The Federal Bureau of Investigation has issued an internal memorandum to guide agents in the interrogation of “terrorists” in advance of providing Miranda warnings, institutionalizing the position of the Obama Administration and reminding all liberal-minded folks of how fortunate they are not to have a reactionary conservative regime in power that doesn’t respect civil liberties.

The  New York Times got hold of the memo and published it.  It includes these interesting parts:

3. There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

The determination whether particular unwarned questions are justified on public safety grounds must always be made on a case-by-case basis based on all the facts and circumstances. In light of the magnitude and complexity of the threat often posed by terrorist organizations, particularly international terrorist organizations, and the nature of their attacks, the circumstances surrounding an arrest of an operational terrorist may warrant significantly more extensive public safety interrogation without Miranda warnings than would be permissible in an ordinary criminal case.

The public safety exception of  New York v. Quarles predated the war on terrorism, though it was rarely invoked.  It now been elevated, like the terrorist threat level, to a place of prominence.

The obvious and dubious guidance is that agents may choose to questioning despite the absence of any continuing threat where “the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.”  The disadvantage is that the questioning may not provide admissible evidence at trial.  The memo offers no basis for agents, or the Special Agent in Charge (SAC) to decide to pursue unMirandized questioning after the Quarles exception has terminated.

What makes this notable is the policy favoring agents ignoring Miranda to obtain information rather than to adhere to Miranda warnings.  Despite Quarles having been decided in 1984, it has always been the outlier position and issuance of Miranda warnings have always been the norm. 

But now that the policy has shifted against Miranda, where will it stop?  At Volokh Conspiracy, former federal judge and Utah lawprof Paul Cassell spells out the obvious next question:

The larger interesting question is why should the new policy be limited to suspected terrorists.  Presumably FBI agents question many other suspects who pose a threat to the American people.  It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved.

Bear in mind, this comes from the hand of a former federal judge, presuming that “suspects” pose a threat to “the American people” and thus open the door to invocation of the public safety exception in, well, pretty much any circumstance.  This isn’t the first time Cassell has advocated for the use of the public safety exception to trump constitutional protections.  Indeed, he’s argued that we shouldn’t rely on something as transitory as a Supreme Court decision, but  should codify the exception (and make it the rule rather than the exception) so it’s available to everyone at anytime.

Cassell’s notion that situations involving terrorism are “relatively exotic” strikes me as somewhat quaint.  Tack the word terrorism onto any common criminal phrase and, poof, like magic the rules disappear.  Terrorist threats?  Aren’t the all?  Terrorist jay-walking?  Why not?

This seems as good a time to recall Nino Scalia’s dissent in Maryland v. Craig :

The State’s interest here is in fact no more and no less than what the State’s interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.

The F.B.I. memo, aside from coming out of an administration whose audacity at damaging the civil liberties traditionally protected by Democrats Republicans criminal defense lawyers, doesn’t change the rule of Quarles, or the “disadvantage” for ignoring the obligation to provide Miranda warnings.  What it does is give permission to ignore the rule and (theoretically) suffer the consequences of inadmissibility.  In other words, the government need not comply with the rule of Miranda simply because the Supreme Court says it’s the rule.

That it took a lawprof all of 30 seconds to push for the extension of the exception, the leap onto the slippery slope, doesn’t come as a surprise given Paul Cassell’s leaning toward anything that expedites the public safety at the expense of constitutional rights.  But what of the young minds he’s molding in law school? 

As  Walter Olson notes in Schools of Misrule, though in relation to the dreaded liberal causes, the heads of future leaders are being filled with political crap masquerading as law in order to satisfy the personal agendas of lawprofs.  Every student of Paul Cassell’s at the S.J. Quinney College of Law, University of Utah, raise your hand.

While the fear of terrorism that’s been cultivated over the past decade has given rise to broad support of a different set of rules, or no rules at all, in the interest of public safety, the opposite fear that it’s just baby steps away from dissipation of the rules for everyone is hardly overwrought.  Just ask Paul Cassell.  After all, criminals do pose a threat to public safety, but let’s not try to chalk the dissipation of constitutional rights up as a humanitarian one.

