When I was admitted to our “family” law school in 1979, my cousin, Harlan, gave me the gift of a Black’s Law Dictionary, Revised Third Edition.  Inside is an inscription which, to this day, reminds me why I don’t like Harlan. Yet, it was my introduction to the secret mystical language of the law, despite its omission of stercus accidit.

Little did I appreciate, back then, how mystical that language would be.  At A Public Defender, Gideon writes about the Connecticut Supreme Court’s decision in State v. Ward.

The Court was presented with the following factual scenario: a man who works for a company in Massachusetts that does business with a company in Connecticut commits a crime here in CT and then returns to his home in MA. Twenty years later, he is arrested and charged with the commission of that crime.

Twenty years is not only a long time, but well beyond the statute of limitations in most states. Most, but apparently not all.  Connecticut has a tolling provision that provides that the statute doesn’t run during the period that a person “has fled from and resided out of this state.”  “So what,” you say. The defendant never “fled” from arrest and prosecution.” Ah, that’s because you don’t have the Connecticut edition of the law dictionary.

To non-lawyers, fled means, well, fled.

The verb “to flee” generally invokes the image of a person running away from a negative event or circumstance. And certainly in the criminal context, the word means to run away from the criminal consequences of one’s illegal actions, viz., an investigation or prosecution.

But to the erudite Yankee judge, it means something entirely different.

We note, however, that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger—in the context of § 54-193 (c), we  understand this term to mean investigation—and hurry toward a place of security—in the context of § 54-193 (c), we understand this term to mean outside of the jurisdiction. We conclude, therefore, that § 54-193 (c) may toll the statute of limitations when a defendant  absents himself from the jurisdiction with reason to believe that an investigation may ensue as the result of his actions.

See how that works? Since the untried, unconvicted defendant should have known that he was guilty of a crime, the court can impute motive to his leaving the state to go home, impose a “reason to believe that an investigation may ensure as the result of his actions,” and convert his returning to his home in Massachusetts into fleeing the non-existent investigation that may ensue in Connecticut.  In other words, he fled, even though he didn’t.

And then there’s the Kentucky version of the law dictionary, as related by Kevin Underhill at Lowering the Bar.

First, the facts. WKYT reported on Monday that a 55-year-old Jessamine County man had been cited for riding while intoxicated. The man said he was trail-riding with some friends and had stopped to have something to eat “when the deputy arrived and told me to get off my horse.” He explained that he is severely diabetic and hadn’t eaten, and that is why he staggered after dismounting, not because he was intoxicated.

Certainly a viable explanation, but for the fact that “his blood alcohol level was twice the legal limit, that he was found to be carrying rolling papers and a bag of marijuana, and that his saddle bags contained “several beers and a mason jar which he identified as ‘moonshine.'”  Remember, this is Kentucky.

As it turns out, Kentucky has a law prohibiting “[o]perating a vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited.”  So what exactly is “a vehicle not a motor vehicle?”  Big Wheel? Check. Razor scooter? Absolutely. Law mower? Why even ask. But horse?

A horse is an animal. A horse isn’t operated, but ridden. If one’s driving ability is impaired, so what? As every horseback rider, knows, the horse knows the way back to the barn. And if you leave the door open, the horse can even “drive” himself. Do you know any Big Wheels that can do that? I didn’t think so.

Yet, the language of Kentucky law prevails.

All very interesting, said no one, but aren’t there often statutes that define certain legal terms? Yes, and there’s one here. And sadly for Rooster Cogburn, it defines “vehicle” as including “All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth.…” So while I still like my “animal is not a vehicle” argument, Kentucky has precluded it.

While they just could have prohibited drunk horseback riding, the inclusion of the phrase “all agencies” seems to cover a horse, not to mention piggyback rides from a really special agent of the DEA.  Almost interestingly, Lawprof Dave Hoffman at  Concurring Opinions picks up on Kevin’s post to suggest that this statutory interpretation would make a good law school exercise.

Seems like a good example to use in a class on statutory interpretation.  Isn’t the obvious question what an “agency” is for the purposes of Kentucky law?

Or maybe a better, though less obvious to a scholar, question would be why can’t legislators write laws that say what they mean? In the alternative, another question might be why shouldn’t judges refuse to play along with laws that require contorted definitions in order to make sure the state always wins?

Of course, if they taught law students to use words with actual meanings, there would be no need for Black’s Law Dictionary and  Bryan Garner would have to find a real job, like writing fiction books.

