I’ve got to assume that there is nothing good to be said of Steven Hayes.  If there was, Thomas Ullmann wouldn’t have had the clerk read from Joshua Komisarjevsky’s prison writings.  Desperate measures are used when there’s nothing else to say.  And let’s face it, this is the best case, and the worst case, to test the question of capital punishment, though that question really isn’t in Ullmann’s hands.  He can do his best Darrow impression, and yet the decision will be left to jurors to decide whether they, on behalf of the state, will give Hayes better than he gave.

Each day, there is a television image of the one survivor, Dr. William Petit.  The crimes committed against him pale compared to what happened to his wife, Jennifer Hawke-Petit and their daughters, Hayley Petit, 17 years old, and Michaela Petit, 11.  He survived the night.

Petit has become the focus of intense media attention, and he’s used that to huge advantage.  Complaints are heard that he’s doing everything in his power, plus some, to skew the outcome, manipulate the media and control the discussion. 

If this had happened to your family, would you do less?  If this had happened to your family, might you hope that the killers were given the ultimate punishment? 

We can believe, as most criminal defense lawyers do, that capital punishment is wrong and shouldn’t be imposed on anyone.  That belief is generic, disconnected from the facts of any individual case and based on our broader view of the system of justice, the validity of convictions, the merit of execution as a punishment and our view of humanity.  Fair enough.  I am against capital punishment.

But I cannot, and I will not, find fault with William Petit.

William Petit has suffered.  If he’s half a man, he suffers more for what happened to his family than himself.  If he’s a quarter of a man, he suffers unbearably for what happened to his daughters.  I would take a bullet for my children without a moment’s hesitation, and I project my sensibilities on  Petit.  He is entitled to use, say, do anything, absolutely anything, to do now what he was unable to do then, to save his family.

This isn’t to suggest that Steven Hayes or Joshua Komisarjevsky should be sentenced to execution.  Maybe there’s something good to be said about them.  Maybe not.  Either way, they will be sentenced to death, it being only a matter of how quickly.  Neither one will be walking out of prison alive.

That’s where I stand.  I hope that’s where the jury stands when all is said and done, making the decision that they, and we, are better than to impose capital punishment, whether or not Hayes and Komisarjevsky deserve their mercy.  But William Petit does not have to see it the same way, and he can do anything he wants to do to prejudice the jury, the public, his deity, against these two human being.

Unless and until you can know what it’s like to be William Petit, you cannot criticize him for doing anything.  Don’t call him a publicity hound or a media whore.  Don’t question his motives or challenge his methods.  Scrutinize everything about this case and the issues surrounding capital punishment all day long, but William Petit gets a pass.

No matter how unseemly you may find William Petit’s conduct, leave him alone. Anyone who has endured what happened to his wife and daughters can do anything he damn well pleases when it comes to the killers. Leave William Petit alone.

With the vote on California’s Prop 19 inching ever closer, the enforcement plot thickens.  Not surprisingly, Attorney General Eric Holder plans to step up enforcement of federal law against potheads to fill the gap.  After all, with an arch-liberal in the White House, what better way to maintain order than use the federal courts to handle the dime bag dealers.  Federal judges will be thrilled. 

But then, marijuana remains a Schedule 1 substance and a federal crime.  If they don’t like it, the time to argue was when Congress decided to play jurisdictional games with drug laws, assuming the federal courts would be the backstop rather than the catcher.  The idea of having Magistrates doing nightcourt to handle the volume of pot smokers streaming into federal court is, frankly, kinda funny.  They’re going to need bigger arraignment courtrooms.

But as Radley Balko notes, Los Angeles County Sheriff Lee Baca says that he’s going to continue to bust pot smokers too.  The thrust of Radley’s complaint is that Sheriff Baca, should he pursue this course, would be violating the law of California, as determined by its citizens through popular vote, in direct violation of his duty to uphold the law.

It’ll be fascinating to see how this plays out in the courts. Would a California state judge hold Baca liable for deliberately and knowingly breaking California state law? Would Holder’s Justice Department defend him? Let’s say a sheriff like Baca arrests a Californian for an act that’s a violation of federal law, but legal under state law. Seems possible that with the right DA, someone like Baca could be convicted in state court for civil rights violations (or whatever it’s called under California law), while the arrestee could still be convicted for violating federal law. Then, maybe Baca protects himself by always bringing a federal agent along to perform the actual arrest.

The mechanics needed to authorize Baca’s deputies have long been in use.  The feds need only cross-designate the locals, as has long been the case with joint task forces, to enforce federal law.  The defendant will be brought to the federal courthouse rather than the state one, but the law enforcement officers will not be violating California law.  There is no Cali law prohibiting them from arresting for marijuana under valid federal law.

