Author Archives: SHG

An Emotional Decision

Over at Crime & Federalism, Mike makes a fascinating connection between the five stages of grief and the experience of the inadvertent criminal defendant:

A person charged with a crime may go to prison. He may be raped. He won’t know his children. He will be, for the rest of his life, a convicted felon. One part of his life is indeed over. He is dying.

Yet we often don’t treat clients as people facing terminal illnesses. Instead we become frustrated when they won’t follow our advice. Yet no matter how sage the advice is, the deaf cannot hear – and a client in denial may as well be deaf and blind.

Kübler-Ross model for client counselling

As its name suggests, there are five stages of grief – denial, anger, bargaining, depression, acceptance.

This doesn’t apply as well to the pro defendant, who enters into criminal conduct aware of the consequences but makes a deliberate decision to take the chance of getting caught and paying the price. Some are shocked to learn that it actually happened to them, but most take it in stride.

The inadvertent criminal defendant, however, is very much like the dying man, at least as far as the psychological impact of arrest and prosecution. And the five stages of grief are, as Mike suggests, quite evident.

Further, Mike notes how ill-equipped lawyers are to deal with defendants going through grief.

Consider, for example, the requirements one must meet to become a licensed Marital and Family Therapist:

Experience Requirements

104 weeks of supervision

3,000 hours of supervised work experience.

Yet any new law graduate is expected to competently handle divorces and criminal cases. Divorce, as my good friend Norm Pattis told me, “is one-part homicide, one-part suicide.” Even the spouse who wants the divorce feels somewhat dead inside, since hurting someone you once loved is damaging to all but the sociopathic.

Lawyers, on the other hand, get a piece of paper and are let out on the street to deal with people’s lives. Worse still, the ones least prepared to handle the grief of clients are the ones with the most limited life experiences themselves, and the least metacognitive ability to realize their own limitations. And yet they are every bit as much lawyers as any other.

Many lawyers believe that playing therapist is part of the job. I don’t agree. It’s not that clients don’t desperately need therapeutic help, but that we are particularly incapable of giving them what they need. We are not therapists. Not only do we lack any training, but it directly interferes with the core of our role as lawyer, to provide a detached perspective in crafting and dealing with the prosecution. Rather than embrace our client’s emotions, we serve the purpose for which we’re retained best when we don’t let emotion cloud our vision of the harsh reality of criminal prosecution.

This isn’t to say that we shouldn’t feel empathy, or shouldn’t be generally sensitive to our clients’ needs, but that we can’t allow emotion to prevail over hard, cold reason. We’re there to do a job, to defend. To do that job, we need to focus on what’s real and how to deal with it rather than on how defendants feel about it.

This may make us appear harsh to clients, who value hand-holding over lawyering as they pass through the stages of grief. Many lawyers greatly prefer to have their clients love them as they go through the motions, and are only too happy to do things that bring the clients transitory comfort at the expense of ultimate success. Everybody hugs and kisses during the representation, then waves good-bye sadly as the client is shipped off to prison.

My question has long been whether the defendant would rather love you during the representation or afterward.

I’ve sent many a client to therapy during the course of representation. They needed it, and I couldn’t provide it. I told a few to get a dog if they need someone to keep them company because they’re sad and lonely. This rarely goes over well, but there is no way I can fulfill their emotional needs while remaining wholly unemotional in my representation.

Much of what I see in the blawgosphere and on twitter from criminal defense lawyer exudes emotion toward criminal defendants, often to the point of irrationality. It reflects the disconnect between thinking and feeling, overwrought sympathy for our side. Not only does this reflect muddled thinking, ideas clouded by emotion that renders the lawyer blind to the flaws of their logic and ineffectiveness of their persuasion, but it precludes them from seeing that they are destroying their clients chances of success in the process. If you really care about your clients, do the best for them rather than feel as they do.

By providing a paradigm to explain the emotional stages the inadvertent defendant goes through on the road of prosecution, Mike clarifies to the rational mind both the problem and the solution. Clients are going through an emotional journey that impairs their ability to think clearly and make sound decisions. Some will need psychological help to make it through the process. Lawyers are not qualified to provide that help.

We are, however, theoretically qualified to provide legal representation, if only we don’t let our desire to be beloved during the process interfere with our ability to do our job. Our job is to defend our clients, not make them feel better before getting sent to prison.

Practical Padilla: Too Much or So What?

When the Supreme Court decided in Padilla v. Kentucky that the burden of informing defendants of the collateral consequences of a plea, a burden that I argued should be rightly on the shoulders of the court rather than the lawyer, the question remained whether the duty to inform about collateral consequences of a plea was limited to immigration or everything in the world.

University of Arizona lawprof Gabriel Chin wrote about the extent of the burden imposed by Padilla.

Padilla held that defense counsel have an ethical obligation to advise their clients of the possibility of deportation when pleading guilty. The inescapable logic of Padilla is that counsel’s duty will extend to warning about other serious collateral consequences as well. Putting more demands on overburdened defense counsel raises a number of issues. First, how can public defenders, who are already challenged in providing basic representation add more to their duties? Second, how can defense counsel, who are not specialists in collateral consequences, be aware of the hundreds or thousands of potential collateral consequences which could apply in any given case?

