Her story was atrocious.

Shawanna Nelson, a prisoner at the McPherson Unit in Newport, Arkansas, had been in labor for more than 12 hours when she arrived at the Newport Hospital on Sept. 20, 2003. Nelson, whose legs were shackled together and who had been given nothing stronger than an over-the-counter painkiller all day, begged, according to court papers, to have the shackles removed.

Nelson (now Lumsey) was a sentenced prisoner, and despite laws forbidding the shackling of prisoners giving birth in some states, Arkansas wasn’t one of them.  But lest she abscond from custody in the middle of birth to avoid her sentence for writing bad checks, the shackles remained on, impeding her delivery and receipt of proper medical care. 

Lumsey, as well as her doctor and two nurses, requested that the shackles be removed.  Her guard said “nope”.  The guard ultimately removed the shackles at the very end of delivery, at the doctor’s insistence, but Lumsey decided to challenge her treatment, found a lawyer willing to take up her cause and sued. 

Lumsey won.  Woo hoo!

Via Legal Blog Watch :
If you successfully represent a female prison inmate who was forced to give birth while shackled, in her civil rights claim against the state, you might expect to have your fees awarded as part of the judgment.

Apparently, you’d be disappointed. Shawanna Nelson Lumsey won her lawsuit against the Arkansas Department of Corrections, but was awarded only nominal damages of $1. And because the Prison Litigation Reform Act caps fee awards at 150 percent of damages, her attorneys were entitled to only $1.50, rather than the $140,000 they had requested. Sucktown.

No, I have no clue what “sucktown” means either, but I suspect it has much to do with the disappointment felt by the lawyer who fought and won at trial at the fee. 

With the constant barrage of instances of people’s rights being violated appearing in blogs, this one included, we similarly hear expressions of outrage and demands that someone should pay.  That rights are violated isn’t in issue.  That it’s outrageous isn’t in issue.  The problem is the “someone should pay” part.  You see, a right without a remedy is meaningless.  If there is no consequence for the violation of rights, then there’s no right.

What shocks people is that lawyers, those men and women who have dedicated their lives to the law, protection of the downtrodden and defense of the Constitution, too often lack much interest in taking up their cause when they suffer the denigration of their rights.  In some instances, it’s because their rights weren’t really violated, even though they think otherwise.  But in many, it’s because there’s no money to be had for the lawyers.  Whether for lack of compensable damages (that’s right, you don’t get a billion dollars just because they made you really, really angry) or lack of entitlement to legal fees, the bottom line is that nobody wants to be your freebie hero.

Is this adding insult to injury?  Probably, but it’s certainly understandable.  For inexplicable reasons, people view lawyers (and doctors, for that matter) as flying above the fray of such mundane concerns as earning a living.  We’re all understood to be wealthier than anyone has a right to be, and thus can afford to do a good deed whenever someone comes knocking.  We talk about rights and outrages all the time, so is it too much to expect us to put our money where our mouth is?

The answer is clearly yes.  As much as lawyers might love this fantasy to be real, where they can spend their days doing good for others and not have to concern themselves with such banal matters as dirty lucre, the sad fact of life is that lawyers have to pay for Pampers just like everyone else.  Landlords don’t give lawyers fancy offices because they like them, and restaurants give lawyers a check at the end of the meal just like you. 

But what about you?  What about the vindication of your rights?  Who will stand up for you when your rights have been violated?  Yeah, that’s a problem.  You see, there are a lot of you out there with rights being violated, or at least rights you think are being violated.  They call all the time, telling lawyers about their problems.  They want to meet, to discuss, to express their anger, frustration and outrage.  We understand, but we’ve heard it before. 

Hard as it may be to imagine, you aren’t the first.  You just weren’t paying attention when it happened to all those people before you, because it didn’t affect your life.  You went to work like usual, did your job and picked up your paycheck at the end of the week, and life was good.  Well, maybe not good, but as good as it gets.  All the while, someone else was having their rights violated, but you were too busy with your own life to notice.  We knew because we got the call.

Now, however, you are the person aggrieved.  Now, it’s important because it happened to you and made your life a nightmare.  Now, it matters.  So why aren’t we prepared to put everything else aside and take up arms for you?  It’s not that we don’t care.  We do.  We really do.  But we also know that there will be another rent bill on the first of the month, and the check will still show up at the end of dinner.  And you can’t pay us, which is completely understandable, and nobody else is going to pay us to be your hero. 

Thus, the choice is that we spend the years it takes (and it always takes years, even those “slam dunk” cases), cover the costs involved (and the costs have at least three zeroes, if not more, each time a check is written) and serve as your protector at our own expense.  Our children need new shoes, but that costs money.  We can’t take your telephone calls if our phones are shut off, and the darn phone company wants money.  In fact, all the things we do cost money.  You want us to make you our charity, to dedicate our practices to you, to bear the weight of what someone else did to you.  You want our families to do without so we can take care of you.  You want us to be your one friend in need, even though we never met you until the day you called to tell us about the outrage perpetrated on you. 

