Fred Bright, the district attorney for the Ocmulgee Judicial Circuit in Milledgeville, Georgia, said that he’s in the business of prosecuting people when there’s proof beyond a reasonable doubt.  When there’s not, his duty is to do justice, not seek a conviction anyway.  Bright said the right thing in explaining why he would not be prosecuting Pittsburgh quarterback Ben Roethlisberger.

Whether Bright would have said that had it been someone with a last name that was easier to spell is hard to say.  Information about the Milledgeville prosecutor isn’t at my fingertips, and I would no more suggest that Bright isn’t true to his word than I would that Ben raped a 20 year old coed in the small bathroom.

Let’s get this straight off the top.  Roethlisberger is innocent of rape.  He did not commit the crime.  Yet this post will continue, as there’s more to consider.

In the scheme of the criminal justice system, the failure of the prosecution to be capable of, or willing to, convict an individual brings any and all claims of criminality to a close.  That doesn’t mean that the individual who might otherwise have been called defendant is now free to roam the country in search of small bathrooms.  From the New York Times :

Roethlisberger will meet with [NFL Commissioner Roger] Goodell on Tuesday, the league spokesman Greg Aiello said. Bright gave Goodell and Rooney plenty of tawdry and troubling details gleaned from the investigation to consider when pondering whether Roethlisberger should be disciplined.

The story is this:

Bright said the woman and Roethlisberger had been drinking and had met at different bars in Milledgeville during the evening. Some of their conversations were of a sexual nature, Bright said. Roethlisberger’s group ended up in the V.I.P. area of one club, and when the woman and her friends arrived, he invited them to join him and bought shots of alcohol.

Later, Bright said, one of Roethlisberger’s bodyguards escorted the woman down a back hallway and Roethlisberger followed her into a small bathroom, which Bright said was less than five feet wide.

What happened in that bathroom is unclear.  Was there sex? Was it a rape?  Does it matter given Roethlisberger’s feeding underage girls shots, and the particular young woman was highly intoxicated when she went to that small bathroom?  It clearly matters for the purpose of determining whether Roethlisberger should be prosecuted.  The successful conviction of a two-time winning SuperBowl quarterback would be quite the feather in any prosecutor’s cap.  That Fred Bright decided that he lacked the evidence to justify a prosecution speaks well of his discretion, and hopefully he exercises the same level of commitment to the burden of proof when it comes to every potential defendant.

But the question of what Commissioner Goodell should do is not guided by the burden of proof of a crime.  The rules of the NFL aren’t merely that its players not be convicted criminals, but exhibit a level of moral conduct that earns them the right to make millions of dollars, get seen every week on television and the opportunity to be a sports hero.  That falls not on the criminal side of the equation, but on the privilege side.

Ben Roethlisberger knew very well the glory of being a sports hero.  He also knew that he enjoyed the wealth and stature only so long as two things happened: He continued to play football well enough to earn a spot on the team, and he behaved himself in accordance with the NFLs rules.  It’s not much to ask for in return for all he received.

Given the lack of evidence of a crime, it’s right that Bright decided not to prosecute Roethlisberger.  Given the evidence, it’s right that Goodell deny Roethlisberger the privilege of being an NFL quarterback, at least to some extent. 

Nobody says that a guy who can throw a football with some great degree of speed and accuracy will necessary be a fine human being.  Certainly, the scouts who look for potential NFL players are more concerned with athletic skill than anything else.  Roethlisberger wasn’t given the position because he was an upstanding, mature individual, but because he was a premier quarterback.  But he knew the rules under which he labored, and knew that the big bucks as well as the hot chicks came with strings attached.  And to the extent that there was any doubt in Ben’s mind, his first run in with the morals clause in Lake Tahoe, 2008, should have dispelled them.

Fred Bright doesn’t prosecute morals.  Roger Goodell does.  There’s a price to pay for playing in the NFL, and there’s no reason why Ben Roethlisberger shouldn’t be charged for the privilege.

Connect the dots.  There’s Harvey Silverglate’s Three Felonies a Day.  There’s the Department of Justice running stings of corporate executives for violations of the Foreign Corrupt Practices Act.  There’s the Madoff sentencing scale.  There are guys in suits and ties receiving the same sentencing numbers with the word “months” replaced by “years”.

It’s with the greatest reluctance that I use the words “white collar crime,” and I’ve been on a mission for a while now to end this terrible, misleading misnomer.  It raises an image of guys in gray pin stripe suits sitting down with guys in blue pin stripe suits, drinking Earl Grey out of china cups with saucers.  At the end of the polite conversation, all apologize, shake hands and walk away like gentlemen, agreeing to an act of contrition that will bring equilibrium back to the corporate world. 