The email from  Jordan Rushie had a  Lowering the Bar, the 11th Circuit’s majority decision in  Holsey v. Warden clocks in a 104 pages. No, I have no clue what it says, as there is no way in hell I plan on reading 104 pages just to see if it’s anything that matters to me.  Sure, I read the first sentence, that “[i]n the early morning hours of December 17, 1995, Robert Wayne Holsey robbed a convenience store in Milledgeville, Georgia, and fled,” and sure it was certainly enticing.  But if I’m going to spend my time reading, this isn’t what I want to read.

Even the concurring judge has a problem with the opinion.

Although he concurred in the result of the decision last Thursday in Holsey v. Warden, Judge J.L. Edmondson of the 11th Circuit wrote separately to say he did not join in the opinion itself only because, at 104 pages, it was just too long:

I stress that [my refusal to join is] not because the opinion says something that I am sure is wrong or I am sure is even likely wrong. I agree with much of the opinion, at least. But the opinion says a lot and says more than I think is absolutely needed.

Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges’ time and attention.)

In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk….

I should say that I, broadly speaking, do not agree that the length of an opinion necessarily reflects the thought, labor, and care that has been invested by judges in their endeavor to decide the case correctly. The shorter opinions often reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on a related idea: “If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare.”

It seemed worth a second post on Holsey v. Warden to mention the dissent’s view that the Georgia Supreme Court was wrong to hold that the defendant was not prejudiced by ineffective assistance of counsel at trial. She noted that it was undisputed that Holsey is “borderline mentally retarded” (the State’s experts agreed he was not faking) and that he had been abused so severely as a child that neighbors called his home “the Torture Chamber.” And she pointed out that rather than investigating and presenting this evidence at sentencing, “Holsey’s lead defense lawyer drank a quart of vodka every night of Holsey’s trial while also preparing to be sued, criminally prosecuted and disbarred for stealing client funds.” In light of these facts, she believed, the state court’s finding that Holsey had not been prejudiced was unreasonable and he should have received a new sentencing hearing.

I didn’t mention it before so as not to overshadow Judge Edmondson’s very good point that (at least with legal work) longer is not necessarily better, but Holsey had been sentenced to death.

Court of Appeals Chief Judge Jonathan Lippman has  made good on his threat to require applicants for the New York bar, starting in 2015, to have completed  50 hours of pro bono.  He released his rules yesterday, which define the pro bono duty:

(b) Pro bono service defined. For purposes of this section, pro bono service is supervised pre-admission law-related work that:

(1) assists in the provision of legal services without charge for

(i) persons of limited means;

(ii) not-for-profit organizations; or

(iii) individuals, groups or organizations seeking to secure or promote access to justice, including, but not limited to, the protection of civil rights, civil liberties or public rights;

(2) assists in the provision of legal assistance in public service for a judicial, legislative, executive or other governmental entity; or

(3) provides legal services pursuant to subdivisions two and three of section 484 of the Judiciary Law, or pursuant to equivalent legal authority in the jurisdiction where the services are performed.

“We believe the clinics are the best places to get that experience and it would be foolish to ignore the one place where you know you have the supervision that you need in well-organized programs,” Lippman said. “To ignore that, to us, it would have been sheer folly.”

Services may be completed in any state or U.S. territory, the District of Columbia or any foreign country.

“It is logistically too difficult to require everyone to come into New York and to mandate them to do it here,” Lippman said.

Not that it’s the worst example of abuse ever, but when you look prosecutorial misconduct up in the dictionary, you see a picture of MIke Nifong, the former Durham, North Carolina district attorney.  His prosecution of three innocent Duke University lacrosse players remains a shining example of why prosecutors can’t be left to their own devices.

And yet, even Nifong’s outrageous conduct may not be enough to get a Fourth Circuit panel to let the case proceed, as appears from oral argument.  From the Durham Herald-Sun :

Jonathan Cuevas was a jaywalker.  That’s right, a jaywalker.  And jaywalking is an offense.  This means that those who are of the view that the simple solution to whatever stems from the commission of an offense is, by definition, justified. After all, Cuevas chose to jaywalk. He chose to commit the offense. So he has no one to blame for his killing than himself.

And if this is what you think, then you have lost any shred of humanity. 

From KPCC :

Jonathan Cuevas was out late in Lynwood on October 10, 2010 with two friends walking to a house party. They stopped at a liquor store on Long Beach Boulevard to buy beer and snacks. The group of men jaywalked across the street around 1:45 a.m. when a deputy patrol car pulled up to cite them for an alleged pedestrian violation.