You aren’t to blame for this.  It’s not your fault that somebody in the government employ violated your rights.  You didn’t deserve it.  But it’s not our fault either.  Just as it’s not wrong that you’re angry and frustrated by your treatment, it’s not wrong that lawyers have to earn a living to survive as well.  There’s no pot of gold awaiting us at the end of the rainbow, as people somehow think, and your outrage will translate into our wealth.  At the end of the case, we sometimes get a hearty thank you and a handshake.  More often, the win is attributed to divine intervention and we are informed that it had nothing to do with us.  Nice.

Lest you think lawyers are cruel, heartless creatures, consider this: When was the last time you stopped at the table of a lawyer in a restaurant and offered to buy them a nice bottle of Chianti to go with their liver and fava beans as a sign of your appreciation of their contribution to the welfare of society without compensation?

As for those lawyers inclined to put out soulful cries that legal services should be freely available to all, call me when they decide to dedicate themselves to the cause and forego feeding their children.  Only then will I consider their otherwise disingenuous notions.

Consider the fine lawyers who represented Shawanna Nelson Lumsey.  They did a heck of a job.  They won.  The ruling will benefit other women who will be able to give birth without being shackled to a hospital bed.  They are heroes.  Too bad their winnings won’t be enough to go to Starbucks and celebrate with a vente mocha frappuccino.  Not even if they share it, and keep it a secret from their hungry kids.

Almost every lawyer I know does pro bono publico, but even so it’s woefully inadequate to care for all the outrages that call for redress.  The problem isn’t lawyers not caring, but the $1.50 they get in the end.  If they win.

Remember the thrill, the amazement of The Sting?  Well, Fox’s new drama, Lone Star, premiering next Monday, is no Sting. 

But first, the burning question of what I’m doing writing a review of a TV show, and especially a show that has yet to air.  For reasons unclear to me, I’ve was asked by something called Klout if I wanted to do this, and I figured, why not?  The worst that could come of it was that I had to watch a TV show, and I’m tough enough for that.

So I was offered the choice to go to a premier or have the premier come to me.  I picked that latter, for which I received a DVD preview of the TV show, a bucket of popcorn and a bag full of Lone Star stuff.  Cool, right?  The popcorn was stale, but it was a gift horse.  Klout requires that I add in its ethical disclaimer:

Given a Klout Perk

I was given a free product or sample because I’m a Klout influencer. I was under no obligation to receive the sample or talk about this company. I get no additional benefits for talking about the product or company.

Obviously, no one at Klout has read my reviews before, or they would have known that a freebe isn’t buying anybody a good one here.  That said, getting a box with free popcorn and premiums was great, and I plan to watch as many TV shows as Klout plans to send me.  I might also be persuaded to drive some high end cars, if you Klout guys catch my drift.

Getting back to the show, the premise is con man with a conscience, because prostitute with a conscience hasn’t been done to death.  The star of the show, James Wolk, is, I was informed, “adorable”, meaning that if you’re inclined to watch a show because there’s an adorable guy in the lead, maybe this is for you.  I tend not to be as big a fan of adorable as some others, and so I found myself constrained by plot.  Here’s how Fox describes it:

ROBERT/BOB ALLEN (James Wolk) is a charismatic and brilliant schemer who has meticulously constructed two lives in two different parts of the state. He’s juggling two identities and two women in two very different worlds – all under one mountain of lies.

As “Bob,” he lives in Houston and is married to CAT (Adrianne Palicki), the beautiful daughter of CLINT THATCHER (Jon Voight), the patriarch of an ultra-wealthy Texas oil family. More than 400 miles away in the suburban west Texas town of Midland, he’s “Robert,” living a second life with his sweet, naive girlfriend, LINDSAY HOLLOWAY (Eloise Mumford). There he plays the perfect boyfriend while secretly bilking local investors of their savings. While in Houston, he’s a devoted husband, charming Cat and her family to cement his position in the rich family business he aims to clean out.

Bob has lived both lives successfully for years without arousing any suspicions..so far. While one brother-in-law, DREW THATCHER (Bryce Johnson), admires Bob, while his other brother-in-law, TRAMMELL THATCHER (Mark Deklin), is growing suspicious of his motives, and along with his wife, BLAKE (guest star Rosa Blasi), threatens to expose Bob. In this world of cons, everyone has ulterior motives. ALEX (guest star Andie MacDowell), a sharp, sexy, sophisticated East Coast transplant has her eye on only one prize: Clint. Eager to stake her claim, she will do and say anything to get what she wants.

With the cons closing in on him, Bob begins to fear his secret lives may unravel as he becomes divided by his love for two women; his loyalty to his father and mentor, JOHN (David Keith); and his respect for his father-in-law, Clint. Now as he tries to hold his two lives together, while fending off angry investors and the growing suspicions of those around him, Bob puts it all on the line hoping he can beat the odds, leave the schemes behind and keep two separate relationships afloat.