Are there really “thousands” of potential collateral consequences? It’s possible, and indeed changes with every defendant and every situation. And it’s our responsibility to not only identify every one, but correctly predict the impact it could have.

Coming from Arizona, it’s easy to understand why Chin would be concerned about the direct consequences of collateral ones, such as immigration. Arizona isn’t particularly fond about its residents with surnames ending in vowels. But Chin sees an upside.

Although Padilla means more work for defense attorneys, it also promises better outcomes for clients.

While this may come as a surprise within the Academy, lawyers have been arguing collateral consequences in mitigation of sentence on pleas forever. It’s, well, obvious. Ever since the words “aggravated felony” entered the immigration discussion, it changed the landscape of criminal defense. Any lawyer who didn’t argue that, since the defendant would be sent to his motherland upon release, a shorter sentence was in everyone’s best interest was just dumber than a brick. Heck, even bricks knew enough to make the point.

Sometimes it worked. Sometimes it didn’t. Eventually, many prosecutors figured out that if non-citizens realized that they could get a sweat deal on prison because of their subsequent deportation, it took some of the sting out of deterrence. And, of course, they might be of the sort inclined to re-enter despite it being illegal. Legality, prosecutors argued, wasn’t something the defendant was very concerned with.

But the duty under Padilla bore no relation to what the defendant would do with the information about collateral consequences. The duty is to inform. Lawyers have long been informing defendants about relevant collateral consequences, not because the Supreme Court made it a duty but because it was what any half-competent lawyer did on behalf of his client. The client would then proclaim that he didn’t want to be deported. No surprise there, but they usually don’t want to go to jail or prison either. In fact, they would have been pretty happy to never have met (and paid, if that was the case) their criminal defense lawyer as well.

There is nothing happy or good about being subject to prosecution. While the collateral consequences can be potentially ruinous, it’s not like prosecution with no collateral consequences at all is a walk in the park. The direct consequences of a guilty plea, incarceration, a criminal history, are pretty significant on their own, and it only gets worse from there.

The discussion about collateral consequences isn’t a whole lot different than the discussion about guilty pleas in the first place. The options are laid on the table, with an explanation of what they mean. At the time the plea is under discussion, there are three general alternatives:

1. Take the plea.
2. Try to get a better plea offer, with the recognition that it may not come and the prosecution may pull the existing plea off the table.
3. Go to trial.

There are a number of variations within those options, such as obtain additional discovery, move for dispositive relief, do additional investigation, which may apply given the circumstances of the case. And then there are the additional problems that may be raised by these options, that delay or fighting will result in withdrawal of a plea offer and leave the defendant without options. Or that the demonstration of seriousness in fighting the charges will compel the prosecution to sweeten the offer, even dismiss the charges. It can happen, but it’s all a matter of risk tolerance.

With surprising frequency, collateral consequences can be monumentally harsh. Consider the non-citizen who came here at 3 months of age and spent the next 37 years living, working, paying taxes, raising a family, before arrest. Or the physician who struggle to do well in high school, college, medical school, internship, residency, fellowship, before prosecution.

The enormity of consequences for relatively trivial offenses, the sort of stuff that someone else might shrug off as a really bad day, like a simple assault or drug possession, essentially undermines their life. The discussion often ranges from whether they are prepared to plead guilty and get a year in jail and deportation or loss of license, or roll the dice and face five years and deportation and loss of license.

Which one does Chin see as the “better outcome” that Padilla promises?

The real issue has nothing to do with informing defendants of the collateral consequences they face as a result of a guilty plea, but whether collateral consequences can be bootstrapped into a deal that prevents collateral consequences from coming into play. There’s nothing new about this, however, and any lawyer who failed to use collateral consequences as an argument in plea discussions to obtain a less onerous deal failed to do his job.

Of course, the more enlightened point is that the sanction imposed for a plea of guilty should be that imposed by a judge, taking into account the relevant facts and circumstances of the offense and the individual. The collateral consequences aspect, despite being characterized as civil in nature and beyond the jurisdiction and concern of the criminal court judge,is mere piling on in knee-jerk, mandatory fashion, just as mandatory minimum sentences bear no reflection of the legitimate purposes of sentence.

That we call them “collateral consequences” reflects the disconnection between the act of prosecution and the reality that defendants will experience despite whatever happens in the courtroom. A defendant who pleads guilty of selling a dime bag of marijuana will suffer collateral consequences equally harsh as the defendant who sells a kilo of heroin.

The only thing Padilla adds to the equation is who is responsible for delivering the bad news. And nobody likes the bearer of bad news.

This Changes Everything and Nothing

There were spontaneous celebrations in the street, in Times Square and at the Site. Patriotism was all the rage. It was little different than any other street celebration of death anywhere in the world, but Americans are special and whatever we do is different. Even the execution of our enemies.

