Ordinarily, a defendant claiming that he murdered someone and meant it is a darn good reason to convict him and make him a guest of the state for a good, long time.  But for Omar Gutierrez, this is the argument for freedom in his habeas proceeding.  And it’s got the Second Circuit troubled.

Via the New York Law Journal, Guitierrez was convicted of murder in 2001, but of the “depraved indifference” flavor pursuant to Penal Law 125.25(2), defined as murder under

circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

a one-on-one shooting or knifing (or similar killing) can almost never qualify as depraved indifference murder.

“The change in New York law on depraved indifference murder has created a series of problems for federal courts on habeas review,” he wrote. “Since the questions these cases raise are ones that are profoundly of New York law, when New York courts have spoken on the merits of a conviction for depraved indifference murder and on whether the evidence in a particular case was legally sufficient, we have tended to defer to that judgment.

“We have done so because, ultimately, how New York wishes to define depraved indifference murder is a question for New York,” he continued. “Difficulties arise, however, when, as in this case, New York affirms the conviction on procedural grounds that are not in keeping with federal requirements. For then we are left to judge a conviction that New York courts have not evaluated on the merits.”

If it sounds particularly wiggly a rationale, that’s because it is. Obviously, interpretation of New York law should be left to the New York courts.  But that’s what the New York Court of Appeals did in Payne and its predecessors.  What “series of problems” is Judge Calabresi seeing? 

Calabresi therefore certified two questions for the Court of Appeals: whether Gutierrez’s conduct was consistent with the standard for depraved indifference murder, and whether the changes in the law between his trial and final conviction should apply retroactively.

The first question sounds remarkably like a full-blown punt, the circuit asking the Court of Appeals to decide the case for them.  As for retroactivity, Payne wasn’t quite a new rule, but a refinement of the 1983 decision in People v. Register, which held that “depraved indifference” is a mens rea requirement. While it provided some additional clarification, the rule already existed.

But Judge Calabresi seems to signal the real problem:

“Let us be clear: We, as a federal court, are reluctant to release defendants whose defense to depraved indifference murder is that they were guilty of intentional murder, where those defendants were acquitted of intentional murder and convicted of depraved indifference murder at a time when New York seemed to permit this,” the judge said. “We will, of course, follow the law of New York. But before we order the release of such defendants, we wish to be sure that this is the result New York wants.”

When Guitierrez was tried, the common practice was for prosecutors to charge both intentional murder and depraved indifference murder as alternatives, leaving it to the jury to decide under which subdivision it preferred to convict.  Indeed, the point was to foreclose the defendant’s argument that he meant to kill or was merely reckless in killing, and cover both bases.  The degree of crime was the same, as was the punishment. For the prosecution, either one would do.  For the defense, there would be conviction either way.

This is where the line in Payne, that a direct one-on-one killing could rarely be depraved indifference, caused problems. The prosecution would be required to prove intentional murder, and couldn’t merely throw both theories out there and let the jury pick which flavor it preferred.

You can’t blame the circuit for feeling queasy about the idea of cutting Guitierrez free based on the argument that he committed intentional murder.  If ever an argument comes off as utterly disingenuous, this is it. Yet this is also the law, ugly though it may be.  And applying the law is why they pay circuit judges the big bucks.

The New York Court of Appeals is under no duty to answer the certified questions, though it usually does.  The problem is that they will be confronted with the same ugly choice, and whether they will adhere to their view in Payne, muddy the waters further to avoid setting Guitierrez free or desperately try to find some way to circumvent the hard questions.  No judge wants to reverse a conviction based on the defense that killer intended to kill.

Like everyone else, petty annoyances happen regularly around the Greenfield house, like yesterday when my daughter informed me that channel 51 was black on the TV.  As it turned out, so too were channels 46 through 50, though channel 44 gave me a clear picture of women from New Jersey.

My initial reaction was to ask her if there was really anything she wanted to watch on channel 51, hopeful that whatever problem we were experiencing would magically fix itself within a few hours.  She told me that not only did she very much want to watch channel 51, but it was critical for the continuity of her appreciation of the lives of the Kardashian family.  Where did I go wrong?

The truth isn’t that I was secretly pleased that she would be unable to watch a show that, in my opinion, should not exist, but that I didn’t want to call Cablevision and deal with the outage.  I couldn’t bear another voice mail tree.  But it needed to be done, and so I did it.  I was amused by the options offered after the three and a half minutes of hearing how much they cared about me.  I could press 1 to pay a bill, 2 to tell them how much I appreciate Jimmy Dolan or 3 to express my hatred for their competition.  Or hold for a customer service representative.  I held.

