The Supreme Court decision in Padilla v. Kentucky has generated plenty of heat, but this post by WindyPundit generates a bit of light on the why a burden, that may appear fairly simple from both a distance as well as very close up, doesn’t always play out so easily.

Windy tells the story, via the New York Times, of 28 year old nurse, Jerry Lemaine, who left Haiti at 3

ELMONT, N.Y. — When a police officer in this Long Island suburb found a marijuana cigarette in Jerry Lemaine’s pocket one night in January 2007, a Legal Aid lawyer counseled him to plead guilty. Under state statutes, the penalty was only a $100 fine, and though Mr. Lemaine had been caught with a small amount of marijuana years earlier as a teenager, that case had been dismissed.

The article goes on to discuss how a split between the federal circuits, some holding that two drugs cases of any sort “equals” one aggravated felony mandating removal, put Lemaine into immigration clutches, where he was spirited away to Texas, under the auspices of the 5th Circuit, a jurisdiction that would deport him when the 2d Circuit in New York wouldn’t.

The underlying problem was the combination of Lemaine’s teenage marijuana arrest, which the article describes as “dismissed”, combined with his simple possession in January, 2007.  While the article lacks the level of detail that would enable a hard legal analysis, it provides enough to venture some educated guesses about what happened.

While the teenage pot case is described as having been dismissed in the first paragraph, it’s later described as a conviction. It can’t be both, but it can, as Windy surmises, be an adjournment in contemplation of dismissal (called an ACD in most places in New York, an ACOD on Long Island, just because the locals prefer to call it that).  The underlying charge of unlawful possession of marihuana (another New York quirk is the odd spelling of marijuana), in violation of New York Penal Law 221.05, is a “violation”,  defined as an offense that is neither a misdemeanor nor a felony.  There is nothing lower than a violation, and it is not a “crime” as defined by New York law.

While an ACD is a fine disposition as far as local law is concerned, requiring the defendant to stay out of trouble for 6 months (or 1 year in the case of drugs), after which the case is dismissed and sealed, it is not a disposition “in favor of the accused,” a characterization that makes sure that the defendant can’t turn around and sue for the arrest or prosecution.  The defendant does not plead guilty, but rather the prosecution moves for the ACD and the defendant does not object.  An ACD is purely a gift from the prosecution; the defendant cannot otherwise get such a disposition.

There’s one additional quirk to consider, that a dismissal, under New York law, gives rise to a legal fiction that the arrest and prosecution never happened.  While it may remain on the defendant rap sheet, ironically noting that it’s dismissed and sealed but still there, it may also magically disappear as if it never happened.  From Criminal Procedure Law §215.40:

Upon dismissal of an action, the arrest and prosecution shall be deemed a nullity, and defendant shall be restored to the status he or she occupied before his or her arrest and prosecution. All papers and records relating to an action that has been dismissed pursuant to this section shall be subject to the sealing provisions of section 160.50 of this chapter.

A defendant can accurately state, upon dismissal, that he’s never been arrested, though he obviously has.  It’s one of the few legal fictions that inure to a defendant’s benefit.

Cut to age 28 and Lemaine gets popped for another unlawful possession, this time with $100 fine. Again, not a crime, but also not an ACD.  Definitely a conviction, but legally not a conviction of a crime.  Moreover, this is Lemaine’s first conviction since the prior arrest resulted in an ACD, which resulted in a dismissal, which resulted in the arrest and prosection being deemed a nullity.

The bottom line is that in New York, Jerry Lemaine’s life of crime was slightly less significant than a guy with a couple of speeding tickets.  For a sense of the price he paid given the things ICE does to protect us from non-citizens like Jerry, read Windy’s post and the article.  Three years in immigration jail, near starvation and on a handful of blankets to be shared by 50 people in the cell.  That, of course, happened in Texas.

Calls come in with some regularity from lawyers in other jurisdictions about their clients who had a case in New York.  They want to know what it means, what’s an ACD is a big question.  What type of offense is unlawful possession of marihauna?  The problem is that prosecutions and cops in other jurisdictions work off of a NCIC rap sheet, It’s maintained by the FBI and is intended as a cross-jurisdictional source of criminal history.

The problem with NCIC is that it’s notoriously wrong.  Bad information goes in and never comes out.  Nor does the good stuff, like a case being dismissed, manage find its way into the report.  And of course, it offers no explanation as to the meaning of its contents, so that it’s thrown in the face of a defendant, defense counsel and a judge in some faraway place, to be interpreted in a vacuum and left to the participants, unaware of what they are looking at or dealing with, to dispute.  As everyone knows, you can’t cross-examine a piece of paper, so the NCIC wins.  At least for the moment.

The penal schemes of different states vary widely.  The New York scheme, to the extent described here, is somewhat complicated and sufficiently strange so that it doesn’t strike outsiders as obvious or intuitive.  When it conflicts (and it often does) with their own interpretation of law, other jurisdictions tend to throw out those parts of the New York scheme that don’t conform to their way of doing things.  Like the “violation” denomination, the dismissal and nullity aspects, all vital components of the New York scheme but either ignored or rejected by courts in other states trying to make sense of a defendant’s prior criminal history through the prism of their scheme.