When President Bush announced Mission Accomplished, nothing changed. When our anger was directed at one man, a symbol of the attack on the World Trade Center, it served as a focal point for our anger. Almost ten years later, the symbol is gone, and Americans have taken to the street to celebrate death.

This is nothing like May 1, 1945, when we learned of the death of another devil. He wasn’t a mere symbol, and his death meant that our fathers and sons would be coming home. The war was over. It took a mere week until Victory in Europe was declared, and it was truly over. And we returned to our lives.

The death of Osama bin Laden may be cathartic to many, and perhaps this will serve a more important end then the mere death of a man. There are many issues swirling around his death that will no doubt be fleshed out further in the days ahead, but people were giddy with joy at this one man’s death. Just as others we despise were giddy with joy when the Twin Towers fell. We have a new bar by which to measure ourselves, lower than it’s ever been before.

So now that another mission has been accomplished, will we raise the bar? Will we be able to walk around our nation without being forced to show identification upon demand of armed men? Will we be able to walk onto an airplane with our shoes on? Will laws passed in a frenzy to allow the protectors of our safety to listen to our private words be repealed?

When before in history has one inconsequential man been so influential? The body may be cold, but the legacy lives on in our daily lives. Soon, there will be speech reminding us that the war on terrorism must still be fought, and that we, Americans, must still sacrifice. And it will slowly sink in that nothing more happened than one more body has been taken in the never-ending war. The reason is obvious, that no war has ever been so useful and productive in persuading good people to succumb to fear.

The glory of this day has been wrapped in the sorrow of the family of victims of 9/11, with proud voices saying that this will bring them closure. I hope it does, but I suspect it won’t. Instead, it will just remind them of what they’ve lost, and force them to relive the horror. When they do, they will take no comfort in the death of a symbol.

The families of those who died, and lived, will wonder why the day they waited for so long doesn’t fill the void in their hearts. Many important people will tell them that it does, and it should, but it won’t.

Whether Osama bin Laden has ascended to his virgins or lies cold at the bottom of the sea, we will continue to live with his legacy. No mission will be accomplished until we shed the trappings of fear he started and the bar our government lowered in his honor.

Addendum: When my son awoke this morning and I told him what happened, he asked, “Did we win the war?” I bet a lot of children will ask that question this morning.

Eat At Randazzo’s. Beware Randazza

The City Attorney of Surfside, Florida is very angry at bloggers. Lynn Dannheisser says the bloggers are evil, lying scum, and have tarnished her reputation.

The target of her vitriol is a blog called Save Surfside, local citizens who aren’t any more thrilled with Dannheisser than she is of them. Of course, since Dannheisser is paid about $170,000 of public monies for her efforts (not including what’s paid to her boyfriend, who she hired as outside counsel to Surfside), the situations aren’t quite the same. Another difference could have something to do with the threat by Surfside officials to call in the state’s attorney’s office to identify and prosecute the evil citizens who challenge important public officials.

Via the Miami New Times :

In July 2010, town commissioner Edward Kopelman threatened to have the State Attorney’s Office investigate “the true identities and true authors” behind the blog and its local counterpart, Who Controls Surfside?, both of which have been critical of town government.

So Save Surfside retained a law firm to write a letter to Kopelman, demanding that he cease his “bullying” tactics.

You have to give the locals some credit for not playing cut and run when threatened. You have to give them even more credit when you learn which law firm they turned to.

The name of the law firm is the Randazza Legal Group. Which apparently thoroughly confused Dannheisser.

Randazza . . . Randazza . . . the names sounds familiar to me too. So Dannhaisser did the lawyerly thing and wrote a letter, which began:

[F]irst things first, This is the first I have heard about your firm. I was wondering if your law firm has any affiliation with the Randazzo’s Restaurant in Coral Gables, Florida. It is an excellent restaurant and I wanted you to know what great food and what a great reputation the restaurant has in the community.

Clearly, there was a vowel issue at the end of the name Randazza/o, but that happens a lot with this swarthy Mediterranean-type names. Not that anybody with the name Dannheisser is someone to ignore the proper spelling of a name, even if she has an affinity for Italian food and compulsion to seize the opportunity to express her foodie feelings.

Yet, spelling issues aside, as well as her lack of familiarity with such an ethnic sounding name, it still struck me as awfully familiar.

Could she be talking about Marc John Randazza, the Legal Satyricon? The guy who took down Glen Beck? My old pal Marco?

Why yes she is.

The Randazza law firm’s Jason Fischer responded to Dannheisser’s letter:

As a final point, we are obviously not affiliated in any way with Randazzo’s Little Italy restaurant in Coral Gables. Though we are well acquainted with that establishment’s quality cuisine. We presume that you were simply trying to make some kind of joke – one which nobody found particularly amusing, but one which was quite illustrative of the clear failure on your part to appreciate the seriousness of the charges that are being leveled against your employer. We trust that, should you continue to advise Town Commission on matters of constitutional compliance, you will crack fewer jokes and more volumes of case law.