While it was never quite so pure, those days are long gone.  The problem is that the idea persists despite near constant news reports of arrests, prosecutions and sentences, and no one within the sphere of corporate America, from the financial industry outward, that it will ever touch them.

At the New York Times Dealbook, Peter Henning writes about how the sentences for “white collar” defendants have grown to match, and exceed, those imposed on other types of criminals.

The tough sentences may be more of a reflection of the conduct of the individual defendants and their hubris in taking advantage of investors. Courts often express a desire to send a message to the community that financial crimes are deserving of the same significant punishment more commonly given to drug dealers and violent offenders because the harm is just as great.

Unlike drug or organized crime defendants, white-collar offenders often claim innocence because they were unaware of any wrongdoing, a position that can infuriate a judge. Mr. Petters testified at trial that he was misled by other executives as his company, an assertion that the sentencing judge found was “unbelievable — let’s leave it at that.”

Faced with a distinct lack of contrition, coupled with evidence that the defendant abused a position of authority to mislead investors, judges often feel they need to impose long sentences to let those in the upper reaches of society know that they will suffer the consequences of their conduct.

This points to the three omnipresent problems that arise with defendants accused of committing crimes with a pen rather than a gun.  First, they are woefully ill-equipped to handle arrest and prosecution.  There’s no class in B-School on the subject, and the in-house counsel never sent them a memo on what to do when the feds come a-knocking.

Second, the shock, indignation and alpha-male reaction, ranging from “it’s not like I killed anyone” to “everybody does it” create a mindset that’s nearly impossible to break through.  Not only are they unhelpful in their own defense, but they are often their own worst enemy.  This often strikes home when they ask which wristwatch would be most appropriate to wear with a BOP issued jumpsuit.

Third, the inability to appreciate that financial crime is the new drug dealing, the new murder, the new street crime, being investigated and prosecuted with a vigor once reserved for gangbangers and drug lords.  The stench of denial is overwhelming, and evident in every choice made, from selecting representation to the tie worn to impress the judge with their importance.

Yet the myth of “white collar” criminal law persists.  The practitioners use it as a marketing tool, knowing that it’s kinder, less threatening sound, will comfort defendants and lead them to believe that they are more specialized in handling the particularized needs of corporate executives and financial wizards who, invariably by mistake, end up in the defendant’s seat.  There is no harsher truth in the “white collar” world than that these defendants are facing monumentally long stretches in prison, lives destroyed and the fight of their life. 

There’s the new video out by Flex Your Rights providing instruction for black kids on how to deal with the police.  There’s no video available to teach a corporate Executive Vice President how do a graceful perp walk.  That will be my job when I speak to corporate general counsel at SuperConference in Chicago at the end of May.  Somebody has to deliver the wake-up call, and I’m not inclined to sugar coat it.

Until they figure out that there’s no tea cup, no saucer, no genteel meeting of the minds or act of contrition that can be completed during lunch at a decent restaurant, the myth of “white collar” crime will continue to be the downfall of the new street criminal.  It’s time to put an end to the myth, and the first thing we need to do is either kill the phrase “white collar crime” or turn it into the pejorative it needs to be to send the message that this is no longer a tea party.

A buddy of mine, a former homicide prosecutor turned defense lawyer, told me that he’s tried more than 200 felony cases to verdict before a jury.  There aren’t a lot of lawyers who can say that, at least in New York.  It’s a rather formidable amount of experience, and even if he weren’t an exceptionally good lawyer (he is), the experience alone would teach quite a bit.

Yesterday, I saw a throwaway twit by Brian Tannebaum, who seems to always have a great deal to say on twitter, with a link to an online “work wanted” website for a third year law student, who shall remain nameless for my purposes. that offered some gems:

Being in the courtroom is his passion – and forte.

Never taking “No” for an answer, [3L] will travel to the end of the earth, utilizing all available resources and working relentlessly for his clients. He is passionate about his work and sets the bar high; his work ethic allows him to achieve whatever he sets his mind to.

There is no doubt that he will go far as a trial lawyer, because of his prowess in the courtroom but also the goodness of his heart.

Mind you, this was written when he was a third year law student.  He’s no longer a law student, but unemployed.  From the perspective of a lawyer, reading a law student’s self-assessment of his “prowess in the courtroom” isn’t just good for a chuckle, but a reflection of a person who lacks a firm grasp on his skills.  No law student can credibly claim “prowess in the courtroom.”

But this excess isn’t limited to law students. Lawyers, employing the magic of the internet, are constrained to write things about themselves that test the boundaries of propriety, often going far into the stratosphere of sheer fantasy.  One young lawyer claimed that he had “personally won hundreds of cases” before being admitted to the bar.  He’s since shown the maturity to change his puffery.