The customer service representative, Natasha, spoke loud and clear, in impeccable English.  She understood the problem and had a ready fix at hand, involving her reprogramming my cable box from her end, with only my rebooting the box afterward.  It was painless and effective, fixing the problem as far as I could tell as channel 51 was suddenly there, in sufficient HD to see the pancake makeup on Kim’s face.

I thanked Natasha, and she then told me that she thought it best to have a technician come to my house to make sure the box was working properly, or to switch out the box.  She told me that there was an appointment available today, Labor Day.  The technician would come between 8 a.m. and 8 p.m. 

I thanked her for her concern, but responded that Cablevision doesn’t pay me enough to wait 12 hours for an appointment.  She laughed, and apologized that she couldn’t nail the time down any better, but that was the only option she was offered.  I told her I understood, but since channel 51 was working, I would leave it at that for now and deal with an appointment if it was necessary. She asked if there was anything else she could do for me, and then we exchanged pleasantries and hung up.

There was no point in telling her that I had another battle going on with Cablevision that remains unresolved.  A week ago, having nothing whatsoever to do with me, some Cablevision trucks were busily doing something at the corner adjacent to my house. In the process, they cut some tree branches in front of my house and left them on my property. I expected someone to return the next day and take them away. I can be so naive sometimes.

After a few days, I contacted Cablevision to ask them to remove the debris.  The customer service representative, Chris, informed me that this was unacceptable. I responded that I agreed. He told me he would contact the field supervisor and have it addressed immediately, and then asked me if there was anything else he could do for me. We then exchanged pleasantries and hung up.

Two days later, having heard from no one at Cablevision and watched as the last green leaf on the branches turned brown, I had the branches removed and taken away at my expense.  I called again, this time speaking with a fellow whose name I couldn’t understand with a thick Indian accent.  He apologized. I thanked him for his apology, but explained that I was not interested in attrition, but compensation.  I told him that Cablevision should pay the cost of removal.

Now, the time spent speaking with Cablevision was of significantly greater value than the trivial amount it cost me to have the branches removed.  It was more a matter of principle, that they should not get to discard the detritus of their work on my property without having to pay for it.  This is something I believe in doing, despite the fact that it rarely makes financial sense. I believe in incentives and disincentives, and that requires effort on my part even if it ultimately costs more to prevail than ignore.

The representative whose name I couldn’t understand asked me to hold.  After a few minutes, he told me that his supervisor had authorized him to offer me a $30 credit for removing the branches. I thanked him for the offer, but explained that $30 was not the amount I spent. He told me that was all he could do, but he could have the field supervisor contact me, and the field supervisor was authorized to reimburse me for my costs.

I responded that it was the field supervisor who had failed to adequately supervise in the first place, giving rise to the problem, then failed to respond after I complained of the problem, and that I was unconvinced the field supervisor would be more helpful this time. He told me that the field supervisor had to respond to me within 24 to 48 hours.  Or what, I inquired.  He didn’t know, but those were the rules.  He asked me if there was anything else he could do for me, and after exchanging pleasantries, we hung up.

I received a call from a fellow named Tim soon after Natasha got channel 51 working again.  Tim was the field supervisor.  He already knew that I had called about branches cut and left on my property. He asked how I knew it was Cablevision, and I told him that the derelict cutters had the word “Optimum” emblazoned on the side of the truck.  Tim then explained to me that he needed to find out who was responsible for this unacceptable conduct, but “obviously” he would be unable to do so until after Labor Day. 

I told him I wasn’t really concerned with who did the dirty deed, but rather that I be compensated for having to clean up after them. He told me they would deal with that afterward, which I took to mean that it would come directly from the pocket of the fellow who left the branches behind.  He then asked whether there was anything else he could do for me, and I responded there was, as I had a question.

I asked him what they were doing when they felt compelled to cut the branches. Tim told me there was a problem with customers getting black screens on some of the cable channels, so they were changing over some cable, and they cut branches when they were in the way of the repairs. I wished Tim a happy Labor Day and then we hung up. 

While I wanted Cablevision to feel the poke of having to reimburse me, I really don’t want to take any money from the fellow who cut the branches.  His being told he shouldn’t do that is enough to serve my purposes. But the least they could have done is fix the problem with channel 51 and saved me the call to Natasha, even though it was a pleasant call.