Cuevas ran.  The LA County deputy, who inexplicably is unnamed in the report. either wasn’t in the mood for this lack of respect or didn’t feel like running after a kid down for a jaywalking ticket.  So rather than give chase, he shot.



While the “coup de grace” makes for a dramatic flair, not a single shot fired can be rationally explained.  For jaywalking?  We don’t kill people for jaywalking.  Not even jaywalking plus contempt of cop.  It’s just not a crime for which the death penalty is imposed, even on the streets of L.A.

But then, it’s never quite so simple.  The police, who have thoroughly investigated what happened and concluded that the unnamed deputy should get a medal, claim that Cuevas had a gun.

A Sheriff’s department incident report says the deputy involved, Julio Jove, says he saw Cuevas pull a handgun from his waistband and point it at him. But Cuevas’ relatives maintain that the surveillance video doesn’t show that.

“It doesn’t show that he makes a threat to the officer. He’s running. He gets shot in the back and he falls
down and the officer stands over him and continues to shoot him,” said Mayra Murrillo, Cuevas’s fiancé and mother of their four-year-old son.

And why would Cuevas point a gun at police officer? To avoid a jaywalking ticket?  If anything, it would explain why he ran, but the cop wouldn’t know that he had a gun until he searched the dead body lying in the road.

It’s unclear from reports whether it’s conceded that Cuevas was armed or not. His family’s attorney notes that the gun was at first a silverplated gun, though in a photograph it was a black weapon.  That’s understandable, as the silver gun is way cooler and it would be a shame to waste it on a throwaway. 

Regardless, there were no prints from Cuevas on the weapon, but as anyone who has ever crossed a cop on a weapons case knows, it’s the police position that it’s almost impossible to find fingerprints on a metal gun except when they confirm the prosecution’s claims.

The gun is a red herring.  Notwithstanding the fact that the video fails to show anything remotely suggesting that Cuevas pulled it on the unnamed deputy, and despite the absurdity of such a claim, he was shot, again and again, in the back as he ran away.  There is no theory to explain an officer in fear from a person’s back as he ran away.  This, of course, didn’t stop the police from asserting with absolute certainty that it happened.

Yet, there is not only a lack of focus on what is clearly shown in the video, but the possibility that it was wrong to execute Jonathan Cuevas for the heinous offense of jaywalking was dismissed because the police and district attorney “investigated.”  After all, if they investigated and decided that this was a righteous shoot, what more is there to say?

Jaywalking. Another proud moment in law enforcement in America.

It’s hardly uncommon for a defendant’s family to bring in fresh clothing for trial, in the hope of having him look his best before the judge and jury.  Of course, what makes him look his best in the minds of a defendant’s family sometimes differs from what a lawyer would select. Or what a juror might think. Or what anything resembling good taste might dictate.  But taste is a personal matter.

Defendant  Fermin Recalde was fortunate enough to have his family concerned about his appearance as he went on trial for the stabbing murder of his girlfriend.  As guards inspected the clothing to make sure they didn’t slip a file into a pocket, his public defender, Anya Cintron Stern, kept her watchful eye on them.  Until it came to her client’s underpants. 

From the Miami Herald :

Recalde’s public defender Anya Cintron Stern snapped a photo of Recalde’s briefs with her cellphone, witnesses said.

While on a break, the 31-year-old lawyer posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was “proper attire for trial.”

Though Stern’s Facebook page was private, one of her “friends” told the judge of the image, who declared a mistrial.

And Cintron Stern was immediately fired, according to Miami-Dade Public Defender Carlos Martinez, whose office represents clients who cannot afford a private attorney.

Clients are entitled to lawyers’ loyalty and respect, Martinez said.

“When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it gives the appearance that he is not receiving a fair trial.”

This came after an earlier posting by Stern, admitted to practice in 2008, “appeared to call into question the client’s innocence.”  On the bright side, Recalde had sought to get new counsel several times before, to no avail. 

Ah, the lure of the internet.  To amuse one’s friends. To puff ones importance. To relish in the fabulous stories a criminal defense lawyer accumulates.  It’s almost irresistible to have such great things to tell and not be able to share. After all, this is the age of sharing, where funny photos taken by the omnipresent cellphone camera can cause people lulz and make someone the wittiest or most impressive person in her crowd.  Who wouldn’t want that?

But what we do is the antithesis of sharing.  What we see, we know, we learn, isn’t ours to share, no matter how much fun it would be to do so.  Martinez gets his priorities straight, that our clients are entitled to our loyalty and respect.

