There will be a slew of people arriving shortly, and much remains to be done.  I’ve much to be thankful for in my personal and professional life, but this is an opportunity to express my appreciation to those of you take the time to read Simple Justice. 

There is no shortage of people writing in the blawgosphere, and no one has the time to read everything, even in the small niche of criminal law.  That so many of you have chosen to spend some time here is really quite amazing.  I’m honored that you find Simple Justice worthy of your time.

Whether this will amount to anything, change any minds, illuminate any issues, has never been quite clear, but it does remind me that we’re not alone and that, despite the forces that work to persuade us that we should forsake our clients, our freedoms, our integrity, there remain many who refuse to succumb. 

Thank you.  Have a wonderful Thanksgiving.

From the  Washington Post (via AP), the United States Marshal’s Service is “exploring” the use of full-body scanners at courthouses. 

The U.S. Marshals Service, which is in charge of protecting federal judges nationwide, is exploring their use at federal courthouses. And two state courthouses in Douglas and El Paso counties in Colorado have already deployed full-body scanners that use radio waves to detect all objects on a person, including paper.

A guard in a separate room monitors the gray images with pixelated faces and genital areas, and the images aren’t stored on a computer. officials said.

Obviously, they would never look at my genitalia.  Union rules prohibit viewing anything that causes blindness. Yours, I dunno.  It’s already happening, sort of, in Colorado, but they’re all rocky mountain high, so nobody cares.

While Michael Prout, assistant director for judicial security, says that the Marshals haven’t decided to deploy the body scanners, they’ve already given it a tryout.

Prout declined to discuss the results of a full-body screening test, citing sensitive law enforcement and procurement information.

In a statement, the marshals said they didn’t receive any complaints from people passing through the scanners during the tests. The images of the full-body scans were saved on a computer hard drive, but weren’t accessible without an administrative password and weren’t reviewed by the marshals, according to the agency.

Sensitive indeed.  I can’t explain why there were no complaints, though it might be because the Marshals carry guns and the people going into the courthouse were under indictment?  Or maybe they, like all obedient lawyers, implicitly trust the marshals not to peek.

In any event, I naturally wanted to see whether it was just me, or anyone else, who thought that this might not be the best idea, given how popular it’s made the TSA of late.  I thus strolled over to  Crime and Consequences to see how true Americans reacted.  I’ll be damned.  Kurt and I were on the same page!

There are two important differences between courthouses and airports relevant here.  First, courthouses aren’t nearly as vulnerable as airplanes.  No one is going to kill thousands of people by bringing a box cutter knife into a courthouse.

Second, people can choose not to fly.  You can’t choose not to enter the courthouse.  If you are summoned as a juror or witness, you have to go.  If you are a litigant, you don’t have a practical alternative.  (Defaulting on a $1M complaint is an alternative, but not a practical one.)

That’s right, even our good buddy Kurt isn’t thrilled with the idea of magic x-ray glasses focused on his crotch.  What about underwear bombs smuggled into the courtroom?  Feh.  And what about those forced guests being of the criminal ilk?  Feh. 

Of course, we all want to live a completely risk-free life, with no possibility of any evil person blowing us up.  Or crashing into us.  Or looking at us with a mean face.  Or annoying us in any way shape or form.  But we will never live in such a world because the only it could exist is for us to sacrifice all that makes us a free people, pursuing happiness amongst other things.  There’s no perfect safety.  Not in a plane, a courthouse or our own living rooms. Get used to it and smile.

To the extent one wondered what it took before the anything-for-law-and-order guys were ready to draw a line in the sand, now we know.  Don’t mess with their junk.  Funny how nothing matters until it touches someone.  Does this mean anal probes are out of the question?  Even if the marshal’s promise to warm their hands first?

Nice to have you on board, Kurt.  Now put your seatbelt on for take off.  It’s gonna be a bumpy ride.

From Jamison Koehler , who obviously stays up later than I do on Saturday nights.

After big trials, the media races to interview jurors to get a behind the closed door of the jury room.  These interviews rarely reveal much of use or truth, with jurors more inclined to use the opportunity to explain themselves rather than provide meaningful insight.  Still, we listen, as we want desperately to understand what the heck jurors are really thinking.

Keith Lee at an  Associates Mind sent me a link yesterday to a great post at a blog called Tux Life, where a woman who served as jury foreperson in the trial of a “17-year-old black man — rather, a boy who was 16 when he committed the crime and barely looked 13 even a year later — ” charged with robbery.  It’s not clear who the author is, but her account is unassuming, well-written and fascinating.