As for the implications of a local official refusing to heed the will of the people, that’s another story.  To the extent malum prohibitum crimes find their moral justification in the social compact, the decision to adhere to the wrongs decided by society even if they aren’t inherent evils, Sheriff Baca has a problem.  Bear in mind that the use of intoxicants, even drugs, wasn’t always a crime.  Indeed, most were over-the-counter cure-alls in their better days, and at minimum good for Victorian parties.  It wasn’t until much later that we decided to put them in the evil category.

Whether Prop 19 passes has yet to be seen, but the whole proposition concept of California is at stake when the guy with a gun decides that he’ll enforce laws in whatever fashion he likes, and ignore the public will as he chooses.  If Sheriff Baca is allowed to do so, then why not everyone else in government?  And if everyone else in government can do so, certainly the people, from whom all authority derives, can do so as well.  There’s no conceptual end to the problem once we decide that laws don’t count.

Regardless of how this plays out, however, Sheriff Baca’s announced position that he will continue to use his authority, not to mention weapons, in the fashion he thinks best already undermines the authority vested in him.  There are plenty of crimes that harm no one, and only give rise to punishment because a bunch of people in suits say so.  Ripping away the claim that there’s meaning to law simply because it is law, as Baca does here, exposes his authority as a sham.  Take something relatively innocuous, like overly tinted windows, and explain to a person he should suffer a penalty when the Sheriff can announce that the law doesn’t matter to him? 

Despite Baca’s bravado, it seems unlikely that federal judges will welcome his arrestees into their house.  They already hate how federal criminal law has turned them into local town justices, deluged with big numbers of defendants alleged to have committed inconsequential crimes.  This isn’t what they signed up for.  They do not want to deal with parking tickets.  Or pot smokers.  Sheriff Baca may have big plans for saving Californians from themselves, but he may find that the rest of he system isn’t as impressed with his efforts as he is.

In the meantime, let’s see how comfortable state judges in Los Angeles County feel as they give morality talks to defendants about the majesty of the law, knowing that Sheriff Baca is the poster boy for laws meaning nothing.

Via Doug Berman, the Los Angeles Times has a story about the Second Chance Women’s Re-entry Court,

Although women make up only a small fraction of prison inmates, their numbers have been climbing for decades at a far steeper rate than men’s.  Women are also more likely to be convicted of nonviolent drug or property crimes motivated by addictions or necessity….

Based on what he sees in the report and what the women have to say, Tynan doles out sanctions or incentives such as a month back in jail, an order to write a 1,000-word essay or permission to go on an out-of-town trip….

“A lot of them have been really, really beleaguered and beaten up, primarily by the men in their lives,” Tynan says.  His court, he adds, “is just a sliver of what’s needed.”…

A sliver indeed.  Does this mean that men are evil and women, well, not so evil?  Does this mean that men deserve the real criminal court and women get a second chance?  Is the “weaker sex” back in fashion?

Speciality courts are in vogue as a means of sidestepping the harsh tough on crime attitude by creating a more sympathetic path for those arrested under the “smart on crime” banner.  The only downside, which doesn’t seem problematic to either judges or the public, is that the defendants in specialty courts either waive all rights and lie down spread eagle before the court, or go elsewhere.  There’s no tolerance for innocence, or constitutional violations, or any of the host of issues that otherwise arise in real courts.  These are places where the guilty go to get a break.  All they have to give up is their rights.

But this time the differential isn’t the nature of what drives a defendant to commit crime, or the nature of the crime committed, but their gender.  Girl court.  Girls are soft and cuddly.  Girls can’t withstand the pressure of bad boys.  Girls are different. Girls deserve a second chance.

Men are evil animals.  Blame men. Punish men. Men are bad.

Not what they’re trying to say?  Sure, but that’s precisely what they’re saying.  When there’s a special court for women, it by definition precludes men.  Some women deserve a break, having been manipulated and pressured into committing crimes, or having done so to feed their children.  So do some men.  But there’s no court for that.

What this perversely reflects is the inability of the criminal justice system to lose the rhetoric of blame and give every case the degree of individualized thought it deserves.  There’s no reason why a woman before a criminal court shouldn’t be given the depth of scrutiny necessary to determine whether she’s an evil, malevolent person, but rather a victim of circumstance who is undeserving the typical harshness our system metes out.  There’s no reason every person who comes before a court shouldn’t receive that.

Is it more true of women than men that they are less evil, less deserving of punishment, more worthy of a second chance?  Perhaps, but it’s not a numbers game.  Every defendant serves his or her own sentence.  Every child with a parent in prison suffers, regardless of whether it’s his mother or father. 