And one of the grandest ironies is that, in Jerry Lemaine’s case, his lawyer tried to go back into court to get the case dismissed outright, but was rebuffed because the case, as far as New York was concerned, was already dismissed so the court had no jurisdiction to dismiss it twice. 

The lawyers who defended Jerry Lemaine did their jobs, or certainly did nothing wrong.  Yet it ended up in unforeseen disaster for Lemaine because ICE decided to take him to Texas.  What were they to tell Lemaine about the immigration consequences of his case, his ACD and his plea, which in the 5th Circuit meant that two speeding tickets equal an aggravated felony?

Even if the lawyers could predict the future accurately, cover every jurisdictional quirk across the country, and, ultimately, leave their client in a state of confusion based on the variety of possibilities arising from the potential understanding/misunderstanding of New York law, would it have added to Jerry Lemaine’s intelligent decision making or just confused the heck out of him?  It’s just not that simple.  Few things are.

Yes, it was an April Fools Day gag.  And a pretty good one, if you ask me.  Eric Turkewitz will not be the White House Law Blogger.  Hey, don’t blame me. I was just doing my part in the conspiracy.

But we did have some fun.  The New York Times got nailed:

But the New York Times didn’t bother to fact check. Not with me. Not with the White House. And not with Google, which already had the stories from both the ABAJournal and the WSJ by the time they ran the story at 2:05. The Paper of Record blogged in it’s City Room this piece on When Lawyers Blog :

 

…After all, as Mr. Turkewitz, a Manhattan lawyer, writes on his New York Personal Injury Law Blog, he is about to be sounding off on all manner of legal issues as the Obama administration’s new White House law blogger.

“Excited about new blogging gig as White House law blogger,” he tweeted this morning. “But hope I don’t have to spend too much time in D.C.”

Spoken like a true New Yorker.

At 4:45, I received a phone call from an infuriated “Andy Newman” from the New York Times demanding to know if this was an April Fool’s joke. Unlike the classy Ashby Jones, Newman had zero sense of humor and demanded that I answer “as an officer of the court” or he would pull the post down.

I tried not to laugh, and told him that due to concerns in the White House about me jumping the gun on the story (as per Orin Kerr’s post @ Volokh), I really shouldn’t say anything and would clear it up tomorrow. This clearly wasn’t good enough for him as he hung up on me, and down came the NYT post. The Times, I guess, doesn’t like being punked on April Fool’s Day.

The part that gets me is where Andy Newman from the Times demands that Turk answer “as an officer of the court.”  I can’t even type those words without laughing.  (I’ve actually taken a break from writing so that I can stop laughing.  Okay, I’m back.)  What is it with non-lawyer who think that invoking the officer of the court language makes them think that we’re required to get all serious and tell them what they want to know?  Come on, Andy.  Are you in third grade?

I applaud the efforts of my co-conspirators, Patrick at Popehat, Orin Kerr at Volokh Conspiracy (obviously, Kerr is a much more experienced conspirator than the rest of us), David Lat and Kash at Above the Law , Doug Mataconis at Below the Beltway, and Walter Olson at Overlawyered, who was there in reserve.

And to the leader of the conspiracy, Eric the Turk, it was an audacious effort and you are a brilliant prankster.

If I sometimes think that comments here get a bit inane, it’s worth noting that the comments to Orin’s post ended up in a raucous birther debate, as did the comments to Patrick’s post.  How it went down that path is beyond me, other than the sheer, unmitigated hatred that some nutjobs have and their compulsion to express it at any opportunity.  Here’s a bit of inside baseball for blawg readers: Some of you are just totally nuts.  For the ones who aren’t, you’ve got no idea what blawgers put up with behind the scenes.  If it wasn’t for the vast wealth and fame this brings us, it wouldn’t be worth it.

For anyone who finds all this too frivolous for their taste, particularly in light of the multitude of serious issues confronting the world, lighten up.  There’s room for a little fun.

It’s not that there’s no place for the Taser in the arsenal of weapons available to police.  It’s that the Taser has made cops lazy and, for those lacking the brains required of a server at Dairy Queen, stupid.  Don’t believe me?  See Exhibit A :

MARTINSVILLE, Ind. — Two Martinsville police officers have been suspended after they were accused of using a Taser to subdue a 10-year-old.

A news release from the mayor’s office and the Martinsville Police Department said the officers responded Tuesday evening to Tender Teddies Day Care on reports of a 10-year-old who was out of control.

The release said that the officers, trying to prevent the child from hurting other children, staff members and himself, slapped the boy and then used a Taser to subdue him.

It’s often facile for those who blame the “criminal” to retort that any force used against them was deserved.  “They brought it on themselves,” they say.  Whether that’s so depends on the situation, and may in fact be true at time.  But what do you say to a 10 year old who is slapped, then tased?

A bad seed?  Child predator?  We’ve developed language to turn children into animals, to excuse adults from using force against them as if they were vicious criminals.

Officials said officers had been called to the day care before about the same child.

“One of the police officers came out here and said they have trouble with him all the time because he is a problem child,” said neighbor Stephanie Hamilton. “He was kicking and screaming … and he wouldn’t quit.”

Kenneth Frazier said he believes the boy needs help.