As they tell you, you’re not allowed to talk about it with anyone, not even your fellow jurors, during the trial. As they also tell you, once the trial is over you can talk about anything you want. So, here goes.

I am one of those civics nerds who does not look for every excuse not to serve on a jury. I was a political science/journalism double-major and, though I’m far away from those in my professional life at this point, I still have a passion for the processes that bring us together as communities, societies and civilizations. I won’t say I wanted to be put on a jury for a criminal case, but when the opportunity arose I certainly welcomed it.

Before delving into the process, it’s notable that she was neither a reluctant juror nor a rabid one, seeking to vindicate some underlying sense of community vengeance or libertarian rage.  While there may be no truly neutral person alive, she appears to be as close to open minded as one might hope.

The defendant was one of three alleged assailants in a gunpoint robbery,  The only witness was the victim.  She describes her impression of the defendant:

[T]his young man, this boy who was nearly in tears as the jury was being picked, this child who dropped out of school in the ninth grade but through a job grew a fondness for cooking and was now working on his GED so he could gain early entry to a community college studying culinary arts, this poor kid who, if guilty, was likely put up to the crime by stronger boys who seemingly didn’t even give him a cut of the stolen merchandise, was facing a minimum sentence of 10 years in prison. Adult prison. At 17 years old. He couldn’t have weighed more than 140 pounds.

It’s unclear how she came to know about the minimum prison sentence, or that this slight boy would be sent to adult prison.  It’s also fascinating that she assumed that he didn’t get his cut, though clearly she doesn’t know that to be the case. 

The prosecution’s case, which our juror recites with some detail, is built on the purported victim’s eyewitness testimony, with some holes, most notably relating to the defendant’s hair, which the victim claims was in “twists” while the defendant’s witness, his mother, says his hair was never in twists.  The defense is mistaken identification, which is particularly curious given the juror’s apparent acceptance of the fact that the defendant did, in fact, commit the crime, as evidenced by her assumption that he was denied his cut of the proceeds. 

She took her responsibility seriously:

We were admonished to consider all of the facts but nothing outside of them. Don’t consider the sentence, or the age, or the race, or anything unrelated to what we heard while sitting in the juror box. Just focus on the facts that are presented. Yet, we were also told, time and again, that our Constitution is absolutely unwavering in its mission to protect the innocent, that no matter how clear-cut the evidence may seem, the burden of proof in criminal cases always, always, always falls on the prosecution. The boy sitting in that chair next to a pair of public defenders, possibly wearing borrowed clothes to look presentable in court, is innocent until he is proven guilty beyond a reasonable doubt.

Yet there’s no aspect of her description that ignores her sense of empathy, wonderful it you have a sympathetic defendant.

Then comes the deliberations.

So we deliberated on these facts. In the jury room and finally free to talk about the case, I repeated the keys to our responsibility as best and as evenly as I could. We must be sure one way or the other, I said. We must remember that the burden lies with the state, not the defense. We must review all testimony and make a determination of whose story is the truth, or at least closest to the truth. I told them that while I wanted to get out of there as soon as possible just as they did, that we owed it to the defendant, the victim, and ourselves to take it seriously.

It’s always been my experience that jurors take the responsibility seriously, though that doesn’t necessarily mean that they grasp the task, determining whether the prosecution has met its burden.  Even in this description, where she expressly notes that the burden is with the state, she sees the duty as determining “whose story is the truth,” which places a shared burden on both sides.

So we voted. Five guilty, seven not guilty. Those who voted guilty said the phone records and positive ID were damning, that you couldn’t not consider that as enough to prove the defendant was there and, therefore, guilty. Those who voted not guilty, of which I was one, were just not convinced “beyond a reasonable doubt.”

So, after more reviewing and arguing, some of it heated, we voted again. Nine not guilty, three guilty. While we seemed to be getting closer to that ever-elusive unanimous decision, we were actually further from it. Of the three who voted guilty, one seemed to be slightly on the fence if only because he was willing to discuss the case further — and in fact, he later said he would change his vote. The two others were digging in and shutting themselves off. They refused to talk about it and, finally, one told me to go tell the judge we were hung because there was no way she was changing her mind.

As often happens, barely two hours into deliberations, positions were entrenched.  

 I asked her to share her reasons for thinking he’s guilty,.. She refused, said that she didn’t have to share her reasons, that she just knew he was guilty. In retrospect, it was unfair of me to ask her. Not everyone reaches conclusions in the same way and not everyone can articulate why they feel a certain way about something. She had made up her mind. She hadn’t done it unreasonably. She’d just done it.