That’s how they want the show to come off.  Putting aside the silliness of any con man spending years (years?) successfully moving between two fictitious lives, especially without any particular con involved, the set up fails when the hero realizes that he loves his fake wife and his fake girlfriend, not to mention their families, friends, neighbors, postmen, dogs, whatever.  He has a heart of gold, which is good since he so adorable.

The funniest part of the story is when helicopter con man daddy tells his son that he’s the greatest con man ever, making this the perfect metaphor for the Slackoisie, as the adorable kid does nothing but smile and have sex with his beloved wimmenfolk, no actual con in sight, and still the old man tells him how wonderful he is.  It made me wish they put Cheetos in the Klout goody bag (and by the way, Klout people, the beer nuts and Godiva chocolate were missing). It was a touching scene, especially when we could see the puppy dog look on Wolk’s face showing how badly he needed approval.  Except, of course, for the total absence of a point to the con.

But then, what’s the point of the show?  As it becomes clear, it’s about his concealing lies while trying to turn legit with everybody.  At one point, he’s confronted by his brother in law with a lie he had used while switching from wife to girlfriend.  Uh oh!  Caught! Nabbed!  Found out!  But wait, despite the weirdly naive, dopey look in his eye, he pulls another lie out of his butt and not only squeezes out of the trap, but does to in a way that makes him even more wonderful and adorable to all involved.  As for the confidence game, well, there is none. 

It’s a one trick pony.  He winds his way between his two lives, getting caught in lies and wiggling out again, all the while being, well, adorable.  Sure, we can never be sure if he’s being sincere or lying through his teeth, except when he’s talking to his real father, the unrepetent con man without a heart of gold or a conscience, who snarls at his son’s desire to have a real life with his real wife.   And his real girlfriend. 

If you enjoy obvious tension, and as much female nudity as Fox is allowed to show, together with gratuitous displays of superficial emotion that happen with sufficient frequency to allow any man to grab a beer or go to the loo, then perhaps Lone Star is your cup of tea.  As for me, I plan to enjoy my stale popcorn while wearing my Lone Star tee-shirt while watching Dr. House, and then changing channels after hearing those famous last words (wait for it): “That’s one bad hat, Harry.”

Thanks for the nosh, Klout, even though there were no beer nuts or chocolate in there.  If you send me a car next time, please make sure you don’t forget the tires.

The Bronx is a tough place.  How tough, however, has now been answered in the First Department’s decision in People v. Leggett, where the carjacking conviction of David Leggett was unanimously reversed after Acting Supreme Court Justice Robert Neary pushed the envelope too far in denigrating defense counsel, David N. Levine.

Neary had made several “unfortunate comments,” the panel said. For example, during Levine’s cross-examination of the alleged victim of the attempted carjacking, Neary made and sustained his own objection saying that the line of questioning had been irrelevant the first time it had been raised and “to repeat it a second time is silly.”

At one point, when Levine sought to argue after the prosecutor had raised an objection, Neary told Levine, “You’re turning this into a comedy and it’s not.”

“More egregiously,” the panel wrote, Neary, in denying one of Levine’s objections to the prosecutor’s summation, said, “Would you behave like a professional, please and not a clown.”

Ouch.  It’s not that the court thought Levine was doing such a great job of it, but that Justice Neary’s “injudicious remarks, in the presence of the jury, were unjustified.” 

Should an attorney’s conduct warrant admonishment, the panel noted, the proper course is to take up the matter with the lawyer outside the presence of the jury. Also, once an injudicious remark has been made, a trial judge “should issue curative instructions.”

What’s surprising, yet not, is that Justice Neary is hardly new to the system.  In fact, he’s been around the block more than a few times.

Neary had been a prosecutor in the Westchester district attorney’s office for 28 years before joining the bench as a Westchester County Court judge in 2003. Three years later New York Gov. George E. Pataki appointed him to the Court of Claims and he was re-appointed to a full 10-year term by Gov. David A. Paterson in 2008.

After hearing criminal cases in Westchester for five years, Neary was transferred in 2008 to the Bronx to help cope with the rising felony backlog under the experimental merged Criminal/Supreme Court.

Of course, it may have something to do with his experience in Westchester County, just north of The Bronx and yet a world away.  Perhaps lawyers trying cases in The Bronx are bit more assertive in their methods than in the genteel northern suburbs.  Or perhaps Justice Neary just couldn’t keep his personal feelings about how Levine tried his case out of the mix.

One of the fundamental elements of an adversary system is the ability of a lawyer to try his case without the court interfering.  This isn’t to say that the court doesn’t make its rulings, but that it let’s lawyers pursue the tactics they believe to be in their client’s best interests in whatever way they believe will work.  Whether it’s the judge who makes, and of course sustains, his own objections (as happened here), or the judge that asks a witness questions, particularly objectionable questions, to compensate for evidence missed, the judge’s insertion presents an impossible conundrum. 

The old joke, of course, is the lawyer, after a judge cuts him off and takes over, telling the judge that if he’s going to try his case for him, could he at least do a better job of it.  But it’s no joke when you’re on trial. 

