Whether it’s happened to any other crime lab in the nation is unknown, but for the moment at least, the Nassau County, New York, crime lab is the only one placed on probation by the accrediting agency, The American Society of Crime Laboratory Directors/Laboratory Accreditation Board, in the country.  We are number 1, HEY!

You might suspect that the head of the lab, Nassau County Police lab director Det. Lt. James Granelle, would proudly announce his distinction when he learned of the honor last November.  But no, according to the Wall Street Journal, which bought him a reassignment.  Naturally, nobody mentioned its failures to all the defendants whose cases depended on the lab’s integrity.

Melendez-Diaz decision, requiring the prosecution to produce the lab tech as a witness per Crawford to introduce the testimonial report if the defense demands, appears to be overwhelming critical in the scheme of keeping this critical even close to honest.  The decision is at huge risk of reversal, with states (not New York, mind you) whining that it’s too expensive and unwieldy to force them to produce living, breathing witnesses.  As far as they are concerned, the piece of paper that says “GUILTY” is good enough to put someone in prison forever.

While cross-examining a lab tech isn’t necessarily likely to result in him breaking down on the stand, admitting that he fudged the tests and fabricated the report, it remains the only way to test the reliability and veracity of lab reports.  To be confronted with a conclusory and self-serving piece of paper is worthless for the purpose of testing its reliability, and the historic argument that these reports are sacred is now shown to be nonsense.  Labs can fail.  Their reports can be false.  Pieces of paper alone are evidentiary garbage.

Professionalizing the labs is but one of many, many changes that are desperately needed in creating and maintaining the integrity of scientific evidence in court.  One change that is no longer subject to dispute is that labs must be independent.  Just ask Lt. Granelle, who somehow didn’t see any problem at the Nassau County lab.  But this is just a start.  Other changes, like actually using testing that’s scientifically valid and verifiable, would be nice too.

It happened in Nassau County.  It could happen where you practice.  The point is, it happens.  Never assume that its true just because the lab says so.

One of the sadder, often unspoken aspects of some major federal cases is that they are monumentally boring.  No dead bodies.  No bundles of narcotics.  No bags of cash.  None of the sexy stuff that people routinely associate with criminal law.  But that doesn’t mean lives aren’t ruined.

Reading the 9th Circuit’s decision in United States v. Goyal is brutally boring, the sort of work one prefers to avoid unless being well-paid to suffer.  To relate the facts of the case in any detail is to endure the pain again.  Suffice it to say that the government prosecuted Probhat Goyal, the former CFO of Network Associates, Inc. (better known for their product, McAfee antivirus) for violating GAAP by recognizing revenue in a way that would arguably have been better recognized by a different method given their sales model. 

The court held that the government failed miserably to prove that a crime occurred, and reversed the conviction and ordered that a judgment of acquittal be entered on all counts. 

A few questions pop into mind immediately.  Why would the government have thought it worthwhile to prosecute Goyal?  People in business, accountants and the like, may disagree about the most appropriate or prudent method of accounting.  So what?  Somebody told an AUSA that this was wrong, a fraud, and some clueless AUSA took the bait.  Big time prosecution ensued. 

The way this happens is that disputes, disagreements, arguments, that are the sort of life and death issues amongst geeks whose lives are wrapped around which calculation they believe to be “right” are dressed up in the language of crime.  Prosecutors may not have the slightest clue about business, but they have a well-developed library of phrases to link to otherwise innocuous conduct to smear it with evil. 

And then there’s the moment in time when a guy like Goyal, who as a corporate executive was fortunate to have the indemnification of his employer paying the freight, decided which lawyer would stand next to him.  He likely had a choice, and had he tagged the lawyer standing next to the one he actually chose, he likely would have been talked into strolling down to the United States Attorneys office to cut a deal. 

No one wins.

The odd are against you.

They will bury you and you will never see your family again.

But Goyal was fortunate that the attorney he chose was willing to make the fight and didn’t counsel his client to join don a jumpsuit.  It may have been the nature of the case, or may have been that his “white collar specialist” wasn’t some kid who was prosecuting other CFOs the week before and truly believed that the best and only solution for criminal defendants was to lay on the ground supine and offer themselves to the government.

Of course, it can’t be ignored that the case went to trial and verdict, meaning that the trial judge heard the evidence, assuming he was able to stay awake most of the time, and thought it sufficient to go to the jury.  Here’s a real kick in the pants, that the trial judge at a number of junctures could have shown the fortitude to kill this prosecution, this case without a crime, and didn’t.  They don’t like to do that.  They don’t like to be responsible for making really hard decisions that challenge the prosecution’s assessment of what’s a crime, what harms the public.  And when the judge punts, the government is given free rein.

