The law is tested by bad cases and worse defendants, and Efrain Rosa was both.  Having sexually molested two boys and shown them images of others on his computer, Rosa was someone who needed to be stopped.  From the Second Circuit decision :

Based on the information provided to him by Deputy Sheriff Burke and another officer, the sworn statements of the two boys and one of the mothers, and his own specialized computer training, Investigator Blake prepared a search warrant application and affidavit, which he then presented to Granby Town Justice Bruce Wells in connection with his request for a search warrant of Rosa’s apartment.

The warrant was executed and evidence seized.  The warrant was sloppy and bad, covering pretty much everything under the sun.  Rosa moved to suppress and lost.  On appeal, the court held:

Rosa challenges the district court’s denial of his motion to suppress physical evidence seized from his apartment, arguing that officers violated the Fourth Amendment by executing an overbroad search warrant that was so plainly defective that the good faith exception to the exclusionary rule does not apply. While we agree with Rosa that the search warrant fails for lack of particularity and, in light of Groh v. Ramirez, 540 U.S. 551 (2004), cannot be cured by reference to unincorporated, unattached supporting documents, we conclude that the district court correctly refused to exclude the resulting evidence, and therefore AFFIRM.

Talk about a non-sequitur.  After reciting all the usual background caselaw, the court makes a sharp right and goes down a rather extraordinary path.

A violation of the Fourth Amendment does not necessarily result in the application of the exclusionary rule, however. “Indeed, exclusion has always been our last resort, not our first impulse.” Herring v. United States, 129 S. Ct. 695, 700 (2009) (internal quotation marks omitted).

Application of the exclusionary rule depends on the “efficacy of the rule in deterring Fourth Amendment violations in the future” as well as a determination that “the benefits of deterrence… outweigh the costs.” Id.

Herring?  Herring?  Herring?  You’ll recall that Herring  was the awful decision “forgiving” the police negligence in failing to remove a vacated warrant from a database, and another officer using that warrant as the basis for a search and seizure before the mistake was discovered.  Oops.

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

Following the Herring decision, Kurt Scheidegger suggested that some wag judges would read it to incorporate a new element into suppression, not merely showing that the 4th Amendment was violated “but also that there was no “deliberate, reckless, or grossly negligent conduct.”  His dream was my nightmare.

At first blush, the answer of course is “nah, that’s not what it said.”  Kent ignores the attenuation language.  Kent hates the exclusionary rule, preferring instead a right without a remedy because it’s good for his political agenda. 

But he has a point, much as I hate to admit it.  Roberts’ language for the majority does suggest that the remedy, the only remedy, is contingent on proof that the violation was due to “deliberate, reckless or grossly negligent conduct.”  It says it right there in the opinion.  It’s not like he made this up.  Must this be proven?

The answer, from my reading of Herring, was that this view ignored the critical distinction of Herring, also in the language of the majority opinion, that the mistake must be “attenuated” from the violation.  In Herring, the mistake was the failure to remove the vacated warrant from the database in another county by other police personnel.

In Rosa, the mistake was in preparing a facially overbroad warrant, in which no police officer could in good faith rely due to its obvious overbreadth.  To overcome this, the court indulges in some curious slight of hand:

In this case, a reasonably well trained officer is not chargeable with knowledge that this search was illegal in the particular circumstances before us. While we may no longer rely on unincorporated, unattached supporting documents to cure a constitutionally defective warrant, those documents are still relevant to our determination of whether the officers acted in good faith, because they contribute to our assessment of the officers’ conduct in a particular case.

So while the court is precluded from relying on “unincorporated, unattached supporting documents to cure a constitutionally defective warrant,” the police are not for purposes of the court deciding whether they were acting in good faith.  So much for Groh v. Ramirez.  The court may be legally precluded from holding good faith, but that doesn’t stop them from  finding it somewhere else on the exact same basis.

Yet the primary distinguishing factor of Herring, that the mistake was so attenuated from the search that imposition of the remedy of suppression would serve no purpose, was completely ignored.  Remember the rubric and forget the rationale. 

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S. Ct. at 698.

Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S. Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking.

(Emphasis added.)  Whether this wholesale adoption of Scheidegger’s dream scenario reflects the Second Circuit’s approach toward suppression in all instances, or only where a defendant is as despicable as Rosa, remains to be seen,   For the moment, however, it appears that the court has concluded that a conceded violation of the 4th Amendment need not result in a remedy absent the subjective “requisite levels of deliberateness and culpability” by the police.

Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.

So it’s not that the 4th Amendment isn’t a nice right any longer, but that its violation only results in a remedy if done by a bad cop.  And there’s no telling what, if any, violation will be tolerated until after the court decides.  Now there’s deterrence for you.

The boondoggle of Continuing Legal Education, so often lacking in relevence to trench lawyers or so frequently taught by those whose knowledge and experience are, shall we say, underwhelming, is a constant source of irritation for lawyers.  It thus struck me, when a mind as sharp as Orin Kerr’s offered a CLE at Volokh Conspiracy, that it commanded attention.

This past summer, I was elected to serve on the Steering Committee of the Criminal Law and Individual Rights Section of the District of Columbia Bar. As part of my ‘steering’ duties, I wanted to steer readers to an interesting brown bag lunch we’re putting on next Monday, Representing Cooperators in Criminal Cases. Details, with a link to the registration page, are here.

It’s very impressive that Orin was “elected to serve” ona steeting committee.  Most steering committees have to pay to get anyone to join.  To get elected usually requires missing a meeting.  Yet Orin’s mention suggests a certain pride of accomplishment.  Good for him!  We can never have enough people who desire to hold official positions.

And what is there to learn?  Representing cooperators. Snitches. Rats.  Don’t make that face.

There’s much to know about representing the rat.  No, it’s not just directions from your office to the United States Attorney’s office.  No, it’s not just to remember to bring knee pads and a vente mochaccino (with lots of whipped) from Starbucks.  Hardly.

Experienced prosecutors and defense counsel will discuss the mechanics, advantages, and common pitfalls of client cooperation with the government.  Topics will include: Attorney and client proffers; Seeking immunity, deferred prosecutions, and plea agreements; Negotiating proffer and cooperation agreements; The factors prosecutors consider before granting concessions for cooperation; The pros and cons of transactional immunity, use and derivative use immunity, letter immunity, and court-ordered immunity; Preparing your client for interviews, the rigors of cooperation, and the collateral consequences; Staying in the government’s good graces after agreeing to cooperate.

That’s right, boys  and girls.  Staying in the government’s good graces is critical and often spells the difference between that 5K1.1 that you sucked so hard to get and the deep belly laugh as they haul your client off to prison after he gave up his mother.  Why do you think the barrista is so happy to see you, knowing that you will be buying vente mochaccinos for years to come to keep your assistant happy.  One cup and they own you.

Matters so serious and complex as staying in the government’s good graces can’t be taught by just anyone.  Obviously, there will be the requisite assortment of government lawyers, who will each explain their beverage preferences (and never forget Hawkeye’s admonition, “what’s a drink without a nosh?”).  But this CLE offers the huge advantage of some of the finest and most experienced lawyers from the defense side when it comes to bending one’s knee.

Everyone gets incensed at what they perceive to be a wrong, an injustice, especially when it related to them.  Some are inclined to act out, to say things they later regret.  The beauty of putting one’s arguments in writing, however, is that we can reflect on every word rather than utter the first one that comes to mind.  For this reason, California lawyer Paul Hupp is, well, unpersuasive.

Hupp received an adverse decision from the 9th Circuit on his personal bankruptcy case.  Kevin Underhill explains:

This case has a long and tortured history, but it looks like it began as a bankruptcy case in which the debtor wanted to discharge (among other things) student loans. The main issue on appeal was whether he had shown “undue hardship,” which in turn requires a showing of “good faith efforts” to pay back the loans and “insurmountable barriers” to doing so.

According to the debtor, his efforts were not just good-faith, but “heroic.” According to the bankruptcy court, though, not so much: “For most of this decade,” the court wrote, instead of working “[Debtor] continued his education in law school and then spent several years pursuing lawsuits in an attempt to eliminate the student loan debt, not pay it.” Debtor appealed and lost.

Emotionally charged.  Hard times.  Frustration.  All likely true.  So Hupp did what any good lawyer would do; he petitioned for rehearing.  Having lost once, he apparently decided to change directions a bit, and be a tad more forceful in his argument:

Second, let Plaintiff make this very clear hear and now at the beginning of this petition — this Court is now on notice that public will no longer tolerate violations of the Constitution, by the Congress or the judges/judiciary that think they can rig the system, violating basic constitutional rights (such as due process of law) and engage in these acts with impunity.