For the most part, lawyers in the blawgosphere have shown remarkable restraint in maintaining their clients’ confidences.  No doubt there are funny moments some would love to twit about, but they don’t.  Our clients don’t exist for the amusement of others, a source of fodder for whatever social media platform we favor.  Their lives aren’t sources for the next picture or blog post.  Their misery isn’t our self-promotion.

Yet, some try to push the envelope as far as they can. Whether it’s to amuse or impress, they tell stories and share details that sacrifice the privacy of others and confidence they swear to protect.  They claim to hide enough to prevent anyone from knowing that they’re playing with privilege, and pretend their being honorable.  It’s a lie they tell themselves, and a trick to see if others are smart enough to spot the lie. Few are.

However, as the societal norm changes, and young people reveal embarrassing and, shockingly often, stupid information about themselves, they demonstrate the inability to distinguish what is fair game for public dissemination and what they have no right to show.  Their judgment is skewed by their inability to keep their own business private, so why should they comprehend the duty to protect the privacy of others? 

No doubt Stern thought the defendant’s briefs a fabulous source of humor. Leopard print underpants?  Hysterical! How funny is that? ROFLMAO. It must be shared with all her friends.  LOL.

And why should Stern be concerned about putting it on her Facebook page?  It was private, which to digital natives is about as controlled a public disclosure as could possibly be.  Of course, private to Facebook-ers isn’t quite the same as private to the rest of us.  When your 500 closest buddies can see it, it’s really not private.

There is a basic rule of thumb that could be used, even by those who adore the internet and want desperately to “like” and be liked.  Reveal nothing.  No names. No dates, No places. No statements, No feelings. No thoughts.  And under no circumstances, photos of leopard print briefs.

I know this is killing some of you. Your friends who work at Wal-Mart have a never-ending stream of hysterically funny photos to post, and you feel like a loser for offering nothing more than an occasional cute puppy.  How awful to be a lawyer and be unable to share where the body is buried.

But what we do involves other people’s lives. What we share about them is at their expense.  Whether it will amuse others or impress them, it’s not ours to offer.  And if you can’t manage to care enough about your clients to protect their confidences, do it for yourself, as you may finally get your name in the papers but not in a good way. 

And even if it doesn’t bring you overnight notoriety and turn you into the Kim Kardashian of your crowd, there is a good chance that one of your “friends” won’t be as foolish as you and will recognize the impropriety of your conduct.  Just because you’re willing to sacrifice your client’s privacy for some laughs doesn’t mean everyone you know is similarly cavalier with the lives of others. 

Once you’ve demonstrated a lack of regard for the privilege, you will carry that scarlet letter with you thereafter.  The internet may be the most fun you’ve ever had, but the internet never forgets.  That includes the wrongs you’ve done as well as the funny photos you’ve posted.

H/T FritzMuffKnuckle

The story appeared on page one of the Sunday New York Times, and there was an immediate, and overwhelmingly appropriate, wave of outrage.  Debt collectors bought the use of letterhead from District Attorneys to scare and threaten people into giving them money.

When a debt collector in Erie, Pennsylvania  tried to fake a courtroom to get its victims to fork over money, the Attorney General’s Office of Consumer Affairs shut it down.  How outrageous that they issued phony subpoenas, erected a phony courtroom, put a phony judge on the bench who ordered very real people to pay money.  How outrageous that they didn’t give the state it’s piece.

The solution wasn’t to stop lying, but to share the profits.

The letters are sent by the thousands to people across the country who have written bad checks, threatening them with jail if they do not pay up.

They bear the seal and signature of the local district attorney’s office. But there is a catch: the letters are from debt-collection companies, which the prosecutors allow to use their letterhead. In return, the companies try to collect not only the unpaid check, but also high fees from debtors for a class on budgeting and financial responsibility, some of which goes back to the district attorneys’ offices.

According to the article, there are now about 300 prosecutors’ offices in on the scam.  The scam not only seeks money for purportedly bad checks, but fees and costs, and then an additional amount for a “class” in “financial accountability.”  The district attorney’s letters suggest that the recipient either take the class or pack their toothbrush.  Or else.

As outrageous as it may be the debt collectors are doing this, it’s the best thing that’s ever come their way.  The force of the law for only a few dollars per claim?  What a deal!  It gives these outfits the clout they need, now that the fair debt collection act prohibits them from doing things the way they use to, harassing people in the middle of the night, at their jobs, threatening their children and constant screaming, cursing and lies.  Not that these things still don’t happen, but they’re not supposed to.