By establishing courts that cater to a “specialty”, the system relinquishes some degree of its obligation to be fair to all.  If a defendant suffers from drug addiction, should he be denied treatment because he refused the chance to go to drug court?  What if the defendant has a defense as well as an addiction?  What if the evidence was unconstitutionally seized and he has a drug addiction?  Why does the system only offer useful sentences when the defendant gives something away?

Gender based courts, however, take this problem in an entirely new direction, given that the junk in the trunk isn’t a matter of bad choices or unfortunate circumstances, but nature.  It seems a facial equal protection problem, on top of a poor policy choice.  So the man manipulated into committing a crime by a woman is screwed?  Are we prepared to categorically state that only women are manipulated by men, and never the other way around?

Most importantly, however, is the idea that a court only for women somehow fulfills the responsibility of the criminal justice system to be “smarter” or more fair.  Every defendant deserves fairness.  And the public should expect every court to be smart.  Give women a second chance when appropriate.  Do the same for men as well.

Inexplicably, whenever the newest, shiniest hi-tech toy is announced, nobody seems to mention one itty, bitty detail in its programming.  That is complies with the 1994 Communications Assistance to Law Enforcement Act.  You remember, the law that requires communications providers to make sure that whatever they come out with can be easily intercepted by the government.  For your own protection, of course.

It appears that our communications giants, unfortunately, have not always been wonderful citizens of the nation.  With the competition for newiest, cooliest, shiniest toys, they big boys haven’t paid as much attention to the FBI as they have to Steve Jobs.  Want to bet that Jobs has a red telephone on his desk on his belt clip direct to Washington? 

From the New York Times :

The officials say tougher legislation is needed because some telecommunications companies in recent years have begun new services and made system upgrades that create technical obstacles to surveillance. They want to increase legal incentives and penalties aimed at pushing carriers like Verizon, AT&T, and Comcast to ensure that any network changes will not disrupt their ability to conduct wiretaps.

It’s almost as if they’re a part of a vast criminal conspiracy designed to prevent the government from saving us from the bad guys.  They must be punished.

Albert Gidari Jr., a lawyer who represents telecommunications firms, said corporations were likely to object to increased government intervention in the design or launch of services. Such a change, he said, could have major repercussions for industry innovation, costs and competitiveness.

“The government’s answer is ‘don’t deploy the new services — wait until the government catches up,’ ” Mr. Gidari said. “But that’s not how it works. Too many services develop too quickly, and there are just too many players in this now.”

What we have here are cross purposes.  Communications companies need to come out with something new every four months to keep us from falling asleep, while the government needs them to slow it down while they figure out how to collect every garbled word that crosses the digital divide. 

The users of these shiny new toys, of course, neither consider nor care about the government’s concern.  The chances of our being blown up by terrorists aren’t nearly as great as being viewed as Luddites by our comrades.  What?  Is that last month’s 3G phone you’re using?  Hah, you dinosaur.

The push to expand the 1994 law is the latest example of a dilemma over how to balance Internet freedom with security needs in an era of rapidly evolving — and globalized — technology. The issue has added importance because the surveillance technologies developed by the United States to hunt for terrorists and drug traffickers can be also used by repressive regimes to hunt for political dissidents.

There is nothing involved in this problem that demonstrates a concern for internet freedom.  The point of this law is that advancement of technology not outpace the ability of the government to hear our every word at will.  The concept of privacy has long been abandoned, both by the government’s doing as well as our own.  The need to intercept our emails is relative to the government’s taking a quick look at our Facebook page, where we spell out in ugly detail all the nasty things we’re doing so that we can share with our friends.

Twitter, of course, is an open book to begin with.  It’s brought voyeurism to a new depth, listening in on conversations between people you don’t know discussing whatever insipid thing they feel is crucial to be shared.  No need to worry about intercepts here; we’ve given it up on a platter.

But to the extent that there remains any impediments to the government’s immediate access, it’s unacceptable.

Under current law, if a carrier meets the industry-set standard for compliance — providing the content of a call or e-mail, along with identifying information like its recipient, time and location — it achieves “safe harbor” and cannot be fined. If the company fails to meet the standard, it can be fined by a judge or the Federal Communication Commission.

In those rare instances where we haven’t offered up our deepest thoughts to the government willingly, there’s a law to make sure that they always have their ear to the door.  As we move forward to the next shiny toy, the next technological marvel, the next game-changer, the primary concern of the United States government is that there remains a special button for them on our touch screen.  You won’t see it, but it’s there.

Years ago, the Supreme Court in Katz v. United States , the Supreme Court held that the predicate for the assertion of Fourth Amendment rights was that we had a “reasonable expectation of privacy.”  If that expectation is tested by the technological prowess to intercept our every online communication, then it is not only unreasonable but absurd. 