Plaintiff has news for these slime ball, piece of shit, ass clown judges (Bowie, Canby, Thomas and Fletcher-this means you) that think they are going to rig the system and railroad the poor and innocent — such as blocking the discovery process so the poor cannot defend themselves, commit perjury in their orders and a host of other constitutional violations, and do it with impunity — that is simply not going to happen in this case. You cock suckers are now on notice.
 
The facts of this case are going to come out, one way or the other.  Remember that bitches.

An opening designed to catch one’s attention for sure, but effective?  It clearly conveys a seething, threatening, explosive anger, but being angry does not, in itself, change many minds.  It’s not likely that Hupp’s rhetoric was going to be effective. 

Still, he knew enough to include legal argument along with his invective, but he had a curious way of ending each argument.  For example, the crux of his case hinged on whether he met the “undue hardship” test, and he sought to address it in his most lawyerly manner:

11 U.S.C. § 523(a)(8)- Undue Hardship” Test Is Vague, Ambiguous And Overly Board – 11 U.S.C. § 523(a)(8) the “undue hardship” test is unconstitutional because it is vague, ambiguous and overly broad, and cannot be validly or reliably interpreted. That fact has been well documented by Expert Witnesses in this case. And that ambiguity is exactly what has happened in the present case — nothing but vague and ambiguous bullshit catch phrases. These loser judges didn’t even apply the so-called “Nys” application. Hey, no surprise there-this Court has left that ambiguity and vagueness in place on purpose, so they can railroad the innocent. Sorry bitches, this issue will be addressed-one way or the other.

Once again, there’s a certain clarity to Hupp’s argument. And yet, it doesn’t seem to be presented in the most persuasive fashion.  He goes on in the same vein, argument after argument.  Inexplicably, he seems inordinately fond of the word “bitches.”

In case it’s unclear, this is not a winning strategy.  Perhaps it felt good to Hupp to send this petition to the court, though I have to wonder whether, after a little more deliberation, the bloom is off the thorn.  To no one’s surprise, Hupp’s petition was denied.  To everyone’s surprise, it was only denied.  No referral to the United States Attorney for threats, nor even the disciplinary committee for impropriety.

Underhill uses this petition, reluctantly, as a “teachable moment,” that one should be circumspect in threatening civil unrest unless you’ve got the goods to back it up.  Hupp, like Bluto in Animal House, failed to command a following.  That makes one appear a bit silly.  While Kevin reminds us that it’s never a good idea to threaten a federal judge, it appears that Hupp’s threat lack the credibility to do more than raise a chuckle.

As for those who troll the internet to express their anger and frustration at the government by screaming threats and epithets, do you find Hupp’s argument’s compelling?  If not, you may want to reconsider your compulsion to make similar points in the hope of stirring the populace to action.  But at least you’ve shown the good sense to play the fool online rather than in front of the 9th Circuit.

Lux Alptraum expected a pleasant flight back from Chicago to LaGuardia.  Who doesn’t look forward to landing in Queens?  When her seat mate sat down, he seemed pleasant enough.  Then came the iPad.  From Jalopnik :

But as the plane started moving, and he pulled out his iPad, I started to get a bad feeling about things. At first I gave him the benefit of the doubt: who among us hasn’t wanted to flout the electronics rule? Who among us really thinks that that one iPad is going to send the plane crashing to its doom? I figured he was just trying get one over on the flight crew, and that, when they inevitably asked him to turn the iPad off, he’d politely honor their request and that would be that.

As I’d predicted, one of the flight attendants did come over and ask Mr. No-Fly to turn off his iPad. But instead of simply apologizing and turning off his iPad, my neighbor responded with, “Wait, so you mean that if my iPad is on, the entire plane can’t take off? I had no idea I had so much power!”

No doubt he thought he was being funny.  When waiting for a plane to take off, nothing is funny.  After turning it off, he played the game again, and again was caught and admonished.

The second time the flight attendant asked Mr. No-Fly to turn off his iPad, he was less forgiving. This time, there were threats involved: if the iPad wasn’t turned off, the plane would go back to the gate, and police could explain FAA regulations to the offending passenger in person. Shortly after this second warning, the plane’s captain came on the intercom to remind passengers that, yes, the electronics rule was an FAA regulation and serious business, and something that needed to be followed. That seemed to do the trick: Mr. No-Fly finally stowed his iPad, and it seemed, at last, that we could all put this whole nasty business behind us.