Debt collection was the lowest of the low, the scum on the bottom of your shoe.  This is who District Attorneys decided to get into bed with.  There’s no need to draw the obvious inference. Why would they do this, lock arms with the very people they used to go after for flagrant impropriety?

Clearly, it’s just money.  A new revenue stream presented itself, and government always loves a new revenue stream, especially when it involves taking money from powerless people for whom there is no love or advocates.  As much as no one loves debt collectors, no one loves check bouncers either.  No need to raise taxes when there are bad guys from whom they can glom a few quid.

Yet, there’s a huge, gaping hole in the concept.  No one from any district attorney’s office, no one who might conceivably be accountable, has anything whatsoever to do with the use or abuse of the office.  No one investigates whether the claim of a bad check is legitimate. No one considers whether anything remotely resembling criminal conduct occurred.  And no one seems to give a damn that these debt collectors, yesterday’s scum of the earth and today’s prosecutorial bedfellows, are using official fiat to scam an extra couple of hundred bucks out of their victims so they can spread the vig around.

And what do our revered prosecutors have to say about this?  Remember, these are the people who enjoy the caveat whenever they’re caught dirty that they would (almost) never act in bad faith, never deliberately undermine the Constitution, never intentionally put an innocent in prison.  So how do they rationalize this outrage?

Prosecutors say that the partnerships allow them to focus on more serious crimes, and that the letters are sent only to check writers who ignore merchants’ demands for payment. The district attorneys receive a payment from the firms or a small part of the fees collected.

The influx of bad-check reports overwhelmed district attorneys’ offices, according to Grover C. Trask, a former district attorney in Riverside, Calif., considered the father of such programs. “It was a way to deal with a fairly serious nonviolent crime going on in the business community, but not overburden the court system or the resources of the district attorneys,” Mr. Trask said.

After all, who would want to “overburden the court system or the resources of district attorneys” by expecting them to do their jobs?  Who would want courts and prosecutors to afford citizens due process? Instead, let’s defer to the excellent judgment and trustworthiness of businesses and debt collectors. They would never lie. They would never get it wrong.

Prosecutors point out that people who write bad checks should be held accountable for paying back what they owe.

“I view it as quite a win-win,” said Baltimore County State’s Attorney Scott D. Shellenberger. “You aren’t criminalizing someone who shouldn’t have a criminal record, and you are getting the merchant his money back.”

Check bouncers should be held accountable. But only in a way that the law provides, after the people in whom we repose trust and responsibility ascertain that a crime has been committed, and after the accused has been afforded the opportunity of a full and fair hearing before a neutral magistrate.  Whether the merchants deserve to get money back or not is the end result, not the starting point.  It’s a burden to do things right?  ‘Tough nuggies. That’s why they pay you the big bucks.

Yet our prosecutors, the ones who we trust to safeguard our rights and exercise discretion in a fashion that protects our rights, with ten thousand court decisions affirming their honor and integrity, have handed a gun to debt collectors and told them to fire at will.  The only condition is giving the District Attorneys a cut of the money stolen.

It makes me pine for the days of the mob at its best.  At least they understood that what they were doing was terribly, outrageously wrong.

When the office phone rings late in the evening on a Sunday, it usually means someone got arrested.  Arrests are emergencies in anyone’s book, and even though there is rarely much to be done about it until the defendant is brought to court for arraignment, making sure that the lawyer you want standing next to your father, brother, friend is worth trying to reach a lawyer on a Sunday evening.

For the most part, criminal defense lawyers are always reachable, knowing that clients need us when they need us. If they get arrested at 3 in morning after a wild Saturday night, that’s when their minds turn from happy things to lawyers. So be it.

But when no precipitating even occurs to explain why a person decides to call on a Sunday evening, there is a problem.  The arrest occurred weeks, maybe months, earlier. There is no court appearance the next morning that requires a lawyer beside them. There is simply no reason in the world for a call to come in on that day, at that time. And yet the call comes.

If it’s a current client, then perhaps the motivation is a sudden spark, an idea that pops into the client’s head and he needs to share it with his lawyer before it’s gone again. Or fear that struck uncontrollably, and the client needs to hear a calm voice tell him that the world isn’t going to end.  While these aren’t necessarily good reasons to call on a Sunday evening, they are at least understandable.  But what if the call comes from someone you don’t know?