Enjoy your Droid.  Enjoy your iPhone.  For you old-timers, enjoy your Blackberry.  And don’t worry about the government intercepting your communications.  They would never intercept our communications.  They are only interested in the bad guys, and we’re certainly not the bad guys.  Nosireebob.  Nothing to fear here.

Marketing philosopher Seth Godin wrote a book called All Marketers Are Liars, The Publisher’s Weekly review of the book sums it up this way:

Advertising’s fundamental theorem-that perception trumps reality-informs this dubious marketing primer. Journalist and marketing guru Godin, . . . contends that, in an age when consumers are motivated by irrational wants instead of objective needs and “there is almost no connection between what is actually there and what we believe,” presenting stolid factual information about a product is a losing strategy. Instead, marketers should tell “great stories” about their products that pander to consumers’ self-regard and worldview. Examples include expensive wine glasses that purport to improve the taste of wine, despite scientific proof to the contrary; Baby Einstein videotapes that are “useless for babies but…satisfy a real desire for their parents”; and organic marketing schemes, which amount to “telling ourselves a complex lie about food, the environment and the safety of our families.” Because consumers prefer fantasy to the truth, the marketer’s duty is to be “authentic” rather than honest, to “live the lie, fully and completely” so that “all the details line up”-that is, to make their falsehoods convincing rather than transparent.

Via Larry Bodine, the American Bar Association announced that it has named Chris Gloede as its first Chief Marketing Officer.  And you thought the ABA was going to be the moral compass that kept lawyers from veering off the edge of the earth into the abyss.

The ABA has been bleeding 2,000 and 4,000 members per year since 2008, when membership stood at 408,000. ABA membership isn’t growing at the same rate as the profession, said former ABA President Carolyn Lamm, a partner in the Washington office of White & Case. The association doesn’t even represent half of all U.S. lawyers anymore, she said.

Was it not cool enough, sexy enough, cutting edgy enough?  Well, no, it wasn’t.  It wasn’t anything like that, despite the ABA Journal’s laughable play at being Rebellious.  But then, nobody ever thought the ABA would, or should, be cool.  For a very long time, lawyers have asked for only a few things of their bar associations, all of which are tied up in their utility to the profession.  They do nothing to keep the profession honest and viable. 

From solos to biglaw, business has been bad, no awful, along with our honor, integrity and prestige.  Law students want their money back, and desperate lawyers will promote their being a bully if it gets them a paying client.  The race to the bottom was destined to happen unless someone, something, stopped the lowest and worst of the profession from doing what came naturally. 

An entire industry, manned largely by people who neither know nor care what it means to be a professional, has grown like a fungus to offer simplistic, bordering on idiotic, advice to lawyers on how to get rich.  And the lawyers, proving conclusively that they are venal and desperate as the public believes them to be, have become sheep in the hands of these marketers, turning a learned profession into the oldest profession.

Granted, the ABA maintained its reputation as bastion of the stodgy, self-satisfied, upper crusty gang.  Smirking at the lowly lawyer whose firm lacked a thousand secretaries, the mandarins of The Bar patted themselves on the back for having the last place on earth where spats were fashionable.  And they can’t imagine why members were leaving in droves.

The reason lawyers are leaving is the same reason lawyers haven’t joined for years, even decades.  The American Bar Association isn’t relevant.  The American Bar Association does not matter to the practice of law.   Nobody wears spats anymore.

It’s not that we couldn’t use a bar association to guide and help the legal profession to move forward.  In fact, lawyers are in desperate need of help, from the pursuit of excellence to the maintenance of honor and integrity.  Perhaps we’ve never needed it more.  But as this announcement shows, the ABA won’t be the entity to do so.

Instead, the ABA has hired a Chief Marketing Officer.  As lawyers leap off the curb, diving headlong into the gutter, the ABA wants to be right there when we go “splat.” 

The Culture of Lawyers and the legal system face systemic challenges in the digital age the likes of which we’ve never seen.  Business is down.  Respect is nearly non-existent.  Platitudes and doubletalk substitute for professionalism, and excellence is a forgotten commodity in the age of blogs and websites directed toward the grand lie, that we are all the most wonderful lawyers ever because Google says so.

The choice was leadership or salesmanship.  The ABA has made its choice. 

Anybody want to buy a Legal Rebel skateboard? It dices. It slices. Is that it for our future?

There’s a diminutive young woman whose fashion sense is bad, but her conduct worse.  Despite her funny-sounding nickname, she apparently isn’t always a barrel of laughs, resulting in her arrest in Seaside Heights, New Jersey.  But don’t fret for poor Snooki, as 22 year old Nicole Polizzi is called.  She’s cut a deal.

The pint-sized “Jersey Shore” star, sentenced to community service after pleading guilty to disturbing beachgoers this summer, has figured out how to finish fulfilling her punishment.