Via  Autoblog comes a statistic of shocking magnitude:

According to a recent study, nearly a third of American 19-year-olds haven’t bothered to get their driver’s licenses yet. Three decades ago, it was just one in eight who skipped that right of passage, according to Michael Sivak, of the University of Michigan Transportation Research Institute, or UMTRI. Among those 20 to 24, meanwhile, only 81 percent had gotten their licenses in 2010, down from 92 percent in 1983.

Why are young Americans losing their love affair with the automobile? There are any number of explanations. There’s the economy, of course, which has even driven millions of older buyers out of the car market. Young buyers, in particular, are more likely to have to settle for higher interest – meaning costlier – subprime loans. Compounding matters, they’re facing a market with higher unemployment and lower wages, and are leaving school saddled with massive loan debt.

Of course, that’s all meaningless, anyway, for those who don’t have a license and don’t want one.

The biggest reason behind this dwindling love affair might be a series of broad societal shifts. A recent analysis of census data found that for the first time since the launch of the Model T, America’s urban population is growing faster than in the suburbs. Even Detroit, with its crumbling neighborhoods, has seen a revival in its downtown core.

Have you ever tried to take a cellphone or iPad away from a teenager? For a large percentage of Millennials, texting has become the preferred form of communication, and “Virtual contact reduces the need for actual contact,” suggests UMTRI’s Sivak. “We found that the percentage of young drivers was inversely related to the availability of the Internet.”

Not the cops. Not even the prosecutors. Sitting in the back, awaiting the judge to take the bench, I found myself next to a lawyer I had known for more than 20 years, even tried a case with years ago, but who I never really talked to. We weren’t buddies. He was the competition.

While we both served the same community, in the sense of the clientele of criminal defense lawyers coming from the same community of people charged with crimes, we were on opposite ends of the spectrum. He was the high volume guy, the one who had twenty-something “paragelegals,” assuming you can call anyone with a GED you hire a paralegal, with calendars that rivaled the court’s.  They ran from courtroom to courtroom, assuring clients their lawyer would be there as soon as possible, and asking the court officers to hold the case until the lawyer got there.

He had a “price list” for crimes.  It wasn’t exactly cheap, but was far from expensive. And it was far less than I would charge.  Far, far less.  And when contrasting prices, a great many defendants saw no reason to go high when they could go low and see what happened.  I would regularly get calls from defendants who went there first, in the hope that the case would be quickly tossed, because they were “sure” how serious the case was.  If it was serious, then it was worth the expense, but why spend it until you know for sure.

It’s not that the lawyer wasn’t good.  He was actually quite good, as I learned while trying a case with him. When he took the time and put in the effort, he was a heck of a lawyer.  It’s just that he rarely had the time. How could he, with 20 cases on the calendar every day?  If he could plead out the cases, he did. If he had to try them, he did, and took the financial hit.  But he did everything he could to make sure they didn’t go to trial. 

For the most part, his clients knew what he was doing. They could do the math, and realized that at the fees he was charging, there was only so much time he could dedicate to their case.  His papers weren’t bad, but they were “change the name” forms, with good content left in from 100 cases ago, whether relevant to the case at hand or not.  That the new cases needed new arguments couldn’t be helped.

Sitting next to me in the courtroom, he started musing about the old days.  We fought each other over the same clients, him trying to keep them and me asking to send over the file when the client realized he needed more. It used to make me nuts to see the file, what hadn’t been done in the case that I would have done, and was now gone with the wind. This was the part clients never understood, that there was one chance to do something right. If it wasn’t done, or wasn’t done well, it was gone.

He was beat. He had been in the rat race a long time, and it takes its toll.  He had enough. “Well,” I said to him, “at least you can walk away a rich man.”

All these years, I assumed he made a bundle doing volume work.  I did the math, say an average of 10 cases a day, at $500 per appearance, he was taking in $5,000 a day, $25,000 a week, $1,250,000 a year even with two week’s vacation.  He has expenses, but not that much. The high school drop-outs couldn’t cost him that much, and his office had no marble in sight.  He should have been clearing a cool mil a year, almost all cash mind you.  And these numbers were conservative, taking into account the deadbeats and problem cases.

“I don’t know where it all went, but it went,” he told me.  I didn’t press him.

It wasn’t an easy life by any means. He ran from courtroom to courtroom, sometimes courthouse to courthouse, trying hard to remember names. He would call them out in the courtroom, because he couldn’t put faces to them. He signed them up in the evenings, assuring them that he would make their problems go away and taking whatever they had in their pockets. No one walked.