Then there was the jury, who convicted Goyal, even though, as the 9th Circuit concluded, the evidence was so lacking that no reasonable jury could find him guilty.  No reasonable jury.  And yet they did. 

Cases like this tend to result in convictions for two reasons, neither of which bring much comfort.  First, they are boring and technical, so the jury defers to accountants on the witness stand telling them boring stuff and reaching boring conclusions that magically confirm what the government contends. 

Second, when cases are tedious, boring and seemingly pointless, there is a bone in the head of jurors that says the government wouldn’t be prosecuting this case if there wasn’t a crime.  You see, when there’s a dead body or a pile of coke, the jury can tell that a crime occurred.  When there are a bunch of accountants arguing about revenue recognition, their eyes glaze over and their mind drifts to the leeward islands, a trade wind blowing through their hair and a strawberry daiquiri giving them brain freeze. 

Admit it or not, there is an overwhelming sense that when the government prosecutes a person, it’s because he’s guilty.  We fight this perversion of our system wherever we can, but the hard truth is that this is the prevailing presumption in our society.  Denial serves no purpose and merely blinds us to reality. 

Probhat Goyal probably worked very hard to achieve the position of Chief Financial Officer at NAI.  He likely enjoyed a good life, the fruits of his labor.  He probably had a happy family who similarly enjoyed the world a well-paid CFO could provide.  And then one day, his world imploded and everything changed. 

With only the slightest change in the way the wind blew at various points, from the inception of the prosecution to the utterance of the word “guilty” by the jury foreman, things might have changed.  A prosecutor could have said that there’s no crime here, and the case died.  A lawyer could have said we have to cut a deal and Goyal would have gone to prison.  The judge could have said the evidence is crap and tossed the case.  The jury could have said the government failed to sustain its burden and acquitted Goyal. 

On appeal, Judge Richard R. Clifton wrote for the court that no jury could have found Goyal guilty beyond a reasonable doubt.  And with that, it’s over.  Except for Probhat Goyal.  Judge Alex Kozinski wrote in concurrence:

This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense.  And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. See Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. § 1001 creates risk of prosecutorial abuse).

This is not the way criminal law is supposed to work.  Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal.  This is not only because of the dire consequences of a conviction — including disenfranchisement, incarceration and even deportation — but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”).  When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.

Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit.  But not everyone is so lucky.  The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction.  Although we now vindicate Mr. Goyal, much damage has been done.  One can only hope that he and his family will recover from the ordeal.  And, perhaps, that the government will be more cautious in the future.

Not everyone is so “lucky.”  That’s what it comes down to, luck.  While Judge Kozinski may hope that Goyal and his family will “recover from the ordeal,” he knows that they won’t.  Nor will the government “be more cautious in the future.” 

It’s hard to condemn this omission from Judge Kozinski’s otherwise stinging rebuke, but its needs to be said.  If we can’t expect some clueless kid prosecutor to possess the intelligence and appreciation to distinguish between a dead body and a bunch of accountants who disagree about revenue recognition, then where are the judges who have the guts to put a stop to this harm? 

There is a dead body in this case.  It’s the body of an innocent person.  It’s the body of Probhat Goyal.  And we know who murdered him.

H/T Doug Berman

It’s not just schadenfreude that caused me to take a look at Lawrence Cunningham’s post at Concurring Opinions, though I would be less than forthright to say that it didn’t bring a wry smile to my face.

Bingham, the galactic law firm with roots in Boston’s old-fashioned legal market, is a ubiquitous advertiser in expensive print publications, boasting about its deftness in navigating complex business challenges with keen legal insight. The firm even brags about its advertising prowess.

The shameful performance of one of its Boston-based partners in botching a basic matter of document handling suggests the firm ought to spend more time and money on the nuts and bolts of old-fashioned lawyering than on Madison Avenue promotion and mercantile ambitions. 

Of course, Cunningham is talking about Larry Silverstein’s monumental screw up of the Jamie and Frank McCourt agreement, compounded by his cover-up of his screw-up, and his screw-up of his cover-up of his screw-up.  And did I mention his screw-up?  I couldn’t care less who ends up owning the Los Angeles Dodgers, and yet the message is of great concern.

One of the ongoing battles in corporate and financial criminal defense is between the “white collar specialists” at Biglaw and us little guys, solos and small firms who only do criminal defense.  The ranks of the former are replete with former AUSAs, often mere minutes out of the office and who have spent their in-court careers justifying why everyone is guilty of something. 

They’ve never defended anyone, but they have the imprimatur of the government on their resume, thus being held out as grade A prime beef to corporate executives.  Business people are particularly attuned to the presumption that connections are the secret to success, and they are played like violins when it comes to admiring a lawyer’s pedigree.  In fairness, some of these former AUSAs turn out to be great defense lawyers, after some experience.  Most find a home in general litigation, and are trotted out to pretend to be their white collar guys when Biglaw puts on its dog and pony show for potential clients.

