services.” In the request, the city said that it planned to employ “multiple providers” to handle conflict cases, which are now handled solely by 18-B lawyers, and that while it expected to pay these providers by reimbursing their costs, as is done in the 18-B system, it reserved the right “to select any payment structure that is in the city’s best interest.”

This, in short, is the death of 18B.  The New York City criminal bar associations are fighting to stop it, but they  lost the first round and it’s now on appeal.  And with the end of 18B may well come the end of 1000 lawyers who struggle daily to provide legal representation to the indigent. 

There are institutional providers who will replace the cadre of 18B lawyers, but its unclear what will happen to them as well should this plan go into effect.  Would you want to focus your legal career on criminal defense knowing that there was no future in it, no place to go after working for Bronx Defenders?  While the job is pretty darned good for a starting lawyer, it’s not the job for a midlife lawyer with kids going to college who wants to take her spouse out for dinner once a week.

When economic times were better, I was critical of lawyers whose practices relied entirely on 18B.  I called it “welfare for lawyers,” and urged a limit to how many cases, how much revenue, any individual lawyer could make, so that they were forced to work harder and better to get the private retainers.  Lawyers got lazy and slopping living off 18B alone when there was private work to be had.

But when there are far too few private cases, the equation changes.  The fight for a good case became too fierce, and a buyer’s market saw some lawyers cutting fees, and others gasping for air.  It was foolish in the long run, taking cases that couldn’t pay for themselves, but hunger does strange things to the brain.  And neither the cut-rate private work nor the declining 18B was doing much of a job providing a living income.

With the end of 18B on the horizon, the lack of sufficient private work, the well will run dry.  There’s a very strong likelihood that the greatest city on earth will have no criminal defense bar to speak of, with only a few at the top and institutional defenders doing the rest. 

If the first thing one does to assure tyranny is to get rid of all the lawyers, it looks like New York City has an effective game plan. 

Kaitlyn Dunaway seems like a perfectly normal freshman at Sonoma State University.  She likely had lots of fun stuff to tell to her BFFs, and unlike a certain old curmudgeon, thought nothing of using the ordinary medium of her crowd to get it out there.  She texted.  Cool.

Kaitlyn texted while she drove her car.  Oh come on, my fellow fuddy-duddies.  People do it all the time.  Constantly.  If they don’t have a cell phone glued to their ear, then they’re busy thumbing in hip things like “lol” or “ROFLMAO,” if it’s really good.  Like if Tiffany was on a date, and the guy drooled.  That’s not something that can wait.

So Kaitlyn texted while she drove her car.

As the 18-year-old Dunaway texted, her Honda slammed into [2 year old] Calli and Ling Murray at the corner of Snyder and Medical Center Drive, killing the girl and badly injuring her mother, authorities say.

“Do it for the children” is the most abused justification in the law, but it’s not without proper application.  There is simply no need to text while driving that makes the death of this little girl an unfortunate statistic.  My own sensibility is that the same is true about talking on a cell phone, which I similarly believe to be unworthy of a single dead child.  But that’s just me.  Your chats while driving may be so much more important that it’s worth a dead child. Mine aren’t.

Kaitlyn Dunaway has been charged with the misdemeanor of vehicular manslaughter, a show of remarkable restraint given the tendency to manufacture a felony charge whenever a horrible and needless tragedy occurs.  I suspect she will suffer a self-imposed life sentence for what happened.

For those readers who enjoy texting, and who are confident that they can do so, even just reading the incoming texts of others when they hear the Pavlovian ching, know that your having done so a thousand, ten thousand, times doesn’t mean that one time you will lose your focus and an accident will happen.  Accidents are never anticipated. They happen out of nowhere. They happen.

For those readers whose kids text, tell them how much you love them and how you don’t want to lose them to someone who gets a funny text message.  The accident in which they kill another can kill them as well.  At least Kaitlyn Dunaway lived to be prosecuted. Not everyone does.

For those whose politics preclude their ability to balance risk and reward, I appreciate your “right” to do as you please.  For those whose love of shiny gadgets and technology overwhelms good judgment, whether in a car, in a meeting or at lunch with an actual person, I appreciate that you can’t accept the idea of being out of the loop even for a second.  Really, I do.

But there is no text, no email, no twit, no IM, no phone call, that is worth your life.  Or Calli’s life.  There are things worth dying for.  These things are not one of them.  They will all be there to enjoy, to appreciate the lulz, to laugh about, when your car comes to a rest.  Innovation is great, and will remain great when you can enjoy it without putting a life at risk. 