Others tried to do this, but couldn’t take the pressure. One lawyer, whose flame burned brightly for a few years, burned out one day. losing his family and some of his sanity. Another crawled into a bottle the first chance he got. No, this was a tough life. But the money was supposed to make it all worthwhile.

There was no doubt in my mind that he wouldn’t go hungry in the years to come. There were probably bundles of twenty dollar bills, with a rubber band at either end, stacked high in the safe, waiting for the day they saw light again.  There was probably a very nice house in the suburbs, and kids who finished college and grad school with no debt whatsoever. He made it through the maze having fulfilled his self-imposed duty to his family of providing them with all the things the family of a successful lawyer should have.

And I suspect that there are many former defendants walking around who were very happy that they hired him, having saved their money and been satisfied with the outcome.  There are also many defendants who weren’t happy, learning the hard way that the friendly handshake on the night they retained him didn’t mean they could ever get him on the phone after that.  And found out the hard way that assurances that everything will be alright don’t always happen. 

We all make a choice as to how we approach our future as a lawyer, whether we want to run from courtroom to courtroom, file generic motions and pray we get a quick and decent plea offer or not.  Having had this chat, I was happy about the choice I made.

At Concurring Opinions, Omer Tene, an internet privacy scholar who is hanging out at Stanford Law School for the time being, writes:

One of the most significant developments for privacy law over the past few years has been the rapid erosion of privacy in public. As recently as a decade ago, we benefitted from a fair degree of de facto privacy when walking the streets of a city or navigating a shopping mall. To be sure, we were in plain sight; someone could have seen and followed us; and we would certainly be noticed if we took off our clothes. After all, a public space was always less private than a home. Yet with the notable exception of celebrities, we would have generally benefitted from a fair degree of anonymity or obscurity. A great deal of effort, such as surveillance by a private investigator or team of FBI agents, was required to reverse that.

Now, with mobile tracking devices always on in our pockets; with GPS enabled cars; surveillance cameras linked to facial recognition technologies; smart signage (billboards that target passersby based on their gender, age, or eventually identity); and devices with embedded RFID chips – privacy in public is becoming a remnant of the past.

Location tracking is already a powerful tool in the hands of both law enforcement and private businesses, offering a wide array of localized services from restaurant recommendations to traffic reports. Ambient social location apps, such as Glancee and Banjo, are increasingly popular, creating social contexts based on users’ location and enabling users to meet and interact.

What is curious about Tene’s perspective is that he’s Israeli, a nation-state that has been under threat of terrorist annihilation from the moment of its creation. Israeli’s knew how it feels to have a bus of children blown up decades before terrorism was part of the American lexicon. Yet privacy, the bane of order and control, remains a concern for him.

As he notes, we have willingly handed the government our every move on a silver platter, from our credit cards, internet usage and cellphone data.  Every drug dealer I’ve ever known, and I’ve known a few in my time, hooked a device to his belt as soon as he could, and that device may have made his work easier, but gave his nemesis an incredibly easy tool to out his crimes.  It rarely occurred to any of them that they were handing over their privacy with a beeper, a cellphone, a smartphone, as they spent little time reflecting on the nitty-gritty of how electronic devices worked. 

Nor do most of us.  And yet, the courts, for all their technological ignorance, know enough to make clear that the third party doctrine has undermined any reasonable belief in our privacy.  Tene raises the next level of intrusion, facial recognition.

Facial recognition is becoming more prevalent. This technology too can be used by law enforcement for surveillance or by businesses to analyze certain characteristics of their customers, such as their age, gender or mood (facial detection) or downright identify them (facial recognition). One such service, which was recently tested, allows individuals to check-in to a location on Facebook through facial scanning.

Essentially, our face is becoming equivalent to a cookie, the ubiquitous online tracking device. Yet unlike cookies, faces are difficult to erase. And while cellular phones could in theory be left at home, we very rarely travel without them. How will individuals react to a world in which all traces of privacy in public are lost?

It’s an excellent question, although no one seems to give it much thought until after they’re in trouble.   Dan Solove argued that the Katz reasonable expectation of privacy test has run its course, and it was time to abandon it in favor of a new doctrine that will protect privacy going forward.  Orin Kerr disagrees, arguing that we can cruise along using the same old rules that eliminated most privacy before the tech revolution, and adopt them to lose all privacy going forward.  Even  Supreme Court Justice Sonia Sotomayor wrote that it may be time to reconsider the third party doctrine.