The plane was now facing an hour and a half wait to take off, and so Alptraum’s seat mate asked for an alcoholic beverage, having already been denied one addiction.  The stew refused.

This set him off again. I didn’t quite catch his side of the argument, but the flight attendant—who’d clearly been warned about him by her coworker—announced that she wasn’t a waitress, but a safety professional, and that dealing with his petty concerns was not her priority. In fact, she was ready to throw him off the plane right then and there.

The plane finally took off, but it was decided that he was not a good candidate for heavy drinking, and the flight crew refused to serve him a drink.  He decided to engage in another fight.

And not just a fight: a fight that involved Mr. No-Fly getting out of his seat and following the beverage cart as it made its way to the very back of the plane. I’m not sure why he thought this was a good idea, I’m not sure how he thought it was going to get him alcohol: I suppose he just assumed that since he hadn’t gotten into any real trouble yet, this would be just another infraction that he could talk his way out of.

When finally the plane landed at LaGuardia Airport, Alptraum assumed that her “interesting flight” was over and all would go home to sleep it off.  Instead, he was met by police.

I thought they might have let him off easy, that he might have just gotten some sort of ticket and been allowed to go on his way. But in the cab line outside LaGuardia, one of the flight attendants told me that, not only was he arrested, he’d also be added to the no-fly list for a pretty long time.

Let there be no doubt whatsoever that this fellow was a monumental jerk.  I’m surprised I can’t guess who it is, since we have so few monumental jerks in New York.  His behavior was atrociously rude and shockingly narcissistic.  We have so few narcissists as well.  And he did, of course, violate the rule against electronic devices.  Damn the allure of the iPad.

But the No-Fly list isn’t a punishment for bad boys, or a means of removing annoying people from the ranks of air travelers.  As the Transportation Safety Administration explains:

The “No-Fly” list has been an essential element of the aviation security – it keeps known terrorists off planes. TSA and our Federal partners, including the intelligence and law enforcement communities, have worked together to combine our collective knowledge into one list that protects our country, transportation systems, and airline passengers.

Or anyone who pisses off a stewardess.  And those who can’t control their iPad addiction.

It’s not that anyone, myself included, will feel any particular sympathy toward this fellow, and few of us would want him to plop his butt down in the seat next to us, or even on the same plane, but this is not what the No-Fly list is for.  Then again, as long as there is a list, and the list keeps people off planes with the government’s might, why not make the flight crew’s life a little happier and use it to keep the major annoyances out of their hair.  Oh, come on.  What could it hurt to take a list designed to protect us from terrorists and use it to remove annoyances.

It’s not like it could ever happen to us.  It’s not like we have iPads.

When law students look at a courthouse, they see a land of opportunity.  So too did Damon Ridley.  Except Ridley wasn’t a law student.  Or a lawyer.  From the Cleveland Cincinnati Herald :

Damon Ridley, a former bailiff in the Hamilton County Common Pleas Court of Judge John “Skip’’ West, was sentenced April 29 to 14 months in prison after a jury a month ago ruled he attempted to obtain a bribe from a defendant by promising him he could reduce his sentence.

Ridley had promised drug dealer Charles Johnson in a meeting at a ball field near Spring Grove Cemetery that for money he could get his sen­tence reduced. Johnson had being convicted of a drug charge in West’s court, and testified during Ridley’s trial he gave Ridley $1,000 to have his punishment to be administered by West reduced.

It’s not that Ridley did anything, or had the ability to do anything, to influence Judge “Skip” West’s and reduce Johnson’s sentence.  But then, it’s not like he charged a lot either. 

Chances are pretty good that any member of the court staff, from clerk to bailiff (using whatever names are given in any particular jurisdiction), has some great opportunities here.  Not that they necessarily have the ability to affect a disposition, though I wouldn’t ignore that possibility entirely as judges often ask the nice folks they work with every day their thoughts about a case or person.  But people talk.