This time, do it for the children applies.  And if you don’t think it does, then do it for yourself.  Whether you think your life is worth saving, this old curmudgeon does.

H/T Turley

Jeff Gamso sums up Ezell Gilbert’s situation succinctly.

The very short version.  On that day in March, Gilbert was sentenced to 292 months in prison by a United States District Judge in the Middle District of Florida.  The judge didn’t want to give him that much time, but the government convinced him that he had no choice under the sentencing guidelines.*  Gilbert argued then that he was improperly determined to be a career criminal subject to a mandatory enhancement under the guidelines.  The courts rejected that argument.

The thing is that 11 years after he was sentenced, the Supreme Court addressed that very argument (not in his case) and said it was right.  Do all the math again, and it seems that instead of a sentencing range of 292-365 months, Gilbert should have faced a range of 151-188 months.  Oh, and along the way the guidelines stopped being mandatory and became advisory.

Ooops.

Nobody is arguing that Gilbert deserves that extra time, or needs it.  Back when he was sentenced, the regime was completely different.  He made the right arguments at the time, but the law had yet to recognize that he was right.  That happens more than you would think.

The  en banc decision by the 11th Circuit was understanding, but its hands were tied.

[W]e granted rehearing en banc in this case to decide whether the savings clause contained in 28 U.S.C. § 2255(e) permits a federal prisoner to challenge his sentence in a 28 U.S.C. § 2241 petition when he cannot raise that challenge in a § 2255 motion because of the § 2255(h) bar against second and successive motions. The primary question, in plainer English, is whether a federal prisoner can use a habeas corpus petition to challenge his sentence. Our answer is “no,” at least where the sentence the prisoner is attacking does not exceed the statutory maximum.

Rules.  And gifts.  As Nancy King explains at Habeasbook :

Judge Pryor concurred, presenting his view that the Suspension Clause does not limit Congressional restrictions on habeas review of criminal judgments.  ”The Supreme Court has never held that the Suspension Clause protects anything more than the writ as understood in 1789,” he stated, collecting authority for this reading of the Clause. ”Because the Suspension Clause does not provide any rights to prisoners convicted and sentenced by courts of competent jurisdiction, any relief that Congress chooses to provide to federal prisoners is, to borrow language from a dissent, a “gift[] that may be bestowed or withheld.”

It’s not that we are due a just outcome, but that we get as much or as little as the government deigns to give.

Frankly, none of this is either shocking or even unusual.  As Gamso calls it, it’s just another day in the bureaucracy, chugging along, doing its job.  No doubt the judges all felt pretty darn bad about the 8 extra plus years Gilbert would spend in prison that he wouldn’t have spent if other judges, maybe even a senator or two, had done their jobs a bit better.  But nobody is perfect, and they all have to live with rules.

It’s just that Gilbert will feel bad from his prison cell while the judges and everybody else will feel bad from their own bed.

Except maybe Senior Judge  James Clinkscales Hill.  One of the great things about senior judges is that they have no one to impress and no aspirations of future greatness.  They are free to speak truth to power, if they are so inclined. Judge Hill was feeling too free, given that Gilbert was in a prison cell.

Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.

Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.

This “Catch-22″ approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.

The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.

Where was the government’s stroke of genius when it was argued by every lawyer in every court back in 1987 that it was wildly unconstitutional for some goofy things called Guidelines to bind the sentences imposed by Article III judges in a whole different branch of government?  Dang, but how obvious it all seems today.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.

Of course, what do the old guys have to teach the younger judges, bent under the heavy weight of their responsibility to make sure that the bureaucracy survives intact.

Sitting atop this judicial trainwreck is Finality.  Every lawyer appreciates the concept of Finality, wrapped up in the platitude that there can be no justice without finality.  But we know it’s a lie. Finality is the protector of bureaucracy, which, it’s argued, would be horribly overburdened if the floodgates were opened.  What a nightmarish image of venal criminals with nothing else to keep their idle hands occupied, shoving writ after writ into prison mailboxes.  The bureaucracy would be overwhelmed, and never capable of doing its real job of administering the justice etched into it lintels.

Only Senior Judge Hill seems to get the idea that if they can’t get it right the first few times, it’s not a really good reason to protect and defend the system that got it so very wrong.  Yet we keep saying that our system, though not perfect, is the best there is.  And with that thought in mind, the majority will sleep well in their own beds.  They did no harm to Ezell Gilbert.  They just didn’t give him a gift.