One might wonder why Biglaw doesn’t run out and snatch up solid criminal defense lawyers, the guys who actually fight to win cases rather than take the long march to the United States Attorneys office to offer their clients’ neck in sublimation to the overwhelming might of the government. 

It’s because we’re not as easily marketable, lacking that grade A stamp on our foreheads that provides objective proof that if we were good enough for government work, we’re good enough for them.  But we’re also not “like” them, in that we talk a bit louder, curse on occasion, and wear shirts of hues other than white or blue.  The colors could clash in the hallways, and that would disrupt the calm demeanor of Biglaw.  Worse still, we sometimes use the wrong fork in the Biglaw dining room, a metric that can’t be ignored.

When we talk to potential clients, who are wondering whether to stake their lot on experience and quality or go with Biglaw, the word that invariably comes up is “resources.”  Biglaw has the “resources” to do whatever needs to be done.  By this they mean the staff, copy machines and legions of elves in the basement to review the thousands of boxes of documents.  It’s mostly a grandiose view of the relative importance of their case to the bottom line, thinking that the thousand attorneys at Biglaw will all be rowing in unison in their best interest.  This idealized image sustains them, lets them sleep well at night and comforts them knowing that they have done everything the can to cover every base.

Of course, there is one base left uncovered.

Earlier this week, I was walking down the hallway of a big law firm.  Even the hallway was big, nice and wide, with wood paneled walls of institutional teak, seating areas interspersed with reception desks and large pieces of dubious art on the walls.  It’s all very impressive.  It’s meant to be.  It’s a design genre enjoyed by those who have a lot of money to spend on dead space.

I imagine that the corporate chieftain who walks down the hallway in my office feels a bit claustrophobic.  My institutional walls aren’t nearly as nice as their institutional walls.  The offices aren’t as large, and the ego wall lacks any awards from the Attorney General of the United States of America for locking people away.

So back to Cunningham’s post.

A California court hearing the McCourt divorce case released an opinion declaring invalid the couple’s contract that Silverstein prepared. The contract was invalid because Silverstein botched it.  His errors culminated in the existence of two versions of a single contract, one declaring that the Dodgers belonged solely to Frank and the other that the team was the couple’s joint property.    The contract thus failed elementary requirements of contract law and basic requirements of California law applicable to marital asset splits. 

But damn, I bet he knew how to dress, what fork to use, how to stroll down the broad hallways graciously showing the vast resources at his clients’ disposal.  But he couldn’t do a basic contract without screwing it up.

The McCourts were fighting over the Los Angeles Dodgers, as if anybody really cares who owns those losers.  What if one of their lives was on the line?  Can you imagine Frank McCourt, as he’s being led by the marshals off to the sidedoor in shackles, mumbling “but they have resources…”?

Putting together a team of people to manage sifting through the mountains of papers is easy.  Copying is readily available at a large variety of places 24/7.  Enjoying the rich Corinthian leather of the client couch isn’t all it’s cracked up to be. Enjoy your couch at home all you want, but in the office it’s about work, not comfort.  Somehow the McCourts had everything and nothing, as Silverstein of Bingham couldn’t take the responsibility to see that a basic contract was done properly.  Not well, not excellently, but merely properly.  Even that was too great a burden.

When you are in court, standing before a District Judge who looks intensely at your over his half-glasses as you say “not guilty” to the 39 counts in the indictment, there will be one person standing next to you.  Neither the judge, nor you, should be overly concerned with the wood on the walls of his hallway, or the material on the seats of his couches. 

But you should make extremely sure that the words that flow from his lips on your behalf will provide you with the defense you need.  At that moment, it’s just one lawyer’s skill on your behalf, that separates you from the marshal’s shackles.  The excellence of his representation, not the width of his hallways, is the only resource you need.

In the ordinary description of a criminal battery, an unlawful non-consensual touching of another that causes some degree of harm, varying by the sensibilities of legislators by jurisdiction, there tends to be at least one common thread:  Somebody actually touches somebody else.

Gone.

In Florida, the void has been breached, where the basic requisite is no longer required.  Via Turley, the slide down the slippery slope:

Previously, we saw how a hug was charged as a felony. We have also seen an officer claim battery when a bubble touched him. Then there is the officer who charged battery when a suspect released gas in his presence. These all pale in comparison to being hit by a flying pillow, of course.

Well, the battery by fart, in my view, pushed the envelope farther than the flying pillow, but reasonable people can differ.  Still, the air kiss by Lance Lewis, 14 at Bradenton Beach Police Officer Tim Matthews landed like a scud missile, but for the fact that it was an AIR KISS!

In this case, Matthews was able to keep control of the vehicle after being hit by the kiss and jumped out — demanding to know if Lewis was retarded.

