The scenario is the sort that would make for a great law school argument about the merit of a doctrine taken to its logical extreme, except that the logical extreme actually played out before the 9th Circuit in US v. Fitch.  Via Doug Berman :

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

 Affirmed?  You bet.  This is the technically correct result based on the confluence of two separate rules, that sentences are based on the “real crime” as determined by the judge alone at sentence based upon “clear and convincing evidence,” combined with the statutory maximum provided by Congress for the offense for which he stood convicted. 

You know how all those laws say that a person can be sentence for up to 50 years?  Well, as long as the sentence doesn’t exceed 50 years, no problem even if the basis for the sentence was a murder with which he was never charged, was never proven beyond a reasonable doubt and against which the defendant was never given a proper opportunity to defend.

So instead of an effective sentence of around 3 years in a fraud/money laundering case, David Kent Fitch will do almost 22 years for murder.  Sounds wrong to the court.  Sounds wrong to me.  And yet, affirmed.

In dissent, Judge Alfred Goodwin (who has been around long enough to know) takes issue with District Court Judge James Mahan’s “clear and convincing” finding that Fitch did the dirty:

We simply do not know any of the circumstances of Bozi’s disappearance.  We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit.  While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement.  There is certainly no clear and convincing evidence of premeditated murder.  The district court’s finding is simply not supported by the record.  The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion.  Accordingly, I respectfully dissent.

But his issue isn’t so much with sentencing Fitch for a different crime than the one with which he was convicted, but that the sentencing judge’s finding wasn’t sufficiently supported.  What may be behind this dissent is that Judge Goodwin isn’t a big supporter of the idea of sentencing people for uncharged crimes, and he’s using this dissent to backdoor the existing law.

The problem is that the majority, written by EDNY Judge Frederic Block oddly enough (and not one of those crazy 9th Circuit judges the Supreme Court is always smacking around), makes clear that the is wrong but their hands are tied.  Adherence to precedent sucks.

In a comment to Doug’s post, an interesting argument is raised:

This seems to be the perfect situation to raise an as-applied Sixth Amendment challenge: without the finding of a murder, the sentence would have been unreasonable; accordingly, not submitting that essential fact to a jury BRD, as applied in this case, violated the Sixth Amendment.

Use of an as-applied challenge offers a back door to some of the most outrageous applications of law, the logical extremes that are used to shake our confidence in propositions that seem just fine when their theoretical underpinnings aren’t put to the test.  While most of us would certainly agree that an as-applied challenge should be made, and should have been used by the court to avoid this extreme, it doesn’t fix the problem of people being sentenced for uncharged crimes.

The bottom line is that it’s constitutionally offensive under the 5th and 6th Amendments to sentence a person for an uncharged crime.  You want to put ’em away forever?  Charge them. Prove the crime. Let them defend. Get the conviction.  That’s how the legal system is supposed to work, and the gymnastics that produce this absurd result are offensive and intolerable.  So what if Congress, without so much as moments thought, tacked on a top end of a thousand years in prison just in case some crime that was meant to be stopped by the law was so ridiculously horrible that it demanded a punishment that harsh. 

No, Congress didn’t put upper high ends on criminal sentences just to make sure a court had some leeway to toss in an uncharged murder.  In a vacuum, few would argue that any person should be sentenced for a crime unless guilt was proven beyond a reasonable doubt.  Yet David Kent Fitch is going to prison for murder, and the court says it can’t do anything about it.

Nice system.

This has nothing to do with supporting their views or their means of expressing them.  That’s where this case got all screwed up, where principle died.  Ten of the original 11 Muslim students who were arrested and prosecuted for  staging a protest against Israeli Ambassador Michael Oren at the University of California at Irvine were convicted of crimes.

I may not agree with what you say but I will fight to the death for your right to say it.

Yes, platitudes look great when carved in marble lintels.  Dean Erwin Chemerinsky (of the liberal Chemerinsky’s) tried to fence sit the mess, arguing that these students had no first amendment right to speak out because they were in an academic environment which somehow mandated that free speech was at the largesse of Miss Manners.  But he didn’t think prosecution was justified.  Orange County District Attorney Tony Rackauckas didn’t give a hoot what Erwin thought.

The sentence isn’t jail, which some will argue means that this is no big deal. 