District Attorney Carol Chambers, whose office handles the prosecutions in Arapahoe, Douglas, Elbert and Lincoln counties, Colorado, has a point. 

Having vividly expressed my thoughts, from the attorneys’ perspective, on lawyers bidding for work, there remains a surprisingly large hole in the discussion about why it’s no good for potential clients as well. 

This glaring omission became clear after reading an article in the Wall Street Journal, where I was asked why this wasn’t good for clients if bad for lawyers.  I explained, but it never made it to paper.  I would have expected lawyers to innately appreciate the problems, while non-lawyers only become aware of issues after a problems hits them between the eyes.

The plus side is the potential (not necessarily the reality, even assuming everything is on the up and up) of finding an affordable attorney.  It’s just as likely that an honest lawyer is going to quote a legitimate price for his services, no different than he would under any other circumstances.  The only difference is that he comes unrecommended, and the client is buying a pig in a poke at market value.

The other pluses?  None.

The negatives, however, are more lengthy.

1.  Gut spilling:  A client posts about his litigation online.  This is available to be seen by any lawyer, including opposing counsel.  This reveals information, may constitute a statement against penal or pecuniary interest, may even be an admission.  Clients are funny this way.  As they are uncounseled when the write up their request, they say all sorts of stuff that should never be put in writing, constitute damaging admissions (since they have no idea what constitutes a damaging admission) and bare their souls for all the legal world to see. 

Maybe it’s just poorly expressed, because clients aren’t schooled in the art of legal spin, or maybe its client hyperbole since most clients are absolutely certain that their reasoning is overwhelmingly persuasive and there can be no reasonable disagreement with their righteousness, but it’s now in writing on the internet.  Will a discount lawyer be able to save a client from himself?

2. Mistake:  Clients frequently present their needs as a slam dunk, sure thing, when it’s not. They relate the situation in a way that argues their position rather than state’s the problem, causing the honest attorney to be mislead and the dishonest attorney to see opportunity.  In fairness, any competent lawyer realizes that a client can’t, and shouldn’t, be expected to understand and anticipate the myriad problems and issues that could arise or require counsel, but then the nature of the scheme is that the lawyer bids on the client’s request.  There’s no point in bidding on what the client doesn’t yet realize he needs.

After they’ve gotten into the case, there’s the “aha” moment when the reality becomes clear, and the attorney explains that the deal he bid on isn’t the deal he’s being asked to litigate.  The client unwittingly changed the rules of the game, and the lawyer can no longer be held to his bid. Cha-ching.

3.  Change of Plans:  Clients rarely have a firm grasp on what they’re getting into before seeking to commence litigation, and usually think it’s all going to go away, or be completed, quickly and painlessly, because they’re right and God is on their side. Once they realize that the attorney can’t complete the representation in, oh, 3-4 hours, or the other side didn’t collapse into a puddle as soon as they lawyered up,  they find themselves in the middle of contentious, years-long litigation, without the will or wherewithal to complete it.  So they are now stuck in the middle of a nasty battle, all money gone and no ability to pay either the lawyer or the requisite experts (that’s right, sometimes you need witnesses and evidence, and that costs money too) to win or lose.  Yes, sometimes you lose, even after paying money to a lawyer.  Bummer.

4.  Commodities:  Some work, such as simple wills or incorporations, are generally considered commodities, basically fill in the blank work that can be done by pretty much anybody at a fixed price.  While this is true under some circumstances, which circumstances they are remains to be determined.  Finding out that a client needed more than a simple will, or has ex-wife problems, kid problems, after death is a little too late.  There is no legal work that can be truly handled as a commodity, though poor attorneys may disagree. 

There are always issues, questions, personalization, that must be asked and understood before an attorney commits to do the work a client requests.  Clients won’t realize it, which is why there are lawyers, but if the lawyers are doing only as the client directs (and the work for which they bid), then a large part of what lawyers are there to provide is lost.  Of course, this won’t present a problem until something goes wrong, at which point it can be a diaster.