His sister, Veronica, said that she stepped in front of her younger brother because she said Matthews was storming toward them and her brother had an arm in a cast. Matthews alleged shoved her aside and put Lance Lewis in a choke hold. A choke hold is viewed as the most effective way to stopping air kisses. By denying the subject air, he cannot produce additional air kisses.

Veronica Lewis reportedly stepped forward and grabbed Matthews’ arm while protesting that he was hurting her brother.

Now that’s Turley’s description of what happened, and as anyone familiar with Turley’s writing knows, he can be a bit of a wag.  But in this case, satire is likely the best this “crime” offers. 

What isn’t funny is that the prosecutor on whose desk this ridiculous case landed exercised his sound discretion by electing to prosecute it, to the bitter end.  The case went to trial, where Lance was acquitted, and the case against Veronica was subsequently dismissed.  No really, the prosecution brought this case to trial.  No one in Bradenton Beach, not prosecutor nor supervisor, thought to themselves, “this is utterly absurd.”  

Worse still, no judge sat in the quiet of his chambers and pondered the question of how an air kiss, even with tongue, could conceivably give rise to probable cause to arrest.  Bear in mind that post hoc conduct, Lewis’ and Veronica’s reaction to Matthews’ seizure, doesn’t magically work its way around the front to justify the initiation of the conduct.  Veronica’s efforts to protect Lance Lewis, who had a broken arm, from Matthews’ choke hold can’t explain away the air kiss initiation of the confrontation.  A judge might be aware of this.  That’s kinda the stuff that judges are supposed to think about before putting a person, even a 14 year old boy, on trial.

From the Bradenton Herald, Lance Lewis is suing for the arrest.  The officer, in the interim, resigned and was hired by the Palmetto police department a month later. 

But the big question remains unanswered: What are the charges if you look intently at a police officer with mean, x-ray eyes?  And will the officer go on medical leave for two years for the injuries suffered from the intent gaze?

Don’t think it can’t happen.

It didn’t really come as much of surprise yesterday when the first email arrived from SWMBO.  Joel Rosenberg, long time reader here and a guy I’ve come to like, respect and admire, was arrested.  While he might not have been able to predict the mechanics, he smelled the retaliation. 

He knew that on December 8th, he was walking into the lion’s den.  He didn’t expect the lion to be kind.  The lion hadn’t been kind to him before, and Joel hadn’t exactly been kind in return. 

Mike at  Crime & Federalism calls Joel the alpha male of the day.  Mark at  WindyPundit worries for his co-blogger.  The problem isn’t that Joel has issues with police.  Indeed, he’s a huge supporter of good and honest cops.  He’s just not a fan of the dirty, lazy, or over-reaching ones, who use their shield as an excuse to demand obedience from a compliant citizenry to respect their authoritah. 

As a strong (“rabid” he’s called by one paper) believer in the Second Amendment fundamental right to keep and bear arms, Joel has gone a bit farther than putting an NRA bumper sticker on a pickup.  He’s a certified firearms instructor who has called out the “coconut charlies” (his name) who sell carry classes like social media gurus sell twitter followers.  He has stood up for the police, politicians and lawyers who stood behind the Constitution, and he has called out those who didn’t.  In other words, Joel didn’t just talk the talk.

For a fellow who sincerely believes in principles, there comes a point, a threshold if you will, where he decides to take a stand.  Some of us have such a threshold. Others have none, though they may talk as if they did and lie to themselves that there’s a point where they would take a stand.  These people never, ever reach that point.  Others, like Joel, decide where that point is for themselves.  As he likes to say, your mileage may differ. The point is personal.

Joel hit his point when a mother/daughter altercation broke out.  Not a particularly big deal, except that an overly helpful passerby observed SWMBO, also known as Joel’s wife Felicia, trying to get their daughter, who can be a bit rebellious toward parental authority, to follow the rules of their home.  The backstory there is neither particularly relevant or interesting enough to provide details, but Joel learned, as his wife was arrested on the word of an ersatz good samaritan (which was subsequently dismissed, then subsequently reinstated after Joel’s run-in with Sgt. Palmer that gives rise to his arrest), the ordinary injustice of cops’ lying to make a case wasn’t something he could stomach.

Joel found his threshold. 

As with most faceoffs between cop and citizen foolish or naive enough to believe that there is a line called the law, it’s come back to bite Joel in the butt.  Palmer obtained a warrant, as if he didn’t know where to find Joel, as if he didn’t know that Joel was coming in to obtain freedom of information records relating to the scheme against his wife, to charge him with violating an “order,” which was represented by a sign on the wall that proclaimed that the Constitution ended at City Hall. 