Ten Muslim students convicted of disrupting a speech by the Israeli ambassador on a California university campus have been sentenced to 56 hours of community service and three years of informal probation.

Orange County Superior Court Judge Peter J. Wilson said Friday that the incident did not merit jail time and he added that the probation period would be reduced to one year if the community service is completed by the end of January 2012.

Wrong.  These are students whose futures will be forever altered and diminished by this conviction.  Any conviction, even a misdemeanor, has a serious impact on a life.  It matters.

What matters most, for these ten students not to mention the rest of us, is that their crime is speaking when those with more power than them believed it inopportune.   Marc Randazza draws an interesting analogy:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

His point is not that Muslim students are more (or less) worthy than Yeshiva students, but that we can’t help from superimposing value judgments on the merit of speech,  The speech we embrace doesn’t need protecting. 

The choice here was between a free society and an ordered society, and the questions of right and wrong are answered by which society one prefers.  It doesn’t require a person to believe the disrupting speeches is a good thing, a great way to get one’s point across, to believe that the prosecution of the Irvine 11 10 was fundamentally wrong.  I think they handled their protest poorly, that just as they would have wanted a speaker they invited to be able to make his point without protest and disruption, they should have done the same for Michael Oren.  They were rude and intolerant.  They were inappropriate.  There, I said it, they were wrong to do what they did.

And that should not have resulted in their prosecution and conviction for a crime.

It’s all too easy to fall into the rut of rights being situational.  Sometimes one right conflicts with another right.  Sometimes one person’s exercise of a right conflicts with another person’s exercise of the same right.  Sometimes, it just doesn’t mesh with our sensibilities.  Rights are messy, and get messier when they don’t happen to fall along the lines of general consensus.

But when the exercise of rights becomes the basis for a crime, it’s no longer just messy, just the stuff of debate and disagreement.

I may not agree with what you say but I will fight to the death for your right to say it.*

*Unless you don’t do it the way I think you should, in which case I will not only not fight for your right, but will convict you of a crime for having exercised it .

There’s no lintel big enough to carve that into.

Children have long held a special place in the hearts and courts of New Yorkers.  They were treated as vicious predators, evil spawn to be dealt with as harshly as possible.  Some say they grow up faster in the Big Apple, and that seemed as good a reason as any to toss teens into prisons with adults.  They didn’t tend to fare well.

Court of Appeals Chief Judge Jonathan Lippman has chosen to go out on a limb and try to change this.  From the New York Times :

New York State has long dealt with 16- and 17-year-old defendants more severely than almost every other state, trying all of them as adults in criminal courts. Now, New York’s chief judge is calling for a less punitive approach that would focus on finding ways to rehabilitate them.

The judge, Jonathan Lippman, is proposing that the state transfer jurisdiction for 16- and 17-year-olds accused of less serious crimes to family courts, which have more social services, while continuing to prosecute the most violent juveniles as adults.

This is a significant change in the routine, where the New York criminal justice system considered 16 and 17-year olds to be too far gone, unworthy of the effort to try to salvage their lives through rehabilitation and education.  The system gave up on these teenagers, and once they found themselves embroiled in a system for adults, there was no going back.

If the state adopts the plan, it will most likely have to allocate more money for social services and for the court system, which is already financially overburdened. The change would require a reorganization of the network of city and state agencies in the criminal justice system. The roles of judges, prosecutors, correction and probation officers and many others would change.

While the juvenile justice system is geared far more toward the inquisitorial approach, presuming guilt which is quite troubling to many, it also has the benefit of treating wayward children as salvageable, providing some measure of help and keeping them out of adult prisons where no life is ever improved.  Even the toughest 16-year-old stands no chance in prison.

Traditionally, the Chief Judge of the New York Court of Appeals takes on a cause, using the office as a bully pulpit to improve the system.  Judge Lippman’s predecessor, Judy Kaye, made her cause the improvement of conditions for jurors.  In the course of buying more comfortable chairs, Judge Kaye eliminated the historic exemptions for judges, lawyers and others from jury duty in order to “democratize” the system and make other citizens feel that they weren’t being dumped on while the system protected its own.

Judge Lippman’s cause, in comparison, is both far more substantive and far more difficult.