According to E! Online, she’ll sign autographs this weekend at the Seaside Heights Community Center and donate the proceeds.

“If people want an autograph, they will make a $10 contribution to Donations of Love,” Polizzi’s lawyer, Raymond Raya, told the site. “Nicole will also be making an additional contribution to the organization.”

Don’t jump to the obvious conclusion that Snooki, by dint of her celebrity, is getting off easy.

“It can be quite painful to sign autographs for three hours,” Raya told E!.

Tell me about it.

The Daily News article isn’t quite fair, however, in that Snooki was also required to spend the day cleaning the Seaside Heights police station and the animal cages at the Popcorn Park Zoo.  Whether this is a better gig than picking of roadside trash is a matter for some debate, but it still falls within the parameters of a typical sentence, appropriate to the legitimate purposes of a conditional discharge of Snooki’s drunken boardwalk conduct. 

The problem is that the hype was all about the autographs.  It’s bad enough that reality television has found gold in the gutter, and offers enticing stars like Snooki, whose talents range from drinking alcohol to fighting with others.  Shows like this are favored by those who spend their entire allowance to go see movies like Jackass 3D.  Imagine the wonderful lessons learned about both the legal system and the consequences of behavior.

Ironically, the community service performed by poor Snooki might well have served to teach a relatively decent lesson, that even trashy reality TV stars are expected to behave themselves appropriately and play well with others, upon pain of performing such mundane and banal tasks as cleaning up animal poop and working at the Zoo.  Instead, the media went for the sensational and misleading, turning what might have been a useful story into farce.

Regular people don’t get to sign autographs in satisfaction of their community service.  No, you aren’t Snooki, and three hours of autograph signing isn’t in the cards for you.  But then, it wasn’t in the cards for Snooki either.  At least not without some real community service for two days.  But why talk about that and ruin a really screwy story.

Rarely does one come away from a symposium with anything of use.  In the best of cases, you learn a theoretical construct that judges would laugh at if only you had the chance to make your case.  It seems that no one at symposia realize that you’ve got ten seconds to make your pitch before the judge blows you off, and the pitch being promoted at symposia usually takes north of an hour, the tolerance of a saint and the ability to stifle a laugh.

But how could I ignore this symposium, Exonerating the Innocent: Pre-Trial Innocence Procedures. With a catchy title like that, combined with the possibility of learning something of critical importance, it’s one that you can’t let slip.  Here’s the pitch:

This symposium will examine an entirely novel approach to substantially reducing the system failures that lead to wrongful convictions: the use of pre-trial innocence procedures and bureaus meant to limit the number of convictions of innocent people, especially the indigent, by allowing defendants to establish their innocence prior to or at trial. Leading scholars and practitioners will examine whether or how such procedures could spare innocent defendants from long prison terms in a system where establishing a person’s innocence following conviction is extremely difficult.

Not only am I guilty of having failed to use “pre-trial innocence procedures,” I don’t have a clue what they’re talking about.  Other than the generic use of pre-trial procedures, which I’ve always understood to apply to all defendants, who are by definition innocent since no jury has yet found them guilty, and which I use regularly and with some proficiency, there was clearly a gap in my knowledge of what is available. 

I check the law and came up empty.  I used by Google-fu and found nothing.  How is it possible that there are “pre-trial innocence procedures” about which I knew nothing and could find nothing.  This is huge.  This is a game-changer.  I was ashamed of myself for being wholly unaware of this, since I want to spare innocent defendants from long prison terms too.

Of course, this was something that was known by “leading scholars and practitioners,” but not me.  I was so jealous that I needed to see who knew what I didn’t.  The program consisted of three panels.  The first was entitled, “Theoretical and Empirical Considerations of Pre-Trial Procedures.” and Paul Cassell, my favorite ex-federal judge turned victims rights advocate, was on there.  But no practitioners, which makes a lot of sense since practitioners and anything called “theoretical” tend to result in small explosions.

The next panel is called, “Approaches and Alternatives to Pre-Trial Procedures,” and is moderated by Peter Neufeld of Innocence Project fame.  Now this sounded cool and interesting, since there’s certainly no magic in the statutory pre-trial procedures that gives rise to exoneration.  Except the panel consists entirely of academics, not a single practitioner in the bunch. 

The final panel is “Political and Practice Considerations: Statutes and Demonstration Projects,” which enjoys a bit of alliteration if not any obvious connection.  Moderated by a West Point colonel from the Military Academy’s Center for the Rule of Law, there are finally two practitioners to be found: Steven Banks, who is the Attorney-in-Charge (as in head administrator) of The Legal Aid Society and Mike Ware, Chief of the Special Fields Bureau of the Dallas County District Attorney’s Office, which include the conviction integrity division.