5.  Fungibility: Lawyers are not fungible, meaning that any lawyer is not the same as any other.  Clients won’t know if the lawyer is any good, has any experience, has the necessary competence.  They can ask, and the lawyer can assure them that he’s the real McCoy.  How would the client know?  Most lawyers don’t think they’re incompetent, so let’s assume they aren’t lying.  Just mistaken.  How is a client to distinguish on the internet between a lawyer who can competently handle a matter from one who can’t?  Beats me.

Bidding is being touted as a wonderful way for new lawyers to generate some income because, well, they need income.  What they lack are clients, experience and skills, but they are told that it’s completely appropriate to describe themselves as experience, skillful and caring because if they don’t, nobody will ever hire them.  It’s not that they want to deceive people per se, but that they want to pay off their student loans. Is this what you’re looking for? 

6.  Jurisdiction:  So the lawyer is absolutely brilliant at cranking out wills in New York.  But you’re in North Dakota.  Same thing? I dunno, and neither do you.  When will you find out if the lawyer made a fatal mistake under the law of your state?  You won’t because you’ll be dead, and it’s too late to do anything about it anyway. Tough break for your heirs. Add into the the unauthorized practice of law problem, as lawyers are licensed by a particular jurisdiction to practice law, but they cannot practice law in other states.  Silly? Perhaps, but that’s the law. Do you want to hire a lawyer who breaks the law, even if it seems silly? 

7. Recourse: So you’ve found the perfect lawyer at the perfect price, but after a bit, things don’t seem nearly as perfect as they did on day one.  What are you going to do about it when your lawyer is in some other state far away from you?  Do you, North Dakotan, who already placed affordability first, want to go to California to go after your lawyer? Do you plan to hire a California lawyer to sue your other California lawyer.  Where are you going to find this new lawyer, on eBay?  How did that work out for you the last time your tried it.

Max Kennerly, who has demonstrated a deep concern for the welfare of the poor and downtrodden (and never hesitates to rip me a new one whenever I fail to show sufficient sensitivity, nonetheless decries this scheme:

Who wants half-baked advice on an investment in a startup company, or, for that matter, a will, or a lease? It’s like asking who wants an operation from the discount surgeon. There’s a market for good legal representation on all of these matters; anyone unwilling to pay those market fees is probably well-advised just doing it themselves. It beats paying half-price for no-value.

If lawyers think Nancy Grace is an embarrassment, what do meteorologists think?



CNN keeps Grace on the tube because so many Americans think she’s just wonderful.  These are our friends, neighbors, family and jurors.  And they watch Nancy Grace.  It’s my deepest hope that she will turn her attentions to the weather going forward and leave the law alone.  After all, there’s not much you can do to change the weather.

H/T Turley

Somebody thought it was a wise idea to give Crazy Joe Arpaio, the Sheriff of Maricopa County, a tank.



How cool must it be to have a tank at one’s command?  And then he’s got Steven Seagal too.



What to do with this embarrassment of riches?  Sheriff Joe pondered this deep question and came up with an answer.

Neighbor Debra Ross was so worried she called 911 and went outside where a nearby home had its windows blown out, was crawling with dozens of SWAT members in full gear, armored vehicles and a bomb robot.

“When the tank came in and pushed the wall over and you see what’s in there, and all it is, is a bunch of chickens,” Ross said.

 In a massive show of force on Monday, the Maricopa County Sheriff’s Office executed a search warrant and arrested the homeowner, Jesus Llovera, on charges of suspected cockfighting.

Deputies had no probable cause to believe Llovera was armed or dangerous, according to Campus.

 Campus said he believes the entire scene was basically a stage, to help actor Steven Seagal’s TV show, “Lawman.”

 Seagal was riding in the tank.

Thousands of dollars in damages were made to the property and 115 birds were euthanized on the spot.