Regardless of whether Justice Neary thought Levine was the worst trial lawyer in the history of the Bronx (and I’m not suggesting anything of the sort, just to be clear), ridiculing counsel in front of the jury is purely personal indulgence and never an acceptable reaction. 

So now that the First Department reversed, and the question of Justice Neary’s temperament and discretion are on the table, there’s one question that remains unanswered:  Is Justice Neary going back to a trial part in the Bronx?  Is he back on the bench?  Is that it?

There’s a depth of sensitivity that comes with having a child with a disability that is hard to imagine for others.  First, it’s a child.  Second, it’s a child who is different.  Third, it’s a child whose difference makes them a target for others. Fourth, it’s a child whose difference leaves them vulnerable.  And finally, it’s your child.

James Jones is a father of such a child.  From ABC News :

Authorities arrested a central Florida father Thursday after he boarded a school bus and reportedly threatened students who were allegedly bullying his daughter.

James Jones’ raw and obscene rage was on caught on the school bus’ security camera.

He was charged with disorderly conduct and disturbing a school function in Lake Mary, Fla.

There is no question in my mind that Jones was doing what fathers do, and especially what fathers of a child with cerebral palsy do: Protect their children.  And it appears that he had reason to do so, as other students were “taunting, hitting and even throwing condoms” (condoms?) at his daughter.  Nice bus ride, right?

There are some preliminary questions that come to mind.  What of the bus driver’s responsibility to keep students safe from bullying on a bus?  What about the school jumping on top of a situation like this, where a young girl with CP is subject to abuse?  No, this is not to suggest that the bus driver should have flagged down the SWAT team or the school administrators expel the miscreants, but merely put a stop to the crap being pulled on the bus.  Separate the kids.  Have someone ride the bus to keep things under control.  Deal with kids being kids, doing stupid, harmful things to other kids. 

But when nothing is done and your child is subjected to “taunting, hitting and even throwing condoms,” what’s a father to do?

The answer is not what James Jones did.  The rage is understandable.  The conduct is not.

“I’m gonna (expletive) you up.…this is my daughter, and I will kill the (expletive) who fought her,” Jones said.

Jones reportedly threatened not only the students but the bus driver as well.

“If anything happens to my daughter I’m going to (expletive) you up and everybody on this (expletive),” he said.

This is pure, unadulterated rage.  It’s hardly surprising that the bile welled up in Jones’ throat and made its way out of his mouth, but it can’t happen this way.  Indeed, it’s almost surprising that Jones, a rather healthy looking man, didn’t beat a child given the extent of his anger.  Thank God he didn’t.  No doubt he would have done serious harm to another child.

The fact that Jones’ anger is understandable, even laudable in a peculiar sense, doesn’t mean that any adult can lose his cool to the extent that happened here.  But then, it should never have reached the point where a father had to come on to his child’s bus to address this situation.  There have always been schoolyard, and bus ride, bullies.  Schools know that these things exist.  Bus drivers are supposed to be responsible for the children in their care.  These situations are hardly abnormal and there’s no reason in the world for these things to happen without recourse.

Whether James Jones could benefit from some anger management is a very real issue.  Most of us, angry though we may be, would not have dealt with the situation, with young children, the way he did.  He was very wrong in action, if not motive.  Whether that means he should be saddled with a criminal conviction for it is another matter, assuming there’s nothing else in his background to suggest that this was anything other than an angry father engaged in aberrational behavior to protect his disabled daughter.

But one real lesson is that no father, and no child, should be forced to deal with this situation.  The other real lesson is that schools, in dealing with such situations, need to do so in a constructive fashion rather than the typical zero tolerance, scorched earth fashion that ends up in some child being sacrificed for the lack of reasonableness and proportionality.

These situations always seem to end badly.  And yet there’s nothing whatsoever unusual about kids being mean to other kids.

Aside from the question of what enters a judge’s mind when she imposes a sentence of 17 years as opposed to 16 (or 15, or 14, or whatever), we assume there’s some rational basis for making such odd and fine distinctions with another person’s life.  Via Doug Berman , the State of Missouri has chosen a different path that infuses sentencing decisions with a healthy dose of reason.  From ABC News :

When judges in Missouri prepare to sentence an offender, they have a new tool unavailable to other judges across the country: an invoice detailing the cost to taxpayers of different sentencing options.

The information is part of an offense summary culled from statistics kept by the state’s Bureau of Corrections that is tailored to the offender and also details the risk that he might re-offend.

While it appears that the program, called MOSAC, is directed at making judges aware that there is a discrete cost to their decisions, it provides a statistical recidivism rate to go along with the price tag.  While it’s unclear whether the rate of recidivism is generic, or has the capacity to take significant individual factors into consideration, it certainly beats judges sentencing based solely on their own experience or anecdotes to address the specific deterrence prong of sentencing.

From a societal perspective, it’s somewhat amazing that judges have been imposing sentences without a hard understanding of the cost of their decisions.  It’s not that judges don’t realize that putting someone in prison has a cost, or is expensive, but that they lack the information necessary to have a meaningful appreciation of just how expensive a particular sentence is.  When the sentence is somewhat whimsical, such as a 16 year sentence as opposed to a 19 year sentence, as if the latter will accomplish something the former won’t, the cost difference matters.