Are we seriously reduced to walking around the mall in masks in order to hold on to the last semblance of privacy?  We are the willing victims of technology when it comes to the ability to know all there is about us, and with every new application comes a better way to either sell us something or own our soul.  We love the shiny convenience far more than we hate the intrusion. 

There is no going back to the farm now that we’ve seen digital images of Paree. But I don’t want to walk down the street looking like a masked wrestler (no comments about this, please).  And regardless of whether I have anything to hide, privacy still matters. I don’t begrudge anyone who feels compelled to put their status on Facebook, but my status is none of your business.

So while the opportunity to protect privacy via technology is long gone, there remains a question of whether the protections offered by law will adapt to our reasonable expectation of privacy, not because the government doesn’t have the tools to know everything there is about us, but because we want and expect our privacy to be protected from the government anyway.  It’s not that Katz is dead, but rather that it’s not controlled by the marvels of technology but by the limitations under which we expect our government to function, one of which is to respect of our privacy despite its ability not to.

Or we can just walk around in masks.  Because that won’t be uncomfortable or awkward.

Some people point to Bain Capital, a vulture capital firm whose model is to strip a company’s assets, leverage whatever can be leveraged, suck out the cash and leave the business to die, as proof that Mitt Romney is heartless.  As if heartlessness is a bad thing.

Another way to look at Bain is that Romney seized upon a perfectly lawful means (despite the HuffPo’s snarky  suggestion to the contrary) of putting nonproductive businesses out of their misery while making good money off it, as proof that Mitt Romney is a smart businessman. As if being a smart businessman is a good thing.

Seizing opportunity wherever it can be found is as American as apple pie.  Until recently, societal norms prevented most Americans from harming others in the process.  We chose not to hurt people for our own financial gain because it was the wrong thing to do.  Ah, the good old days, when the wrong thing to do mattered.

The  New York Times has an editorial about the SEC’s implementation of a law enacted last April that will open up vast new profitable areas for lawyers:

Just what grandpa needed. Soon retirees and other investors will be barraged with advertisements for private stock offerings — via mail, cold calling, television, radio, billboards, the Internet and so on.

Such advertising, which used to be banned under federal securities law, will make it easier for hedge funds, venture capitalists, start-ups and other nonpublic companies to find investors. It will also make it easier for hucksters and rip-off artists to lure people into unsuitable investments and outright frauds because private offerings are not subject to disclosure requirements and other investor protections that apply to publicly held companies.

Every time a legal marketing cheerleader argues that people aren’t misled by deceptive lawyer advertising, I chuckle. Because people, even lawyers, don’t fall for the Nigerian lottery scam. Same with the nice folks who contend that nanny government is inherently bad, and there is no need for rules to distinguish truth from lies to protect grandpa from his own ignorant, stupidity or greed.  Or, that the stupid deserve to be ripped off, as part of some natural order.

For those who think Bain Capital reflects Romney’s mean spirit, the SEC’s failure to include safeguards for the vulnerable, like grandpa, falls squarely on the administration of the empathetic Obama administration.  What Congress did can be explained as an effort to stimulate business, bringing capital out from under the mattress so that innovators, start-ups, new blood, will create the next miracle that will shake us from our financial doldrums.  A good thing.

At the same time, grandpa can’t even buy laundry detergent without getting scammed, so the likelihood that he has the capacity to perform due diligence, or even grasp what he’s buying, is slim to none.  Remember, that’s your inheritance he’s going to lose.  And when grandpa is eating cat food, you’re going to feel bad and send him over a pot roast once a month.

But the good news is that this offers opportunity for lawyers. Biglaw will polish up its white collar credentials by snatching up former prosecutors whose credentials impress hedgefund managers even though they’ve never defended anyone in their lives. There’s a thin line between risk and scam, and when an investment heads south, you can be sure that the losers will cry fraud.

Then there are the civil litigators trying to clawback grandpa’s pension before it all ends up on a sloop in the Grand Caymans, far from the maddening crowd.

Neither, however, add any value to society.  Whether lawyers are sucking money from the accused fraudsters, or copping a third out of whatever can be recovered for grandpa, it’s just skimming off the top of a circular money flow.  No durable good was created. No new technology was discovered. At least not by a lawyer.  We just wait for the problems to happen and swoop in to take our cut.

Granted, they will need us, and we may work hard on their behalf, and it’s better than grandpa pulling out the old Navy Colt and blowing some hedgefund manager away.  But we’re the janitors cleaning up the mess.