The judge’s proposal spotlights an issue that state lawmakers and judicial officials have long pledged to tackle. When the state’s juvenile justice law, the Family Court Act, was enacted in 1962, the Legislature chose 16 as the age of criminal responsibility as a temporary measure until public hearings and research could be conducted. The state did not carry out those steps, and the age was never changed.

Judge Lippman said the time had passed for another legislative task force. “To be sure, there are issues that have to be addressed, and we will do that,” he said. “But I don’t believe we should be studying this to death.”

Typical of governmental process, particularly in New York, the “let’s form a committee” approach to problems is the surest route to nothing being done for decades, if ever.  Judge Lippman appears bent on pushing this forward rather than watching this initiative fall into the abyss.

He also plans, in the coming months, to establish a pilot program of adolescent criminal courts, dedicated to handling the cases of 16- and 17-year-old defendants. These defendants would continue to be processed in the adult court system, but judges would handle the cases as if the defendants were in Family Court.

“I want to be able to show that this works while the legislation is pending,” Mr. Lippman said in an interview.

These are things that a Chief Judge can do on his own, without needing the approval of the politicians who will destroy any positive momentum if it gets them a vote.  It’s really quite a bold move, not only flying in the face of convention but taking the huge risk of using his supervisory powers to challenge the myth of the child predator who can never be rehabilitated.

As often noted here and elsewhere, “do it for the children” has become the mantra of scoundrels who use it to wrap up whatever half-baked pandering notion they are trying to sell.  Judge LIppman’s efforts form an initiative that is truly concerned for children, one that recognizes that 16 and 17-year-olds are not unsalvageable, but still developing teenagers who can, with help and guidance, contribute to society and live happy, productive lives.

It’s going to be a whole lot harder to make this work than it was to put some extra padding in the jury seats, and the details may require some serious discussion, but any initiative that gives children a chance is one that merits support.  Do it for the children.  Really.

The most common response to an accusation by a defendant that a police officer fabricated the occurrence of a crime is, “why would he do such a thing? He has no feelings toward the defendant either way.”  Of course, sometimes, a cop does have feelings. 

Not particularly special feelings, but the same sort of anger that rises in many from the annoyances of daily life.  Those were the feeling of Chicago Police Officer Sylshina London, who was on her way to work, maybe running late, when she got hung up with a funeral procession. 

Don’t you just hate those lines of cars with their lights on and those signs tying up the road?  Well, London apparently did.  From the Chicago Sun-Times :

On March 19, 2010, London was driving a white Lexus to work at the Gresham District police station when she cut in and out of a funeral procession for Michele Green, prosecutors said. The mourners had just left A.R. Leak and Sons Funeral Home at 78th and Cottage Grove.

Debra Green, 31, angrily yelled at London from the passenger seat of the Pontiac Grand Prix she was riding in at 79th and Vincennes, and she pointed to a funeral procession sticker on the car, prosecutors said.

London then allegedly radioed a 10-1 call — for an officer in need of assistance.

There’s a pretty good chance that Green yelled something really bad, though the doppler effect tends to make all things yelled from cars sound like YouAaaaarrrrrrrrggggggggllllllllllll.  Nonetheless, that was enough to set London off and call in the troops.  And the troops came.

Numerous police vehicles were waiting for the procession at 100th and Vincennes, and Green and several other family members were detained, causing them to miss the burial, prosecutors said.

London falsely testified against Green at a trial on Sept. 21, 2010, claiming Green threw the bottle at her from the passenger seat, prosecutors said.

According to London, the bottle flew through London’s open window and struck her in the face.  Want to bet that London could “prove it” because she had a bottle?  And so Green was convicted of misdemeanor battery upon London’s testimony.  Note that this isn’t merely about the ride, but the rap.  Debra Green, funeral attendee and car yeller, was convicted of a crime that only existed via the word of Police Officer Sylshina London, who was annoyed at being held up by the funeral procession, and then really miffed by Green’s disrespect.  She’ll show her, and she did.

Ordinarily, this is where the story ends, and we have only Green’s word to suggest that there’s anything awry with the conviction.  Not much of a story, but other people who were part of the funeral procession chose not to remain silent or limit their dismay to some private “tsk”-ing among themselves.

Green was convicted, but the Independent Police Review Authority continued a separate investigation that was launched after several of the mourners filed complaints.