You see, Joel was armed.  With his concealed carry permit, Joel regularly walked about with guns on his person.  This was as much about the principle of a citizen to bear arms as it was about the need to do so.  On November 5, the day of the incident belying the arrest, they knew he would be armed.  He was.  Palmer disarmed him and asked him to take his gun outside to his car.  Joel did so, noting that Palmer used the magic word.  It wasn’t to be belligerent, but to be principled. 

Principles carry risks, but there was no shoot out in the halls of justice. no brandishing a weapon at a police officer, no hiding the fact that he was armed and a clear and well-conceived assertion of his right to do so.  Palmer didn’t slap the cuffs on him.  At least not that day.

Yesterday, Palmer did, in the manner of police officer wiggling his way around the law, the facts and the cowardice of using some twisted allegations on paper as an excuse for not having the guts to have seized Joel Rosenberg, if he actually believed that he had committed a felony in his presence, in the first place.  Of course, Palmer doesn’t believe it.  He knows Joel committed no crime and poses no threat of violence.  But he also knows that if he doesn’t puff out his chest and use some artfully crafted allegations to teach Joel a good lesson, people will realize that Palmer is a coward.  Then no one will respect his authoritah.

To some outside observers, Joel may appear to bring disrepute on the concealed carry community by his steadfast adherence to his rights and the law.  Some are more inclined to lick badges than hold firm to the grip of a semi-automatic.  But then, some carry a gun to make them a man, rather than the other way around.  Regardless of whether their threshold and Joel’s are at the same point, there shouldn’t be a rational one in the bunch who doesn’t appreciate that Joel is doing what they talk about at NRA cocktail parties. 

At some point today, Joel Rosenberg will stand before a judge for arraignment.  He will be fortunate to have an excellent lawyer, David Gross, by his side, and a wife that supports him in the wings. Joel has a certain rough look about him, and awful taste in clothing.  He likely won’t look his best as he appears in court today.  That happens. 

Regardless, Joel Rosenberg will look to me like a man who has found the point where he, as a citizen of these United States of America, needs to take a stand.  Not by violence.  Not by lies.  Maybe a bit of ridicule and satire, but that’s just his way.  He’s a very funny guy, though stupid people don’t see it.  Hopefully the judge will see Joel Rosenberg for what he is, and the allegations as Palmer’s attempt at payback for making him look foolish.

Free Joel.

Update:  Joel remains incarcerated in lieu of $100,000 bond, a remarkable sum given the charges, his ties to the community, lack criminal history and absence of reason to expect him not to appear as required. 

As for the validity of the charges, see Mark Bennett’s post, Sgt. William Palmer, Mike Cernovich’s post, Joel Rosenberg, Injustice Anywhere. and Patrick at Popehat’s post, The Empire Strikes Back.  Most notably is the rather shocking allegation that Joel committed the crime by “DESCRIBE CONDUCT,” which refers to a blank in a form warrant to be filled in by the officer applying for the warrant.  Palmer failed to fill it in.  The judge signed it anyway.  Another judge set bail anyway.  Nice system.

At WindyPundit, Mark  addresses some of the  negatives being written about Joel, that his conduct here is insane, a bizarre challenge to the man by Don Quixote bent on tilting at windmills.  Perhaps.  No one ever said that we had to fit a common mold to be worthy of our rights, or that our positions need to mirror popular approaches to make them right. 

In the meantime, the word is that Joel isn’t eating or taking his insulin for his serious diabetic condition.  I’m concerned for his welfare.  There will be a long battle ahead of Joel, and he will need his strength to keep up the fight. 

Update 2: As of 8 p.m., December 10th, Joel is home safe.

Perry, Ohio Chief of Police Tim Escola got lucky.  Officer Janine England, not so much.



And yes, that would be the burglary suspect sitting in the backseat, kvelling over the touching moment between the married (to someone else) chief and his subordinate chick.

Escola, demonstrating that he’s the more experienced cop, retired immediately, thus precluding his being fired for nookie in the first degree.  England was fired.  She took her case to the EEOC, which concluded that she was the victim of discrimination.  Frankly, she looks pretty indiscriminate to me.

Was this a case of sex discrimination, taking it out on a woman in a man’s world?  Either way, let this put to rest once and for all any notion that police aren’t like the rest of us.  Clearly, they are, capable of monumental stupidity and impropriety.  I thought you would want to know.

Speaking to witnesses is always a touchy proposition, which is why lawyers greatly prefer to leave such delicate tasks in the hands of those with greater experience and feel for their care and feeding.  Plus, we can use them as witnesses should that be necessary.

Private investigators are a curious bunch, glorified by television shows that make them look like the sexiest guys in town, driving around in Ferrarris and getting all the hot women.  The reality is a wee bit different, with most being ex-cops who are left to use their wits after their shields are gone.  Most find out that it’s a whole lot harder to get a witness to talk by persuasion than it was with a club.  The good ones bond with witnesses, speak their language, create a relationship that makes a witness trust them.  As Fesno PI Steve Vender found out, that can get you into some deep trouble.