It was ugly and bizarre enough that Senior Judge Jack Camp of the Northern District of Georgia was caught with drugs and a stripper.  Considering his reputation for being harsh, the 30 day sentence for this old white guy who didn’t cotton much to blacks might be seen as a bit of professional courtesy.  Had the tables been turned, chances aren’t good that Judge Camp would have been so considerate to anyone else.

But in the process of trying to save his old judicial butt from the rigors of prison, a couple of details raised took a bizarre situation and made it worse.

In court filings, Camp’s lawyers told [Senior U.S. District Judge Thomas] Hogan that depression and a bipolar disorder as well as brain damage sustained in a 2000 bicycle accident — all exacerbated with improper prescriptions — help explain the ex-judge’s erratic and reckless conduct last year.

It’s unclear how long Camp suffered from depression and bipolar disorder, but he claims to have suffered brain damage in 2000.  For the next decade, he made judicial decisions, including the sentencing of human beings.  Well, this raises some thorny questions.

According to the Atlanta Journal-Constitution, Camp handled 3000 cases, though it’s unclear whether that refers to criminal or cases of all stripes.  Regardless, the question is raised whether the parties in those cases were entitled to the exercise of judicial discretion and decisions that were not the product of insanity.

“Every case he handled from the time he was misdiagnosed, or before, depending on when he was affected by these conditions, should be re-evaluated,” said Marcia Shein, a Decatur appellate lawyer. “The question is: Did these conditions affect his ability to be an objective judge making fair decisions?”

This is not the question, as I see it.  Not the question at all.  The infirmities suffered, by definition, affect his ability to be an objective judge making fair decisions.  But if his decisions were completely off the wall, it would be presumed that they would be reversed, because no appellate court would rubber stamp the ravings of a lunatic, right?  Consider, by the way, how the judges hearing appeals from Judge Camp’s rulings must feel now.

U.S. Attorney Sally Yates told The Atlanta Journal-Constitution that her office will consider requests from defendants concerning Camp’s judgment “to ensure that justice is served.”

Bill Morrison, one of Camp’s lawyers, said the sentencing memos about Camp’s mental health sought to explain his reckless conduct in that the brain damage compromised his impulse control.

But, he said, “Nothing impaired his ability to fairly and impartially act as a judge; I’m fully prepared to defend any judicial decision he made.”

Camp told the stripper that he struggled in deciding criminal cases involving African-American men because she had previously had a relationship with a black man, said Yates, citing interviews.

There is no rational basis to go back and divvy up his decisions into nuts and not-so-nuts.  They will fall within the broad parameters of what a judge is permitted to decide.  Most decisions are binary, granted or denied, sustained or overruled.  Sentences are broader, but remain for the most part within the judge’s individual discretion.  In other words, the product of an insane judge won’t look a whole lot different that a not-as-insane judge.

The real question comes down to whether individuals coming before a federal district court are entitled to a judge who is not mentally and psychologically impaired, not to mention doesn’t hate black men.  No one will ever know how, or to what extent, Camp’s problems affected his decisions.  In any case, a judge makes thousands of decisions.  Some are characterized as decisions, while others are nothing more than tone of voice or a squinty eye, telling a lawyer to let go of an argument because he’s about to get slam-dunked.

Let the record reflect that this insane judge just gave me the squinty eye, and for that reason, and that reason alone, I will stop pursuing what I believe to be a completely valid line of argument that, if I was allowed to pursue, would result in the witness breaking down and crying, admitting his lying ways and conceding that my client is innocent.

Of course, the same can be said of judges who are not insane, but merely bored, annoyed or disinclined to believe that defendants deserve half a chance.  Still, that won’t stop defendants from trying.

Defense attorney Steve Sadow said disclosures that Camp’s judgment may have been impaired could serve as a foundation to court challenges.

“If someone is sitting in prison with a long sentence imposed by Camp, they might as well give it a shot,” he said. “What have they got to lose?”

That’s for sure.  There’s absolutely nothing to lose.  Make your best pitch that Camp’s insanity produced unjust results. Sure, it will be a burden, but that’s why they pay judges the big bucks. But there’s nobody really anticipates such wholesale revisitation of Camp’s cases will produce much.  Impaired judges do just as well as the unimpaired, apparently, which doesn’t say much for the latter.