While I’ve no doubt that Lynn Dannheisser is a brilliant lawyer, which is how she secured the position as the very important attorney for Surfside, Florida, and can hold her own on any variety of issues that a practitioner of municipal law might face, she really might want to be a bit more circumspect of ridiculing one of the foremost lawyers on internet first amendment cases in the nation. It’s possible he knows a bit more in his little niche, and probably prefers not to have whiny Dannheisser make fun of him for having a name similar to an Italian restaurant.

Lest anyone be unclear, my general rule of thumb on interent first amendment issues is whoever retains Randazza wins. And if he’s lucky, gets an awfully fine meal out of the deal.

This Is Not (yes it is) Legal Advice

Aren’t we smart lawyers?

In the course of my morning routine, I read a few blawgs, including some new ones that pop up from time to time. Most of them start out with generic explanations of relatively routine legal situations, maybe a post about drunk driving, or basic assault. The sort of stuff designed to show the potential client how much we know about law, to entice them to call because we know how to handle their case.

A while back, Kevin O’Keefe posted a question from one of his Lexblog customers about whether responding to questions in blog comments could establish an attorney/client relationship. The answer, at one level, was obvious; Of course it could, but I suspected that it was a trick post, because Kevin wouldn’t waste his time writing about something to so obvious.

My thought was that Kevin’s post sought to deal with the dual problems of how to allow comments that raised questions based on the particulars of the post, details of the aspect of law establishing what a great lawyer the author was, and respond without it becoming a problem. Apparently, I was wrong, as others commenters just urged the blawgers to moderate the questions out. Easy. Simple. Unhelpful, at least from what I thought Kevin was asking.

This came back to me when I received a call on a new case the other day. After speaking briefly with the caller, I told him that it wasn’t the sort of work I did, and thanked him for calling in the way that tells the caller that the conversation was at an end. He wasn’t done. The guy then started crying. I hate when that happens, but I couldn’t hang up on a crying guy, so I listened.

He was a pretty regular guy, and faced his first brush with the law. He had a little money to pay for a lawyer, but figured he could Google his way to a better understanding of what he was looking at. And he was thrilled to find a number of blawgs with what appeared to be great information about the crime with which he was charged. He read up, and one particular blawg offered not only a basic description of the elements of the offense, but some things to look out for, tricks of the trade so to speak. He thought he hit gold.

Emboldened by his newfound knowledge of law, he decided to save his money and take a shot on his own. He thought that if things go south, he could always hire a lawyer later to bail him out, but he thought he was smart enough to take this blawg post and stand on his own.

It was a disaster. Nothing happened the way it was supposed to. He said what the blawg post told him to say, did what the blawg post told him to do, and found himself being ripped to shreds. The judge looked down over the bench and screamed at his arrogance, his hubris. The prosecutor withdrew the plea offer, telling him he would never escape jail time.

He stood there, clueless as to what he did wrong, but clear that he had just done something that might prove the undoing of his family, his job, his life. His head was about to explode and he had no idea why.

In my wandering through the blawgosphere, I’ve read many posts which, to my lawyer eye, seemed pretty innocuous and generic. I saw them as an obvious come-on, a simplistic effort to provide a potential client with the sort of basic information that one might explain to a client about their charge during a free consultation. They seemed harmless enough.

What lawyers see as a come-on, however, can read to a non-lawyer like a DIY guide to lawyering. These generic background posts about the elements of some basic crimes (or causes of action, for civil guys) have become de rigor among lawyers who create blogs for marketing. The notion is that by providing information to potential clients, we demonstrate expertise and develop trust. It’s all warm and fuzzy, well enough intended and crafted to make the blogs pay off the way the marketers tell us they should.

What we do not see is how they’re read by the million nice people cruising the internet for information. Sure, we have the disclaimer, that “this is not legal advice.” Some lawyers go a bit farther, like my buddy Eric Mayer at Military Underdog, who writes:

Reading this blog will not help your various law maladies. In fact, it may make them worse, and it will definitely make you feel worse. You don’t want that.

They sure don’t, but some don’t consider that he’s talking to them. Few actually read the disclaimer. And truth be told, the disclaimer isn’t there for the benefit of readers, but the protection of lawyers. It may be completely adequate to establish a defense against a claim of inadvertent malpractice, but it does nothing to inform the reader that a blog post here and there isn’t going to turn him into a lawyer.

As you disclaim responsibility for what you write, do you think of anything more than protecting yourself? Do you consider that your generic description seems like master’s class to some non-lawyer readers? As basic as it may be to a lawyer, can it empower someone to believe they can “follow” your advice and go it alone?

That’s the point, that the words on the sidebar say it’s not legal advice, but it is. In the minds of non-lawyers, it’s a road map to legal success. Of course, we know it won’t work, and leaves out almost everything that is needed to successfully defend, but they don’t know that. How could they? They don’t have a clue.

This isn’t a rant about the evils of marketing, but a plea to those of you who produce one of the many lawyer marketing blogs in the hopes of following the marketer’s instructions and find wealth and clients on the internet. You likely don’t give much thought to readers who don’t call you, don’t retain you. They mean nothing to you. But they’re still people who stumble on your words and think they’ve struck gold. We know it’s crap, but to someone who is clueless, it’s their magic ticket to freedom.