“I don’t think that should have happened. I’m sure they could have detained him some other way,” he said. “They take big grown ups down without tasing them … why a 10-year-old?”

What gave rise to this 10 year old’s behavior is unknown.  It would certainly appear he needs help, and maybe a lot of it.  Dealing with children who are out of control requires a great deal of thought, patience and restraint.  This is a child.

The point is often best made by asking a question, what would they have done if they didn’t have a Taser?  This time, however, it’s not the best question as the cops smacked the child before tasing him.  It suggests that they might have just beat the living daylights out of him instead.  Maybe batons?

So what were the cops thinking?  In all likelihood, they were thinking that even a 10 year old “kicking and screaming” can inflict a painful blow to the shins.  If there is anything that motivates a cop to act, it’s avoidance of a blow, even when that blow comes from a 10 year old.  Better to beat him into submission than suffer a blow.  A well-landed blow can be really painful.

Of course, risking a potential bruised shin to grasp a child, physically subdue him, stop him from lashing out and doing so in a way that will not involve the use of force on a 10 year old, was an option.  Some cops, maybe those who are father or mother to a 10 year old, would consider taking such a risk.  Most cops won’t.  No 10 year old is worth the risk of a painful shin.

And why should a cop take a risk when he’s got a Taser?  Problem solved.

The two officers involved have been suspended pending an investigation.  Maybe they’re investigating whether the 10 year old was really a very short adult serial shin kicker, or they are checking for prior drug convictions in his background to smear the victim and justify police action. I dunno.

H/T Turley

            It would probably be within the range of that exaggeration permitted in Washington to say that assembled in this room is one of the most powerful peace-time forces known to our country.  The prosecutor has more control over life, liberty, and reputation than any other person in America.  His discretion is tremendous.  He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.  Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.  The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial.  He may dismiss the case before trial, in which case the defense never has a chance to be heard.  Or he may go on with a public trial.  If he obtains a conviction, the prosecutor can still make recommendations as to sentence, as to whether the prisoner should get probation or a suspended sentence, and after he is put away, as to whether he is a fit subject for parole.  While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.

            These powers have been granted to our law-enforcement agencies because it seems necessary that such a power to prosecute be lodged somewhere.  This authority has been granted by people who really wanted the right thing done—wanted crime eliminated—but also wanted the best in our American traditions preserved.

            Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguard by presidential appointment, requiring confirmation of the Senate of the United States.  You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.

            Your responsibility in your several districts for law enforcement and for its methods cannot be wholly surrendered to Washington, and ought not to be assumed by a centralized Department of Justice.  It is an unusual and rare instance in which the local District Attorney should be superseded in the handling of litigation, except where he requests help of Washington.  It is also clear that with his knowledge of local sentiment and opinion, his contact with and intimate knowledge of the views of the court, and his acquaintance with the feelings of the group from which jurors are drawn, it is an unusual case in which his judgment should be overruled. 

            Experience, however, has demonstrated that some measure of centralized control is necessary.  In the absence of it different district attorneys were striving for different interpretations or applications of an Act, or were pursuing different conceptions of policy.  Also, to put it mildly, there were differences in the degree of diligence and zeal in different districts.  To promote uniformity of policy and action, to establish some standards of performance, and to make available specialized help, some degree of centralized administration was found necessary.

            Our problem, of course, is to balance these opposing considerations.  I desire to avoid any lessening of the prestige and influence of the district attorneys in their districts.  At the same time we must proceed in all districts with that uniformity of policy which is necessary to the prestige of federal law.

            Nothing better can come out of this meeting of law enforcement officers than a rededication to the spirit of fair play and decency that should animate the federal prosecutor.  Your positions are of such independence and importance that while you are being diligent, strict, and vigorous in law enforcement you can also afford to be just.  Although the government technically loses its case, it has really won if justice has been done.  The lawyer in public office is justified in seeking to leave behind him a good record.  But he must remember that his most alert and severe, but just, judges will be the members of his own profession, and that lawyers rest their good opinion of each other not merely on results accomplished but on the quality of the performance.  Reputation has been called “the shadow cast by one’s daily life.”  Any prosecutor who risks his day-to-day professional name for fair dealing to build up statistics of success has a perverted sense of practical values, as well as defects of character.  Whether one seeks promotion to a judgeship, as many prosecutors rightly do, or whether he returns to private practice, he can have no better asset than to have his profession recognize that his attitude toward those who feel his power has been dispassionate, reasonable and just.

            The federal prosecutor has now been prohibited from engaging in political activities.  I am convinced that a good-faith acceptance of the spirit and letter of that doctrine will relieve many district attorneys from the embarrassment of what have heretofore been regarded as legitimate expectations of political service.  There can also be no doubt that to be closely identified with the intrigue, the money raising, and the machinery of a particular party or faction may present a prosecuting officer with embarrassing alignments and associations.  I think the Hatch Act should be utilized by federal prosecutors as a protection against demands on their time and their prestige to participate in the operation of the machinery of practical politics.

            There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.  Law enforcement is not automatic.  It isn’t blind.  One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints.  If the Department of Justice were to make even a pretense of reaching every probable violation of federal law, ten times its present staff would be inadequate.  We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning.  What every prosecutor is practically required to do it to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.