This is how MOSAC purports to work:

For instance, a judge might plug in data regarding a 20-year-old offender with a high school diploma who was convicted of second-degree robbery and had no prior felonies. The online tool then would generate a report with a recommendation for probation with enhanced supervision that would cost $8,960 for a five-year period. If the offender were to receive such a sentence, his risk of committing a new offense within two years would be 29.7 percent.

However, the report also would contain information for the judge to consider if he believed there was a unique characteristic of the particular crime that would suggest a harsher sentence. That recommendation would be five years in prison for a cost of $54,724. The rate of recidivism for that sentence jumps to 39.6 percent.

What’s rather astounding, and counter intuitive, is that the lengthier the sentence, the higher the likelihood of recidivism.  Yes, this is a blunt instrument for ascertaining recidivism, but it also flies against the “common wisdom” that the longer the sentence, the better the lesson learned.  To the contrary, the longer the sentence, the less likely a defendant will ever be able to reintegrate into society as a law-abiding member.  Try telling that to a hanging judge.

This is not to say that sentences should be based exclusively on public finance.  Clearly, there are times when the cost of a sentence is irrelevant, but this information, unlike the pre-Booker sentencing guidelines, doesn’t constrain a judge but merely informs.

The information is available to the judges as a tool, but they are free to disregard it.

“Though I understand the instinct that case-specific sentencing justice should not be assessed only with a financial spreadsheet,” [Doug] Berman said, “I think it is critical [especially in these lean budget times] to do everything possible to ensure that criminal justice decision-makers have reliable data on the likely benefits and costs of various punishment options.”

Considering the fact that judges have been making sentencing decisions without any hard consideration of the cost, and thus without any real thought to cost/benefit, the availability of this information for use in injecting a rational basis, as well as a price tag, to decisions which have too often been utter fancy seems like a no-brainer.  It does no harm to individualized sentencing based upon the legitimate applicable sentencing factors, but compels judges to squarely face the cost of their “feelings” about what sentence is needed in any particular case.

Reason and information in sentencing.  What a concept.

A call came in yesterday from a reader and regular commenter, Lee Stonum.  We talked some about a post that held particular concern for him, and then about the blawgosphere in general.  It was good to talk to Lee, as he’s someone who isn’t afraid to speak his mind and disagree with me, but he knows what he’s talking about.

Among the various things we spoke of was the nature of my posts.  Lee mentioned how I don’t seem to discuss trial tactics often, but post more about issues in the news.  I explained that I used to discuss skills and tactics regularly, but there is only so much to say and I’ve already said more than my piece.  I don’t like to repeat myself.

But it got me to thinking, particularly since yesterday’s posts spanned three separate areas.  One post dealt with a substantive criminal law issue in the news, false confessions.  Another deal with the on-going Hayes trial.  A third dealt with a developing meme on twitter.  Guess which post garnered the most interest.

The relative number of page views pretty much mirrored the number of comments to each post.

This tells me something, but it’s really not something I want to know.  There is far more fascination with the nonsensical aspect of social media than there is interest in substantive law.  This infuriates me.

During my conversation with Lee, we talked about the blawgs we read and why.  I explained that I like reading the lawprof blawgs, to which Lee asked why I bothered.  After all, the lawprofs don’t have a clue about being a lawyer, and offer nothing of use in the trenches.  While that’s mostly true, some of them are incredibly smart and raise ideas that make a trench lawyer think.  They expand my thoughts, and I learn from it.

The marketers and social media gurus want me to say that I gain enormously from social media.  They want to point to me as an example of why others should hop aboard, for a reasonable fee.  The lawprofs aren’t trolling for clients, though there is definitely an internal contest for prestige and recognition within the Academy at stake.  The only folks online with nothing whatsoever to gain are the public defenders, provided that they aren’t thinking ahead to the day they set up their own shop.

Don’t get me wrong (though many will despite my saying this), I’m not telling others what should interest them and what they should read.  And if I did, it wouldn’t matter anyway.  People will do what they please and I have no control over anyone.  But the fact that navel gazing and social media fascination is more interesting than law stuff breaks my heart.

In the past, I’ve noted that some of the posts that I consider most significant are nowhere near as popular in terms of eyeballs as posts that I consider relatively trivial or unrelated to law.  Sometimes, they’re just posts about things I find funny.  I understand why funny posts tend to get read; we can always use a good laugh.  But I sometimes marvel at how much interest there can be in the trivial when bigger, more fascinating, more significant legal issues are out there dying for discussion and thought.  But it’s not interesting enough.  Not even to criminal defense lawyers.

None of this changes my thoughts about what interests me, or what I plan to write about.  If I was begging for eyeballs, then I would follow the numbers and post what interests the most people.  Frankly, eyeballs are damn near worthless.  Another part of my conversation with Lee was how all the social media marketing hoopla, at least for criminal defense lawyers, was total nonsense.  Take my calls from the internet.  Please. 