Aside from emergencies, even criminal defense lawyers get to live relatively normal lives. We are allowed to eat dinner with our families, plan a day at the beach or a trip to the zoo.  And on Sundays, we get to watch football.  When a call comes in from a person we’ve never met, never spoken with, don’t know at all, on a Sunday evening, it interrupts the normalcy of life.  It raises a question: why?  Why now. Why on a Sunday evening?  Why not Monday, during normal business hours, when we expect our time to be spent doing lawyerly things like speaking with potential new clients.

These calls are a red light that the caller is a problem.  Whether because the caller’s judgment is impaired, such that he expected to find a lawyer with whom he has no prior relationship sitting at his desk, telephone at the ready, awaiting a call from some unknown person on a Sunday evening.  Whether because the caller doesn’t care if he disrupts a lawyer’s life for his sudden and inexplicable interest in chatting with a person with whom he has no relationship.

There are the two standard things one does when a call comes in. Either take it and talk, or defer to another time that would be more suitable.  The Sunday night caller wants to talk. That’s why he chose that particular moment to pick up the phone and call.  Often, it’s because that’s a good time for him to talk without interruption or in private. Suggest that it would be better to return the call during normal business hours Monday and he’s offended.  He’s here now. Don’t you care? Isn’t he more important than anything else you could possibly have to do?

This too is a warning flag, that the caller, should he become a client, won’t be calling or reachable during the business day, but will expect his lawyer to be available for discussions, perhaps even meetings, in the evenings or at his convenience. 

Sometimes, the Sunday evening caller can be made to recognize that you, like him, have a life.  While you take no issue, none, with being there on a Sunday evening if there is a reason for it, his lack of respect and concern for your time isn’t quite a virtue that makes him a desirable client.  This is no truer than when he’s not yet a client, but makes demands of your Sunday evening.

If a potential client needs to talk with a lawyer on a Sunday evening because the thought suddenly struck him and he figured he could scour the internet, find lawyer phone numbers and see if there was someone around with whom he could have a pleasant free chat, get some quick and dirty legal advice, at his convenient, he’s not the potential client you want.  This is a problem person, and unless you are in such desperate need of business that you are prepared to sacrifice whatever normalcy life has to offer for the convenience of this client, take a pass.

I answer the phone on Sunday evenings if I can.  But if it someone I don’t know, someone with no emergency, someone who is more concerned with his transitory convenience than his sucking up on my Sunday evening, then I’m going to wish him well but tell him that I’m not the right lawyer for him. 

I’m sure some lawyer, somewhere, will be willing to spend an hour or two of his Sunday evening on the phone with this caller in the hope that it’s not just another free-rider.  If that’s what he’s willing to do, that’s fine.  Just not me.  If there’s no good reason to call me on a Sunday evening, don’t. I’ll be available Monday morning if you want to talk.

When the government sent out its  scare letter to about 1500 former Long Island Railroad employees, there was no downside.  After all, anybody who complied with their “amnesty” program, giving up their disability benefits in exchange for no prosecution, was putting money back in the till.  And making money off the backs of disabled people is what the government is all about, right?

Having had the opportunity to discuss this with some of the former LIRR employees on disability, a few things have become clear. First, truly disabled people are scared to death by the threat of prosecution. It’s bad enough that they’re disabled, but now they fear being disabled plus being put in prison.  Nice.

The word has spread that the government, should they decide that a particular disabled LIRR person deserves to be prosecuted, will destroy them.  Everything they’ve ever worked for, their homes, their families, ruined.  For those people who rely on their disability payments, this has kept them awake at night, the fear that there will be a knock on the door in the morning and their lives as they know it will come to an end.

Mind you, these are people who aren’t criminals, who would never give a thought to scamming the LIRR.  They’re exactly the ones most likely to be cowed by the threat of prosecution, most willing to give up their disability payments because they can’t bear the thought of going to prison. Easy pickings for the government, and there is nothing the government likes more than easy pickings.

Worse yet, the methods by which the government is attacking the pensioners plays upon ignorance.  Some might say that what the LIRR defines as disabled isn’t too stiff, and that government prosecutors’ view of disabled isn’t the same as the LIRRs.  That may be, but it’s not up to the government to redefine disability according to the sensibilities of prosecutors. If people are disabled by the LIRRs definition, then their claims are legitimate, even if prosecutors think it’s too lenient a definition.

Instead, the sort of evidence being thrown around is nonsensical.  So they played a round of golf? People with severe back injuries have good days and bad days.  On a good day, they want to enjoy some exercise. They want to have a life. But if they do so, they’re criminals?  And nobody recognizes that they have those bad days when they can’t move or are in agonizing pain.  Yeah, that happens to. What about that?  The government couldn’t care less.