The scent emitted by the participants of this symposium smells like push for defense lawyers to spill their “innocence” case to the prosecution at the earliest possible opportunity and lay down, prostrate, before the awesome yet inherently trustworthy power of the government.  You see, there really isn’t any such thing as “innocence procedures,” aside from begging for the mercy and understanding of those who hold the power over the prosecution.

No doubt that the rare instance of DNA proof of exoneration may, when all the stars align, work out, except when it doesn’t.  The same can be said of secret videotapes.  Is it possible that the magic secret to exoneration is give it up to the prosecution and pray that they don’t use it to figure out some way to circumvent the proof so that they can whup the defendant’s butt at trial?

Maybe it will include a handout about why eyewitness identifications aren’t always accurate, or how false confessions happen, and contend that if we only teach prosecutors, they will embrace their failings.  After all, prosecutors only want to do justice.  Ask any scholar and they’ll tell you.

Neither scholars nor those politically inclined toward believing that only the provably innocent deserve to walk seem to consider this “approach” to be problematic.  In this theoretical construct, they concede what practitioners already know, that the burden is on the defendant to prove his innocence.  The old theory, innocent until proven guilty, has given way to the new theory propounded by scholars who are deeply concerned about “wrongful convictions,” meaning that defendants whose claim of innocence passes their muster not be convicted.  The rest of them?  Screw ’em.

The keynote speaker is New York Court of Appeals Judge Theodore Jones. who also co-chairs New York’s Justice Task Force. 

The task force will determine the causes of wrongful convictions and develop systemic remedies to make the state’s criminal justice system more effective. Importantly, the task force is permanent – and it will develop improvements in court procedures and rules, legislation, and training for attorneys, judges and police.

The task force was announced last May.  I can’t wait to find out how many innocent defendants have been saved thus far.

This symposium is scheduled to last from 8:15 a.m. to 5:30 p.m.  That’s a long time to hand out the telephone numbers for prosecutors and a demonstration of how to beg on bended knee.  At least you get 5 CLE credits for attending, though it appears they don’t serve lunch.

Examining a novel approach to reducing the incidence of wrongful convictions

We’ll see.  I want desperately to be wrong, completely, totally wrong, about what this symposium has to offer.  I want to learn how to save the innocent defendant, about a “novel approach to reducing” wrongful convictions.  I want to be better, more effective, at what I do.  Teach this old dog some new tricks and make me eat my words. 

Frisks are for kids.  A couple of cops in Minneapolis saw no point in awaiting the legal niceties, or perhaps enjoy their job a bit too much.  They decided to snap on the latex gloves and go for it.  What they didn’t know was that they were actually starring in a porno flick, as they were caught on video.  From the Star Tribune :

Recardo Meeks has the video.

It shows two Minneapolis officers doing a strip and body cavity search on a city street and is now a key piece of evidence in Meeks’ complaint and lawsuit against the city.

Police said he was stopped for speeding and swerving, and officers smelled burning marijuana in his car.

The video shows Meeks leaving his car and getting patted down and then handcuffed. It appears an officer looked inside Meeks’ car. A short time later, an officer pushed Meeks’ head down toward the trunk of the squad car and both officers pulled down Meeks’ pants and underpants. After searching the garments, an officer grabbed latex gloves from the squad’s trunk and removed tissue and a small amount of marijuana from Meeks’ buttocks.

So what if the law only allows a pat down when the cops have a reasonable suspicion that a person is armed.  So what if a strip search is unlawful.  And don’t even ask about search a “body cavity,” which is the polite way to describe anal rape.  If they did nothing, this bad dude would be free to walk, and that would make them look less than in control.  As rape victim advocates remind us, it’s all about control.

Under ordinary circumstances, this would never have happened.  By that I mean, Recardo Meeks would say it happened, but the cops would deny it and everybody would say that Meeks, a criminal, was lying, and the cops, Anderson and O’Connor, are heroes, with medals and commendations to prove it.  Why, as prosecutors love to argue, would the cops lie?

Unfortunately, video doesn’t lie either.

Meeks filed a complaint with the Civilian Review Authority, which referred it to the police department for discipline.  It appears that these two police officers will have a sternly worded letter reminding them of the department’s policy to not stick their fingers up people’s butts in their permanent file (but only for three years, when the statute of limitations for anal rape expires), alongside their medal of valor.

Meeks has sued for the violation of his buttocks.  This goes too far for Minneapolis.  The City denies their cops did anything unconstitutional.  The City offers a three-prong defense:

A new blog appeared and captured the attention of Mike at Crime & Federalism.  Jeff Gamso is on board.  It’s called Lawyers on Strike with the subtitle, “because the system is broken.”  It says it’s “an experiment – an effort not just to inform, comment or discuss but to act.”