The investigators discovered that a Chicago Police blue-light camera had captured the incident. And the video recording from the camera near 79th and Vincennes showed that London’s driver-side window was up at the time she said the bottle hit her through an open window, prosecutors said.

Not only is the outcome quite remarkable in terms of outing the wholesale fabrication of a crime by an annoyed cop who’s going to teach this loudmouth Green not to screw with her, but that the Police Review Authority than just toss the complaints into the file after stamping them “whatever.”  Remember, Green had already been given “due process,” and been convicted of the crime.  It’s hardly a stretch for the cops to deep-six the investigation, and yet they didn’t.

There’s no video to play to show outrageous scenes of violence and abuse.  The video this time was a bore.  It showed nothing.  And sometimes nothing is exactly what matters, what needs to be seen.

The only question that remains unanswered is why the video of London with her window up wasn’t found or disclosed in advance of Green’s trial, and why it took a secondary review to disclose that this evidence existed showing London to have committed rank perjury. 

It appears that the Cook County State’s Attorney will be prosecuting London for her perjury, so if you happen to get her case, I hear she has an undamaged Lexus that might serve to cover her fee that she may not need for a while.

Despite the many voices in opposition, Troy Davis was executed by the State of Georgia last night just after 11 P.M., after the Supreme court issued a single sentence order denying a stay.  Lawrence Brewer was executed in Texas, though not too many people noticed.

Twitter  was abuzz in advance of Davis’ execution because of the doubt surrounding his guilt.  Davis’ life ended with  as much dignity as he could muster.  More dignity than the State of Georgia deserved.

Some have  taken note of Troy Davis’ case over the years.  Others stumbled upon it yesterday, first learning that he existed and there was an issue with his execution.  Some have  expressed anger and dismay about the late bloomers, coming to a sudden epiphany that bad things happen in the American criminal justice system.  Some twitted their outrage at America’s sudden realization that the death penalty existed.

I begrudge no one for not having dwelled on the system as much as others.  If it doesn’t affect you, well, there are other issues on the front burner demanding your attention.  We are never at a shortage of fires in need of smothering.  At least people had the good sense to refocus on this huge fire burning in front of them, if only momentarily.  Better late than never.  Better at all than not at all. 

What does offend me, and offends me horribly, is the voice that never once uttered a squeak over the many years that Troy Davis’ case was pending, or even on the day of his execution, in protest.  And yet after the body is cold, suddenly was heard joining in the choir of weepers and hand-wringers as if he was there all along.

Someone who might see the execution of Troy Davis as  an opportunity to shore up his bona fides as the friend to the friendless, the hero of the underdog, the savior of the downtrodden, but never found it worthy of mention before because there was no self-promotion to be gained of it.  Now that the world is focused on Troy Davis, it’s exploitation value is huge.  Suddenly, the body dead and cold, it’s time to speak out?

I am disgusted by the reality that my countrymen still adore the death penalty.  I am disgusted that we can put to death a man about whom doubt exists.  I am disgusted that there are lawyers who will exploit Troy Davis’ body for their own benefit.

And I am disgusted that most of you don’t care about any of this.  To those who do care, who lifted a finger even if it didn’t help, even if was late, even if it changed nothing, at least you tried to matter.  The rest of you either don’t matter or worse.

The first time I read this, I let it pass.  It’s not only good advice for any lawyer who wants to fake his internet persona, but the mantra of legal marketers throughout social media.  The second time I read this, I couldn’t ignore it.  Here’s the quote:

Don’t get involved in commenting on other lawyer blogs (especially a crew of criminal defense lawyer blogs who are friendly with this site) They are well followed and readers will follow your comments from their sites to yours, but these guys get into the habit of picking fights with other lawyers on the internet.

Emphasis supplied by Brian Tannebaum, who immediately adds “i.e., stay away from me.”  Me too, I hasten to add.  I’m part of this crew, if crew it is.  Which raised the question, why is it just us?

Brian is mean.  Me too.  Brian won’t let people lie on the internet with impunity.  Me too.  Many people hate Brian for calling them out when all they’re trying to do is manufacture a viable online marketing campaign so that they can make a decent living.  “Is it a crime to want to make a decent living,” they cry?