It’s common for lawyers to describe themselves as “prominent”, “respected” and all manner of honored, though this is merely self-characterization, an effort to promote themselves by attributing qualities to themselves that no one else has ever done.  This is no doubt intended to play well with potential clients, under the assumption that clients won’t be able to figure out that calling oneself prominent isn’t the same as being called prominent (a) by someone else, and (b) by someone whose opinion matters.  It’s a lot like attributing expertise to oneself, when it’s unrecognized by the rest of the legal world.

Others, some very serious and hard-working lawyers, are busy on the internet offering their thoughts and ideas on how to try cases.  While some of these lawyers have interesting ideas, and many which are well-conceived if hardly controversial, they are often lawyers who are trying low-level type cases such as DUI/DWI, without juries or particularly serious downsides.  They are similarly lawyers whose experience spans made a dozen real trials at most in their five years of experience.  They believe they have a lot to offer, and perhaps they do.  But to my buddy, with his more than 200 trials, it all seems pretty goofy and self-aggrandizing.

When I was a punk kid lawyer sitting in a suite of much older, more experienced, more accomplished lawyers, the end of the day was always marked by a the guys sitting around, telling stories.  These guys had some great stories, big name defendants and wild, crazy courtroom experiences.  They had done stuff.  I wanted to be a part of the group too.  Who doesn’t?  I wanted them to hear my stories, pat me on the back and welcome me to the fold of lawyers who had something worth listening to.  I wanted them to respect me.

So one day, after a particularly funny story about one of the lawyers fighting with the cops at a crime scene over who got to keep the pile of cash in the corner of the room, I decided to jump in and tell a story of mine.  The others guys sat quietly while I told my story, then immediately turned to each other and launched back into their bull session as if I wasn’t there.  The next day, one of the most senior, and most prominent, lawyers in the suite pulled me aside and, with his arm over my shoulders, told me that the others guys liked me, thought I would make a damn good lawyer one day, but to sit and listen, and keep my mouth shut. For now.

“We were all young once.  Give it time.”

No third year law student has “prowess in the courtroom,” and nobody can take someone seriously who makes such a ridiculous claim.  Give it time.

Via Doug Berman, a new paper by Adam Gershowitz and Laura Killinger entitled The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants. contends that we should feel for prosecutors, overburdened and underfunded, for the sake of our clients.

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed.

Initially, the reference to “dozens of scholars” having documented underfunding of indigent defense, rather than dozens of indigent defense organizations, bar associations, court cases or the wealth of other sources far more meaningful, knowledgeable, informational and relevant, starts this “counter-intuitive” argument off on the wrong foot.  When lawprofs rely on lawprofs rather than reality to support their theories, they proclaim their bias off the top, and suggest that they start out disconnected from, and disinterested in, reality.  So be it.

The argument recites a laundry list of things that prosecutors, given more time and resources, could do:

Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation.  Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive. 

It’s certainly true that a prosecutor could do any or all of these things, if she only had the time.  She could also learn to paint, memorize bible passages or rehearse the Mamba.  Based upon my personal experience, it’s most likely that the prosecutor with more free time would take longer lunches and pick better players for the office fantasy football league.

Regardless of the length of time available to prosecutors to ponder, consider and deliberate over their cases, it remains the responsibility of the defense lawyer to bring issues that mitigate in favor of the defendant to the prosecutor’s attention.  Yet again, lawprofs seem to forget that it’s not entirely in the hands of the prosecution to manage the criminal justice system. 

Of course, this paper would appear to assume that the only player on the defense side is the indigent defender, since there is no other conceivable way that the burdens of prosecutor and public defender could have the same caseload.  The numbers just don’t work unless you assume that every defendant is represented by the PD.  Perhaps this reflects the assumption that the overburdened public defender does absolutely nothing on behalf of his client, or perhaps the authors put all stock in the prosecutors, as the indigent defenders are too inconsequential to merit a role in the system.

And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail. 

Of the issues raised that reflect a fundamental disconnection from reality, this stands out.  First, the authors are apparently unfamiliar with speedy trial requirements, meaning that the prosecution suffers “enormous delays” to the defendant’s benefit.  Delay long enough and the defendant walks.  It’s not always a bad thing to have delays.

As for those at the bottom of the food chain, unable to make minimal bail on a low level offense, delay isn’t an unfortunate by-product, but part of the design scheme for coercing pleas.  Prosecutors don’t want to move the case along faster, but use the delay, coupled with a plea that will release the defendant immediately, to get the quick and easy guilty plea.  Did the authors seriously think otherwise?  It’s not an accident that a person in jail for inability to post bail gets an offer of time served.  And if time served is appropriate to cover the offense, then there’s a bit of a gap in the need to keep the defendant incarcerated pending trial, eh?