After the last case is called, and the lawyers and litigants walk out of a courtroom, eyes roll, heads shake and words are uttered.  People often believe that judges go back to the solitude of their chambers and ponder the decisions they are required to make.  Sometimes the decisions are made before the first word of argument emits from counsel’s mouth.  Sometimes the decision is done before the echo of the last word dies out.  Sometimes, the folks who work the courtroom know what that decision will be.

Marketable?  You bet.  But more importantly, it offers an opportunity to those inclined toward entrepreneurialism.  After all, it’s the American way.

A defendant facing sentence doesn’t know, in the absence of a done deal, what number will come out.  Most believe that there’s influence to be had somewhere, and that the powerful and savvy know how to play the game better than others.  And if they can gain access to influence, even if it costs them a few bucks, it’s money well spent.  Ridley merely played into the myth.

It’s unclear from the story whether Ridley knew in advance what sentence West would impose on “drug dealer” Johnson, or whether this was just an easy touch for a guy with some extra cash and the will to blow it.  Either way, Ridley was well positioned to take advantage.  It’s not like Ridley planned to do anything bad, provided you don’t consider lightening Johnson’s load a problem.  But if a drug dealer wants to waste his money by handing it over to a hard-working court clerk, why should Ridley be so prissy not to gracefully accept it?

Damon Ridley was sentenced, following his conviction, by Common Pleas Judge Norbert Nadel, who used the opportunity to express his feelings.

Nadel admonished Ridley for messing up his life by associat­ing with bad people. “You are a nice guy who associated with thugs. Why were you down there doing that? When you wash your hands in garbage, you smell like that,’’ Nadel said. “It rubs off on you every time.’’ Ridley has denied using information he obtained in West’s courtroom to bribe Johnson. He also told Nadel he would continue to associate with his friends whom Nadel described as “thugs.’’

For obvious reasons, Nadel’s post-judicial future as an inspirational speaker is limited.

Nadel said sentencing Ridley was not pleasant for him in light of the positive circumstances in his life. “However, there are overriding circum­stances,’’ Nadel said. “You were an officer of the court and in a position of trust, and you violated that trust. It tends to lessen public confidence in the entire system of justice.’’

Tends?  One might go a step farther, as in it fundamentally undermines the legal system when a court clerk sells purported influence.  But that’s just me projecting my sensibilities on Norbert. 

This may well have been a good case to use for general deterrant purposes, rather than focus on Ridley’s association with unsavory characters.  And that’s just the people he hung with in court.  It not only feeds into every paranoid’s dream, but destroys the credibility of all who participate in the legal system and maintain their integrity in the face of rife opportunity.  We could all make some extra money if we just didn’t mind lying, cheating and stealing.  Let’s try to keep that stuff under wraps, Norbert, no matter how “unpleasant” it may be.

H/T Steve Magas

Every once in a while, somebody who ought to know better says something so breathtakingly stupid as to command attention.  The honor today goes to Colorado District Attorney Martin Beeson who, along with his staff of 14 prosecutors, covers Pitkin, Garfield and Rio Blanco counties, which includes “ritzy” ski resort, Aspen.

From the Aspen Daily News, via Jeff Gamso, the statements stem from one of the most critical aspects of any elected official’s function, getting more money.  You see, Beeson was being asked to cut his budget by 5% by the Pitkin County Commissioners, akin to having a forced circumcision without anesthesia in front of all the hot girls in your high school gym class.  Beeson struck back.

Beeson met with the Pitkin County commissioners this week, asking for a $600,000-plus contribution to his $3 million budget covering the tri-county area. He declined to cut his budget by 5 percent, as the commissioners had asked, and the county board appears poised to grant his full request.

A bit of a budgetary swing?  Maybe if it was you, but no biggie for a guy like Beeson, who knows how to put on his man-pants.  They ask for a decrease?  You just “decline”.  Is there a problem?

Beeson has good reason to not merely refuse the “request” of the purse-string holders, but let them know what he expects them to cough up.  After all, how is he supposed to keep evil under wraps without a budget that “is largely inflated by the cost of investigating cases, and paying for witnesses and experts to travel here and give testimony.”  It’s not like he can let the police, who have their own budget, do all the work for him.

And lest you think he’s being greedy, consider that money goes to public defenders as well, about 20% of what the prosecutor gets, even though they handle more than 60% of the cases.  Fortunately, this differential is easily handled by the low salaries paid.