            If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants.  Therein is the most dangerous power of the prosecutor:  that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.  With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone.  In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.  It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies.  It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

            In times of fear or hysteria political, racial, religious, social, and economic groups, often from the best of motives, cry for the scalps of individuals or groups because they do not like their views.  Particularly do we need to be dispassionate and courageous in those cases which deal with so-called “subversive activities.”  They are dangerous to civil liberty because the prosecutor has no definite standards to determine what constitutes a “subversive activity,” such as we have for murder or larceny.  Activities which seem benevolent and helpful to wage earners, persons on relief, or those who are disadvantaged in the struggle for existence may be regarded as “subversive” by those whose property interests might be burdened or affected thereby.  Those who are in office are apt to regard as “subversive” the activities of any of those who would bring about a change of administration.  Some of our soundest constitutional doctrines were once punished as subversive.  We must not forget that it was not so long ago that both the term “Republican” and the term “Democrat” were epithets with sinister meaning to denote persons of radical tendencies that were “subversive” of the order of things then dominant.

            In the enforcement of laws which protect our national integrity and existence, we should prosecute any and every act of violation, but only overt acts, not the expression of opinion, or activities such as the holding of meetings, petitioning of Congress, or dissemination of news or opinions.  Only by extreme care can we protect the spirit as well as the letter of our civil liberties, and to do so is a responsibility of the federal prosecutor.

            Another delicate task is to distinguish between the federal and the local in law-enforcement activities.  We must bear in mind that we are concerned only with the prosecution of acts which the Congress has made federal offenses.  Those acts we should prosecute regardless of local sentiment, regardless of whether it exposes lax local enforcement, regardless of whether it makes or breaks local politicians.

            But outside of federal law each locality has the right under our system of government to fix its own standards of law enforcement and of morals.  And the moral climate of the United States is as varied as its physical climate.  For example, some states legalize and permit gambling, some states prohibit it legislatively and protect it administratively, and some try to prohibit it entirely.  The same variation of attitudes towards other law-enforcement problems exists.  The federal government could not enforce one kind of law in one place and another kind elsewhere.  It could hardly adopt strict standards for loose states or loose standards for strict states without doing violence to local sentiment.  In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law, letting the chips fall in the community where they may.  Just as there should be no permitting of local considerations to stop federal enforcement, so there should be no striving to enlarge our power over local affairs and no use of federal prosecutions to exert an indirect influence that would be unlawful if exerted directly.

            The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman.  And those who need to be told would not understand it anyway.  A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.

Robert H. Jackson
Attorney General of the United States
April 1, 1940

This comes courtesy of Professor John Q. Barrett, St. John’s Law School, who runs the Jackson List.  If you aren’t on the list, you should be. 

It can sting.  But, like Cher in Moonstruck, it can also snap someone out of their complacency, or self-absorption, or personal fantasy.  You don’t have to like it, but that doesn’t mean it’s not appropriate.

A segment of the blawgosphere produced some serious criticism of the ABA’s myopic adoration of technology.  There was Brian Tannebaum, Venkat Balasbrumani, Antonin Pribetic.  I, too, offered some thoughts.  Carolyn Elefant, who was one of the six-minute presenters, responded that she had no regrets.

Each of the critiques offered a somewhat different take on what went wrong with Ignite Law, but Carolyn chose to put Tannebaum at the head of the pack, relegating the rest of us to “Tannebaum’s colleagues” as if it was a bunch of “me toos.”

I spoke at Ignite because like Brian Tannebaum and his colleagues, I also have fear – though my fears are entirely different.  Brian wrote in his post:

What I fear, is new lawyers who listen to non-practicing lawyers go from conference, week in and week out to tell them all the wrong ways to get business, and that the way they are doing everything, is wrong. I fear many of the people who spoke here. I fear that I have witnessed a live version of everything I criticize.

That’s what I fear.

As for me, I fear that without a little bit of encouragement, our profession will lose talent; that promising lawyers will depart the legal profession because they don’t realize the myriad of paths that can carry them to success and personal fulfillment.

What’s ironic about Carolyn’s self-defense is that she was amongst the small group who spoke at IgniteLaw who were not the target of criticism.  She’s a real lawyer with an agenda that promotes the alternative of solo practice.  I took no issue with her brief talk, and I’m fairly certain that no one else did either.  She was one of the high points of an otherwise troubling evening.

Still, Carolyn obviously felt the slap or she wouldn’t have felt the need to explain and defend herself.

On another front, Jamison Koehler wrote a very complimentary post about me yesterday, the sort of post that borders on embarrassing even though it’s not entirely accurate.  While saying nice things about me, Jamison notes that he’s got his differences.

Yes, Greenfield can occasionally be cranky, and I don’t always agree with him. I don’t share, for example, his distaste for the “slackoisie.”

I prefer prickly to cranky, but that’s just my personal preference.  But a comment to the post offers an opportunity that I would be remiss to pass up in any discussion of a good slap.