While ironic, in that it’s usually the “not guilty” side who is placed in the position of providing a reason, this is a fascinating recognition, in that a “reasonable doubt” doesn’t require that a juror be capable of articulating the reason.  While it was hardly unfair to ask, it was entirely within the juror’s right to refuse to respond.

And so the note went to the judge, informing that the jury was hung.  This, sadly, is where the experience goes awry:

It turns out we wouldn’t get a chance to see any changes of heart. Just as I was finishing up the reading of the rules and we were getting ready to call it quits for the day, the judge stepped in to the deliberation room and informed us that a plea bargain had been reached.

The prosecution blinked and offered the defendant a juvenile disposition, which he took.

So there you have it. Unbeknownst to the 12 of us, we were playing out a script to the letter. Our inability to reach an accord…was not a failure per se but actually set in motion a chain of events that allowed all parties to get the something if not good then at least reasonable for all involved from an otherwise terrible situation.

Having heard the evidence and experienced deliberations, our juror saw the process as having worked, despite the fact that it appears, from her own description, that a young man who should have been acquitted ended up taking a plea to avoid the risk.

All I could think as I walked to my car after being excused was this: from chaos comes order…What you truly have is a proverbial sausage factory: it’s incredibly messy, nothing seems to make sense, nothing looks good or reasonable or even real, but at the end of the line there is something like justice. It doesn’t always look right. It doesn’t always feel right. It doesn’t even always taste right. But it’s at least palatable.

For all the empathy, and eventual doubt in the prosecution’s proof, she doesn’t have any qualms about the possibility that a boy will be saddled with a criminal conviction for the rest of his life, a boy who she believed was not proven guilty. 

On the one hand, our jury foreperson has all the qualities one might hope for in a juror, from real empathy to a firm grasp of the seriousness of her responsibility.  And yet, she readily accepted the outcome of a process that may well have convicted an innocent boy, it never having occurred to her that the defendant’s acceptance of the plea, as well as her acceptance of his guilt despite her doubt in the proof, had no inherent relation to truth or guilt, but only sausage making.  That was good enough.  Fascinating.

The name Lance Goddard came up in conversation about a week ago, when  Dan Hull told me that he thought Lance was a smart guy, well-traveled, and wasting his time with trivial pursuits, like 22 Tweets, his twitter “interview” of lawyers desperately seeking attention. 

I hadn’t given any thought to 22 Tweets since Lance used it to do Blawg Review, Before that, I was disgusted by the odor of desperation and deceit that permeated prior interviews, it being a platform for lawyers to engage in complete self-aggrandizement, feigning self-importance tinged with unadulterated fabrication.  Who can ever forget this line, by a criminal defense lawyer who is a perpetual Avvo paid advertiser (because we all know that all the really good cases come via Avvo):

Tell us about your law practice.

I take the cases other lawyers throw their hands up at. We want the cases no one else can handle. The“Bet the Farm”work.

Translation:  I desperately need work. I’ll take anything. If you’ve got a twenty in your pocket, I’m your lawyer. 

Did Lance think there was any credibility in this claim, that there are cases that criminal defense lawyers “throw their hands up at”?  It kinda sounded good, but, upon the slightest reflection, it’s one of the goofiest elevator pitches ever heard.  It makes no sense at all.  22 Tweets was the back of the milk carton for lost lawyers.

This changed yesterday.  Why I stumbled on it isn’t clear, but there was  Mirriam Seddiq being interviewed on 22 Tweets.  She blew me away, being the same unassuming, foul-mouthed, funny Mirriam that she always is.  Finally, someone who was standing on the top of the garbage can with the chance to make up lies about herself, and she took a pass.  She was just Mirriam.

Wow. That’s powerful. Why do your clients hire you?

not bc of my website! Maybe bc I’m honest? I’m trying to figure that out so I can add it to my website. : )

How do you want to be remembered?

as someone who doesn’t suck, who did good work and who gave a shit. That’s not a lot to ask, right?

As Lance later noted, that was likely the first time anyone ever cursed during an interview.  Lord knows cursing in the midst of self-promotion is unacceptable.  You have to stand upright, speak in somber and serious tones and say the things that will impress the dickens out of potential clients. If nothing else, you have to sound official.

Mirriam had the chance to play shameless, hungry lawyer.  At the very least, she could have been Official Woman.  Instead, she was Mirriam, the same criminal defense lawyer as she’s been on her blog, in her emails, on twitter and, from what I’m told, in person.  How can you not be incredibly impressed with someone whose goal is to be remembered as someone who “doesn’t suck” and “gave a shit”?  