Some may surmise that there is a certain unfairness to all of this, perhaps even a lack of parity between the prosecution and defense functions.  Beeson clears up this fallacy:

Asked about the public defender’s budget after his Aspen meeting on Tuesday, Beeson criticized the office for abusing the 6th Amendment right to a defense counsel by needlessly frustrating the DA’s efforts and using legal loopholes to suppress incriminating evidence against their clients.

“Public defenders are not defenders of the public,” Beeson said. “They are not serving the public good. They are taxpayer-funded attorneys for criminals.”

Come on.  Admit it.  He’s got you there. 

Gamso tries to take Beeson on:

From the New York County Lawyers Association press release:

Be there or be square.  No word on what they will be serving for dinner.

Laws will be coming.  You can bank on it.  The United States Department of Education has put school districts on notice that they are to craft anti-bullying policies or lose cashola, and they will, much like the zero-tolerance drug laws that give rise to strip searches of young girls over demon-acetaminophen.  Action begets over-reaction.  It’s how we roll.

Aside from the problem that the word “bullying” has yet to be adequately defined, which of course hasn’t stopped anyone from screaming for its criminalization, and that most advocates deem it a function of hurt feelings rather than particular conduct, its elevation to epidemic proportions is precisely the sort of hyperbole that gives rise to the next wave of insane laws and outrageously inappropriate knee-jerk outcomes. 

This isn’t to say that there is no such thing as bullying, or improper conduct that should be prevented. Indeed, schools have always had the problem of bullying to deal with, and the fact that anyone has to use hardened methods to get schools to give some serious thought to protecting students isn’t a commentary on bullying, but a commentary on schools.

That said, let’s not do the easiest thing and lump this into our latest and greatest problem, hurt feelings.  Much of what we see is a product of our fashionable societal expectation that we can get through life without anyone saying or doing anything that will make us feel sad.  We developed a belief that we are entitled to demand that others be the guardians of our fragile self-esteem.  If our self-esteem suffers, someone must be at fault. There must be someone to blame.

Are we seeking a world where people only speak sweetly to others?  When someone asks if they’re ugly, must you insist they’re beautiful no matter how ugly they are?  Must you do so upon pain of imprisonment?

As ridiculous as this sounds, it’s hardly far-fetched.  Within that amorphous scope of “bullying” are people who say mean things to others, or call them unpleasant names.  Some will speak to how such conduct makes the victim feel, and they are absolutely right that it’s not nice.  But is it criminal?  Do you really want it to be criminal?

When I was a kid, there were bullies.  I don’t believe I was a bully, but I similarly feel certain that I must have said something mean to someone at some point, and I would assume that I hurt someone’s feelings.  And still, they survived.  Mothers told their children the rule:

Sticks and stones can break your bones but words will never hurt you.

We believe our mothers.  Someone called us a doody-head, and we called them a doody-head right back.  There was no call for follow-up therapy or drugs for post-traumatic stress disorder.

This is not the solution to bullying.  It is, however, a lost concept for the myriad things that happen in an ordinary life to people whose feelings are hurt by the words of others.  If we got back to it, instead of “I’m OK, You’re OK,” and wallowing in our personal misery for every slight and hurt that life inflicts. perhaps we can avoid much of the “epidemic” and consequently much of the stupidity that will ensue from the cure of the disease.

We’re in for a rough trip ahead with this trend to stop anything and everything that might impair a person’s entitled state of positive self-esteem, and no doubt after the lives of more than a few young people are lost to the next zero-tolerance flavor of the month, we will correct the over-reaction.  In the meantime, just repeat the old phrase to your kids and remind them that they don’t have to fall into suicidal depression just because some idiot said something mean to them.  Not every harsh word in life is criminal.

Their feelings are their own responsibility.  They will be a lot happier with themselves if they can be a bit tougher with others.  And if even it makes them sad for the moment, it’s not like anybody broke their bones.

The phone call was eagerly awaited, hearing from my client whose time was served and return to his family complete.  He survived.  Even though some clients prefer to never speak with their lawyer again, as the personification of one of the worst experiences of their life, I almost always hear from mine when their term is over.  I want to know how they are, how they fared.  I want to learn from their experience.