I know who you are.  You email me and tell me that you are outraged by all the liars and schemers on the internet.  You can’t believe how full of it people are, how shameless and brazen they are, how offensive they are.  You tell me all about it.  You tell Brian all about it.  You sometimes leave comments under a pseudonym or using your first name agreeing with what we right.  You are lawyers, judges, social media gurus who hate other social media gurus.  You applaud our efforts.

But.  You want that crew of criminal defense lawyers to do your dirty work and keep the internet clean and honest.

What prevented me from ignoring the quote at Tannebaum’s blawg was its exclusive reference to “a crew of criminal defense lawyer blogs.”  He was right.  It’s just us, a crew of criminal defense lawyers.  There are other criminal defense lawyer blogs that are flagrantly shameless in their lies and self-promotion, so we know that criminal defense lawyers aren’t some better breed of lawyer per se.  We have scoundrels in our ranks, just like all the other practice areas, and some are pretty awful.

But the characterization that the only crew to stay clear of is made up of criminal defense lawyers is right on target.  Why?  Why is it that no one except this crew is willing to take a stand and be the meanies of the blawgosphere?

Sure, we’re the gladiators of the profession, tough guys ready to stare down any enemy, no matter how big or nasty.  And what does that make you, frightened little teacups too delicate to take on a harsh word or stern stare from your brethren?  You civil litigators want to play tough guy at depositions or in the hallways haggling over thirds, but we see your knees shaking beneath counsel table in the courtroom when the judge tells you to stand up.  So which is it, fighter or coward?

My sense is that it’s neither. And both.  Because there’s a crew of criminal defense lawyer blogs doing the dirty work that so many of you privately applaud, it allows you to be the nice guy, the sweet lawyer who all the other lawyers like and feel comfortable about.  We do that dirty work so you don’t have to.  You get to craft an internet persona of likeability, because, well, it’s much nice to be liked than to be hated.  And, of course, people hire lawyers they like rather than lawyer they dislike, and it really isn’t in your personal self-interest to make enemies on the internet if you don’t have to.

And you don’t have to, do you, as long as there is a crew of criminal defense lawyers who will do your dirty work for you.

The original comment says that we have a “habit of picking fights with other lawyers.”  This isn’t quite right.  We have a habit of not letting someone lie, cheat and steal, even though he happens to be a lawyer (or disbarred lawyer, or non-practicing lawyer, as the case might be).  We have a habit of standing up for some nasty ethical proscriptions, like not deceiving people.  We have a habit of standing for something.

What do you stand for?

It’s not that guys like Brian and I, not to mention  Mark Bennett who does the dirty work as well, don’t appreciate your behind-the-scenes support for what we do.  It’s good to know that we have widespread support for being the janitors of the internet.  And there are others, lawyers who don’t practice criminal defense like Nino Pribetic and Ken, who stand alongside us publicly and call out the liars and scammers.  But the vast majority of lawyers who applaud our efforts do so from the shadows.  At best, there’s an occasional tepid post that’s less than enthusiastic about social media.

This is getting old.  As lawyers, we are ethically obliged to clean up the mess made by our own, to not let lies go unmentioned or scoundrels get away with scamming the public.  You’re a lawyer. You are obligated to do so as well.  It’s time to get off your fragile butts and take a stand, risk having someone call you meanie and make a potential enemy online in the effort to hold our profession to minimally ethical standards.

Don’t tell me how you agree with us and how much you appreciate our efforts.  Take responsibility for yourself.  I never want to read another baby lawyer or social media guru or money-grubbing lawyer’s comment advising others to avoid the “crew of criminal defense lawyer blogs.”  It should be all lawyer blogs, every honest, intelligent, ethical lawyer on the internet ought to be slamming the liars and scammers as well.

If you don’t have the guts or will to get into the game, then you’re no better than the scoundrels.  We may be a tough group, willing to brave the slings and arrows, but we’re not here to clean up the mess so you don’t have to get your hands dirty.

Guess which one of these young ladies is destined to become a criminal defense lawyer?  That means you’re the other one.

If you work for the Department of Justice, you get a muffin.  Probably, a darn tasty one, too.  By now, most have heard about the DOJ’s  less than frugal use of public monies to plan and fund law enforcement conferences.  Whether you laugh at the absurdity or cry at the waste, it’s destined to be remembered like the $400 hammers or $600 toilets as exemplars of poor governmental handling of our money.