From The Recorder :

Eric Safire brought Vender in to help with the defense of Phillip Pitney, who stood accused of shooting Ladarius Greer at the Prince Hall Apartments in the Western Addition on Easter Sunday almost two years ago. Greer and Pitney are both alleged gang members.

In a message left on Greer’s cell phone, Vender told him the government had a no-bail warrant out for him in Solano County. “It’s a good time to visit the Fresno Riviera uh, and stay well,” he said, according to a police transcript of the recording.

Greer disappeared. Even without his testimony, prosecutor Marc Guillory was able to convict Pitney. But the DA’s office moved quickly, and the following month a grand jury indicted Vender on one count of Penal Code 136.1: dissuading a witness. The felony carries a maximum three-year sentence. If convicted, Vender will lose his license as a private investigator.

While Greer was the victim of the shooting, he was also a purported gang member.  That makes him a special sort of witness, the type the cops are inclined to hold on a warrant to keep him in pocket, and the type disinclined to want to be quite that close to the cops. 

Vender, regarded as the pugnacious sort, knows how to work the streets.  That’s his job. That’s how he serves the defense in trying to get witnesses to open up, and to stand up to the pressure put on them by the other side. 

“Cops put pressure on witnesses all the time,” Hanlon said. “The pressure that a policeman, with the power of a badge and gun, can put on a witness is immense. It leads to more perjury and lies than anything we as investigators and defense attorneys can do.”

By arresting Vender for alleged tampering, the prosecution can taint his efforts as well as their impact on the defense of others.

But other prosecutors in the office are looking to capitalize on Vender’s plight. Opposing a motion for a new trial in another murder case that Safire and Vender are working on, prosecutor J. Michael Swart argued to Judge Jerome Benson in a brief last month that Vender “has a documented history of dissuading witnesses (and is facing criminal charges …).”

While the message left on Greer’s voice mail is susceptible to interpretation that would, if heard in polite society, suggest a threat, it’s certainly susceptible to the opposite interpretation, a friendly heads up to a guy who would greatly prefer not to sit in a cell while waiting to be called as a witness.  From the perspective of a PI who wants the witness’ cooperation, providing a helping hand is a far better means of gaining trust than making some veiled threat.  From the perspective of dealing with a putative gang member, a threat of “stay well” is tantamount to telling him his grandma wears army boots. 

From the perspective of chilling the criminal defense community, from investigators to lawyers, however, arresting and prosecuting a PI over something like this is another matter entirely. 

Looking ahead to the trial, many in the defense bar are worried.

“They could do this to any one of us,” defense lawyer Quigley said. “This kind of thing just ruins people.”

Not just the conviction, but the mere prosecution.  Always remember that you can beat the rap, but you can’t beat the ride.  Nobody is paid enough to suffer a baloney prosecution as part of the gig.  And the prosecution knows that, no doubt capitalizing on something like the Greer/Vender voice mail because that’s what they’ve got to work with. 

The repercussions of Vender’s arrest within the criminal defense community were clear, as shown by his representation by a “pro bono defense team” and the support he received at arraignment.

Vender, who turned 60 in August, is a popular investigator.

Going into the hearing, he had assembled 30-some letters on his behalf from people in and outside the Hall of Justice — including his own bail agent — asking Judge Ronald Albers not to impose bail.

The letters came from a wide range of people, from poets and professors to a former FBI agent and the grandmother of a murder victim, who said Vender “has been supportive of everyone that he comes in contact with. … If you ask anyone in the neighborhood they have nothing negative to say.”

Vender  was released on $75,000 bail.  Pitney, the defendant on whose behalf Vender was working, was convicted without Greer’s testimony.  And Fresno still has no Riviera.  But make no mistake about it, at least one threat was clear as day: Fight too hard for the defense and the prosecution is going to use whatever it can dredge up to try to make you pay.

As threats go, Vender’s alleged “stay well” stinks, but the prosecution of Steve Vender is a pretty darn good one.

While there have been a few new entrants into the blawgosphere of late who have done a bang up job, solid thought and interesting content contributing to the vitality of this ongoing peer-reviewed discussion of the law and legal system, most have been barely concealed (if at all) attempts at playing the social media game, followed by a joyous rush to the bank..

But when I read  Carolyn Elefant’s post about paying it forward to law students, who could really use a hand these days, something struck me:

If you’re a busy solo, as the year comes to a close you probably have a bunch of projects that you’d hoped to accomplish in 2010, but that still remain on the back burner…Well, why not give yourself a gift and get the work done, and help another lawyer besides by hiring a law student, an unemployed lawyer or even a new solo to do the work for you?