Omitted from this concern over the poor, overburdened prosecutor, is the fact that prosecutors have far more control over their caseload than does the defense.  Want more time to ponder the potentially innocent defendant?  No problem. Move for lower bail, or even release, and take all the time you want.  Want to move cases along more quickly?  Offer lower pleas and many defendants will be happy to oblige.  Concerned about dubious, low-level busts?  Toss ’em.  Whatever flavor your jurisdiction provides, whether an adjournment in contemplation of dismissal, conditional discharge, you name it.  Every jurisdiction offers options, left to the discretion of the prosecutor, to reduce the caseload quickly and easily.

Every problem purportedly on the prosecutor’s shoulders, as identified by Adam Gershowitz and Laura Killinger as being something prosecutors could do, could be done today regardless of the caseload.  They simply chose not to.  And if they had lighter caseloads, they still wouldn’t do them any more or less than they do otherwise.  They would, however, enjoy a leisurely lunch.  Who wouldn’t?

There’s been a lot of discussion around the blawgosphere this past week about false accusations and apologies.  The problem arises from an apology that’s not an apology, though the apologist insists vehemently that it is.

To begin with, it’s important that I include some quotes in this post, as there have been a rash of mysterious disappearances of posts and comments giving rise to the need for the apology.  If they aren’t copied into this post, the sources are likely to be gone soon enough so that the apologist can pretend they never happened.  There’s this:

I can’t take umbrage at the harshness of any critique at this point, but I don’t agree that owe the legal profession an apology. I do a great deal for the legal profession and work hard at it, not because it’s the only thing I could do but because we have one of the most difficult professions when it comes to navigating ethical dilemmas, and while the rules are one tool, others are essential too.

Then there’s this:

Look, I am completely in sympathy with anyone who wants to bash me for this. Beyond that, however, your critique is not proportionate or fair. The best way to achieve section 7’s goals is for everyone, not just me but every lawyer, to be open, and critical when we see, or think we see, problematic conduct in a colleague–or ourselves.

And of course this:

You are deluded if you think that the suggestion that a lawyer violated a Rule automatically imparts some kind of infamy.

Followed by this:

I have done all I can do to apologize,not just to Eric but to others, explain where I went wrong, extract lessons from it, not make excuses, and move forward. But I’m sorry: despite this lapse, I know I am good at what I do, and I do not have to justify myself to you.

Coupled with this:

I think I am right that the legal profession will be better because of the issues I raise, the minds my seminars engage and ideals I advocate. And I’m not about to apologize for that. You have written me off because of two blog posts and a lot of hasty replies responding to over 70 comments, many of them personally abusive. How unfair, ungenerous, and illogical….and ill-informed.

Then there’s this:

saying a lawyer has engaged in unethical conduct and saying the lawyer is unethical are too extremely different things.

Plus this:

My mistake was referencing a Rule provision that I believed could be violated without requiring reporting or discipline, when the bulk of authority has come to assert that the 8.4 misrepresentation prohibition otherwise. In other words, my claim that this was a Rule violation was more serious than I intended, because I was misreading the Rule. I never intended to say or imply that Eric was an unethical lawyer, just that he had (mistakenly) crossed a line. If I cross an ethical line without knowing it, I want people to tell me.

And this:

I am absolutely remorseful, but I do not regret my motive at all. It’s a facile sentiment rather than a perceptive one, in my opinion.

Then the closing salvo:

How is a self-abasing apology self-serving, exactly? And I am not talking about my “accusers”—-I am talking about the jackals, bloggers who have weighed in and denigrated me after I have done everything possible to set the record straight and make amends. I am talking about suggestions—based on nothing, completely unsupportable by my professional and personal conduct, that my apology was anything other than an honest and open response to discovering that I was wrong. While the individuals who were most affected by my carelessness have been gracious and even encouraging, these people seem determined to make a big a deal out of this as possible and to interpret every action, like you, in the worsts and most flattering light.

My “accusers” were not and are not correct, in that they have said that I am a fool, a fraud, someone who doesn’t know his business and who was “linkbaiting” or trying to hurt people, someone who only apologized because of fear. Those who disagreed with me were correct about two things: this was a minor issue, too minor to support the weight I placed on it, and the predominant and accepted reading of Rule 8.4 is that if dishonesty and misrepresentation in an activity unrelated to the practice of law are not at a level indicating unfitness to practice, then there is no violation of that Rule. Some of my “accusers” stated that 8.4 didn’t apply to conduct outside the practice of law. They were wrong about that. Others claimed I was wrong that the Rules are not merely disciplinary in function, and they were wrong about that as well. I believe, though it is not a matter subject to proof one way or the other, that lawyers are obligated to meet a higher standard of integrity and honesty in everything they do. And they were wrong that I said the lawyer was unethical. I said the conduct was unethical, which is very different.

And the coup de grace.