Or perhaps they are still a member of their local volunteer fire department?  It conjures up images of robust men climbing tall ladders, and certainly not disabled guys. Except volunteer fire departments on Long Island are more clubs than anything else, and members continue into their nineties.  When was the last time you saw a 90-year-old run into a burning building?  They can still provide ancillary help, and indeed, they often do, but they aren’t carrying bodies out of second-floor windows.  Volunteer fire departments take whoever they can, and the desire of locals to help out, or continue to help even after they’re disabled (remember, this is volunteer, not paid), is no indicia of being fully-abled. It’s evidence of enjoying the camaraderie of their pals and contributing whatever they can. For free.

The mix is toxic. People aren’t criminals, aren’t equipped to deal with the threat of prosecution. People who hanging on by a thread because of very real physical or mental issues. People who are struggling to make ends meet now, and fear the cost of a defense. People who hear false rumors of how the government never loses, and read stories in the paper of how utterly innocuous conduct is sufficient for prosecutors to indict them.  These are not people who know from arrests and prosecutions. These are people who are damned scared, and rightfully so.

But that’s not the end of the problem, as the same cottage industry that grew up to help the disabled, and later turned dirty to help those who wanted to appear disabled to collect, is giving rise to its own legal cottage industry to take advantage of this fear.

Apparently, lawyers with connections to the same facilitators who were happy to take money from the disabled and the criminal alike are having a field day with these fearful targets. Aside from inherent conflicts of interest that would, if there was anything ethical going on here in the first place, preclude their advising, no less representing, the targets, they are courting these disabled former LIRR employees.  The targets, having no clue where to turn, are going back to the same old wells, and being sent to lawyers who are in bed with core defendants.  After all, where else would they go?

And the advice they are receiving is intended to flame their fears for the benefit of the lawyers.  They are being told that they could be arrested at any moment, with images of SWAT teams surrounding their suburban homes and doors being kicked in.  They are told they better prepare immediately for the worst, as if the United States Attorneys will take them down like cartel drug dealers.  Quick, pay the lawyer a $1,500 “availability” retainer so he’ll show up for arraignment. And lock in these scared people, dozens of them, hundreds of them, just in case.

It’s not bad enough that the government has chosen to go after the low-hanging fruit, the people who have suffered disabilities and are now left to fear that what remains of their lives will be torn from them.  Now, the lawyers who are putatively there to help have figured out how to take advantage of their fear as well, never once mentioning how their conflicts preclude them from representing these people, never mentioning that they aren’t likely targets because of well-established disabilities, never mentioning that the government won’t break down their door in an early morning raid like they’re street criminals, thus preventing them from obtaining competent counsel.

If the government scare tactic doesn’t get them, the lawyers will.  But then, this is what comes from sending out outrageous and baseless threats for the sole purpose of scaring innocent, legitimate people into giving up their rights rather than get chewed up and spit out by the system.  And from lawyers who have no qualms about cheating the fearful for their own benefit.  It’s just an utter disgrace all around.

Let’s assume there are four witnesses to an alleged crime, all undocumented aliens.  Three of the witnesses are more than happy to testify for the government, whether because they were promised some consideration or because they are just “hopeful” that the land of opportunity will appreciate their kindness. 

One of the undocumented alien witnesses, however, says “screw you,” to the government. One witness is going to testify for the defendant and say that he’s not the person who committed the crime.  Certainly the defendant can’t do anything to help him, but he’s going to testify for him anyway.

Guess who the government decides to deport before trial?

In a decision in the 9th Circuit in United States v. Leal-Del Carmen, Chief Judge Alex Kozinski says nope.

Once the government is aware that an alien has potentially exculpatory evidence, it must treat that person as a material witness and give defense counsel the opportunity to interview him and make a reasoned determination whether to seek his retention pending trial. This means the witness may not be deported before defense counsel has been retained or appointed and has had a fair opportunity to interview him.

The defendant was accused of smuggling nice folks across the Mexican border.  The border patrol agents interviewed four of the aliens, three of whom said that he was  el jefe. One said otherwise. The government neglected to mention this flagrantly exculpatory evidence to the defense, who eventually found out about it when the government, after strong resistance, turned over videos of witness interviews. 

Woo hoo, a witness?  Not so fast. The witness that didn’t help the government’s case was nowhere to be found.  He, though not the others, had been sent back.  Deported. Gone. Adios.