And if there is money to be made, there are desperate lawyers ready to make it. Websites will be changed to claim that some kid who graduated law school last week has vast experienced in such matters. And how deeply he cares, and reflected by the rave reviews on Avvo posted by his mother and two best friends.  But hey, he needs money and there’s money to be made out there, so why shouldn’t it flow to him?

It’s weird how many perceive themselves and their politics as a step below Mother Teresa, rather than just another vulture waiting for the next dead carcass in the road.  We can rationalize away doing the right thing for no better reason than it’s the right thing when it’s inconsistent with self-interest. Our team is brilliant and honest, and the other team is disingenuous and destructive.  And besides, if we don’t do it, someone else will and they will win the prize and leave us as roadkill. 

But as long as we frame our position in uplifting, positive rhetoric, it’s all good.  After all, the vulture will survive as others starve to death because there was nothing left to eat.

In a public reprimand, the  Virginia state bar smacks a lawyer for the internet advertising and marketing of his virtual law practice.  Bob Ambrogi, no enemy of marketing he, provides a shorthand list of the evils:

• Represented his firm as a practice of multiple lawyers in multiple cities throughout the United States, when in actuality his firm consisted of just him, “with his so-called associates being independent contractor attorneys paid on a commission basis.” His marketing described the practice as a “national law firm” with offices in Virginia, Maryland, Massachusetts and India.
  
• Represented each of the attorneys in his firm as focusing primarily in one area of law, when in fact each of the attorneys handled several areas of practice. “Each attorney in our law firm primarily focuses his or her practice in only one area of law,” the website said. “Our … lawyers … don’t attempt to dabble in unrelated areas of law.”
  
• Represented that his firm had at least six offices within Virginia, when in fact he had a single office, with the other five addresses being unstaffed spaces, some in executive office suites shared with other entities on as as-needed reservation basis.

But I hope the bar’s leniency doesn’t lead other lawyers to jump on the bandwagon of obfuscation. “Virtual” should not mean presenting yourself as something other than what you are. Above all else, lawyers have a duty of honesty. Their marketing should conform to that.

But “misleading” is one thing and “giving them more info than they need to know” is another. Where do we draw the line in notifying the public about our business decisions and the business structures of our law firms?  How do we measure the potential harm to a public that is empowered to search online for alternative sources for legal assistance? [For the record, I am not disagreeing with the Virginia decision referenced above. I am merely posing a general question about the nuances of the term “misleading” in MR 7.1.]

For the record, I do not have a single problem with anything about the way that the Virginia case was handled. I found that attorney’s practices in advertising to be objectionable and they should have been reprimanded. 

No, I don’t believe lawyers should mislead clients about what services they can and cannot provide. My questions in the post were just that – me thinking out loud about where the nuances might be. Some of these are issues that came from my work advising the ethics subcommittee here in NC where a lawyer asked if he could put Regus office addresses in his advertising.

During that process the question came up about whether the lawyer then needed to put on his website all of the details about that office location, such as the fact that several businesses at those offices shared the same receptionist or that his mail was forwarded to his permanent office address. If it’s important to the prospective client that the lawyer actually has a physical permanent office and reputation in a specific city, then do they have other ways of finding this out before retaining the lawyer or does the lawyer’s website need to go into the exact details of their presence in each location?

So, what I was wondering in my post was where the line is drawn in advertising and what the harm to a prospective client is if they don’t know all the details, such as if you use a virtual receptionist versus a person sitting a few feet away from you. I was just posing questions to think about – not trying to start anything controversial. I was going beyond the specific Virginia case and thinking about other examples where it might not be as clear how much information in the advertising the lawyer needs to include. 

It’s easy to be disgusted by the crime for which Todd Broxmeyer was convicted. A former high school field hockey coach, Broxmeyer was convicted of attempting to persuade a 17 year old female student to “sext” him pictures and possession of the image.  He had been convicted of a number of other counts, but they were dismissed in a prior appeal because the evidence was legally insufficient to support the conviction. 

Still, the two counts are enough, even if 17 is the age of consent in New York.  After all, he was her coach. 

But when he stood for sentence the second time, he was sentenced for everything, every wrong he did, every disgusting allegation, even those for which his convictions were reversed as insufficient. Everything. 

Welcome to relevant conduct, a trick under the United States Sentencing Guidelines that bootstraps one conviction, no matter what it’s for, into a funnel where every wrong claimed goes into the hole and comes out as a sentence of monumental proportions.  So what if it’s ridiculously disproportionate to the crime of conviction, as long as the relevant conduct, all the bad stuff he wasn’t convicted of, supports it.