By my off-hand calculations, my posts are focused on criminal law about 75% of the time, and the balance on other subjects.  It’s not by plan, but purely happenstance.  Don’t care for some posts?  That’s cool.  Don’t read them.  But it’s my hope that some of you will care enough about legal issues, decisions, skills, so that I’m not left to think that the social marketers have a point, there there is no one online who gives a damn about substance and it’s all a big show for business. 

Then again, maybe it’s just that my substantive posts aren’t worth the effort to read.  If that’s the case, never mind.  At least I know that Lee reads them.  At least I’m not alone.

Jack Nicholson told us.  Mike Cernovich reminds us.  I should have remembered when I wrote this post on the New York Times’ story about false confessions, but I didn’t.  Fortunately, Mike remembered, and I would be remiss not to correct my mistake.

Back when the legal blogsophere was a magical place (the early days of the blogosphere really were something special), the excellent Appellate Law & Practice pointed out why FBI agents do not record confessions.  This is straight from the United State Department of Justice’s mouth : “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants.”

The genesis of this discussion was a decision by the Second Circuit in the Higazy case, which Howard Bashman realized had been issued, then amended, to redact a portion that the court decided was too unsavory for public consumption.  Patterico provides the details, including the deleted portion describing our government’s means of persuading Egyptians arrested in the United States, but with family in the old country, to talk.  [Aside:  For many, the names in these paragraphs will be unfamiliar. This is a terrible shame.]

As Mike notes, the government’s position on videotaping makes two things perfectly clear:  The techniques used to extract confessions would not be deemed acceptable to “lay persons,” and are acceptable to judges.  Our government, and in this context including our judiciary, has adopted an official policy to conceal from the public interrogations that the public would reject as unacceptable, perhaps unAmerican.  Our judges, in the meantime, have decided that it’s best to make sure that its decisions on the subject be kept from public view, lest Americans get an inkling what their government is doing.  The first Higazy decision was a screw up that was quickly corrected, but for Bashman’s refusal to be party to concealment.

In the Times’ article, Professor Brandon Garrett suggested recording of interrogations as part of the solution to false confessions.  Forget the fact that the FBI isn’t interested in Garrett’s idea.  Forget the fact that there are, and will no doubt be more, ways developed to turn videotaping into a weapon against defendants rather than as a means of greater transparency into abuse.  At the bottom of this problem are techniques used by government, by law enforcement, that are specifically geared toward eliciting statements.  Some techniques are sophisticated.  Some are merely brutal.  The techniques are extremely effective.

The upshot is that people subject to interrogation talk.  Sometimes they provide true confessions.  Sometimes they give false confessions.  Either way, they talk.

Ironically, it’s more likely that people will talk without any effort on the part of law enforcement at all, under normal circumstances.  Talking to the cops is the bane of criminal defense lawyers.  It can’t be said enough that suspects are best served to exercise their right to remain silent.  But the problems illuminated by Higazy are quite different.  For the suspect who won’t gab because of the uncontrollable need to have sound come out of his yap, there are always interrogation techniques available.

You, however, and I, and lay persons of all ilk, cannot be told of these techniques.  Should we sit on a jury, it must be kept from our view.  We couldn’t handle the truth.  We wouldn’t find it acceptable.  But our government, including our judges, has decided that it is both lawful and acceptable to them, even though we might be repulsed, offended, outraged and, to Garrett’s point, unpersuaded that it produced a true confession.

This shouldn’t be forgotten.

The trial of Steven Hayes is a somewhat parochial matter, where the 2007 murders in Cheshire of Dr. William Petit’s wife and daughters are on display for the sole purpose of showing that when rich white folk are killed, it’s not the same as when poor black folk are killed.  After all, Hayes tried to plead guilty but was rebuffed.  Connecticut was not going to be denied.

But even a carefully orchestrated show has its occasional production problems, and the Hayes trial produced a beauty.  Via Norm Pattis :

Before the lunch break today, a juror sent a note out to the judge. He had concerns he wanted to discuss. The note was tendered apparently during the gripping testimony of Dr. William Petit, the sole survivor of the Cheshire home invasion. Judge John C. Blue decided to wait until after Dr. Petit finished testifying before addressing the juror’s concerns.

When the juror was questioned, he offered the following: He did not think he’d be able to render a verdict in the case given the evidence. Is the case too gruesome, you might wonder? No. That was not the issue. The state’s case was disorganized and made no sense, the juror said. It appeared as though the case was poorly prepared, he opined. During the most dramatic and sympathetic testimony of the case, that of Dr. Petit, a juror all but raised his hand and asked: “What the Hell is this all about?” The sucking sound you heard early this afternoon was that of the prosecution’s gonads retreating to a safe, dark place.

It doesn’t get more bizarre than this.  The defense has conceded Hayes’ guilt.  There’s no desk pounding going on during Petit’s testimony, no screaming or outraged objections.  It’s just a prosecutor putting carefully planned and prepped questions to his star witness, a man whose family has been murdered.  How much simpler could it be?