The concept is set forth in its opening manifesto:

This one will attack the problem at its root:  judges.  Judges favor the government in criminal cases.  They favor insurance companies and banks – and the government again – in civil cases.  Put simply, they favor the more powerful litigants and their attorneys over the weaker litigants and their attorneys.  More simply yet, they are the ultimate apologists for the establishment and the status quo, precisely because their whole publicly perceived raison d’etre is the opposite.

So, what to do?  Personally, I’ve had enough complaining, especially when it comes from lawyers. We are players in the system; if it’s broken, it’s at least partly our fault.

I propose to field reports (anonymity protected) from criminal defense lawyers and other disfavored litigants’ attorneys from anywhere in the United States concerning outrageous judicial conduct – not the kind that makes it into the mainstream press, like personal or sexual misconduct, but the routine, everyday dishonest, biased decision making that hurts those attorneys and their clients, resulting in wrongful convictions or other forms of justice denied.

Then, based upon criteria that I may or may not divulge in the future, I will decide if any of those reports justify a boycott of the judge involved by other criminal defense and/or independent attorneys.

I’m not impressed.  Who is this person who will decide for others whether reports justify a boycott of a judge?  He calls himself “Atticus”. 

There is no pseudonym more painfully trite in criminal defense, as “Atticus” is the name commonly adopted by the self-righteous as the keeper of Justice. But the character, Atticus Finch, didn’t hide in the shadows.  He put his body between the enraged mob and his client, prepared to suffer for his beliefs.  Not this “Atticus,” who has set himself up as the arbiter of unworthy judges.  He proposes that others rely on his anonymous judgment, based on criteria that he “may or may not divulge,” to boycott judges.  Others should put themselves on the line, while he hides.

Mike likes the clarion call to action.

A few more blog posts ranting about the latest judicial opinion that gets the law wrong? Most people won’t even criticize a judge by name.

What would happen if people took radical action?

What would happen if people stopped paying their loans, as a giant Fuck You to Wall Street?

What would happen if lawyers refused to appear before prosecutors in robes?

If only one of us rebel, then we will lose everything.

If we all rebel, we will [win] everything.

Granted, our blog posts haven’t quite rocked the world, but those of us who have called out bad judges, called out bad decisions, shine as much light as we can muster on the problem.  Some do so from hiding, but some, like Mike, like me, use our own names.  To the extent a judge will be angered by what we say, we bear the consequences of our statement.  We don’t throw rocks from behind walls where no one can see us.

Gamso isn’t as ready as Mike to sign on.

And now there’s Lawyers on Strike.  A new blog, a new voice.  Urging more.

It’s a little difficult to see how it could work.  I don’t like Judge X so when my case is assigned to him I’ll refuse to litigate it?   I don’t know.

But I appreciate the chutzpah.  And the balls.  And maybe the blogger has an idea of how to do it.

I suspect Jeff is being more than a little kind by suggesting there is any chance it could work, I fail to see any chutzpah, any ball, involved in this endeavor.  None at all.  In fact, I see just the opposite, machismo wrapped in cowardice.  The internet is the greatest place ever invented to be tough as nails without bearing any risk at all.  Write something all he-man from behind a pseudonym, and people will think you brave and bold.  I call bullshit.

As for the idea itself, I’m unimpressed.  I suspect that the stories of judicial wrongs will primarily be the same ones that all bloggers get in their comments, and which I treat as spam.  Individuals complaining about how the system failed them, the judges hated them, they were denied their doooo-process.  Every losing defendant thinks the system is broken and corrupt.  Most are wrong.

Then there’s the concerted activity that Mike sees as the difference between the ineffectiveness of our individual voices and the revolution that could change everything.  Criminal defense lawyers are worse than feral cats, never agreeing about much of anything.  Some focus on being the most effective advocates possible for their clients.  Some cry and moan about the injustice in the world, eschewing competence and effectiveness in fits of self-indulgent emotionalism.  Most fall somewhere in between. 

They all see things differently, and rarely are they inclined to give up their beliefs to be part of the gang. Concerted activity has been tried, and failed, over and over again, even when the call for action came from a known and respected source.  It surely won’t happen because somebody who calls himself Atticus and hides in the shadows makes the call.

But even if it did, consider the efficacy of the concept.  Let’s assume that Atticus can somehow sway all lawyers to follow his lead, accept his choice of bad judge, and stand together.  If we, by concerted action, boycott a judge, the only person to suffer will be the defendant standing alone.  Our boycott won’t mean that cases magically disappear, or that judges are pulled off the bench because criminal defense lawyers won’t appear before them.  It means that we sacrifice defendants on the altar of our cause.