TPorterfield

Thank you for an interesting piece on Scott Greenfield and Simple Justice. While I am a fan of Simple Justice, I have mixed feelings about Scott personally. He can be warm and funny. He can also be extremely cruel, particularly to new lawyers who venture onto his site or whose website comes to Scott’s attention. And I have yet to see him concede an argument when challenged on an blog piece through the comment section.

Out of the mouths of babe’s comes the response to Jamison’s support of the Slackoisie.  To the new lawyers who venture onto my site, or whose website comes to my attention, and who feel that I’m extremely cruel, tough nuggies.  I’m not your mommy.  It’s time that somebody informed you (and this is not directed at TPorterfield, as I have no clue who that is, but use the comment as the embodiment of the point) that idiotic tripe, replete with emotions and feelings, is childish crap.  Grow up. 

There will be no trophies for everyone.  There will be no ice cream parties.  You will be told that your butt is fat if that’s the case.  There are plenty of other blawgs that will stroke your brow and tell you that you aren’t butt ugly to make you feel better about yourselves and to grow your love.  But not here.

Jamison describes my feelings for the Slackoisie as “distate”.  He’s wrong.  It’s intolerance.  I’ve watched teacups grow up into young lawyers.  I’ve watched them in court as they argue to judges about how they “feel” about a client, an issue, a case, and saw the tears well up in their eyes as the judge blew them off.  I’ve heard them whine and complain about how unfair it is that no one thinks as highly of them as they think of themselves.

And I’ve seen how the online community coddles the slackoisie, courting their readership and love.  So go to those blawgs that are nice to you, if that’s what makes you feel “special”.  Does that make me “extremely cruel?”  If that’s what you think, then that’s what it does.  Run, little slackoisie, run.  Run into the waiting arms of your mommies, to stroke your fevered brow and tell you how wonderful and brilliant you are.  Run far away from here, for here you will only get the cruel reality that you aren’t special, wonderful or brilliant.

I’ve been told by many that I’m wrong on a wide variety of subjects, by people I respect, who have earned the right to say so. You haven’t.  But even so, what missing synapse makes you think that I’m required to change my opinion to please you?  If I didn’t believe in what I write, I wouldn’t have written it.  And if I do believe in what I write, I will hold my view.  Did you think that because you “feel” differently, that changes anything? 

What you perceive as vitriol is not a reflection of me, but a reflection of your vision of life as distorted by your self-esteem.  Read Theodore Dalrymple and learn a little truth.  Your problem isn’t low self-esteem, but that you get the esteem you deserve.  Talk about a slap in the face.  Wake up and smell the coffee, kid.  No one owes you a happy meal.

Sometimes, you just need a damn good slap in the face.  Sometimes, you feel the slap even if it’s not directed at you.  It’s a cruel world out there.  If you can’t handle it, go back to the couch in your parents basement and play gameboy, where you can pretend to shoot up all the people who are mean to you and feel omnipotent.

It’s all I’ve been hearing about for the past few days, and I am, without a doubt, jealous as all get-out.  Eric Turkewitz is going to be the official White House Law Blogger.  Yes, the Turk, and not me. So much for that “hopey thing,” right? Still, to be the first official White House Law Blogger is, well, something big. Huge actually.

It’s not going to be all peaches and cream, however.  I’ve heard from an old pal inside the White House press secretary’s office that they are none too pleased by the newest member of the administration.  They are scared to death that they now have a loose information canon on their hands after reading his body of work.  They probably don’t realize that Turk couldn’t think of anything else to blog about, now that his usual staple of fantasy baseball, personal injury law and Findlaw masturbation are off the table.

It seems that the core problem is that the enlistment of Turk as digital law flack for the administration puts him outside the grasp and control of Robert Gibbs, the President’s press secretary and secretarial school namesake.  As any good PR pro knows, you can’t control the noise coming from those outside your grasp, and when it comes to the dissemination of information, there’s nothing more important than control..

The equation, I’m told, is that because “law blogger” includes the word “law”, Turk will be under the watchful eye of the White House Counsel rather than the press office.  I guess the word “blogger” didn’t match any word on the current White House press secretary’s grocery list. 

But Gibbs isn’t fooled.  He knows that blogger means that Turk gets to spread information, and information (even about law) comes back to him.  This is being seen as a seriously mess by the Gibbs folks, enough so that Gibbs would pull his hair out if it wouldn’t impair his otherwise stylish coif.  The message sent to me was that Gibbs wants Turk to quietly go away, as if it never happened.

It remains unclear why the Obama administration would have selected a second tier blogger, and a writer whose talents are more suited to lame humor or tepid critique, to fill what strikes me as a critical niche. From what I hear, it’s largely because Eric is seen as a straight shooter, someone who is trusted in the blawgosphere to be an honest broker, if not a particularly insightful or foreful voice. 

Can Obama really be that naive?  How hard is it to be straight shooter on subjects involving deposing the Pope?  If it wasn’t for his brother’s ability to get Justice Antonin Scalia all chatty, chances are that Turkewitz would have folded up the old blawgospheric tent by now and been off to twitter-marketing land.  Nobody in the Obama White House would have even known who he was.

There will no doubt be enormous pressure for the Turk to toe the party line, but since Eric won’t be answering to Gibbs, there’s no telling what might come out of his keyboard.  Let’s face it, circumspection is no more his strength than the strict adherence to talking points, especially when they make no sense at all.  I can see Turk collapsing in a puddle of goo during his first interview and giving away the nuclear codes, as if they would let him know them.