Frankly, I think anyone who continues to attack me (or anyone)after a complete and sincere apology, and that’s what I wrote, based on a single incident, knowing little of the background and with no other experience or knowledge of what I do or have done, just looks petty and uncharitable.

In contrast, the Public Editor column in the New York Times says:

David Goodman, who writes New York Online, an aggregation of news from many sources, bit on a claim by Eric Turkewitz, a personal injury lawyer and blogger, that he had been appointed official White House law blogger. Goodman tossed in a short item at the end of his April 1 post. Turkewitz wrote the next day that he had been hoping to catch political bloggers, “whose reputation is to grab any old rumor and run with it,” but instead bagged “the vaunted New York Times.”

Goodman, who said he knows he should have checked it out, especially on April Fool’s Day, said that because several prominent legal blogs also had the item, he gave it more credibility than he should have. What he did not know was that the other bloggers were in on the hoax. Corbett said the episode pointed up the risks of news aggregation and the need to rely on trustworthy sources.

Whereas Jack Marshall apologizes out of one side of his mouth and while making every excuse under the sun to shift blame to the “jackals” who attack him for being wrong, the New York Times just concedes that it screwed up and got nailed. 

The rule is that one should never attribute to malevolence what can be explained by sheer stupidity.  With that in mind, it would be wrong to suggest that the self-proclaimed ethicist is, himself, intentionally and deliberately unethical.  Even if this conclusion can be clearly drawn from his removal of posts and comments that demonstrate his commission of conduct that some might find flagrantly unethical, it’s still possible that his finger accidentally hit the delete button on each of these embarrassing and incredibility humiliating posts that undermine his fevered efforts to pretend they never happened, or that his “self-abasing apology” wasn’t calculated to excuse, justify and trivialize any itty-bitty, tiny, technical error in his analysis (which was actually correct if you squint really hard).  And so I will not attribute malevolence to him.

Jack Marshall is stupid.  So says this jackal.  Too stupid to ever be allowed to opine to a lawyer on the subject of ethics.  I only say this because I’m trying to be kind to Marshall, Nicer than he was to Turkewitz.  Nicer than he deserves.

When will this stop?  When Marshall stops trying to sell his personal version of ethics to lawyers and gets a growth position at Dairy Queen.  But as long as he continues to try to sell his crap to lawyers and bar associations as ethics expert, then there will be need for us jackals to protect lawyers from the expert.  I’m as tired of this as you are, but it remains a concern that Jack Marshall and ProEthics are still out there trying to sell themselves.  Let no one forget or be misled, even if Jack Marshall, in his own opinion, thinks it was no big deal and he’s still a really swell guy.

H/T to The Trial Warrior, Antonin Pribetic, for the title of this post.

More serious people than me are having their say about who is likely to replace Republican Supreme Court Justice John Paul Stevens, appointed in 1975 by Republican President Gerald Ford and approved after a grueling five minutes of debate, three week after his nomination by the Democractic Senate by a 98-0 vote. 

Orin Kerr, for examples, notes the hugely divergent backgrounds of the frontrunners,

Elena Kagan would also bring notable educational diversity to the Court. Kagan would be the very first Justice ever to have attended Princeton and then Harvard Law. Obviously, that would be a major break after two consecutive nominees who had attended Princeton and then Yale Law (Justices Alito and Sotomayor). Whoever Obama picks, I think it’s clear that Obama faces a major choice and that his selection will be a historic occasion.

Tough, tough choices, each bringing their vastly different backgrounds and experience to the court that will obviously result in vastly different directions for the future of our nation.

But lest we not forget, there remains a stealth movement, hiding deep behind the Ivy League, law clerk, prosecutorial, judicial resumes of the frontrunners.  There is Norm Pattis’ Trench Lawyer Movement.  In retrospect, it’s understandable that President Obama, with all he’s got on his plate, might not have been ready to take up the mantle of the Trench Lawyer Movement when he appointed Sonia Sotomayor.  But now that he’s got plenty of free time on his hands, and already named on prosecutor to the bench, and recognizing that he’s never going to appease the right wing and make them believe he’s not “the most radical president ever,” there’s nothing left to lose.  Norm hasn’t forgotten.  Neither should our President.

Based upon my deep sense of patriotism and public service, and recognizing that the trench lawyer who will be first in this movement will likely be subjected to as much, if not more, scrutiny than given an appointee from the opposing political party by the Senate, I offer myself as the sacrificial lamb to my president as the next associate judge of the Supreme Court of the United States.

Already, support for my appointment is building.  Brian Tannebaum has thrown his not inconsiderable weight behind me.  Gamso appears to be reluctantly on board.  Others have told me that they will support me if I follow them on twitter.  Even the international  community is coalescing behind me.  Gideon was persuaded when I told him that I would issue opinions on SJ and leave comments open. Bennett has yet to jump on the bandwagon, but I remain hopeful that he will support me as well. 