As an aside, the court was distressed by the fact that the government made the defense fight for discovery, rather than just turn it over.  In footnote 4, Judge Kozinski wrote:

We were surprised to learn that the Justice Department required defense counsel to make discovery requests rather than voluntarily and promptly turning over discovery materials. Since most criminal defense lawyers are appointed, see Caroline Wolf Harlow, Bureau of Just. Stat., Defense Counsel in Criminal Cases 1 (2000), the cost of preparing discovery requests is generally paid with public funds. See 18 U.S.C. § 3006A(a), (i). It’s difficult to understand how the Justice Department justifies imposing this expense on taxpayers and the court, or reconciles it with the government’s duty of fairness in criminal cases. See Berger v. United States, 295 U.S. 78, 88 (1935) (“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”).

To the extent we wonder whether the apparent naivete of judges is real or just put on for show, this provides a pretty good answer. As judges attuned to reality go, Judge Kozinski is probably one of the best, and yet this footnote suggests that he still, despite everything he’s been through and everything he’s written, has faith in the prosecution to honor its statutory and constitutional obligations just because they’re good guys.

To the extent the holding here doesn’t seem terribly surprising, it wasn’t nearly as easy to reach as one might assume.

We have adopted a two-part test to evaluate whether the government’s deportation of an alien-witness amounts to a constitutional violation. First, the defendant must show that the government acted in bad faith. United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991). There is no violation where the executive has made a “good-faith determination” that the alien-witness possesses no evidence that might exculpate the defendant. United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73 (1982). Second, the defendant must demonstrate that deportation of the witness prejudiced his case. Dring, 930 F.2d at 693. “To prevail under the prejudice prong, the defendant must at least make ‘a plausible showing that the  testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses.”’ Id. at 693-94 (quoting Valenzuela-Bernal, 458 U.S. at 873). This test balances the defendant’s right to present his version of events to the jury with the government’s interest in enforcing the immigration laws by promptly deporting aliens who “possess no material evidence relevant to a criminal trial.” Valenzuela-Bernal, 458 U.S. at 864-66.

This is a test that would, under normal circumstances, be essentially impossible to meet. If the alien is gone before the defense counsel has had the chance to interview him, how would he know what he would say?  Indeed, without some sort of heads up, defense counsel wouldn’t even know to interview him in the first place, the assumption being that most people in his position, alien caught crossing the border, is going to sell his testimony to the government cheap in the hope of being allowed to stay.

And of course, without damn strong evidence that the government shipped off the guy who offered exculpatory evidence while hanging on to their own witnesses, chances of showing bad faith by the prosecutor are none to worse than none, if that was possible.

What is glaringly missing from this decision is a real recognition that the minions of our beloved sovereign deep-sixed exculpatory evidence. Again.  There is the obligatory “honor the Constitution” lecture number 7, the one where the court explains to the government that it deprived the defendant of a fair trial and the right to present a defense (because the government probably forgot about this), and for the 4,974th time, was sternly told not to do it again.

Then comes the fascinating remedy.

On remand, the district judge shall decide whether to dismiss the charges against Leal-Del Carmen with prejudice,as a consequence of the government’s conduct. Should the district court permit a retrial, it shall determine whether the eight other deported witnesses were interviewed by government agents and, if so, what they each said. The government shall provide testimony or declarations from border agents as to whether they interviewed the remaining members of the group and whether they took notes or otherwise recorded the statements.

After all, if the government failed miserably to honor the defendant’s constitutional rights in the first place, and the district court failed to remedy this omission at the first trial, it will certainly go better for the defense the second time around.  The defendant will be allowed, at retrial, to play the videotape and be given a missing witness charge, which is nearly as good as having a live, exculpatory witness on the stand to testify for the defendant if one lives in an appellate court’s fantasy world.  A simple dismissal would be much too harsh, I guess.

Is this a good decision? Well, sure, given that it says all the right things and the defendant’s right to exculpatory evidence is acknowledged, albeit less than effectively.  And if the defense can prove the government acted in bad faith by deporting an alien to prevent his providing exculpatory evidence, this decision certainly helps.

But why, it has to be asked, if the government acted in bad faith is there no price to pay?  Why is no prosecutor held to answer for his deliberate violation of a defendant’s constitutional rights? And how long will courts persist in depending on the good will of the government to honor the defendant’s constitutional rights in appeals predicated on their failure to do exactly that?  If it didn’t happen once (or 10,000 times), why would one more lecture do the trick?