A Bad Decision Gets Worse

When the Supremes held in Maryland v. Buie that police, arresting a defendant inside a house, had the right to conduct what is euphemistically called a protective sweep, it literally opened the door to enormous 4th Amendment mischief.  In the name of officer safety, police would now “search” a home, the theoretically most protected sphere we have, to make sure there was no one hiding in the closets who might emerge and shoot a cop.

Of course, protective sweeps quickly devolved into checking rooms where contraband was naturally in plain view.  Protective sweeps soon involved opening drawers and cabinets (you never know whether there’s a little person hiding in a drawer, you know). The lines quickly blurred and warrantless searches of homes became commonplace under the rubric of a protective sweep.  But what’s the 4th Amendment when compared to officer safety?  Isn’t officer safety more important than anything else? 

In the spirit of remembering the rubric while forgetting the rationale, Eugene Volokh brings us the 9th Circuit decision in United States v. Lemus, which does the unthinkable. 


In United States v. Lemus, the Ninth Circuit held that such a search of part of the home is constitutional, even without any reasonable suspicion, at least when that part of the home “was a place from which an attack could be immediately launched.” The gun that was found in plain view during the search could thus be used as evidence to convict Lemus of being a felon in possession of a gun. The court noted that the living room door was open, “which created additional hazards for the officers”; but I don’t think that can be seen as a limitation on the holding, since a potential attacker could easily open a closed door as well. And the court even notes that “[a] bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another,” which suggests that the searched room doesn’t even have to be one that has a door leading out to the place where the arrest happens.

As noted in Judge Kozinki’s dissent, at least in Buie, the police are already “legitimately” within the home.  Here, the majority has completely disconnected the sanctity of the home from the need for police safety.  From there, Judge Kozinski indulges in something few judges ever do.  He openly states the truth, what quietly happens in real life while other judges color it over with platitudes and facile denials.



How has it come to this? There’s a simple answer: Plain view is killing the Fourth Amendment. Because our plain-view case law is so favorable to the police, they have a strong incentive to maneuver into a position where they can find things in plain view, or close enough to lie about it. This is a case in point. While the officers were finishing their room-to-room sweep of Lemus’s apartment, apparently finding no one and nothing suspicious, the detectives entered as well. Yet Buie permits only a sweep for people who might be dangerous. Once the officers found no one in the living room, what authorized entry by the detectives? There was absolutely no reason for the detectives to enter except to try to find contraband in “plain view.” So, the detectives went in and, while there, Diaz thought he saw “something sticking out from the couch” that “looked like the butt of a weapon.” Longoria then lifted the couch cushion “to make sure” and found a gun. Under what theory of “plain view” may police lift cushions off a couch to make sure something is contraband? Why weren’t the officers required to get a warrant — if they could — based on what they saw, before rummaging through the couch?

The Lemus holding doesn’t merely disconnect the Buie rationale from the rubric, but extends it to a degree that is barely appreciable at first glance.


[The panel] allows police to search an arrestee’s home without suspicion, so long as the arrest is within a rifle shot of the home. [Emphasis Added.]
Say that a decent marksman can accurately fire a rifle from a thousand feet away.  That means that any house within a thousand feet of an outdoor arrest would now, under this ruling, but subject to a warrantless, suspicionless search.  It might involve the home of the person arrested.  It might involve the home of some nice family wholly unrelated to the arrestee.  It might involve any home the police are itching to enter.  After all, you never know where a bullet can come from, and isn’t officer safety the most important thing involved?  Bear in mind, the decision requires no belief, nor any basis for a belief, that there is any threat to the officers.  It’s prophylactic, better safe than sorry.

Add to this calculus the fact that police are frequently in the position of picking and choosing when and where to arrest someone.  In instances where they know in advance that they are going to take someone down, they can plan their arrest so that the individual is in his home, near his home, near your home, wherever they know they can find him, at the time of arrest.  It’s not exactly rocket science to do a little advance planning so that they get the opportunity to do a little warrantless search protective sweep in the process.  Two birds, one stone.  Efficiency in government. 

While this was bad enough under Biue, where the police could effectuate an early morning takedown at the home of some suspect, and get a free search of the home in the process, Lemus opens up an entirely new strategy of doing the takedown outside the front door of someone else’s home, for which there is no probable cause whatsoever but in which the police have a really strong interest in searching. 

And don’t expect a knock on the door before the cops burst into the neighbor’s house.  After all, it’s a protective sweep, and even though they may know with absolute certainty that there’s no threat inside, they still have to maintain the appearance of protecting officer safety.  Safe officers don’t knock.  That would just be stupid.