If you spend time representing defendants in corporate or financial criminal investigations and prosecutions, however, these muffins take on a different flavor.  At the core of these cases, AUSAs who have never run corporations, built skyscrapers, manufactured consumer durables or distributed a product worldwide are busy substituting their judgment of good and bad choices for those of corporate executives who have accomplished these things.

To put it more bluntly, people are being prosecuted and convicted for not buying $16 muffins.

The issue was at its most apparent in “honest services fraud” cases, where the distinction between honest and dishonest rested with the sensibilities of lawyers in the government’s employ.  The argument was framed as “what choice would be made if you viewed the world through the lens of a young government attorney.” 

Not surprisingly, there was often a difference in opinion as to how an AUSA would handle dealing with the burgermeister of a small Swiss village, or a union business agent in a depressed southern town, and how the person whose job it was to get the job done would do so.  The latter was charged with being effective and efficient, getting a task accomplished as quickly and inexpensively as possible.  The former was charged with following an official checklist, even if it meant buying $16 muffins.

The message of $16 muffins isn’t just that the government doesn’t do a very good job of using its resources with some reasonable degree of thrift.  The message is that the very people who believe that they are uniquely capable of telling others, people who are employed for the purpose of achieving goals and accomplishing tasks, how they must do so upon pain of prosecution and conviction, aren’t very good at it.  In fact, they suck at it, as demonstrated by the $16 muffin.  Or the laundry list of other financial misuse, as determined by the DOJ Inspector General.

One has to wonder, had they been in the employ of a major American multinational corporation rather than the government, would they merely be admonished by the IG that they’ve frittered away millions of dollars, or would they have been the targets of an investigation resulting in the demand that their Board of Directors be subject to the oversight and scrutiny of DOJ regulators?  So they could serve $16 muffins to the directors?

And yet these young attorneys, who investigate and filter through their own limited experiences the propriety of how others make decisions about how corporations should function, maintain their belief that they not only know better than anyone else how business should function, but that anyone whose conduct doesn’t satisfy their sensibilities deserves to go to prison because of it.

Don’t expect to see an indictment any time soon over some senior vice president authorizing the provision of $16 muffins.  That would make for an embarrassing opening statement.  But if it happens to be a $6000 shower curtain, well, that’s another story entirely.  That’s clearly an indicia of a crime, right?

While you don’t hear much about the Elkins’  Silver Platter doctrine these days, variations continue to crop up from time to time, such as this debacle out of Oregon.

Just hours before jurors were to begin deliberating Monday on whether a former middle-school teacher was guilty of child pornography charges, the state abruptly dismissed its case against Logan B. Jack Storm.

Instead, after four days of trial, the state changed strategy and invited federal authorities to prosecute the 35-year-old Portland man. Federal agents arrived at the Multnomah County courtroom where Storm’s trial had been unfolding and arrested the former Beaverton Stoller Middle School teacher.

Such duplication could take place anywhere, they said. And they noted that that inability to prove venue was one factor that led the Oregon appeals court to partially overturn the conviction of another teacher accused of possessing child pornography in a similar case.

The argument, made after the state rested its case, prompted Multnomah County senior deputy district attorney Donald Rees to consult with U.S. Attorney Dwight Holton and the state Justice Department about the impact of the appeals court’s ruling.

Holton agreed on Friday to prosecute Storm, Rees said, leading to Monday’s arrest and the state’s decision to dismiss the 30 counts of encouraging child abuse in the first degree. The federal effort will not face the same venue issues that state prosecution does, he said.

To the eyes of anyone other than another lawyer, legal writing is the ugly, hated illegitimate child of good prose.  The only thing worse than legal writing are efforts by lawyers to produce writing that doesn’t sound like legal writing.  Unless you believe the 7th Circuit’s condemnation of Walter Maksym in  Stanard v. Nygren.