The case was a financial crime, what others call “white collar,” a phrase I prefer not to use as it carries connotations that it’s somehow of a higher order, less nasty and brutish than street crime.  It skews the defendant’s perspective into thinking that his charge is somehow less felonious and the possible imprisonment more gentile.  It’s taken less seriously, and acquiescence to prosecution somehow more acceptable.  This is total crap, but the realization doesn’t hit home until it’s too late.

My client’s voice was animated, filled with stories to tell me about his experience inside.  But the stories carried one theme, that he never really understood all that I had told him until he heard the stories of others.

He told me about defendants who were never fully informed of what a guilty plea entailed.

He told me about defendants who paid two, three times as much as he did and ended up with half the work and twice the sentence.

He told me about defendants who had no money to pay and never had a chance.

He told me about defendants who were innocent, or at least not nearly as guilty as the government would have it, who never had a chance to tell their lawyer before the deal was cut.

He told me about defendants who thought this could never really happen to them, right up until the cell door slammed shut.

A fellow he befriended inside, also convicted of a financial crime, explained that he didn’t learn that his lawyer had reached an agreement with the government for him to plead guilty until he arrived at court.  Sure, they had talked about the possibility of a plea beforehand, in cursory terms and with an eye toward hopeful outcomes. 

The defendant was confident that he would end up fine.  After all, he had paid an extraordinary fee, and like any good businessman, expected to receive the best of results for his money.  His lawyer had the right pedigree, and held a respected position in a fine law firm, with vast resources and many little lawyers scurrying about in the background to do this bidding of his lawyer.  You don’t get to wait in mahogany paneled rooms if your lawyer isn’t great, right?

It didn’t turn out that the deal was quite as good as desired.  In fact, it didn’t turn out to meet his expectations at all.  The discussion happened on a bench in the hallway outside the courtroom.  He couldn’t hear very well because of the echo.  He had trouble processing the information, the lawyer words used to explain the details.  He tried to formulate questions, but couldn’t quite find the right words to ask because his head was spinning.  Then it was time to walk into the courtroom and do it.  His lawyer told him that this was what he had to do, so he did.  He had plenty of time later to think about it.

My client told his friend how he had spent many hours talking about the plea before making his decision.  There were numerous meetings of as many days, each time new questions and issues popping into his head and requiring not merely another answer, but time to digest the answer.  Answers were often vague, as in “it’s up to the judge,” and it was difficult to appreciate that there were often more variables than absolutes.  The options were discussed, and often discussed again.  And again.

Inside, my client finally got the answers he sought.  He had all the information one could possibly possess, with both the good, as well as the bad, clearly spelled out.  He realized that he was told certain truths that he couldn’t possibly appreciate at the time, but that he was told them anyway.  He realized for the first time that he wasn’t the only one in this situation, a realization that often escapes defendants charged with financial crimes who think they are the first and only person to be put through this torture by a harsh and personally vindictive government.

My client laughed on the phone, admitting that he thought I was nuts when I recommended that he take the plea.  He told me of other guys, like him, who couldn’t wrap their head around the idea that their conduct was worthy of a criminal prosecution, and refused anything short of an apology and ceremonial dismissal.  Not because they didn’t commit the crime, but because they just didn’t deem their conduct worthy of punishment.  These were the guys who were there when my client arrived and and still there when my client left.  They will still be there many years from now.

We talked about what his life would be like moving forward.  He had learned a great deal about injustice and reality, and wanted to do something about it to help those he left behind.  I offered him some ideas about things he could do, but cautioned him against making this too big a part of his life.  He’s got a family, and his family needs his attention more at the moment. 

He told me he was surprised that his friends and neighbors didn’t avoid him like the plague.  In fact, they welcomed him back and embraced him.  I explained that people, some of whom are his friends and neighbors, are far closer to understanding his situation than he could have ever imagined.  He asked me why I didn’t tell him that beforehand.  I told him that until he lived through the experience of prosecution and imprisonment, he never would have understood.

We’re going to sit down for lunch soon.  Not as attorney/client, but as two guys who both understand.  This time I’ll pay.

Gideon at A Public Defender, who is not only back in the saddle but riding at full gallop, raises a particularly troubling scenario about to play out at Moritz College of Law at Ohio State.  Dealing with the prosecution of “Hiccup Girl,” Jennifer Mee, a one-time internet phenom turned accomplice in a botched robbery that left Shannon Griffin, 22, dead.