Downfall: The Spoof As Lawyer Advertising

I first became aware of the “Downfall” Meme when Marc Randazza posted about it at the Legal Satyricon.  If you have just emerged from a hole, these are spoofs based on a film called Downfall about Hitler, where people add in their own subtitles to the same 4 minute film snippet.  Youtube has a bunch of them.

My initial reaction to the meme was that it was very wrong to use a Hitler film for such frivolity, but I got over it after watching a few.  It was a spoof at Hitler’s expense, and after letting go of my initial revulsion, I came to find many of them very funny and an excellent way to take what may be the lowest point in human engagement and recreate it in a way that shows its wrongfulness through humor.  Others will no doubt disagree, and I respect that as well, but I’ve come to be something of a fan.

Yet, everything has limits.  And when new Legal Blog Watch author  Eric Lipman, who apparently just emerged from a very deep hole yesterday, posted about a who used the Downfall meme as their firm advertisement, it pushed the limits too far, in a number of different ways. 



Before getting to the video, a blue screen emerges with the lawyers taking credit as director and producer of the video.  What the…?  That was just a plain lie.  This was an actual 2004 foreign film, produced by Constantin Film Produktion GmbH. and nominated or an Oscar for Best Foreign Film.  They added subtitles, as have dozens of other people, none of whom tried to take credit for the production of the video.  Opening with a patent lie is hardly the best idea for lawyers to promote themselves.

As to the spoof aspect of the video, the subtitles added for the meme, it just wasn’t funny.  It might have been.  Many others are.  This one wasn’t.  It was heavy-handed and witless.  Perhaps they weren’t shooting for funny, but then, without the humor component, the use of Downfall to convey their message is no longer salvageable by dint of the meme.  It’s just an offensive use of Hitler for self-promotion. 

What of the inherent comparison between the government here and Hitler?  It’s a comparison I reject entirely and diminishes all associated ideas.  I won’t let people draw the comparison here in comments, and delete any comment that tries to do so.  The use of Hitler in that respect offends me beyond compare, and I find it intolerable.  I realize that others draw the comparison regularly, but there is nothing that this country does, no matter how bad it is, that reaches the depths of the Nazis.  Nothing.

Finally, the question arises whether this is a good idea for lawyer advertising.  I imagine that it will appeal to a select group, whether because they are inclined to enjoy a video portraying Hitler or have such a strong hatred of the government that they will agree with the comparison between the two. 

No one, however, familiar with the Downfall meme will be impressed by this effort.  No one with any wit or sense of humor will find this attractive.  No one who seeks a good lawyer will be swayed by the judgment demonstrated by this take-off, and no one who expects their lawyers to be honest will find this acceptable.

No, this falls below the level of taste and good judgment that I would expect from criminal defense lawyers, even if they limit their practice to DUI.  If you wondered what might be worse than lawyers strutting about in hot pants, now you know.  The race to the bottom is on.

Saving Amy Alkon

I like Amy.  She’s an advice columnist, and she’s got moxie.  Moxie is something I respect.  Whether I agree with her politics is irrelevant.  There are plenty of people I respect and admire, even though we disagree about things.  As it happens, I agree with her quite a bit, but that’s got nothing to do with anything, as far as I’m concerned.

Other people disagree.  By other people, I refer to the Slackoisie who follow Tintin at .  He’s got a hate on Amy Alkon like you wouldn’t believe.  So he’s enlisted the entire third grade to engage in a smear campaign against her.  From Patterico’s Pontifications, they have targeted Amy’s new book, I See Rude People , at Amazon for fake and destructive reviews.



And it’s working.

For example, a Sadly, No commenter boasts of having left this one-star review :



If you want to learn how to be really rude and obnoxious and yet keep some weird semblance of self-esteem with a large dollop of ego on top, this book is for you! Arnold Alkon has many lessons on how to set straight innocent people who might have the misfortune of crossing her path and pissing her off. A must read for anyone who lives in the same town as Mr Alkon!


Sadly, No commenters have gone en masse and voted this review as “helpful.” As of this writing, almost 80 people have voted this review helpful — meaning it is now the first review people see when people look up Amy’s book.

I haven’t read Amy’s new book.  I’m still waiting for her to send me a review copy.  I’m patient.  But this attack by the Lord of the Flies is not merely a disgrace, but an affront to anyone who believes that ideas, people who espouse ideas and people who write them down so that they end up in a book, should be subject to the revenge of the playground when the children don’t like her. 