Maybe there’s some broken bone in my head that makes me want to send a case to Mirriam when I would never refer a client to some self-promoting scoundrel.  After all, the scoundrels are busy telling us how wonderful, miraculous, “bet the farm-y” they are.  Mirriam is just solid and honest.  What could I be thinking?

Whether or not Hull is right about Lance Goddard being as sharp as he says, I can’t say.  As for 22 Tweets, however, it’s an interesting test.  It gives the scoundrel lawyer the chance to out himself.  And it gives the honest lawyer, like Mirriam Seddiq, the chance to be herself.  She’s a piece of work, Mirriam, and I, for one, think she used 22 Tweets to prove she’s the real thing.

It’s not likely a record of any sort, but it’s also not the most common thing to have three airport pickups in three days.  Yesterday, my son and I flew in from beautiful Milwaukee. Today, my daughter flies in from college.  Tomorrow, my parents fly in from God’s Waiting Room.

I called my mother yesterday, to check in and make sure all was well. She asked me a question she’s never asked me before: How was the airport?  I told her it was adequate; in need of new carpet and a more thoughtful color scheme, but otherwise fine.  “No, I mean with the TSA.”

When news that the United States led the world in incarceration of its own was released, she didn’t ask me how the prisons were.  Videos are popping up everywhere showing ordinary people in humiliating, offensive situations.  There hasn’t been a news broadcast in days that hasn’t included a piece about the TSA.  When the elderly start worrying about it, the issue has become organic. 

People care because people fear it touches their lives.  That’s the only time people care.

My lost post of yesterday was supposed to be about law and order advocate Kurt Scheidegger’s  Crime & Consequences post, conceding that this is all theatrics (and hence a sham, by definition) that could be easily ended if we only gave in to the need to profile.  Is this really a wedge being driven between the public and the Constitution to compel us to loosen what little grip remains?  It worked with the USA Patriot Act, and could work again.

The LA Times, apologist for Hope, tell us to  suck it up as the price for peace of mind.  They stand behind our President,  who understands our “frustration” but does what he must.  Obama’s advisors are frustrated as well.

Firm pat-downs and new X-ray machines are part of President Obama’s effort to redouble airline security after last Christmas’s attempted bombing aboard an airplane landing in Detroit. That incident exposed Obama to scathing criticism from Republicans who said he did not grasp the terrorist threat facing the nation.

Now, the administration is under attack from the opposite direction, as some travelers complain that the latest measures go too far. That – and polls showing broad public support for the X-ray machines – has left some White House advisers feeling “frustrated,” as one put it, by media coverage focused heavily on the treatment of passengers, rather than the dangers the measures are designed to prevent.

I apologize for the post below being cut off.  The balance of the post (and it was a great one, if I may say so) of about 1000 words was lost because of a failure of my blogging program.  GoDaddy has been “improving” it lately, with many glitches and changes that have made the program less functional and more problematic.

I’m told they’re “working on it.”  My post is lost.  My apologies.  I’m sure GoDaddy will send me an apology for the “inconvenience.”  It’s always an inconvenience.

Update:  I received my obligatory email appreciating my frustration and apologizing for the inconvenience.  They apparently had server problems.  The server ate my post.  It sucks when that happens.

As always, there’s the other side.  In this instance, Kurt Scheidegger, with whom I find myself in general disagreement, offers the government the support that only true believers can provide. From Crime & Consequences :

On the subject of excessively intrusive airport screenings, I agree with Charles Krauthammer. We need to get rid of security theater, get over our problem with “profiling,” and direct more scrutiny to those likely to be security risks and less to those who are not.

Curious.  So even Kurt agrees that

Sitting in the Harley Davidson Museum listening to The Who’s Tommy, I listened to Wicked Uncle Ernie sing of “fiddling about.”  My son said that was sick.  Indeed it was.  And is.  Back then, we knew it.

When the Underpants bomber gave it his best shot, it was obvious that we were only a few steps away from body cavity searches.  While we play out the pretense of nudie images and Uncle TSA Agent Ernie touching, we know that security theater has yet to reach its fullest potential.  It’s a given that someone will put a stick of something up his butt, not because they believe it will take down a plane but because of the havoc it will cause on traveling Americans.

There’s no shortage of discussion around, so I won’t add unnecessarily to the clutter.  One interesting perspective was offered by marketing guru Seth Godin.

The heart of the matter comes from the fact that the TSA often doesn’t understand that it is in show business, not security business. A rational look at the threats facing travelers would indicate that intense scrutiny of a four ounce jar of mouthwash or aggressive frisking of a child is a misplaced use of resources. If the goal is to find dangerous items in cargo or track down Stinger missiles, this isn’t going to help.