It’s cliche to say a little knowledge is dangerous, but it’s true. Just think about the dangers you might cause when you write a post that purports to teach non-lawyers about the legal system. They just might read it and think they’ve learned something.

I realize that you don’t care much about anyone who doesn’t retain you, but I must believe that you really don’t want someone reading your post to end up burning himself because you’ve given enough information to get him into deep trouble and not enough to get him out of it.

If you are a lawyer writing these “how to” or “all about the law” posts for marketing purposes, you are giving legal advice, no matter what your disclaimer says. Please be careful.
____________________________

Epilogue: Some are likely stuck on what became of the guy on the phone. He told me what he did. He challenged a piece of scientific evidence being used against him, contending that it reflected specific impropriety by the judge and prosecutor. He was correct that the specific piece of evidence was being used in his case, but had yet to learn that it had been used improperly. He missed that nuance.

The basis for his accusation was that a post suggested that use of this particular piece of scientific evidence was frequently done improperly, and that it offered a potential defense. The post further noted that judges and prosecutors who ignored the problem were often evil and stupid.

He thought it was acceptable to say that in court. After all, if it was true, then what was the harm in letting the judge and prosecutor know that he wasn’t one of those defendants who came to court unarmed. But he was shooting blanks.

I apologize for being so vague, but I read the post the guy relied upon and it wasn’t inaccurate. It just wasn’t sufficient to inform someone how to handle the situation, what predicate was needed before arriving at the conclusion and how, after the impropriety was found, to deal with it properly. There was nothing per se wrong with the post, so I don’t name the blogger or link to the post. It’s not that he did something wrong.

But I also understood how the caller had completely misconstrued the post and acted upon it. I understood why he thought he knew what he was doing. And I understood how badly he screwed up.

To Tell The Truth

Cormac Carney knows when to throw a flag. As a former All-American receiver for the UCLA Bruins, he understood that the game can’t be played if the rules weren’t followed. He may wear black instead of black and white on the bench, but he gets it.

He got it in the Broadcom case, when he tossed the indictment against CFO William Ruehle and others. And he gets it again in Islamic Shura Council v. FBI, where the government tried to pull a fast one on him.

The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court….

The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

The Government contends that the FOIA permits it to provide the Court with the same misinformation it provided to Plaintiffs regarding the existence of other responsive information or else the Government would compromise national security. That argument is indefensible.

There’s a novel concept, The law does not authorize the government to lie to judges. Not when the government thinks its a good idea. Not when the government utters the magic words, national security. Not when the government wants to. The government cannot lie to a judge.

You might think that this notion, the whole tell the truth to the judge thing, was pretty well settled. Obviously not. The difference here is that the government got caught lying. The trick is to figure out how often the government employed the same rationale for being deceptive, but didn’t get caught. If you don’t get caught, you didn’t lie, because you’re on the side of truth and justice and, in the infinite wisdom of the executive branch, are entitled to lie to judges when you believe that it’s in somebody’s best interest.

Judge Carney didn’t bite.

Jeff Gamso makes the point that the first kind of judge is the type who favors one side over the other, and it’s good when you happen to play for the right team. Judge Carney is what he calls the second type of judge.

But in absolute terms, I want a bench filled with the second sort. I’ll take some lumps (though I’ll win my share), but I’ll know, and so will everyone else who pays attention, that her courtroom is a place where the law is done right and where justice and mercy and fairness will actually reign.

There’s probably nobody out there who fully qualifies as that Platonic judge. But for fearlessness and a kind of rough integrity, Cormac Carney may be as close as they come.

High praise from a guy who stares down death on behalf of his clients on a regular basis. His clients may disagree, of course, as rough integrity may not necessarily cut in their favor, but Gamso rightly recognizes that Type One judges tend to favor the other team more than his. By a wide margin.

While Cormac Carney may well be “as close as they come,” however, there remains one nagging detail about this decision that excoriates the prosecution for contending that the government has the authority to lie to the court. Where’s the downside?

At the end of the order, three things are clear: The government was excoriated. The plaintiff got nothing. Everyone went home for dinner. As harsh as Judge Carney’s words may be, there was no carnage left lying in the road.

Granted, the court could not provide the plaintiff with the relief it sought. But aside from calling the government out on its lie, what disincentive is there for the government not to lie next time? More hard words? I hate to say it, but so what?

Without consequences, there is little reason for the government not to lie again when it serves its interests. This isn’t meant in the cynical sense, as in the government’s deliberate deception was done for malevolent reasons. I’m fully prepared to accept, at least for the sake of argument, that the lie was perpetrated for the most honorable of reasons. But it remains that the integrity of the legal system fails when the government can lie with impunity, doing only what it should have done in the first place if it gets caught. No harm, no foul.

Judge Carney, more than anyone, should know that unless the ball is placed at the location of the interference, there’s no incentive not to get tangled up in a lie in the hope that the ref is looking the other way.