The Sadly No blog is a monument to immaturity and narcissism.  That’s fine too, as the Slackoisie need somewhere to go during the day since they clearly will never be employable adults.  But to engage in this smear campaign against Amy because they disagree with her views, and to do so in such an overt (and childish) manner for the purpose of harming her financially by faking negative reviews, rather than challenging her ideas, is total garbage.

My guess is that my politics are far closer to those of the kiddies at Sadly No, and yet I am disgusted that these children have no more useful way to spend their time than try to harm someone for disagreeing with them.  To the flies, I say leave Amy Alkon alone.  To the rest of you, support Amy and don’t let the swarm get the better of us.

Maybe Lawyers Should Remain Silent Too

Many a lawyer has found himself in deep trouble after the klieg lights are turned off in a high profile case, realizing that the words emitting from his mouth have just backed a defendant into a corner from which there is no escape.  That’s foolish.  But even the wealthy defendant, say former Brocade CEO Gregory Reyes, who has the wherewithal to hire a PR firm to handle damage control, can find himself just as foolishly cornered.

Via Law.com :


The quotes came from Skadden, Arps, Slate, Meagher & Flom partner Richard Marmaro, who represented Reyes during his first backdating trial. Jury selection in the retrial begins Thursday in San Francisco.

Even though Marmaro is no longer representing Reyes at trial, prosecutors will seek to introduce Marmaro’s press release statements by calling to the stand one of the most well-known — and pugnacious — public relations men in the country: Michael Sitrick. Reyes employed Sitrick before his first trial, and prosecutors have subpoenaed documents from Sitrick’s PR shop, Assistant U.S. Attorney David Anderson said in court Tuesday.

U.S. District Judge Charles Breyer indicated that Marmaro’s quotes may very well come into evidence, though he hasn’t decided yet. Had Reyes made statements to Marmaro with the knowledge his lawyer would broadcast them, attorney-client privilege might be waived.
The problem is that Marmaro’s press release, handled by pugnacious PR guy Sitrick, claimed that Reyes did not backdate options.  It was the old, “I’m innocent; I didn’t do it; It never happened,” defense.  No doubt it seemed like a good idea at the time, to deny everything.  Mind you, it didn’t help, since Reyes was convicted at his first trial, though the conviction was reversed for prosecutorial impropriety in the summation.

Reyes now has a new lawyer and a new trial about to start.  He also has a new defense.  He did it but there was nothing illegal about it.  Everybody knew about it, so there was no intent to defraud.  The only problem, now, is that the two positions are contradictory, and the government is taking the position that the original press release, where Marmaro attributed to Reyes the position that it never happened, constitutes a waiver of privilege.  The judge, while not yet agreeing, isn’t yet disagreeing either.  Oops.

To his credit, Richard Marmaro used a public relations guy to handle the media/crisis management aspect of the case.  Not to his credit, the public relations guy, Michael Sitrick, committed to a defense that now returns to bite Reyes, and his new attorneys, in the butt. 

There seems to be a significant possibility that the outcome of the government’s effort may show that the press release, revealing the defense, came not from the defendant but from the lawyer and/or PR guy, and therefore is a reflection of what they thought would be a really good approach rather than an admission by the defendant himself.  That won’t bode well for Marmaro or Sitrick, though Marmaro will bear the brunt of the problem if it turns out that way.  After all, he has a duty as an officer of the court not to manufacture a false affirmative position that’s attributed to his client and spewed out publicly.  The PR guy has no duty to be honest about anything.

Whether this falls under the outsourcing PR = outsourcing ethics rubric has yet to be seen, but one very simple question arises from the current mess.  Why can’t lawyers learn to just keep their mouths shut when there’s a camera or microphone shoved in their face if they have nothing good to say?

Bernie Kerik Gets His Full Term

I haven’t been much of a fan of former New York City mayoral chauffeur and almost-Homeland Security Czar, Bernard Kerik, who was never reluctant to use any disaster for self-aggrandizement.  But he copped his plea to a deal that gave him a guidelines sentence of 27 to 33 months.  Yesterday, he was sentenced to 4 years.



Under the terms of a plea agreement, the prosecution and the defense recommended that Judge Stephen C. Robinson sentence Mr. Kerik to 27 to 33 months in prison. But the judge departed from the sentencing recommendations, giving Mr. Kerik a longer sentence because he said he had betrayed the public’s trust.