So Jack Camp’s avowed incompetence to perform any of the functions of a judge will be white-washed, rationalized, and swept away, except in the handful of cases where the government feels like giving someone a break.  Forget any civil cases, where people’s fortunes were lost and lives ruined.  There isn’t a chance that they will have their causes decided by a not-as-insane judge.  After all, somebody has to lose.

There is, however, another question that should be asked, but hasn’t.  How is it possible that all those fine people, brilliant jurists, dedicated marshals, astute staff, didn’t happen to notice during a decade of interaction that their robed colleague, a man with the authority to put human beings in prison, to make or ruin lives, to determine the fate of human being, Judge Jack Camp, was nuts?

It wasn’t long ago that Nicholas Bourff was just a regular sort of lawyer, working for a small firm.  It wasn’t much longer ago that he was just a law student at the University of Dayton.  But now he’s an important public official, which means some dopey kid lawyer, admitted in Indiana in 2007, has the moral authority to call for the elimination of jury trials.

From WKVI :

Starke County Prosecutor, Nicholas Bourff, is in his third month on the job and has already made a suggestion to help speed up C and D Felony proceedings.

“One of the proposals I’ve made is to try, even if it’s with the C and D Felonies, to see if a case is going ahead to trial, and we know it will, to see if we could get a bench trial set, which just involves the Judge, instead of a jury trial,” said Bourff.

So what gives rise to this county prosecutor’s epiphany that jury trials are a terrible waste of money?

“In my experience as a defense attorney, the majority of my clients would not have had a problem with going to a bench trial.”

Assuming this statement to be true, there are couple different reasons that could explain it.  Perhaps his clients figured that once a jury saw that their lawyer had difficulty combing his hair, their cause was already lost.  Or maybe his rush to become a prosecutor suggested that he was not entirely zealous in his defense. To figure this out, it seemed imperative to ascertain the depth of Bourff’s experience preceding his three months as Starke County Prosecutor and giving rise to this shocking assertion that felony criminal defendants don’t really care much about jury trials.

What can we learn about Bourff’s legal experience?

“The one major drawback there is that if a defendant wants a jury trial, he or she has that right. If the defendant agrees to a bench trial, then it would save thousands of dollars and it would shave off quite a bit of time as far as eliminating the need for jury selection.

One might think that the major drawback is that the new prosecutor advocates the evisceration of a constitutional right for the benefit of the taxpayers, not to mention those criminal defense lawyers who really hate wasting all that time picking a jury before their clients get convicted.

No doubt this initiative will play well with the voters and make young Bourff a bunch of new friends, appreciative of his sensitive concern for the welfare of hard working locals who really can’t see much point in having their tax dollars wasted on picking juries just so some criminals can try to avoid conviction.  And this is what he learned in his experience as a criminal defense lawyer.

Kinda makes me pine for the innocence of youth.

Radley Balko is one of my “must-reads” every morning as I skim the blogosphere for interesting stuff.  He sometimes reads SJ when he’s got nothing better to do and there’s no place left on his puppy to scratch.  Even though he’s a libertarian, we share many of the same concerns and he’s got a knack for finding strange and curious conduct by police that usually ends with somebody getting nailed by a SWAT team by mistake.  That’s the sort of news that captures my interest.

And now he’s gone mainstream.  The news was broken by a twit from Michael Moynihan, Reason’s senior editor,

Congrats (and sadness because he’s leaving Reason) to the great @radleybalko

In May, I’ll be leaving Reason to work as a crime reporter for the Huffington Post. As you may know, AOL bought Huffington Post several months ago, and they’re hiring a ton of great people to build out a serious journalism program. I’ll be working with some really talented folks, like (former Agitator guest blogger) Ryan Grim, and Peter Goodman and Tim O’Brien, who came over from the New York Times. I’ll be covering the same beat I do now, only with a much bigger platform, and with the resources to delve into bigger, more in-depth projects.