Judge Cormac Carney may be “as close as they come” to Gamso’s second type of judge, and for that he’s to be thanked. But “as close as they come” may not be sufficient when something this outrageous happens and there’s no price to pay. Whoever decided, and argued, that the government has the authority to lie should be disciplined, likely disbarred, for deliberately lying to a federal judge. You can bet that would have happened if it was a defense lawyer who engaged in such behavior.

Nothing Nice To Say

Boston Municipal Court Judge Raymond G. Dougan Jr. has not endeared himself to the local district attorney. Suffolk prosecutor Daniel F. Conley has gone on the warpath to show that Dougan is unfit to sit on the bench, filing a 72 page motion detailing the judge’s faults and demanding that he stop interfering with their ability to convict people. Dougan denied the motion.

It’s rare, but when a judge refuses to become part of the machinery of justice, prosecutors have no choice but to get tough.

“Although some of these incidents are well in the past,’’ Conley wrote, “the entire historical record reveals a disregard for the proper role and authority of a judge … a disregard for the authority of the Legislature, a disregard for the authority and duty of the district attorney, a disregard for the constitutional separation of powers, and a disregard for Judge Dougan’s obligation to administer the laws and adjudicate cases in an impartial manner.’’

Like so many words in the criminal law lexicon, “impartial” has many meanings, such as “this judge keeps ruling against us.”

With Judge Dougan in the crosshairs and incapable of shooting back, John Salsberg, chairman of Suffolk Lawyers For Justice which oversees the lawyers representing indigent defendants, came to Dougan’s defense in an op-ed called Stop the public griping about judge.

ONE OF lawyers’ favorite sports is complaining about judges. It’s natural to look for a scapegoat when a case turns out badly for your side. Privately, attorneys frequently complain that a judge ignored facts or misapplied the law. But respect for an independent judiciary, which benefits us all, generally keeps lawyers from complaining to the press. Instead, we file appeals to higher courts.

The court of public opinion is not a place to try cases or gripe about judges. By turning the judicial process into public spectacle, law enforcement authorities cheapen the pursuit of justice and deny the due process that all us cherish. Suffolk District Attorney Daniel F. Conley’s recent singling out of Boston Municipal Court Judge Raymond Dougan, in an effort to publicly humiliate someone who is universally respected, even if you disagree with him on his opinions and judgments, is uncalled for. Doing so in the name of “public safety’’ raises questions about the real motivation behind this personal attack.

While his motives are no doubt sincere, this isn’t exactly the best possible argument. In other words, what a load of crap. What happened to our beloved transparency of public officials exercising significant power under authority of law being subject to public scrutiny? What does judicial independence have to do with concealing gripes against judges?

It is very risky to attack a jurist who the prosecutor knows must stand mute. It undermines the notion that lawyers are interested in the truth, as no principled lawyer thinks a one-sided presentation is meaningful. When a lawyer publicly excoriates a judge, he or she knows there won’t be an open exchange because the judge is ethically not permitted to respond.

This paragraph makes no sense at all, but appears intended to let people know that judges are prohibited from defending themselves against attack. Of course, there’s nothing to stop someone else, not so limited, from defending the judge. So defend the judge, John. Cut the “uncalled for” nonsense, as if Miss Manners controls public discussion, and argue the cause.

Likewise, it is difficult for criminal defense lawyers to take public positions decrying injustices perpetrated by judges or a district attorney’s office. Every day we have to appear in court, negotiate or plea-bargain cases with prosecutors, and ask judges to rule on cases. We are constrained not to make enemies and jeopardize the rights of our clients in present and future cases. We do battle in the courtroom, where it is understood that we have an adversary system and a strong advocate is well-respected.

When we publicly embarrass the other side, we know it won’t be forgotten and there will be consequences. Prosecutors decide who will be charged and what charges they will face. Thoughts of standing in front of the courthouse with a placard stating that a particular judge is unfair when we lose or naming a prosecutor who has intentionally withheld exculpatory evidence are momentary vengeful fantasies. In the face of the power of the state, which resides in the courts and the offices of the district attorney, most of us decline to attack people outside the judicial process.

Ah, now we get to the bottom line. When Salsberg wrote “it’s risky,” he was talking about criminal defense lawyers. It’s risky indeed to take a principled position, speak out clearly and firmly against the local district attorney and invoke his ire. There can be payback. It can be very scary to say what needs to be said. An angry prosecutor can do mean and horrible things to a criminal defense lawyer. Very scary stuff.

So rather than stand up for a judge who has gone out on limb and angered the Suffolk County District Attorney by not becoming a cog in the wheels of the prosecution, the argument is that it’s unbecoming for the prosecutor to attack the judge, but criminal defense lawyers are too frightened, afraid, gutless cowards, to speak out in the judge’s defense. They would, but they don’t want to upset the prosecutor.

It’s usually unpleasant when someone, regardless of side, speaks out publicly against a government official exercising the authority of his office. But this is how public debate happens sometimes, unpleasantly, uncomfortably, inconveniently. Don’t hide behind a façade of propriety to avoid the scary work of standing up for principle.

For crying out loud, man up. Judge Dougan has demonstrated the fortitude to rule as he believes proper despite invoking the anger of the prosecution. Will the criminal defense lawyers of Suffolk County run and hide with their tails between the legs in appreciation?