On the other side, Gibbs will be left to stand up in front of that nasty White House press corp to explain why the official White House Law Blogger wrote . . ., well, whatever he’s going to write.  Seriously, let’s just hope Turk can keep it clean.  This country has enough problems.

So yes, I’m jealous that Turk got the gig, even though my longevity in an official blogging capacity would have made a fruit fly laugh. But I’m surely not too upset about being out of the crosshairs of the White House press secretary.  Turk may get to create this brand new office in his own image, but any appreciation that may come his way may well have to be delivered posthumously.  They are that angry in the White House press office.

Update: According to the political blog, Beyond the Beltway, Turk came to the Obama administration’s attention when he caught a little goof in Sonia Sotomayor’s description of her law practice as “law offices (plural).  And like me, Orin Kerr at Volokh, questions the sanity of selecting Turkewitz for the post.  Of course, Kerr prefers somebody named Marty Lederman, whoever he is.

If only there was a Vegas line on the outcome of Supreme Court cases, I would have made a killing on Padilla v. Kentucky, decided yesterday.  When in doubt, shift the burden onto the criminal defense lawyer.  It’s not the outcome I wanted, as discussed when cert was granted and again when oral argument rolled around.  What else is new?

There was never any question that immigrants should be advised that a plea of guilty to an “aggravated felony” had immigration consequences.  The question was who was responsible for doing so.  The wrinkle in this case, of course, was that Padilla had been affirmatively misadvised that his plea would not have consequences, which every defense lawyer should know was dead wrong.

This has been a long-standing issue, and one that has been batted back and forth within the criminal defense bar.  The problem arises from the fact that the criminal conviction stemming from a plea triggers immigration consequences separate from criminal consequences.  Criminal defense lawyers aren’t immigration lawyers, and often lack the background to provide adequate advice on the impact of a criminal plea on immigration status.  On the other hand, it is definitely a significant consequence, sometimes more so than the criminal punishment itself, and it’s absolutely reasonable to expect a person making a life-changing decision to have all necessary information about the consequences of his actions before he decides.

As argue, the court, in taking the plea, provides a laundry list of rights and impacts that affect the defendant.  This should be among them.  Now, it’s not.  Now, it’s another burden on defense counsel.  But the Supremes went a step farther in Padilla, not merely requiring defense counsel to be responsible for advising the defendant that it may have consequences, but advising the defendant of what those consequences will be.  And getting it right.

Clearly, a good lawyer will advise his client of these things, regardless of whether the Padilla decision forced the burden upon him.  He will do it because his duty compels him to serve his client, and no defendant can make a knowing decision to plead guilty without understanding everything, including immigration consequences, it entails.

What’s unclear, however, is how the court could impose a burden on defense counsel to predict the future, and in a different legal specialty no less.

Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.  There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.  The duty of the private practitioner in such cases is more limited.  When the law is not succinct and straightforward (as it is in many of the scenarios posited by JUSTICE ALITO), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.  But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

How does one distinguish between knowns and unknowns?  The answer invariably comes afterward, when an immigration judge or court decides.  It is true that most felonies will result in near certain deportation or removal, and it can’t hurt to inform the defendant that their plea means they’re out of here.  But it still won’t necessarily be accurate.  And the fault for inaccurate advice falls on the criminal defense lawyer rather than the court because, well, it’s always easier to lay blame on the lawyer.

The decision also holds an interesting tangent in its discussion of collateral consequences, where it suddenly blows the smoke away from the legal fiction that separates criminal from civil consequences.

Although removal proceedings are civil in nature, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984), deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century, see Part I, supra, at 2–7. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F. 2d 35, 38 (CADC 1982).

Yup, it is most definitely “intimately connected.”  And isn’t that precisely the same for civil asset forfeiture?  And doesn’t that reasoning extend to habeas corpus as well?  The false dichotomy between civil and criminal proceedings and penalties is a foundational legal fiction, used to deny the full panoply of rights assured the defendant by the Constitution whenever it makes the government’s job easier.  The Supremes have now pulled back the curtain and shown it to be a fraud.  Just as immigration consequences, though given the name “civil” and collateral, are now part of the bag of duties of criminal defense counsel, let’s keep that ball rolling to all the other fictional proceedings that are equally a part of the criminal process but hidden behind legal fictions.

As for the Padilla decision, the most likely impact will be that every criminal defense lawyer will advise every noncitizen defendant that he’s going to be deported, whether that’s the case or not.  The plain truth is that, to the extent there’s a potential way out of the fix, it’s far too distant to figure out and any suggestion to that effect will open the door to being the target of a subsequent ineffective assistance of counsel accusation.  Tell them the worst case scenario and you can’t go wrong.

But there is another angle here, that the Supreme did not consider.  What if every criminal defense lawyer advises his client, with a wink and a kind smile, that the conviction won’t result in deportation based on an excess of optimism and a hope that the absurdity of our immigration laws will be changed once Congress wakes up from its nap?  Might every plea be subject to vacation, with an admonition to the lawyer that he has ill-served his client by providing a backdoor to America?