We affirm. The district court was well within its discretion to reject the second amended complaint and dismiss the case with prejudice. Each iteration of the complaint was generally incomprehensible and riddled with errors, making it impossible for the defendants to know what wrongs they were accused of committing. Maksym’s persistent failure to comply with basic directions from the court and his open defiance of court orders amply justified the judge’s decision to dismiss with prejudice. Moreover, like his pleadings in the district court, Maksym’s appellate briefing is woefully deficient, raising serious concerns about his competence to practice before this court. Accordingly, we order Maksym to show cause why he should not be suspended from the bar of this court or otherwise disciplined under Rule 46 of the Federal Rules of Appellate Procedure. Finally, we direct the clerk to send a copy of this opinion to the Illinois Attorney Registration and Disciplinary Commission.

The appeals court included a 345-word sentence by Maksym to illustrate. At least 23 sentences contained 100 or more words. “Much of the writing is little more than gibberish,” the appeals court said.

Yeah, not good writing.  Got it.  But the court not only affirmed dismissal of the complaint, but referred the matter to the disciplinary commission and ordered Maksym to show cause why he shouldn’t be suspected from practice in the circuit and otherwise disciplined.  

Was Maksym’s writing so bad as to justify such a harsh reaction by the court?  Perhaps.  Stringing together 345 words surely won’t win the brevity award for being the “soul of wit.”   But incomprehensible writing abounds.  And courts aren’t immune any more than lawyers.  We’ve all read decisions that leave us scratching our head as to what a string of words with no seeming connection means in a decision. 

But let’s take this a step to the side.  The worst Marksym’s “incomprehensible gibberish” could do is get his client’s complaint tossed and himself in trouble.  Not good for the client or Maksym, but hardly an institutional disaster.  The rest of the legal system goes on.

What of the “incomprehensible gibberish” that constitutes complaints and indictments?  The 7th Circuit’s chief complaint of Marksym’s writing is that it “mak[es] it impossible for the defendants to know what wrongs they were accused of committing.”  That’s a problem in a civil action.  And yet the court isn’t troubled in criminal matters when the entirety of notice consists of tracking prolix statutory language with some generic detail tossed in?

The Circuit’s need to hold Maksym out as the poster boy for incompetent legal writing would carry far more meaning if they ever gave similar consideration to prosecutors in criminal cases.  While it may not necessarily involve 345-word sentences, it commonly involves paragraphs of disconnected sentences followed by string cites with parentheticals that eventually wind down to either irrelevant recitations of law or conclusions unsupported by even the headnotes if not the text of decisions.  Happens all the time, but I’ve never seen a court take note of it, no less disparage a prosecutor for it.

The bane of a defendant’s ability to defend is that wholesale meaningless of accusatory instruments, leaving defendants to wonder what factual allegations could possibly support the official language of the law that accuses them of grievous wrongs.  Attempts to get a court to compel the prosecution to say something real, substantive, are met with the response that provision of actual facts would “prejudice the Government.”  Facts prejudice the government?  It must be so, because courts never make the government give them up.

In a letter posted by  Mark Bennett the other day, the government argued against the defense having the names of jurors in advance so they could research their online information:

If the parties were permitted to conduct additional research on the prospective jurors by using social media or any other outside sources prior to the in-court voir dire, the Court’s supervisory control over the jury selection process would, as a practical matter, be obliterated.

I’ve read this sentence a dozen times and have no clue what it means.  And it’s only 45 words long.  It’s not that I can’t interpret it, read between the lines, surmise the point, but if we’re going to castigate lawyers for bad writing, why not start here?

When a prosecutor submits incomprehensible gibberish to a court, it’s usually characterized as “artfully crafted,” giving at most the appearance of substance while disclosing absolutely nothing of value.  Has any court referred a prosecutor to the disciplinary committee for this?  Has any court admonished a prosecutor for presenting gibberish that denies the defendant his right to know what wrongs he is accused of committing?

I’m all for better legal writing, by lawyers and by courts.  But if judges are going to start holding lawyers up to public ridicule for their bad stuff, let’s spread the love around a bit more.  We’re up to our eyeballs in meaningless, incomprehensible writing, and as the 7th Circuit rightly acknowledges, defendants deserve better.  Even criminal defendants.

In the ongoing saga of the cottage industry of vultures seeking to eke a point or two out of the middle of that huge stack of money that flows to the “legal sector,” a new but curious entrant has appeared:  AttorneyFee.com.