For some, this means that Balko can finally buy the beers, now that he’s on the payroll of such a big time provider as HuffPo.  For others, the pain of having to go to HuffPo to read Balko is akin to sticking a needle in one’s eye. 

For me, this will be a fascinating experiment in the maturity of the interwebz.  Radley assured me that he has complete editorial freedom in his new position, that the corporate overlords won’t tell him whose ox to gore.  I believe, both because I believe him and I believe it would be utterly foolish to steal him from Reason and then try to turn him into Pollyanna.  I can’t imagine the follicularly challenged Balko would look good in a dress anyway.

But how will his message go over?  At HuffPo, he will be writing for a much larger audience than Reason.  Those who read Reason tend to either love or hate his views, but mostly love.  Aside from Patterico and his Pontifications, most of Radley’s readers support his concerns. There won’t be any choir at HuffPo.

This is a bold move.  No longer will Radley be surrounded mostly by those of similar mind.  Will he end up as troll bait in the pseudo-mainstream (for the internet, at least) news and commentary website? 

My experience with HuffPo writers, noting that these were before the buyout, meaning that they were the ones who wrote for free in the desperate hope of validation, flashing neon “Look at me! Look at Meeeee!!!” sign over their work, left me decidedly unimpressed.  Neither much by way of deep thought, nor high expectations.  They didn’t mind leaving the readers stupider for having been there, or the commentariat nasty.  Angry, ignorant comments were better than none, and at least validated their existence if nothing else.

This isn’t the world that Radley knows.  I would expect him to have higher expectations, to expect his readers to have at least a reasonably open mind and the capacity to think beyond their knee-jerk politics.  He will be faced with the daunting task of writing for a broader audience.  As I responded when he told me, the problem with that is that he’s writing for a broader audience.  Some say the masses are asses.  We’ll find out.

This new gig will give Radley a chance to do far more investigation than before, which (for those of you who don’t realize it) is a gift. Having the time and resources to do some heavy lifting in the investigative arena is a true luxury, one that few bloggers enjoy. 

Some may fear that Balko will sell out, curry favor with HuffPo readers to become more popular, maybe get a gig on Dancing with the Stars or a Fox News Channel talk show.  I refuse to believe this, but just in case, I have a plan to hold him to his promise to stay the course.



It’s always helpful to know a guy’s weak spot.

Congratulations to Radley Balko.  Whether the mainstream internet is ready for him remains to be seen, but the issues and commentary he brings to the great unwashed at HuffPo cannot help but illuminate, even if they read him kicking and screaming. 

When Terry Haddock decided that he would much rather be the snitch against Shannon Williams than use the money he was paid to be his lawyer, one might suspect that a judge considering the propriety of the government’s evidence to be dubious.  After all,

Few things undermine the integrity of the legal system than the idea that one’s lawyer isn’t one’s lawyer, but a government agent.  How can a criminal defendant ever be secure in the knowledge of undivided loyalty if a government agent can be allowed to feign the role of criminal defense lawyer while serving another master? 

This isn’t merely a suppression issue, though suppression would be the appropriate mechanism to challenge the conduct, but rather a facial attack on the constitutional right to counsel.  If this were permissible, then no defendant could be assured that the person across the table, the person he paid, the person upon whom he relies, is really his lawyer.  It’s nuts.

So in a 49-page ruling Monday, a judge took dead aim at one party’s actions in the case — calling them cunning and manipulative.

That party? Williams himself.

You didn’t really think he would use such harsh language against the government, did you?  That would be intemperate.

Senior U.S. District Judge Lyle Strom refused to dismiss the indictments or condemn the U.S. government’s actions in its highly publicized, much-scrutinized investigation that led to the indictments of Williams and 10 others.

In the pivotal ruling in the case, the judge had no criticism of the U.S. government’s use of attorney Terry Haddock to record Williams over eight months last year in the jail. During that time, Haddock recorded Williams 63 times — and supplied him with the cell phone Williams needed to orchestrate his operation.