I’m not suggesting that you spend thousands of dollars.  Rather, you could put together a scope of work and assign a fair price – maybe $50 for help with a blog post, or $250 for a fully researched article. 

Should we be paying $50 to a law student for a blog post?  Aside from the ghostwriter problem, which Carolyn says wasn’t what she had in mind, there’s the question of why anyone, any lawyer, would pay any other person for help with a blog post.  There seems to be only one answer:  Blog posts are part of a lawyer’s social media marketing campaign.  It’s a money maker, a profit center, your new Yellow Pages ad.

So this is just another means of marketing?  Then what the heck have I been doing here?

I responded to Carolyn’s post by saying that I would be happy to get $50 per post, given that I’ve been doing all this posting for all this time for free.  I don’t charge anyone to read what I write, not that anyone would be interested in paying.  As I’ve said before, I write for my own sake, not yours.

And yet how many hundreds of times have my posts been interpreted, and motives impugned, by those who have no comprehension how anyone could conceivably do this, write a blog, for any purpose other than to make money.  I may not write for that purpose, but I’m awfully tired of feeling like an idiot for writing for the hell of it, and yet having to explain, ad nauseam, that the motives that drive the desperate and mercenary aren’t universal.

So $50 for some out of work kid to do your blog post?  Will you make $50 per blog post?  Will you make $100, so you can get a return on your investment?  Except for very few, whether because they’re in a peculiar market or niche, the answer is nope.  There’s nothing to be made here.  Just keep walking.

A couple of years ago, I wrote posts for some other online publications, for which I was adequately compensated.  But they were under my name, and reflected my editorial content.  They weren’t blawgs, and I was happy enough to scribble off some paid content.  I like to write. I like to write even better when someone pays me to do so. 

While I realize Carolyn didn’t mean it this way, her inclusion of $50 for a blog posts reveals that she’s bought into the whole marketing scheme, that there’s a monetary value worth putting into social media because there’s an expectation that there’s money to make from it.  If a person is writing a blog just to write, or to take part in a grand discussion, then the notion of paying somebody to do it for you makes no sense.  Only if this is meant to be part of a money making enterprise would it make sense to pay someone.

Maybe it’s because I’m a dinosaur, that I reject both the image of lawyer as streetwalker as well as the reality of strutting my stuff in the hope that I can snag a case via the internet wilds where someone isn’t looking for a free lawyer.  Maybe because my dream is that clients come to me because they’ve been told that I work hard, and give them everything I’ve got.  Maybe it’s clients for whom I’ve won big.  Maybe it’s clients for whom I haven’t, but appreciated that I told them the truth every inch of the way.  But whatever it is, I don’t understand why we’re promoting the idea online that a blog and 52 posts will allow any fool to pretend to be a great lawyer, and that’s a good thing.  For a mere $2,600, you too can be a huge success on the internet.

So if I don’t get it, then it must be my problem.  In the meantime, if anybody wants to pay me $50 per post, I’m here.  Up to now, nobody has paid me a dime to publish a post on SJ.  Seriously, I could be the biggest idiot in the blawgosphere.  It clearly appears that I’m doing something very, very wrong, because I now write for free.

The  Southern Poverty Law Center has filed suit against the Birmingham Board of Education to stop its use of mace against the children in its charge.

The Southern Poverty Law Center (SPLC) filed a federal class action lawsuit today targeting the use of mace on Birmingham City School children as a means of basic school discipline. The suit was filed on behalf of district students who have been brutalized with chemical weapons and other excessive force. It also seeks to protect other students from these abusive and unconstitutional practices.

“We must ask ourselves:  What kind of school system allows the entry of armed police officers who mace its students? One with a serious illness. One that needs to re-examine its ultimate purpose for existence – educating and protecting its students,” said Ebony Glenn Howard, lead attorney on the case for the Southern Poverty Law Center.

Conservatives have long campaigned to rid the country of public schools. The public school system is the principal method for members of the lower economic class, often African Americans, to escape to the middle class and beyond. The lack of an education maintains African Americans as lower class citizens. The use of chemical weapons and the accompanying hostility is having the effect of driving African American children out of the school system, preserving the current elite class.

If the public school system is eliminated, only the elite will be able to afford private education for their children, maintaining their current status. The public school system is the keystone in America’s ability to claim it is the land of opportunity.

This is quite an extraordinary indictment of the Birmingham schools, given that it’s long enough that they’ve gotten word that Plessy v. Ferguson has been reversed and even black children get to be educated.  Need I add without fear of chemical weapon attack?

Given the ubiquity of “do it for the children” as an excuse for the imposition of rampant laws designed to inhibit conduct in the name of safety, it mind-boggling to learn that the Birmingham schools are macing their students to keep them in line. 

Do you ever wonder where we would be without Morris Dees?  Do you wonder how many of those who care deeply about the children, the ones who want to create a new crime named after every tragic occurence, will support this suit?