By 2-1, the 2d Circuit was cool with a life sentence (reduced to the statutory max of 30 years) for one count of attempted sexting and one count of possession of the image.  Judge Reena Raggi, writing for the majority, then went on to provide the details of every alleged, disgusting, unproven, unconvicted wrong.  Just so the reader of the decision would be as repulsed by the defendant as she was, which was extremely persuasive but for one shortcoming: He hadn’t been convicted of any of it.

But as Judge Raggi notes,

The broad range of information that the district court was here entitled to consider in imposing sentence might usefully be thought to fall into three sets, each larger than the one before: (1) evidence establishing Broxmeyer’s guilt for the crimes of conviction, (2) evidence supporting particular Sentencing Guidelines enhancements, and (3) evidence properly informing the court’s exercise of its ultimate sentencing discretion under 18 U.S.C. § 3553(a). While the second set defeats Broxmeyer’s claim that procedural error in the application of the Guidelines renders his sentence unreasonable, it is the third, largest set that compels rejection of the claim that his sentence is substantively unreasonable.

As expressly noted, each “set” of “information” was larger than the one before it, the first one being the evidence of the crime for which he was convicted. It only gets worse from there.
 
In dissent, Chief Judge Dennis Hurley would remand for the defendant to be sentenced to the statutory minimum of 15 years.  This is important: the lowest sentence he could get is 15 years. Fifteen. That’s a long time. A very, very long time. It’s not like he could get a quick and easy ten, or even a slap of five, but fifteen years. 

Broxmeyer’s attempt consisted of inducing a 17-year old to take a lewd photo of herself. Under New York law, a 17-year old (such as the victim, K.T.) is of the age of consent. See N.Y. Penal Law § 130.05(3)(a); see also id. §§ 130.25, 130.40. She and Broxmeyer could do with each other whatever consenting adults may do behind closed doors in New York. True, the federal statute treats a 17-year old as a minor, 18 U.S.C. § 2256(1), so that a lewd photograph of her must be classified as child pornography. But surely it is an arresting irony that the only thing forbidden between Broxmeyer and K.T. was photography.

Yes, under federal law, sometimes photography is a crime, even when actually doing what the photography suggests would be perfectly lawful. Go figure.

And the sentence was stiffened by reason of “distribution” because after she took the picture of herself, she transmitted it to Broxmeyer. In short, the offense of conviction for which he was sentenced to thirty years imprisonment consisted in whole of sexting.

But then, Judge Hurley was only thinking about the crime of conviction, rather than all the unconvicted bad things that fall under the relevant conduct rubric. What about the children?

I start there because a reader of the majority opinion may find it hard to keep in mind what Broxmeyer was convicted of, and what he was sentenced for…

My objection is this: the offense of federal conviction has become just a peg on which to hang a comprehensive moral accounting. But in imposing a sentence that can be upheld as reasonable, a court should not lose sight of the offense of conviction.

And therein lies the problem with relevant conduct. When the crime of conviction becomes nothing more than a peg on which to hang every wrong, real or imagined, for which a defendant wasn’t convicted, and to then sentence him for his “comprehensive moral accounting,” we’ve utterly reduced the notion of conviction to a farce, and excuse to pay a defendant back for everything we hate about him, convicted or not.  And here, the crime of conviction itself is, frankly, puny compared to the relevant conduct. 

And after the relevant conduct enhancements that guys with a grid decided would make federal sentencing truly fair and standardized, Judge Hurley sums up the results:

That calculation–if not actually procedural error–is sound only as a matter of arithmetic and accounting. But it proves too much: something needs to be re-thought when in a case like this, the Guidelines calculation yields a life sentence. That is the sentence imposed on Jeffrey Dahmer, who killed people, and ate them. 

As disgusting as one might find a high school field hockey coach’s conduct here, and indeed it was disgusting, he’s no Jeffrey Dahmer.  Except under the federal Sentencing Guidelines by reliance on relevant conduct.  And as Judge Raggi correctly holds, this is exactly what the law allows, no matter how unreasonable it may be.

From St. Paul:

Someone on  Reddit who says he’s a cop explains:

The 10th Circuit’s decision in  United States v. Turrietta announces that another of the formalities upon which the solemnity of a jury trial is based is a meaningless joke.  Remember when swearing in the jury was a critical stage of the proceedings?  Yes, the good old days.