Judge Jon Blue put the juror, John Lively, on the witness stand to explain, and the New Haven Register provides the testimony:

“As a juror in this case,” he said, “I’m confused by the presentation of the state’s case and bewildered by what seems to be a lack of preparation on their part.

“The order of it seems arbitrary,” Lively continued. “What’s worse, the evidence has no explanation with it and no context.”

He criticized “all the fumbling around with the evidence.”

Lively added, “All of these things are keeping me from being fully able to evaluate authoritatively the evidence and make a reliable determination of the testimony.”

As a result of Lively’s explanation, the prosecutor, State’s Attorney Michael Dearington, moved for his removal from the jury.  Judge Blue agreed:

After Lively went into a closed side room, Blue said to the attorneys, “I’ve been a judge 21 years and I’ve never known a juror to have this kind of concern raised. It’s like going to the Boston Marathon and at the halfway point complaining about the way the race is being run. It doesn’t make sense.”

Blue said he was going to dismiss Lively because “he seems so agitated” and might have “further outbursts.” Blue said he was worried Lively might “contaminate” the other jurors and cause a mistrial.

There’s no doubt that this is “unusual”, to say the least, but for a judge to worry that a juror’s concern might “contaminate” the other jurors is even more peculiar.  The very word choice suggests that a juror who isn’t favorably inclined toward the prosecution carries a “disease” that could “infect” others.  The report fails to suggest that there was any outburst by Lively, but merely that he raised his hand (as jurors are allowed to do) and calmly reported his concern to the judge.  That said, how could the judge be concerned about “further outburts.”  Obviously, there can’t be “further” anything until there’s a first.

Moreover, the analogy offered by Judge Blue makes little sense.  The duty of a juror is to weigh the testimony.  If a juror is having difficulty understanding the significance or context of the testimony, thus making it difficult or impossible for him to weigh it, he’s doing nothing more than alerting the court to a problem. 

Rather, the proper reaction from the court is to inform the juror that this is an adversary process and the attorneys for the respective sides are entitled to present their evidence in whatever fashion they deem appropriate.  That the prosecution’s presentation makes it difficult, if not impossible, to understand what they heck they are doing isn’t a problem for the court to resolve, but rather for the juror to take into account when called upon to decide the case.  In other words, if they did a lousy job and failed to persuade you, for whatever reason, then speak to them by your verdict.

But not in Connecticut.  Not in the trial where rich white folks were murdered.  Get that heckling juror out of here so he doesn’t spoil the plot line. The show must go on.

A minor, but disturbing, meme is developing amongst some criminal defense lawyers on twitter.  Each morning, they twit their “trench menu,” or what they purport to be doing that day in trenches.  I believe this to be an invention of Norm Pattis when he was new to twitter and couldn’t quite figure out what he was supposed to do with it.  But it’s spreading, metastasizing.

From my remove, this meme emits an unpleasant odor.  On the one hand, going to work in the morning is what practicing lawyers do.  Is this something to broadcast, that you’re not going to spend the day eating bon bons, to distinguish you from lawyers who spend the day hogging a table and free wi-fi at the local coffee shop?  The latter has reason to feign business; Is there someone questioning what you do all day long?

By broadcasting your daily activities, what do you hope to achieve?  Let your multitude of adoring fans know how busy you are, what important work you do, how wonderful it is to be you?  I have no doubt that a few will be absolutely fascinated by lawyers who have the sexiest of cases, the most serious of challenges and the biggest issues of the day.  Aren’t you special!!!  Already, we’re awash in self-aggrandizing baloney about all the important people some lawyers know.  More impressiveness.

Now all this would be fine, indeed expected, if your true purpose on twitter was self-promotion.  After all, what better way to market oneself, while pretending to just be doing one’s job defending the downtrodden (with another murder trial every three days), quietly posting about one’s daily “drudgery”, a couple of shootings, a stabbing and a billionaire kiddie porn physician.  All the little ones ooh and aah, as their daily aspiration of getting a stray DUI is dwarfed by your important work.  Oh, how they want to be like you.  Oh, how they aspire to be as important as you are when they grow up.  And maybe, just maybe, a potential client sees how busy you are and thinks, “hey, this gal must be a great lawyer if she’s doing all these really important cases.” 

In the meantime, you’re giving up information to anyone who bothers to read your twits.  A prosecutor can announce that he’s ready for trial, knowing that you’ve got three other cases to cover in three other courthouses today, blowing a potential speedy trial dismissal so that you can broadcast your ego.  Wonder how happy your defendant would be to know that you gave his motion away to be a big man on twitter?

And what if it’s all a lie anyway?  It’s not like there’s anybody following you around to see whether you’re actually doing what you twit about.  If one’s inclined to promote oneself, why suppose that they will be honest in the process?  No reason I can think of.

Then comes the editorial commentary about the cases, where the phraseology suggests the guilty defendant, or the tainted witness, or the dead in the water defense.  Did anybody authorize you to disclose client confidences on twitter?  But of course, you don’t see it as giving anything away, until somebody nails you on a twit that comes back to bite you in the butt.  Nothing is ever wrong until it’s wrong, you see.