No criticism.  None.  Just doing their job, keeping us safe from terrorists, father-rapers and criminal defense lawyer manipulators.

“The government’s conduct in utilizing Haddock was not outrageous,” Strom ruled. “Williams (argues) that the attorney-client relationship will be unnecessarily damaged if the indictment against him is not dismissed.

“The court does not share Williams’ pessimism. It is already well established that communications between a client and an attorney are not privileged if the communication is regarding ongoing or future criminal activity.”

It’s true that criminal defense lawyers cannot become complicit in a client’s crime.  It’s true that communications of ongoing or future criminal activity are not confidential.  So Terry Haddock, if he believed that Williams told him, one of his lawyers, about non-privileged criminal conduct, could hike up his skirt and run down to the United States Attorneys office to spill his guts about his now former-client

But Judge Strom seems to have completely missed a major issue in this scenario.  While Haddock had reason to be relieved as counsel, and reason to spill that initial non-privileged communication, he cannot then continue to feign being Williams’ lawyer, continue to record his communications, continue to make Williams believe that he was talking to his lawyer and attempt to induce him to further incriminate himself.

Bizarrely, Judge Strom’s omission of this element of the suppression motion only applied to the government.

In preserving the government’s case, the judge issued a layered ruling that raised no qualms about the government’s use of Haddock but left open questions about whether the attorney would face disciplinary consequences.

Strom said Haddock’s actions “may be worthy of professional sanction.”

“But … the evidence he obtained was not collected in violation of the Constitution,” Strom wrote. “The merits of (an ethics) complaint will be reviewed in due course. The result of that matter, however, should have no effect on determining whether the government acted outrageously.”

If this is to be understood, the government is free to exploit Haddock’s impropriety without getting any of the goo on its face.  Of course, the government was integral to Haddock’s taping Williams and bugging the attorney visiting room.  The government “handled” Haddock as he used his position as attorney, wrapped up in the Sixth Amendment, to fake out Williams.  And yet the government’s hands were spotless.  Not just clean, but absolutely spotless.

Strom also dismissed Williams’ arguments that the government’s use of Haddock would crumble a legal bedrock: attorney-client privilege.

“The court’s decision today merely reaffirms the principle that an attorney’s presence cannot be used as a shield to (cover up) future criminal activity,” Strom wrote. “That was the rule before this case, and the rule remains intact hereafter.”

The problem and solution, according to Judge Strom, is that Williams, being a criminal and all, deserved to have his 6th Amendment right to counsel undermined by this pretense that the guy in the attorney visiting room with whom he spoke on at least 64 occasions.  The initial communication, in which Haddock claims Williams sought to use him in connection to ongoing crimes, wasn’t recorded, but the judge had no issue taking Haddock’s word for it that Williams, during that initial conversation, told Haddock of his plans to eliminate a witness (which never came up again in any of the 63 recorded conversations).  Certainly attorney Haddock would never lie, despite his drug issues, depression, impropriety and ethical lapses.

With a wave of the pen, Judge Strom has raised the specter that no defendant can be secure in the knowledge that the person he’s talking to across the desk in the attorney visiting room is really his lawyer and not a government snitch.  Yet again, the deception doesn’t bother him a bit.

And even if everything about Terry Haddock stinks, it’s not like the government did anything wrong.

It’s one of the dirtiest little secrets of criminal law.  We use the phrase constantly, as if it’s the most important phrase the law has to offer, yet we have  no idea what it means or how to explain it.

Beyond a reasonable doubt.

Over and over, California appellate opinions through the years reiterate that the term “best defines itself'”; that “all attempts at definition are likely to prove confusing and dangerous”; and that “every attempt to explain [the definition of reasonable doubt] renders an explanation of the explanation necessary.” In short, as summed up by the court in People v. Johnson, 119 Cal. App.4th 976, 986 (2004), “[w]e trust that any trial judge who reads that history will heed the two English bards: . . . ‘Let it be.’ (Lennon & McCartney, Northern Songs 1970, ‘Let It Be.’)”