It’s not going to be easy.  As one person commented to Tannebaum,

No way Obama has ever even heard of Greenfield. Furthermore, presidents pick people who write legal treatises and the like, not blog posts.

Certainly, my appointment will be a bit outside the box, if you will.  But Mr. Anonymous’ points are precisely why my appointment, at this juncture in history, would be perfect.  Should we limit selection of a branch of government consisting of only nine (count them, 9) people, appointed for life, to those who pal around with the president?  Isn’t that just a wee bit restrictive for a position so important to the future of our nation?  Should our President not look beyond those he’s heard of to those who would serve with distinction?  I say, think bigger, Mr. Anonymous.  And smaller.

As to the second point, I cannot agree with Mr. Anonymous.  I’ve read legal treatises. I’ve read blog posts.  Let me tell you, the former are not nearly as interesting as the latter.  In fact, the former are a bore.  I’m talking a crushing bore.  Boring. Boringas. Boringamos.  Isn’t it time that we broke from the old, the tedious, the incomprehensible, and tried to do better?  Would it be a crime for Supreme Court opinions to be a little less obtuse and a little more interesting?

And there is one additional advantage to my nomination that no one, as yet, has recognized.  After the Senate has its way with me, crucifying me for my writings and opinions, expressions of concern for others and thoughts on subjects large and small, think about how thankful they will be when my appointment goes down in crushing defeat and they are presented with another Ivy League, law clerk, prosecutor, federal judge to approve.  The person who comes after me will sail through, just in time for the first Monday in October.

The other day, Gideon at A Public Defender posted about the presumption of guilt.  He wrote of how we mouth the words “presumption of innocence” because that’s what we’re told we should, but believe in our hearts and minds that they’re all guilty.  The”bedrock principle” is a nice platitude; reality is otherwise.

Gideon’s thesis is tested by Paul Cassell at Volokh Conspiracy.  For anyone living under a rock, Cassell is a former federal judge who left the bench to become a Utah lawprof.  Law professors are paid more.  His primary focus is on the rights of crime victims, and their insertion into the criminal justice process.  By definition, this presumes there is a crime, a victim and a criminal, before the law determines any of these things.  

Cassell posts about the case of Timothy Hennis, riffing off a post by Kent Scheidegger at Crime & Consequences, who asserts that the Hennis case “conclusively debunks” the Innocence List maintained by the  Death Penalty Information Center.  Hennis, was convicted, sentenced to death, reversed, then acquitted.  However, under dual sovereignty, Hennis was tried again by the military and convicted of premeditated murder.

Scheidegger contends, in a way that might be described as smug if that wasn’t his normal state,

It was just after two in the afternoon on Thursday when I finally said to myself, “enough”.  I had “finished” an appellate brief the previous Friday, yet couldn’t stop looking back at it.  It had been proofread half a dozen times for typographical errors, grammatical mistakes and clarity.  Each time, something was found that could be corrected or improved.

Many people surmise that this blawg reflects my skills as a writer, or lack thereof.  Despite my efforts to explain, the notion persists that writing is writing is writing.  As they read what I write, they believe they have insight into my writing.  What this blawg reflects is, generally, a solid ten minutes of effort, once through and then the computer’s spellcheck takes a final pass.  After that, it’s in the hands of readers.  A few friends will email me to let me know of a typo or mistake, which I will correct as quickly as possible, but I never proof the posts myself.

Others proof it to death.  I don’t.  It’s just my approach, based on the nature of this format.  It’s informal, conversational and, occasionally replete with typos.  I do it quick and dirty, a means of getting some of the words rumbling around inside my head onto a white screen.  It’s not meant as an insult to the finer minds that read it, but in the hopes that they can appreciate a blawg post for what it is.  Others see it differently.

Formal writing, on the other hand, is a world apart.  I agonize over every word.  The passive tense makes me nuts, and I eliminate it wherever it’s found.  There is no excuse for misspelling a word in a brief, though it still happens on occasion even after it’s passed through a few other hands to give fresh eyes to the task.  But it kills me to find a typo.

Reading lines for the tenth time, I still find superfluous words.  Any word that is not necessary is deleted.  It’s not enough that it’s acceptable, but has to be necessary.  If a word has no specific, articulable purpose for inclusion, then it’s out.  Whole sentences are eliminated when, in retrospect, their inclusion failed to serve a purpose. 

Many writers think that length is a virtue.  It’s not.  It’s wasted words, boring or confusing the reader and often undermining your argument.  In my best of writing worlds, the reader will understand my point with precision and clarity.  There is no other purpose to a brief.  The shorter the argument, the greater the clarity and the easier it is for the reader to comprehend my point.  Persuading the reader doesn’t involve forcing the reader to wade through pointless words, sentences or paragraphs.  Any wasted word can be a bomb waiting to explode. 