“I think it’s fair to say that with great power comes great responsibility and great consequences,” Judge Robinson said. “I think the damage caused by Mr. Kerik is in some ways immeasurable.”
While I find myself surprised to write this, the additional 15 months above the top of the guidelines makes little sense.  It’s not as if the extra time will have any general deterrent impact on anyone holding, or seeking to hold, high office in law enforcement.  The conviction itself, and resultant ruination of his reputation and future, is as strong a deterrent as anyone in such a position will need to think twice, if they are so inclined.  And if they aren’t so inclined, 15 more months isn’t going to change them.

While the judge’s observation, that Kerik betrayed the public’s trust, is indisputable, that was a given from the plea itself.  This was incorporated in the plea, and had Bernie not been a high-flier in law enforcement, chances are essentially non-existent that he would have found himself in the dock to begin with.  The higher one flies, the farther the fall.  Bernie fell long and hard.

So the question is what about the consequences, the addition of 15 months over the guidelines sentence as spelled out in the plea agreement, served a legitimate sentencing function.  I don’t see anything.  The seems like piling on, and in a rather trivial way at that.  If Judge Robinson wanted to make a big point of it, add another 5 years to the sentence, not 15 months.  Sure, another 5 years would certainly seem to exceed that which was necessary to satisfy the requirements of 18 USC 3553, but then so does 15 months.

Had Bernie Kerik been sentenced to the top of the guidelines, the only commentary would have been to note that no one is entitled to the low end, and Bernie knew what he was facing when he signed off.  But this serves as a reminder when entering into a plea agreement, even one as heavily negotiated as this one must have been, that when it says that it does not bind the judge’s hand at sentence, it means it. 

As for Judge Robinson’s explanation for his upward departure, there’s no platitude that one can disagree with, and yet nothing that wasn’t obviously the case at the time of the plea.  If the court saw the guidelines sentence in the plea agreement as inadequate, that should have been made clear up front rather than leave the defendant open for ambush at sentence.  I understand Judge Robinson’s rationale, but it shouldn’t have come down that way.  Even Bernie Kerik deserves an appropriate sentence, and that sentence should have been no greater than the top of the guidelines.

There’s An App For That

Already, the blawgosphere is atwitter over the class action filed in Robbins v. Lower Merion School District, where an assistant principal at Harriton High School is alleged to have remotely activated the webcam on a student’s laptop and observed what is diplomatically called inappropriate behavior.  Above the Law has it covered from the salacious angle (calling “creeptastic”).  Volokh  Conspiracy takes a quick look at its legality, where Orin Kerr sees it as a clear 4th Amendment violation, though not unlawful under any statute.

Aside from the nasty implications of school administrators peeping into the bedrooms of coeds late at night, it dawned on me that we’ve barely scratched the surface of how computers, whether via webcam as here or other functions like voice recorder, can turn into a two-way mirror into aspects of our lives that were never meant to be seen by others. 

That this case arises in the context of a school administrator smacks of sloppiness. Had the assistant principal used the improperly obtained information with a bit more guile, perhaps the student would never have known where she got it.  The remote activation feature could have provided hours of information and amusement for years to come.

Lacking the depth of understanding of the capabilities of technology of others, I’m left to speculate.  But it seems fairly clear to me that webcams on laptop computers, already a fairly ubiquitous feature, has huge potential for a Brave New World that hasn’t received much thought as yet.  There doesn’t appear to be much question but that the technology exists to activate webcams from far away, and that anyone who has the key to the door will be able to do so.  Might that anybody be law enforcement?  Might that anybody already have the key, and already be watching?

The Lower Merion School District has responded to the allegations of the suit, stating that the remote activation feature is there as a security measure if laptops are stolen.  It would certainly be useful in that regard.  They further state that they won’t activate the feature again without the written permission of students and parents.  No reason to doubt them, now that they’ve had their hand smacked.  But even assuming they are as sincere as can be, and I’ve no reason to believe otherwise, does this mean that others won’t employ the feature to do a little extracurricular studying?

For techno-dinosaurs like me, the capabilities of electronic devices never cease to amaze.  Like everyone else, I enjoy the benefits of the latest, greatest advances, and marvel at the near daily miracles that technology brings into my home.  I do not, however, consider the implications of the untold uses and capabilities of each new device, each new application.  I suspect few others do either, limiting their attention to the shiny purpose of new toys rather than the nefarious uses to which it could be put.

I suspect we are surrounded by devices that can provide the government with an incredible amount of information about us, ranging from our whereabouts to what we wear to sleep at night.  And if we whisper to our spouse in bed with the computer nearby, they may well hear our words as well.  Even if this isn’t true today, how long before it will be true?