As the meme develops, more lawyers want to play the game.  Some just to be social.  Others to be like the cool kids.  Others still do so because they fear that their failure to toot their own horn means they have no horn to toot.  We can’t have that.  Nobody on the internet isn’t doing great.  Any fool can twit “Trench Menu: Double homicide starting today. Can I win another NG in a row?”  Regardless of original motivation, good or ill, it will quickly devolve into another ugly downward spiral of deception and self-promotion.

Twitting your “trench menu” every day isn’t a sign of how well you’re doing, or what a real trench lawyer you are.  It’s covert marketing and twisted ethical priorities.  It’s a charade played out for self-aggrandizement.  No real lawyer feels the need to prove he or she is real by letting all his tweeps know his daily doings.  If that’s all you can think of to say to your twitter friends, than you need to find something better to do with your spare time. 

Stop the madness.  Stop this horrible meme before it spreads.  Stop the potential for harm that it causes, and its glaring revelation that whoever is twitting their “trench menu” is really broadcasting to the world that they are growing desperate and need to market themselves a whole lot harder to get some business.  If this is what you need to do to make you feel like a real lawyer, or at least pretend to feel like one, then you aren’t. 

Stop the “trench menu” meme.  It reflects very poorly on anyone using it, and especially on real trench lawyers, who know better than to crow about the fact that they actually work every morning.    Real trench lawyers just go to court and defend their clients. 

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

Not really an eye opener to defense lawyers, nor even an answer to the problem.  The reality of false confessions has long been recognized.  The problem isn’t knowing that it happens, but persuading a jury that any particular confession is false.  The New York Times does an admirable job explaining the phenomenon by reference to a study by Brandon Garrett.  The problem, unfortunately, will persist.

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

As Jeff Gamso says, it looks like Garrett hasn’t spent much time in the trenches.  Nothing to see here.  Nothing new.  Police may not be very good at many things, but manipulating people into confessing is something they’ve gotten down to an art form.  Garrett is shocked, SHOCKED!, that this happens.  He’s particularly shocked by the fact that cops feed their subject the background facts needed to flesh out a crime they never committed.  It’s not brain surgery

Garrett’s purpose is to reform the “insidious” practice of contaminated confessions.  In the abstract of his article, he states:

 This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

But the confessions come off as very reliable.  And they’re confessions.  So what if a detail is wrong.  People get confused.  People make mistakes.  But nobody confesses to a crime they didn’t commit.  Ask any juror and they’ll tell you, they would never confess to a crime they didn’t commit.  Never.

Yet, as the Times article makes clear, as DNA exonerations make clear, it happens.  It happens with surprising frequency. 

Videotaping interrogations may help.  But it most assuredly won’t be an ironclad guarantee that false confessions won’t happen.  The art form of interrogation will adjust to a camera, and cops will refine their technique to make sure that it plays well to a jury.  Short of the video capturing a suspect being beaten, the interrogation will have some of the  trappings of coercion, as most do, but also fall into that problematic area that people don’t confess to crimes they didn’t commit. 

In time, I suspect some brilliant law enforcement minds will come up with some new interrogation techniques that will take great advantage of the video, the medium of conclusive proof of guilt, even when the confession requires a bit of prodding.  And the fact that cops need to push people to confess, to manipulate them to “tell the truth,” to subtly coerce them to open up, is no surprise.  After all, no one expects criminals to just spill their guts for the asking.  What jury would be surprised to learn that the police yanked the perp’s chain a bit to get him to admit to his crime?  Isn’t that what cops need to do to get a confession?

The reason for cops doing this is twofold, that it’s their job to nail down the evidence to convict a perp, and there’s no better way to do so than to get the perp to confess.  And if the perp confesses, by the way, there’s no better evidence than a video of it.  The second influence is that cops don’t usually coerce confessions from people for no reason, but from the suspect they believe committed the crime. 

Once they decide who the criminal is, they set about the hard work of proving it, and they are comfortable with their efforts because they believe in what they are doing.  They don’t see it as a problem, but as getting the goods on the bad guy.  Of course, they aren’t always right about the bad guy, but that doesn’t alter their certainty.  They sleep well that night.

False confessions might appear to be a good thing for the cops up front, as they’ve not only “solved” another crime but nailed down the evidence on the perp, but they have their downside.   First, they result in the conviction of an innocent person.  Second, they leave a criminal on the street.  It’s really not in the interest of the cops, or the public, to convict the innocent, though it does solve the problems of pacifying the public when a heinous crime occurs and they need immediate resolution, as well as proving the competency of the police and reinforcing the image as brilliant crime-fighters and protectors of the public.

None of this, however, is news.  None of this does much to help a jury to distinguish between an honest confession and a false confession.  And none of this helps the defense when confronted with a defendant’s confession in convincing a jury that false confessions happen.  Trying a false confession case is akin to being a kamikaze.  The defendant confessed.  That’s a chasm few can leap. 

Still, anything that helps to bring people to the realization that false confessions happen is better than nothing.