Mee is charged with 1st degree murder under the felony murder rule, a common law holdover that provides that any participant in a felony, where a death results, is chargeable with murder. While the rule is of dubious merit, it remains the law and hence is taught to first year law students in their criminal law class.  

Doug Berman will be teaching criminal law this semester, and found it fortuitous that this case arose just in the nick of time.

I will use the “Hiccup Girl” case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens rea concerning causing another’s death and may not be an effective was to deter underlying felonies).  But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains. 

As a technical matter, the only form of homicide which the “Hiccup Girl” can be charged with is first-degree murder.  I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge.  I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges.  But would this be truly a just outcome?  Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee’s of the world out [?] be facing first-degree murder for which the only available punishments are death and life without parole?

 

Gideon rips Doug’s view to shreds.

What? For someone who is considered an expert on criminal sentencing and who is also teaching future lawyers about criminal law, this is extremely poor statutory reading and reasoning. This assumes many things:

1. She was aware that they were going to kill Griffin all along and intentionally lured him to his death.

2. She has nothing to offer the prosecution.

3. They have no discretion in charging and or plea bargaining.

An amateur criminal defense attorney can probably take only the facts I’ve listed above and make a compelling case that she may in fact be guilty of second or third degree murder, which carries a much lesser sentence. Berman is free to express his opinion that she shouldn’t be given any leniency and prosecutors should stick with the first degree murder charge as a matter of “principle”, but to suggest that no “honest prosecutor and/or just could” allow her to plead to a lesser crime is just silly and belies such a fundamental misunderstanding of the criminal justice system that I am honestly rather shocked.

Beginning with the assumption that Doug recognizes that he’s not working with facts, but merely early reporting that may later prove to be wrong or irresponsible, not to mention entirely from the police perspective which tends to provide a view of the crime that entirely supports the prosecution, ignoring anything that undermines the effectiveness of the press statements, I will presume that Doug doesn’t mean to suggest that Mee is presumed guilty.  It may appear as if he’s reached a verdict, but I reject the idea that Doug wouldn’t adjust his view as new information becomes available.

That said, Gideon’s point, that even the rawest recruit in the trenches, working with the assumed information as provided by the police, can come up with a list of reasons why Doug’s statement is blindly dogmatic.  By phrasing it in terms of an “honest prosecutor and/or judge,” he suggests that only a cynical, dishonest system would produce a result different than what he thinks proper.

It’s not particularly significant that an individual holds this view.  The world is filled with people who hold uninformed or illogical views, based upon their limited knowledge and, where needed, expertise.  Some of them offer comments here.  But Doug Berman sits in a different position than most, being the William B. Saxbe Designated Professor of Law.  That’s quite an honor, as well as a responsibility.  When Doug tells a classroom filled with fresh-faced first year law students something, they listen.  They learn.  They carry his words with them throughout their legal career.

To say that no honest prosecutor can exercise discretion in a case where a pertinent fact may be strongly in dispute, where the legislature has provided for lesser alternatives, is not honest.

Mee could easily be guilty of any other degree of murder, thereby permitting the judge to impose a sentence less than life. We should encourage prosecutors to freely exercise the discretion when the facts warrant it. It may be too early to say that they do, but it’s also too early to say that they don’t.

One can never be sure whether one or all students will end up practicing criminal law, but there’s certainly a possibility that a future prosecutor is sitting in Doug Berman’s classroom.  Maybe even a future judge.  It could happen.  To paint the exercise of discretion in such ideological terms, as a matter of personal integrity, would not be the act of a teacher, but a demagogue. 

Just as I conveniently assume that Doug’s views take for granted that the information in hand may not prove to be accurate, I similarly assume that Doug’s commentary, and phraseology, was the product of quick fingers rather than deep thought.   When the time comes to teach his class about the felony murder rule, with its multitude of problematic assumptions that render it archaic and frequently bizarre and arbitrary in application, he will include the practical considerations that come with any prosecution, all as valid and as much a part of a system that intends to provide safety valves to avoid unduly harsh and irrational outcomes if prosecutors and judges are sufficiently well trained to avail themselves of them.

The one thing we certainly don’t want is a law school criminal law class that believes that the only honest prosecutor and/or judge is the harsh, inflexible, irrational one.  I refuse to believe that Doug Berman would ever be the teacher of such a class, and that the reflection missing from a dashed-off blog post will find its way into the classroom.