After reading the New York Times story of 15 year old high school freshman Pheobe Prince’s suicide, and the resultant arrest of two boys and four girls, ages 16 to 18, I was left with a wholly unsatisfied sense. 

“The investigation revealed relentless activities directed toward Phoebe to make it impossible for her to stay at school,” Ms. Scheibel said. The conduct of those charged, she said, “far exceeded the limits of normal teenage relationship-related quarrels.”

But nowhere in the story are we told what these six student/defendants did.  Despite my natural inclination to take District Attorney Elizabeth D. Scheibel word as gospel, self-serving conclusory characterizations aren’t exactly what a thoughtful reader would find acceptable.  At least not this reader.

The horror of a child’s suicide, any child’s suicide, is undeniable, but irrelevant to the question of whether the conduct of others is criminal.  The key is the conduct, not the way a prosecutor can characterize it without revealing an iota of substance.  That the media reported such crap, without demanding facts in place of adjectives and hyperbole, is a shame.  There is absolutely nothing in this article that distinguishes whether the conduct involved was mere bullying, as children often do, that inexplicably pushed one young girl over the edge, or something that should be recognized as criminal.  Without hard information, there was no way I, as a reader, could tell.

Apparently, others did not have the problem with the story that I did.  Ann Althouse, for instance, read something in the story that I must have missed:

Of course, it’s terrible when a young person commits suicide. And a suicide may have chosen self-murder because of the bad relationships in her environment. But if we don’t favor arresting people who are very mean to people who don’t commit suicide, why would we favor these arrests when someone does commit suicide?

So this is merely a case of very mean students and a young person who chose “self-murder?”  I read the story again.  Clearly, I must be missing something, as I see nothing whatsoever to support this conclusion.  A glaring hole in the story again, but nothing to suggest that the students charged had engaged in conduct that fell outside the purview of the criminal law.

Is it possible that Althouse is absolutely right?  You bet.  Is it possible that she is dead wrong?  You bet.  What’s troubling is the rush to judgment, facts be damned.  I sense a trend developing.  And it gets worse, as Lawprof Ann reaches for the disincentive rationale to support her assumption.

Assume you are a teenager contemplating suicide. If you knew the 9 kids at school who were meanest to you would get criminally prosecuted if you killed yourself, would you be more likely to kill yourself or less? I don’t know enough about the psychology of suicide to answer my own question, but my intuitive sense is that self-murderers — or some self-murderers — intend to deal a severe blow to the people they leave behind. And knowing your enemies will be prosecuted might spur you on.

I’m not shrink, but neither is Ann. Still, I don’t think teenagers are likely to commit suicide because they can exact revenge on people who were mean to them.  It seems that suicide, or self-murder as Althouse calls it, is a bit more extreme and that getting people you don’t like in trouble is not going to play a motivating role.  If a teen commits suicide, there’s a bigger problem underlying it.

I take no issue with Althouse’s questioning the meaning of the empty allegations of the Northwestern District Attorney.  I question them as well.  But I don’t, and can’t, reach any conclusion about whether a prosecution is warranted without knowing something about the underlying conduct.  I would love to join Althouse in condemning this prosecution based not upon the commission of criminal offenses, but being mean followed by the horror of suicide.  But without facts, I just can’t.  And I’m sorry that Ann can.

Before Avvo was even a twinkle in the eye of Mark Britton, he practiced law.  Having sat in the GCs chair at Expedia, and now in the Big chair at Avvo, he’s got a bird’s eye view of the other side of client relations, giving rise to two complementary posts, beginning with Law is a Jealous Mistress.

I came to understand the stress of a philanderer. Every time I was satisfying the needs of one client, inevitably another would call needing an emotional rescue. When it rained it poured – a juggling act often requiring 2, 3, 4 flaming swords in the air at once. It was as if there was a Batman-like light in the sky, telling all clients to call their attorney. So many times, buried in work and lack of sleep, I sat looking at a ringing phone wondering whether I should pick it up. This wonderment was often accompanied by regret that I had yet to buy that cot for my office.

Can you hear the shrieks of the work/life balance crowd echoing from every Starbucks?  When you achieve that busy practice you so desperately desire, you realize the downside very quickly.  Clients need you.  Clients want you.  Now.  Contrary to what anyone will tell you, clients are not particularly concerned with your personal happiness, free time and relaxation.  This was true of Mark’s civil clients, and is even more true of clients facing prison for a very long time.  Clients can be funny that way.

Mark goes on, in an Avvocating post, to offer some guidelines for maintaining client communication, and, when necessary, dealing with one client too many.

• Don’t pretend to your clients that they are your only client.
• If you don’t know something, tell your client.
• If you love your clients, set them free.

One of the “tricks” being prominently promoted these days is to make clients believe that they are your best friends.  Make them think you love them like your own children.  The notion is that people want to be loved and cared for, and if you convey that sense to your clients (or potential clients), they will rush to hire you.  Whether it’s true and scores the case, it can serve as the creation of an unrealistic relationship between lawyer and client (and client’s family) and become the source of enormous problems, anger and misunderstanding later.