It’s facially unseemly that a British judge  refused to set bail for the release of Wikileaks founder Julian Assange.  Certainly the interest in him bears no relation to allegations of unprotected sex by two Swedish women,  dubious on a number of levels, while government officials  called for his prosecution for espionage, and even his assassination. 

Rarely does a case provide a clearer opportunity to test the integrity of the law.

At Head of Legal, former barrister Carl Gardner does what good lawyers do, separates the emotion and hyperbole from the legal issues surrounding Assange’s detention.

I’m not remotely surprised that bail wasn’t granted in this case. The charges of rape and sexual assault are serious ones, but more importantly, Julian Assange is a non-EU national merely visiting the UK, rather than having a home or close relationships here which would prevent him fleeing the jurisdiction. He’s known for moving from country to country. And at today’s hearing he couldn’t or wouldn’t give an address in the UK.

That on its own seems to me to make it difficult for the district judge to grant him bail. A number of famous names came forward to “stand surety” for him by putting up substantial sums to guarantee his reappearance, but there is a tendency, perhaps due to the influence of US crime dramas and the lack of accurate drama or televised reporting of English courts, to think that these decisions are about “posting bail” and that money matters a lot. It’s not as important as that. For a start, not all of those who were prepared to put up money even know Assange. Why should he care about them losing money?

As anarchy seems to be the flavor of the month (even from those still cashing checks from the government), many have put Assange on a pedestal, whether next to Martin Luther or Che Guevera. Such overwrought claims of his good or evil do nothing to assure him a fair shake in the process.

To the Westminster Magistrate, however, Julian Assange should be just another defendant, whose release or detention should depend not on visceral reaction but on the rational weighing of the equities necessary to determine what, if any conditions will assure his return to court. 

While the charges against him can be characterized as “serious,” that’s a subjective assessment that only carries weight in comparison to other charges.  This isn’t murder, nor even a claim of violent rape.  Rather, the women involved engaged in volitional sex, and complain only that Assange went without a condom, thus withdrawing their implicit consent.  Not good at all.  Not too evil in the scheme of things, assuming there’s merit to the claims.

Then there’s the fact that Assange walked into the police station of his own accord.  This is a huge factor in the scheme of flight, distinguishing the individual inclined to run from investigation and prosecution from the individual who voluntarily faces the accusation.  If Julian Assange was inclined to flee to avoid extradition and prosecution, then the time to do so was before walking into the police station.  People who come in on their own should not be presumed a risk of flight.

The most significant factor against Assange was his failure to provide a real address, a rather shocking omission.  While it’s understandable that Assange was disinclined to let potential black ops guys know where to find him, the consequence of denying that bit of critical information to the judge can’t be ignored.  The refusal to provide a real address where, should he fail to appear as required, he can be found is something of a requisite for release.  More to the point, the failure to provide it suggests that he doesn’t want to be found, which makes it very difficult for the magistrate to justify cutting him loose.

While I can’t claim to have a decent feel for either the British legal system or the relative likelihood that Assange would have been given bail but for Wikileaks, there is no question that the decision to detain him for extradition to Sweden appears to be predicated upon the extraneous concerns of his Wikileaks activities rather than for any purported unprotected poking.

It strikes me that the sub rosa context is not the Assange would flee from the charges against him, but from the fear that a hit squad from the United States will capture him in the middle of the night and plop him down in the middle of the southern district of somewhere for prosecution.  It’s funny how we employ extra-legal methods to vindicate our rule of law when it’s proves convenient.  And if that’s Assange’s fear as well, it would hardly make him appear paranoid.

It would prove embarrassing for the Westminster Magistrate to be the guy who cut Assange loose, only to have his disappear into the shadows.  There he was, in their grasp, and some goofy judge with a death wish for his career let him go.  That’s the big picture.

The little picture, however, is that Julian Assange is not an American citizen, and has not engaged in espionage against America by any rational definition.  That won’t stop the onslaught against him from a very angry government, and may well mean that it’s only a matter of time before he finds himself on a plane flying somewhere, whether it’s Sweden or the United States.

Like Carl, I’m not surprised that Assange was detained.  Not because he should have been detained, as there’s little doubt given his decision to subject himself to questioning by the Brits that conditions could be formulated to assure his appearance before the court as required. 

Rather, the lack of surprise stems from taking the safest route, detain him and then he’s guaranteed to be there when needed.  It’s not particularly comforting to know that our British cousins aren’t all that different from us, despite the many years that separate our respective legal traditions. 

The only bright spot, if there is one, is that Julian Assange, while in the custody of the Brits, can’t be whisked away in the middle of the night.  If he somehow finds himself in, say, New Jersey rather than old, his chances for a fair shake aren’t very good.

H/T CharonQC