You bet it takes guts to stand up for principle. If Judge Dougan is worthy of your defense, then defend him. If it means you take the risk of angering the district attorney, so what? He really doesn’t love you anyway, and learning that you’re cowards and lack the strength of your convictions, he won’t respect you either.

But this fight isn’t about rationalizing why it’s understandable that criminal defense lawyers are so gutless, but about why Conley is dead wrong about Judge Dougan. Your failure to stand up for Judge Dougan tells me you don’t deserve a judge with the guts to follow the law rather than be a cog in the system. Then again, if Judge Dougan is as strong as he appears to be, he’s doing it for the people before him, not the sniveling lawyers who would rather run scared than be counted.

Judge Raymond G. Dougan Jr. has guts. It’s a disgrace that the criminal defense lawyers who come before him aren’t similarly endowed.

H/T Doriss Day (yes, that’s right, Doriss Day. What of it?)

Marketing Made Simple

From Keith Lee at An Associates Mind (a/k/a ULS).

It’s not some ridiculous SEO scheme. It’s not link-spamming blogs. It’s not social media. It’s really a very simple concept that most people fail at:

“we do everything like we give a damn”

Full stop. That’s it.

It’s not a slogan, but what you do. I’ve got nothing to add.

Two Lashes = One Year?

At the Chronicle of Higher Education, Peter Moskos (who will be filling in for Radley Balko while away on vacation, presumably accompanying Kate and William on their honeymoon in order to guide the future King and Queen on how to rule an Empire) offers a provocative thought: What’s wrong with a decent flogging?

For most of the past two centuries, at least in so-called civilized societies, the ideal of punishment has been replaced by the hope of rehabilitation. The American penitentiary system was invented to replace punishment with “cure.” Prisons were built around the noble ideas of rehabilitation. In society, at least in liberal society, we’re supposed to be above punishment, as if punishment were somehow beneath us. The fact that prisons proved both inhumane and miserably ineffective did little to deter the utopian enthusiasm of those reformers who wished to abolish punishment.

Prisons today have all but abandoned rehabilitative ideals—which isn’t such a bad thing if one sees the notion as nothing more than paternalistic hogwash. All that is left is punishment, and we certainly could punish in a way that is much cheaper, honest, and even more humane. We could flog.

In Defense of Flogging 1 Ullstein Bild, The Granger Collection, A public flogging in Delaware in the early 1900s

Brutal? Barbaric? As Moskos notes, we locked up 1.3 million people between 1970 and 1990, and what did we accomplish? Not much.

We deem it necessary to incarcerate more of our people—in rate as well as absolute numbers—than the world’s most draconian authoritarian regimes. Think about that. Despite our “land of the free” motto, we have more prisoners than China, and they have a billion more people than we do.

And yet we persist in our belief that this system is working. Or will work, if we just incarcerate a few more people. Or for a few more years. What is it about prisons that causes us to maintain our faith in their efficacy? What is it that makes us ignore that it’s a concept that’s been tried and failed, and failed miserably, to cure whatever ills it was meant to cure, such that it’s only grown monumentally without an end in sight? If insanity is to take the same course of action over and over, and expect a different result, then this is nuts.

So is flogging still too cruel to contemplate? Perhaps it’s not as crazy as you thought. And even if you’re adamant that flogging is a barbaric, inhumane form of punishment, how can offering criminals the choice of the lash in lieu of incarceration be so bad? If flogging were really worse than prison, nobody would choose it. Of course most people would choose the rattan cane over the prison cell. And that’s my point. Faced with the choice between hard time and the lash, the lash is better. What does that say about prison?

There is, of course, a gap in Moskos’ point, that being the sentencing goal of incapacitation, removing the defendant from society that he cannot do harm to others. A decent flogging aside, it would still leave the murderer free to murder, and we can’t have that. The victim of his murderous intent would likely find it entirely inadequate.

But then, incapacitation only applies to a limited number of convicted criminals, and certainly not those imprisoned over drugs crimes, victimless crimes, financial crimes. How many people would have enjoyed watching Bernie Madoff flogged?

Moskos suggests a ratio of two lashes per year in prison. That seems a bit light for shorter sentences, say under ten years, where perhaps a sliding scale might work better. For example five lashes per year for the first five, three for the next, and two thereafter. And as with Singapore, there should be a limit of, say, 24 lashes at a time, for the survival of the floggee. There are some details to work out, but what about the basic premise?

And I bet that if convicted criminals were offered the option of flogging over prison, that Moskos is absolutely correct that most would take it. Even if it doesn’t do a damn thing to change recidivism or improve social conditions, it’s cheaper, quicker and will sate that blood lust that permeates the system already.

Plus, it couldn’t do any worse than locking people away in prison for decades and expecting them to come out as happy, productive, law-abiding citizens.

Three Felonies By Coffee Break (Royal Wedding Crime Spree Update)

Harvey Silverglate’s Three Felonies A Day is so passé. Under the 9th Circuit’s decision in United States v. Nosal, chances are that you’ll have a few dozen before the day is out.