Do you think it’s worth it?  Terrific!  Then you serve the sentence on behalf of the human being you’re too happy to sacrifice.   What?  You don’t love it that much?  That’s what I thought.

Even if we could, by concerted action, have the impact of driving cases away from those we consider bad judges, the implications of doing so would be systemically disastrous.  If we can influence the bench this way, so too can the prosecution.  What would happen if the prosecution refuses to appear before judges who are, in their opinion, too favorable to the defense?  And get real about it, as the prosecution is invariably better capable of concerted action than the defense, as they hold the purse strings over their line.

I can well appreciate both Mike’s and Jeff’s desire to be more effective in creating positive change, and their openness to new ideas.  But shooting off half-cocked isn’t the solution, any more than encourage others with silly, ineffective ideas to announce that they’ve come up with the solution to all our problems.  It’s not easy to have a really good original idea.  Very few come along.  That’s not a reason to embrace the silly ones.

Will there ever be a revolution, an idea that changes everything?  I don’t know.  I tend to doubt it, but then that reflects only the limitations of my own ideas.  Maybe someone will come with something so ingenious, so effective, so viable, that it will bring about the change that Mike, Jeff and I want.  But I guarantee one thing: It won’t come from some anonymous “truth teller” cowering in the shadows while asking the rest of us to trust him and put our ass on the line.  Rebels don’t hide in the shadows.

Recently, the issue of non-unanimous verdicts was under discussion, with the question asked but not answered as to why Oregon and the military have chosen to accept a less than unanimous verdict as sufficient to convict in a criminal case.  In Apodaca v. Oregon (1972), the Supreme Court held otherwise for federal courts.

The point is quasi-clear that the seriousness of finding a person guilty of a crime demands unanimity (except when it doesn’t).  From its origins in the 17th Century, a jury was twelve men good and true, the word “good” meaning men of rank or valor.  Though this has evolved over time, it remains fundamental that we assume jurors to be honorable and diligent in the fulfillment of their duty.  Yet a simple majority remains insufficient to convict.

As I raise caselaw in the context of consideration of issues lately, it struck (again) me that so many decisions of our Supreme Court are 5 to 4, decided by the vote of one Kennedy person.  Granted, a jury finds facts while the Supremes hold law, but a jury decides the guilt of an individual while the Supreme decide the law of the land.  The former is important.  The latter is pervasive.  How many individuals get a vacation courtesy of the government because of the turn of one head on the Supremes?

Given that the Nine, comprising an entire branch of a tripartite government, hold such awesome power (and hold it for life), and that membership in this exclusive club presumes a certain amount of intelligence, knowledge and judgment, it struck me that the often seismic swings in the law resulting from the collective decision of the Nine, by a majority of a single vote, reduce The Law to an absurd abstraction.

When a decision is rendered by a majority of one, it means that four of these theoretically brilliant people have decided against the holding.  If they are sufficiently suited to the task, why then does their refusal to be persuaded to support this change in law count for nothing?

We require unanimity (except when we don’t) for a finding that one man is guilty, but are satisfied with a majority of one to hold one thousand men guilty of a crime by redefining the crime, or the use of evidence to prove the crime, or the method by which conviction is obtained, without a second thought.  There was a time, notably when Warren Earl Burger was Chief Justice, that the Supreme Court justices recognized that the changes to the law they were imposing on society demanded unanimity on the Court.  The changes, favoring civil rights, would have given rise to doubts of the validity and legitimacy of the Court’s decision if the Nine weren’t all behind it.  A majority of one would have undermined the decision, and perhaps ended the public’s willingness to accept the decisions of the Court as the law by which society would endure.

Not any more.  We’ve grown used to 5-4 decisions.  We’ve become inured to the split and are no longer particularly troubled by these wild swings based upon nothing more than one Kennedy’s person’s vote.  We accept them, parse them, cite them, apply them as if the Court spoke with a single voice. 

What we fail to do is recognize that four justices, those special brilliant few, have decided that the decision is wrong.  Wrong, wrong, wrong.  A foundational shift in the law is happening, and four of the guardians for life have declared that it should not happen. Crazy, no?

It’s not that there is some different split that offers a principled justification for reversal of an existing precedent, but one has to wonder whether 6 to 3, 7 to 2, maybe even a unanimous decision, would be a more reasoned basis to accept a fundamental change in the law of a nation.  It just doesn’t seem good enough that the stability of the law hinges on a single justice, no matter how brilliant or well-intended the vote may be.  The fact that four justice, co-equal to the four on the other side, are of the view that the holding should not be the law strikes me as a very good reason not to reverse precedent.  It’s not enough to fundamentally alter the rules of a nation because of a single swing vote.

And yet it is.  Even though they couldn’t convict a person of anything.