It seems that the district court judge forgot to swear in the jury.  That can happen, despite the fact that the judge has a courtroom deputy whose job it is to make sure all the “i”s are dotted and “t”s are crossed, in case the judge forgets.  But the defense lawyer, Chuck Knoblauch realized it.  And sat mute.

After the jury found the defendant guilty. Knoblauch stood up. From the WSJ Law Blog :

After the jury returned the verdict, Mr. Turrietta’s lawyer played his card. The judge had forgotten to swear in the jury, an oversight the lawyer, Charles E. Knoblauch, kept to himself for strategic reasons. Mr. Knoblauch asked the court to set aside the verdict, arguing that the absence of the oath deprived Mr. Turrietta of his Sixth Amendment right to trial by jury.

Not a chance, the court responded, and the 10th Circuit affirmed.  Knoblauch was forthright on appeal about his strategy, holding the ace in his pocket in case his client needed it later.  The circuit was, well, appreciative of his honesty here.

¹ To his everlasting credit, Knoblauch has admitted his knowledge and strategy.

Aside from this, the court never really warmed to the defense strategy.  Shockingly, courts tend not to like it when the defense plays games, particularly “gotcha” with the judge.

A verdict delivered by an unsworn jury may present an issue of constitutional dimension, as Turrietta contends. But a compelling threshold issue prevents us from resolving that issue. By lying behind the log, Knoblauch failed to preserve the issue he wants us to decide. Quietly harboring an objection until it cannot be addressed effectively is the functional equivalent of making no objection—at the very least, a forfeiture.

Preservation, the last refuge of scoundrels, would have been just the smack the court sought to deliver to Knoblauch for his gamesmanship.  But it didn’t stop there.

Even assuming the failure to administer the oath was constitutional error, the error was neither so clear that the district judge can be faulted for refusing to act when it was belatedly called to his attention, nor so grave that failure to correct it on appeal would threaten the integrity of judicial proceedings or result in a miscarriage of justice….

If anything would imperil the integrity of the judicial proceedings, it would be a decision rewarding Knoblauch for holding his objection in his back pocket hoping it might ultimately work in his client’s favor.

While it’s hardly surprising that the court reacted poorly to the defense tactic, the court goes on to suggest that the swearing of the jury doesn’t really “imperil the integrity” of the jury verdict.  Seriously?  In a system that relies on such legal fictions as the infallibility of the jury, and that the jury always adheres scrupulously to the legal instructions of the judge, relying on the solemnity of the proceedings and, yes indeed, the oath to which the jurors swear, we now learn that it was all just some archaic goofy show we put on for the sake of judicial theater?

But then Judge Terrence O’Brien does yeoman effort to dig the 10th Circuit out of the hole he’s just dug:

Surely there are cases where the benefit of the sworn jury will be heightened by the complexity of the law or the indeterminacy of the evidence. But if ever there were an occasion where our system could countenance conviction by an unsworn jury, where the ‘countervailing factors’ eclipse any potential unfairness flowing from the trial error, this is it.

So swearing in a jury might matter, but only in cases where the defendant wasn’t so darn obviously guilty that bothering with a trial was a waste of time to begin with?  You know, real cases. Serious cases. Cases where the judges actually think there is some chance the defendant isn’t guilty, guilty, guilty?

It’s completely understandable, from the judges’ perspective, that they’re both annoyed with Knoblauch for screwing with one of their own and making the trial judge look foolish.  It’s understandable that all the platitudes in all the law books in all the land aren’t sufficient to compel the judges to reward the defense for having out-gamed the court and the prosecution.  And it’s understandable that the judges really don’t believe that swearing the jury is anything more than a formality, to be used when it serves to explain why they can’t possibly let an innocent man walk free and undermine the finality of the verdict or question whether the jury decided the case in absolute adherence with the judge’s charge.

What is not understandable, however, is how, in the process of trying to explain the unexplainable, they have managed to reduce the swearing of the jury to a farce, unless of course they consider the trial unworthy of all those constitutional things they’re supposed to include.

In his WSJ Law Blog post, Joe Palazzolo closes with this:

LBers, if you caught the judge’s error, would you play it to your client’s advantage?

The  reaction of LBers (yes, he really calls his readers that) was, shall we say, unsurprising:

Tech Law wrote :

Lawyers are officers of the Court, and our obligation is to defend both the system of justice, as well as our clients. What the lawyer did was wrong.

Anonymous wrote :

Tech Law: Right on.

While it was surely ineffective, given the decision at the circuit, was it wrong?