He offers them an alternative.

Smart marketers know how to pivot. I think it’s time to do that. Start marketing the idea that flying is safe, like driving, but it’s not perfect, like driving. If someone is crazy enough to hurt themselves or spend their life in jail, we’re not going to stop them, and even if we did, they’d just cause havoc somewhere else. So instead of spending billions of dollars a year in time and money pretending, let’s just get back to work.

The current model doesn’t scale.

Given the options of cavity searches or relative risk, the latter always seemed the better choice.  Until then, we’re left to enjoy the show.

I never liked Chuck Berry’s  My Ding-A-Ling song. It reflected childish titillation at the time, because it was so risque.  I like it even less now, and it’s still childish.  Bad music.  Bad policy.  If they’re going to put on a show, they really ought to consider The Who.

On this side of the fence, we’re not overly enamored of plea bargains because of the sense that innocent defendants, or at least defendants not as guilty as charged, are coerced into pleading guilty rather than fighting as a “business decision.”  In other words, the offer is too sweet to risk rolling the dice on a monstrously long prison sentence.

There’s another view as well.  Via Berman, the  Hartford Courant writes about a letter from Michelle Cruz, a crime victim advocate.

Although some sentences arise from plea deals for valid reasons, Cruz wrote, “the plea bargain process has been exploited.”  Defendant often agree to plead guilty to a lesser charges in order to avoid a trial.  There are times when plea bargains are legitimate, Cruz said — such as if the state lacks evidence or wants to avoid having a child testify against someone who has sexually abused him or her.  But there are too many “administrative” plea bargains, she said.

“After three years of being in Connecticut looking at cases, what I see is a pattern of defendants who are allowed to plea to a more lenient charge that often doesn’t resemble the conduct,” said Cruz, who was a prosecutor in Massachusetts.  The lesser, substituted charge “doesn’t reflect the seriousness of the offense,” she said.

Before coming to Connecticut, Cruz was a prosecutor in Massachusetts.  And now she’s complaining about the sweet deals given defendants and the lack of trials, forcing defendants to pay the full tab for their crimes. 

Lest you get the misimpression that trials in Connecticut are going on all the time, or that those wielding authority in the criminal justice system wouldn’t fall for superficial, silly arguments, bolstered by a handful of anecdotes of recidivism that would naturally happen regardless of anything else, Cruz is being taken seriously.

State Rep. Michael Lawlor, chairman of the legislature’s judiciary committee, said he agrees that there are not enough trials and that it is a problem.  He said that he has spoken with Chief State’s Attorney Kevin Kane about the lack of trials — which he said is mostly a problem in lower courts where less serious cases are handled — and that Kane agrees there has to be more of an effort to bring cases to trial.

Lawlor, a criminal justice professor who also is a former state’s attorney, said prosecutors who don’t often take cases to trial get “rusty” and become more and more reluctant to try cases.  Good defense attorneys can sense this and will push for a better deal for their clients in exchange for a guilty plea, he said.  “I do think the end result is plea bargains are more lenient than you want them to be,” Lawlor said.

Is that what good defense attorneys do, push weeny prosecutors for lenient deals when their spidey sense kicks in?  Who knew? 

Too often, we hear only from our own “team,” voices that agree with our perspective on how the system works and runs and succeeds, or more often fails, to accomplish what we believe it should.  This tends to seriously skew our grasp of how the criminal justice system is perceived by those who are not intimately involved or personally concerned.  We do not reflect the prevailing view.  They are the majority.

More importantly, we come to realize that those with a finger in the functioning of the system are far less savvy about it then we might believe or hope.  They may know exactly who to put the touch on for a decent campaign donation, but they think a 95% conviction rate on pleas is a sign of a unduly lenient system.  They’re just giving it all away to the criminals.  That’s why we need to get tougher on crime, you know.

One might suppose that the media coverage of exonerations of men on death row, the joys of DNA revealing the terror of false identifications, might turn a few heads and make people wonder about whether the system is over-arresting, over-prosecuting, over-convicting and over-sentencing.  Apparently not in Connecticut, and it’s pretty doubtful elsewhere as well.  The conviction of an innocent remains an anomaly from the public’s perspective, while everyone not otherwise exonerated is guilty as sin. 

When we forget that there are other perspectives, or dismiss them as laughably simplistic and pandering to the fear and ignorance of others, we beg for the next smackdown.  It doesn’t matter how obvious all of this is to us, and how we, brilliant clear-thinkers that we are, know that the system is unduly harsh and grossly unfair. 

Hear all those townspeople marching our way with torches and pitchforks?  They’re not coming to join us, but coming for us.