What makes this stand apart from the bunch is that there are no fees involved, either for lawyer or client.  Unlike the mass, they have no finger in the pie, and humorously state:

We believe in doing well by doing good. Our mission is to expand access to legal services by providing consumers with the highest quality information about the affordability and availability of attorneys in their communities. We are confident that if we pursue that mission faithfully, we will create tremendous value for consumers and attorneys alike, and eventually find a way to pay the bills.

My guess is that they have a better business model than they let on (such as build the eyeballs and sell advertising), but still, it’s refreshing not to have a business claim to exist for solely humanitarian purposes while reaching into someone’s back pocket. 

That said, what’s the point of this new enterprise?

Our Story

In the four years since I graduated from law school, I noticed that 70% of the people who called my office were inquiring about the same two things: (i) how much do I charge, and (ii) when am I available. The receptionist in my firm used to spend a good chunk of each day just answering the same questions over and over again. These calls prevented her from doing other work and created an unnecessary drain on office resources. I realized that if my firm could find a more streamlined way to communicate with potential clients about affordability and availability, then we could cut down on frivolous inquiries, save significant administrative resources, and actually get more clients in the process. This insight is what lead me to create AttorneyFee.

Beibei Que, Esq
Founder of AttorneyFee

As is often the case, one person’s experience in the law doesn’t necessarily scale well to others.  While this may be true for the practice of a young lawyer, or the practice of a particular niche, it doesn’t reflect either the profession as a whole or the concerns that my clients have.  But then, perhaps criminal defense isn’t part of the mix?

When you need a criminal defense attorney, you need a criminal defense attorney.  You can’t possibly put a price on your freedom, or the freedom of your loved ones.  Having said that, the fact that you value freedom doesn’t mean you should let yourself get ripped off.  You owe it to yourself to find an attorney who is both a competent provider of legal services as well as a fair and compassionate human being.  In order to do that, you must first develop an understanding of how defense attorneys generally charge for their services, and what is considered a “fair price”.

For the most part, defense attorneys charge on an hourly basis.  The reason for this is that there is no real way to tell, in advance, how much time or effort will be involved in any given case.  After all, criminal defense work is, by its very nature, contentious.  And whenever there is dispute, there is always unpredictability, because you never know what the other side will do (in this case, we’re referring to the prosecutor).

Uh, no.  Somebody misinformed Beibei Que, as criminal defense lawyers do not usually charge on an hourly basis. Almost never, in fact, because they would never get paid.  But then, if they didn’t, this concept wouldn’t apply at all.

AttorneyFee, as with others in this cottage industry, focuses exclusively on the “cost-conscious consumer,” which misapprehends the most significant part of the equation, competence.  If you’re buying widgets, price is all you need to know.  Lawyers are different, though becoming less different by the minute from what I see.  Listing lawyers by hourly fee alone is meaningless, if not misleading.



Not a pretty site, nor one that comes off as particularly sophisticated, but these aren’t attributes that bother me.  What does is that the information provided is worthless, whether this is what potential clients want or not.  Rather than pander to ignorance, inform and educate. 

Not here.  This is pandering, pure and simple.  If it’s all about money, then this is all they need to know.  And the cottage industry feeds this misguided demand, as if lawyers are fungible and we’re just widgets for sale.

And like all business hovering around the edge of the law, there’s the disclaimer:

Prices shown on AttorneyFee are in no way to be construed as an advertisement or offer to perform services. Please note that the prices shown on AttorneyFee are not necessarily endorsed by the individual attorneys with whom they are associated. Finally, please note that the prices shown are rough approximations. Actual prices may vary depending on the individual circumstances of your matter.

Not sure what this means, other than the typical nothing said here means anything, but if it’s not a solicitation, then what the heck is it?  On the other hand, at least the usual ethical implications of fee splitting aren’t implicated by hypertechnical explanations.

That this service produces what it purports to produce, and at no cost to consumer or lawyer, is clearly in its favor.  I can imagine, to some extent, that in certain practice niches, this service will work fairly well, notably where the services needed are more along the lines of commoditized legal services.

To the extent it feeds the perception that law is no different than selling any commodity, it does the profession a disservice.  But then again, if a potential client wants to search for a lawyer on the basis of hourly fees alone, better that they go to AttorneyFee.com and find themselves a darn fine price than call me.  These are not my type of clients.