As I read through, however, I have never found writing that I do not think can be improved.  From the time when I “finished” the brief to a few minutes after two on Thursday, I made another dozen changes.  Not huge ones, but tiny little tweaks, a word here or there.  Each time, honing it down with greater precision, a better or word perhaps, or an adjective that should never be there.  If I continued to look at the brief, I would continue to edit.  There is no point when I believe it’s perfect.  Years later when I look back on a brief I’ve written, I always see something I could have done better.  Always.  I’m never satisfied with myself.

Eventually, however, it has to stop.  Eventually, it must be sent to the printers.  Eventually, it must fulfill its purpose in life to be an appellate brief.  It’s like sending a child off to war, but I had to steel myself and do it.

Blawg posts are, for the most part, fun and, occasionally interesting or provocative.  No client is harmed in the making.  When writing in the course of my representation of a client, it’s another world.  Just as we can work in the garden in jeans and a t-shirt on a summer day, or wear a suit and tie to appear before a tribunal, never confuse what happens here with what happens there.  It’s a wholly different endeavor, and like every other lawyer who strives for excellence in the representation of a client, I dress for success.

Few cases generate as much heat amongst practicing lawyers than Padilla v. Kentucky, the Supreme Court decision requiring criminal defense lawyers to correctly advise non-citizen defendants who plead guilty of the immigration consequences of the plea, unless the consequences are unclear. 

Since my earlier discussion of the decision, and its flaws, some of the brethren have sought to provide some helpful information.  Gideon, at A Public Defender, offers this:

Never fear. Here’s a   practice advisory on Padilla, and more importantly, on pages 7-8, a list of deportable offenses and tips on how to approach a case with immigration consequences.

The advisory also points to several great resources on immigration consequences in criminal courts.

You can thank me later.

There’s nothing better than the simple life, where a handy “cheat sheet” gives a laundry list of everything you need to know.  Print it out. Carry it to court. Be brilliant.  Except…that’s not really the problem.  The problem is that the Padilla duty is largely a no brainer at the extremes, where the immigrant defendant pleads to possession of 457 kilos of cocaine with intent to sell (it’s a little large for personal use anyway), or doing 37 in a 35 mile per hour zone, with or without your windows excessively tinted.  The problem is toward the middle of the spectrum, where all this mushy information does little to inform.

What this means for the defense lawyer is clear, but even more interesting is what it means for the prosecutor who is concerned about making sure his guilty plea sticks.  Enter former TV star and Justin Bieber body double, Ken Lammers at CrimLaw to make the point.

It’s more than a little ridiculous to expect defense attorneys practicing in State courts to understand the intricacies of immigration law. How ridiculous? Well let’s look at the list of sources which Justice Stevens uses to back his claim that it is a normal standard of practice for defense attorneys to be fluent in and advise clients as to immigration law:

National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation §6.2 (1995); G. Herman, Plea Bargaining §3.03, pp. 20–21 (1997); Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 713–718 (2002); A. Campbell, Law of Sentencing §13:23, pp. 555, 560 (3d ed. 2004); Dept. of Justice, Office of Justice Programs, 2 Compendium of Standards for Indigent Defense Systems, Standards for Attorney Performance, pp. D10, H8–H9, J8 (2000) (providing survey of guidelines across multiple jurisdictions); ABA Standards for Criminal Justice, Prosecution Function and Defense Function 4–5.1(a), p. 197 (3d ed. 1993); ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d ed. 1999).

Hard as it is to admit, Ken is right.  We don’t read hornbooks, law review articles or (gasp) the ABA standards (on anything whatsoever) in the regular course of our practice.  Court decisions, all the time.  The rest,

we have a widely disparate set of habeas-bait “standards” (invariably impossible to follow: see this post), never used procedural books (I’d even go so far as to say never heard of, but someone out there must have), ABA standards which laughed at by actual practitioners (actual criminal law attorneys don’t have time to waste with that organization), and a law review article (you’re kidding?!? tell me you’re kidding).

Ken used to be a criminal defense lawyer before he turned to the dark side.  He knows stuff.  And what this means is that the plea he worked out so carefully will be subject to all manner of challenge afterward for failure by the defense lawyer to either comply with Padilla, or be accurate.

So, getting back to reality as the Supreme Court has now defined it for us, what are the practical effects on the ground? Well, we know that a lot of attorneys aren’t going to pro-actively advise the possible immigration consequences of a conviction. We also know that even when they do there will be appeals and habeases in which the defendant claims that he wasn’t notified. Hopefully, judges will start adding the question to the plea colloquy, “Are you aware that if you are an immigrant a conviction may effect your immigration status?” Unfortunately, I can’t do anything to effect that change.