Clients, like most people, want you to be concerned for them.  But that concern should be as their lawyer, not their wife, mother or therapist.  If you create the belief that they are the center of your universe, then don’t blame them for expecting you to live up to that belief.  Calls in the middle of the night, on the phone for hours at a stretch, discussions of feelings, angst, frustration, will become your stock in trade rather than providing the defense they’ve retained you for.  There aren’t enough hours in the day to do it all.

Then multiply that by every client you have.  Most clients know that they aren’t your only one, but the realization that your time must be divided up amongst your clients isn’t their first concern.  Creating honest expectations, telling the client that as much as you appreciate their concerns, you have another client who, at that moment, needs your time more than them, may not endear them to you, but also won’t mislead them.  When you make promises that you can’t or won’t fulfill, it will come back to haunt you.  You may forget about it as you move on to your next bit of work, but the client won’t.

There are some obvious things to consider to avoid the creation of false expectations that lead to miserable, and angry, clients.  Don’t take on work that you can’t competently handle.  This has two components, the first being volume.  Hours in the day do not expand with the number of clients you take on, no matter how much you want their case or the fee.  The give back for being retained is providing the representation required, and you can’t do it when you take on more clients than time allows.  This is often a problem for newer lawyers, for whom being busy is of paramount importance and are too inexperienced to realize the consequences of an excessive workload.  They mean well, but don’t realize they’ve gotten themselves into a jam until it’s too late. 

The other component is taking on a case that you’re not yet competent to handle, whether because you’ve never done it before or its simply way outside your skillset or level.  Not only will it take far longer to handle the representation when you have to go to school to figure out what to do, but your work will, in all likelihood, be far inferior to that of someone with experience and competency.  It’s great that you want to do that type of work, but don’t mislead a client into believing that you have a clue when you don’t.  Consider sending the case to someone more capable and working with that lawyer to learn how to handle it. 

There’s no shame in learning.  There is shame in telling clients that you know something when you don’t.  Hard as it may be to admit, no lawyer knows everything, even though clients may assume that “you’re the lawyer; you should know.”  Rather than seeing this as a challenge to your competence, see this as an opportunity to explain that there’s an awful lot of law out there, an awful lot of variables caused by the human condition, and no one has all the answers.  If we did, there would be no reason to build courtrooms, since we would already know the outcome.

The most important point that permeates Mark’s posts is that communication, whether for good news or bad, or just to let the client know he’s not forgotten, must be maintained.  Once your clients learn that you are working on their cause even when they aren’t watching, and you will call them, immediately, as soon as there is any news on their case, chances are that they will not only appreciate you (love being an inappropriate emotion or word to describe a proper lawyer/client relationship), but leave you alone to work, secure in the knowledge that you are working hard for them and will reach out to them whenever there’s anything to know.

Honesty and communication let us work better, and breath easier.  And clients like it too.  It’s the best way to show them that you “love” them.

Thank goodness for Flex Your Rights, an organization dedicated to teaching people, particularly young people, about their constitutional rights and the proper way to assert them.  They’ve released their newest video, 10 Rules for Dealing with Police, narrated by Baltimore criminal defense lawyer Billy Murphy, Jr. and produced by Steven Silverman and Scott Morgan.

As the point of this exercise is less to make money off the sales of DVDs than to inform and protect, the video is available through the Cato Institute, with the proviso that you have to endure a 5 minutes introduction by Tim Lynch before getting to the good stuff.

In many respects, it’s a very solid film and the rules are, for the most part, good.  My hesitancy is that it’s simultaneously a depressing commentary on the state of affairs on our streets, particularly if you happen to be black or Hispanic, and ignores to some extent on very hard, cold reality.  You can do everything right, perfectly right, and there is no assurance that you won’t be beaten to death before the encounter ends.

Here’s the beef.  Asserting rights, even done well, “respectfully”, and in accordance with the rules as provided, is itself a provocative act.  The film fails to explain that some police officers demand obedience.  As we watch the movie, we know that it’s being recorded so that others can see what’s happening.  On the real street, there will be no one making a movie of the interaction.  What happens for real, and how it’s later described by a police officer, may well be entirely different.

You asked for a lawyer?  The cop says you didn’t.  You never consented to the search? The cop says you did. You never touched the officer. Of course you did, or he wouldn’t have beaten and tased you.

This isn’t a flaw in the film, in that its purpose is to instruct people on how to navigate an interaction with police, assert their constitutional rights, and, assuming that the police respond properly, survive.  It’s the unknown variable that gives rise to the problem, that police respond properly.

Films like this empower people to assert their rights.  That’s its purpose, and it’s a great goal.  Far more often than not, defendants fail to properly assert their rights and allow the police to trample them.  They give them away for free all the time.  It makes criminal defense lawyers nuts when we hear about the defendant who consented to a search or couldn’t stop his lips from moving.  You were afraid?  You didn’t know what to do? Bummer, but it’s no excuse.

The only thing I would add to this film is a warning:  No matter what you do, no matter how well you do it, there is no assurance that the exercise of constitutional rights in a manner consistent with this film will not result in your arrest and conviction, your suffering all manner of harm, including death.

This isn’t a commentary on 10 Rules for Dealing with Police, but about police and our society.  Even best practices won’t save everyone.