David Nosal was accused of getting employees of an executive search firm to use their computer access to obtain “trade secrets” and pass them along to start a new firm. The employees used their employer provided access, accounts and passwords, to get the information and pass along to Nosal.

The district court refused to dismiss, until the 9th Circuit decided LVRC Holdings LLC v. Brekka, holding that there was no violation of the Computer Fraud and Abuse Act, 18 U.S.C. §1030 for unauthorized use when he was permitted by his employer to access a computer, even though it turned out that he used it in a way that the employer subsequently found contrary to his interests. Since Brekka has the authority to access the account, including the specific data involved, he did not violate §1030’s prohibition against either unauthorized access or exceeding authorized access.

After the Brekka decision, the court dismissed most of the counts of the indictment against Nosal. The 9th Circuit, in a 2-1 split, reversed.

The crux of the court’s decision hinged on two letters: so.

Although the statute does not define the phrase “without authorization,” it does state that “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Id. § 1030(e)(6) (emphasis added).

The government contends that Nosal’s interpretation of “exceeds authorized access” would render superfluous the word “so” in the statutory definition. We agree. “So” in this context means “in a manner or way that is indicated or suggested.” Webster’s Third New Int’l Dictionary 2159 (Philip Babcock Gove, ed. 2002). Thus, an employee exceeds authorized access under § 1030(e)(6) when the employee uses that authorized access “to obtain or alter information in the computer that the accesser is not entitled [in that manner] to obtain or alter.” We decline to render meaningless a word duly enacted by Congress.

On this thread, the court held that the limitations on access created by the employer, that it’s content was confidential, was sufficient to establish a crime by its access by employees otherwise authorized to access it.

Oh boy.

The court interpreted Brekka to hold that it was the employer’s action that determined whether access exceeded authorization.

How is an employee supposed to know when authorization has been revoked if the employer does not inform the employee of the revocation? It was this concern that motivated us to apply the rule of lenity, “ ‘which is rooted in considerations of notice [and] requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government.’ ” Id. at 1135 (quoting United States v. Romm, 455 F.3d 990, 1001 (9th Cir. 2006)). Because LVRC had not notified Brekka of any restrictions on his access to the computer, Brekka had no way to know whether — or when — his access would have become unauthorized. Therefore, as long as an employee has some permission to use the computer for some purpose, that employee accesses the computer with authorization even if the employee acts with a fraudulent intent.

In contrast, the court found that the employees in Nosal knew of the restrictions, that the data was confidential, which the court called “clear and conspicuous,”

For this reason, we conclude that the rule of lenity, which applied with particular force in interpreting the phrase “without authorization,” does not support ignoring the statutory language and the core rationale of Brekka. Nosal’s argument that the government’s “Orwellian” interpretation would improperly criminalize certain actions depending only on the vagaries and whims of the employer is foreclosed by Brekka, which held unequivocally that under § 1030 the employer determines whether an employee is authorized. Id. at 1133, 1135. Therefore, as long as the employee has knowledge of the employer’s limitations on that authorization, the employee “exceeds authorized access” when the employee violates those limitations. It is as simple as that.

Simple? Maybe a little too simple. The potential for restrictions, whether real or imagined, clear or overarchingly vague, puts into employers’ hands the ability to criminalize conduct by their employees and former employees at will. This creates the potential for a cottage industry for lawyers in crafting computer access restriction that could be used to terrorize their employees with potential criminal liability.

And further, considering the breadth of electronic equipment in hand and upon which we’re becoming increasingly dependent, the same reasoning that holds Nosal criminally liable would put all of us similarly at risk in the terms of use of every website on the internet. Imagine some click-through terms to contain a few thousand restrictions on use (you are prohibited from accessing this website while wearing a bathrobe and/or flip flops), which now constitutes a crime.

Didn’t read it? Bummer, as ignorance of the law is no excuse. But it’s not like some governmental entity passed a law making it a crime? Bummer, because every employer, website owner, cellphone provider, car manufacturer, anyone providing anything that works on or with a computer chip, is now empowered to create crimes at will.

They need not be reasonable. They need not be fair. It’s their authorization you need, and by which you’re limited, and if they say jump and you don’t, you’ve exceeded your authorization.

Of course, chances aren’t good that roving bands of prosecutors will be surveilling your every move on the internet or in your employer’s database. instead, prosecutions will come only when you’ve pissed someone off enough that they either bring your nefarious computer use to the government’s attention or the person you pissed off happens to have sufficient influence for an indictment to be brought.

Get it? Aside from the few people living as hermits, there is no one who does not violate some restriction on use of a computer regularly, meaning that the government, should it so choose, has the ability to prosecute every person (hermits aside) online. Heck, you’d be lucky to make it to your coffee break with only three felonies.

Royal Wedding Crime Spree Update: This is a test. How many crimes can one commit via this page from today’s lovely Royal Wedding between Prince William and She Who Must Be Obeyed?

H/T Eric Johnson at PrawfBlawg (Copyright 2011 Eric Johnson at Prawfsblawg)