But that doesn’t mean that prosecutor Ken plans to take Padilla lying down, waiting for the defendant (and his immigration challenged lawyer) to spring the trap.

I can change the language in my plea agreements. Henceforth, all my plea agreements will contain the following language:

 

Immigration Consequences: The defendant understands that if he is an immigrant any conviction may effect his immigration status and that federal law allows deportation for drug convictions.

I suggest that any prosecutor out there develop similar language and insert it into their pleas until such time as the judges have changed their colloquies.

While I think Ken’s on to something, I’m not convinced that his language is going to cut the mustard.  But if copies pages 7-8 of Gideon’s practice advisory, staples it to plea form, squints a bit and prays that nothing even remotely relating to the defendant’s charge or prior criminal history happened in another jurisdiction, he might be able to squeeze it through.

You can thank me later too.

Amongst the many powers of the prosecutor is the power to compel disclosure of information needed in the investigation and prosecution of crimes.  Or maybe not quite crimes.  Or maybe, just something the prosecutor would like to know.  Or maybe something that a cop friend who belongs to a church who has an anonymous blogger would like to know so they can teach that anonymous blogger a darn good lesson. 

Fortunately, Middle District of Florida Judge Marcia Morales Howard wasn’t inclined to put her faith in church member/cop Robert HInson or prosecutor/subpoena issuer Stephen Siegel.  Normally, this is where I would insert a quote from the decision in Rich v. City of Jacksonville, but it’s one of those insufferable decisions that goes on ad naseum on every minute tangent under the sun without providing a clear point, sentence or paragraph, that would serve to inform.  Anybody wanna bet that the judge’s clerk was on law review?  So instead, here’s Eugene Volokh’s synopsis :

The most important part of the decision rests on the Free Speech Clause, but the court also concludes that if issuing the subpoena was motivated simply by a desire to “prosecut[e] an errand of the Church,” then that would also constitute a violation of the Establishment Clause. In such a situation, the court says, “the state actor [would have] lacked a ‘secular purpose’ for his actions,” and the action would have had “a primary effect of advancing religion” as well as “enmesh[ing] churches in the exercise of substantial governmental powers.” “Such ‘active involvement of the sovereign’ in the internal affairs of a church, namely a dispute between a congregant and his pastor on matters of church doctrine and administration, would violate the very essence of the First Amendment.”

Great news?  Well, not exactly.  The decision arises in the context of a §1983 action.  The blogger is long since outed, anonymity be damned, because Comcast and Google complied with the subpoenas.  Whether Assistant State Attorney Siegel was playing errand boy for the church wasn’t their business; they get a prosecution subpoena, they comply.

The issue here is whether the blogger’s complaint for damages and injunctive relief should be dismissed.  Ultimately, Judge Howard says no, at least at this stage, because Siegel’s prosecutorial qualified immunity fails for lack of any legitimate state interest in his issuance of the subpoena.  But the judge isn’t particularly encouraging about the plaintiff’s chances for recovery.

That Judge Howard held that the prosecutor cannot use the subpoena power for personal purposes seems almost too obvious for words.  That there is no remedy before the harm is done, however, reduces any after-the-fact jousting to an exercise in futility.  Here’s a tough question: How does a person prove harm/damage by having the veil of anonymity lifted?  Sure, we have a right to anonymous free speech, but what’s the dollar figure on the loss of that right?

Remember, where there’s no remedy, there’s no right.  There’s no reason to respect a right when there’s no downside to violating it.  A firmly worded “don’t do that ever again” usually evokes a foot shuffle and a head turned downward.  Not in contrition, but to conceal the sneer from the judge.  Want to slap my other hand, judge?

It’s axiomatic that the law can’t cure every wrong that man can devise.  It just seems to do a particularly ineffective job of preventing prosecutors and police from using their enormous powers in violation of constitutional rights, and all the nicely conceived decisions that labor to explain the vast complexities of immunity somehow neglect to note that, at the end of the day, no one was saved and no constitutional right was protected.

The argument against withholding immunity from prosecutors, primarily grounded in the fear that they will lack to fortitude to do their jobs if they are functioning under an ever-present concern of liability, seems hardly a match for cases like this where the abuse of authority is flagrant and far afield of any conceivable legitimate purpose.  Granted, the federal chastisement of the conduct isn’t going to win ASA Siegel any prosecutor of the year awards, but it similarly doesn’t do much to restore the plaintiff to his rightful place of anonymity.

You don’t have to like anonymity online to recognize that the government can’t abuse its authority to strip someone of it.  And as this case shows, there’s little to be done to stop it.  The best we can hope for is a tiny chance, afterward, of getting to court to say mean things about the prosecutor, even if there’s no real remedy to be had down the pike.