As with the Lower Merion School District, reliance on the government, whether local, federal or somewhere in between, to honor our privacy and never, but never, peak into our homes despite having the capability to do so, is not sufficiently heart-warming for my purposes.  Anybody out there trust the government that much?  Anybody out there trust each and every individual law enforcement officer to honor your privacy?  Come on. 

While I’ve advocated for a new approach to 4th Amendment protections, one that will avoid trying to shove new technology (round peg) into old law (square peg), this isn’t a legal problem as much as an unintended consequence of all the great benefits tech brings us.  We love our tech, but it’s an open window on our lives that allows any peeping LEO to look in at will.  Even if they sincerely promise that they would never do such a thing.

Zeal Has Its Rewards

When a regular person engages in intentional misconduct, he may well get arrested, prosecuted and sentenced.  When a criminal defense lawyer engages in intentional misconduct, he may be subject to the regular person routine, or just disbarred.  When a prosecutor engages in intentional misconduct, chances are slim that he goes the regular person route, or even the criminal defense lawyer route.  The most likely outcome is that he’s made a judge.

From Radley Balko at Reason comes the post about how Larimer County, Colorado, settled with Tim Masters for $4.1 million for his wrongful murder conviction.  Master’s innocence was proven by DNA, and his conviction was obtained when two prosecutors ignored and withheld exculpatory evidence.  Hey, once you’ve got your target, why bother worrying about whether he’s actually the one who did it?  As long as somebody’s convicted, society is happy.

But what’s become of these two intrepid prosecutors?  Radley lays it out:


Former prosecutors Terry Gilmore and Jolene Blair convicted Masters on flimsy evidence (some drawings he’d made and testimony from an alleged expert on sexual deviants). They were also actually censured by Colorado Supreme Court for not bothering to look into evidence undermining their case against Masters, as well as for withholding exculpatory evidence from Masters’ attorneys. The censure was an unusual reprimand for misbehaving prosecutors. But it was largely symbolic. As noted, Gilmore and Blair won’t have to pay a dime to Masters. And both will get to keep their current jobs: They’ve both since moved on to become judges in Larimer County District Court, where they preside over other criminal cases.
That they were censured, in itself, is quite amazing.  Even a slap on the wrist is more than usually results from prosecutorial misconduct.  That they have no financial accountability is no surprise, since our courts have clearly determined that it would be chilling to the zealous prosecutor to be held responsible for intentional misconduct.  We can’t have prosecutors afraid of engaging in deliberate wrongs if we’re to have them fearless in prosecuting the innocent.

But that they convicted an innocent man, withheld exculpatory evidence, were censured for it and then, after all that, moved on to be judges, is just too much to take.  In fairness, I asked Radley whether judges are elected or appointed in Larimer County, and he informs me that they are appointed and thereafter subject to retention elections.  That means somebody decided that Terry Gilmore and Jolene Blair represent the caliber of person that should sit in judgment of others, and appointed them to the bench.

It’s one thing for prosecutors to get a free pass on misconduct, and let there be no question but that the withholding of evidence from the defense so that they can convict an innocent person is misconduct, it’s another thing entirely to then reward that prosecutor by making him a judge.  That’s too much to take.  To not penalize is bad enough, but to reward prosecutors who engage in misconduct is beyond the pale.

We are constantly bombarded with the lofty platitudes about our system of criminal justice, how it may not be perfect but it’s better than any other.  As if this sweet talk covers a multitude of sins that could well be fixed to make it far less imperfect, far better than others.  That individuals who engage in wrongdoing are placed in a position to judge others is simply unacceptable.  That these individuals invariably come out of the prosecutor’s office isn’t an accident.  The government takes care of its own.

I’m with Radley when he bemoans the fact that prosecutorial misconduct is a cost passed along to taxpayers, who have a right to expect and demand better of those on the payroll.  I’m with Radley when he ridicules the lack of meaningful consequences for prosecutors who abuse their authority to convict the innocent and conceal the evidence.  But when these same prosecutors, who should be tossed out on their butt for what they’ve done, possibly getting free room and board in a special wing of a prison reserved for cops and prosecutors who enjoyed their job a little too much, are instead handed a black robe and told to have fun, mere ridicule isn’t enough for me.  

For me, this goes way over the line of impropriety, to the point of disgust.  I hope Radley’s with me when I say that the elevation of Terry Gilmore and Jolene Blair to the bench is outrageous and an affront to any dignity the judiciary still possesses.  I hope that their fellow judges feel the same way.

When Is A Sentence Ludicrous?

Sentencing is a curious thing.  It’s there to serve certain recognized purposes, yet nothing in 18 USC §3553 tells us what makes one sentence appropriate and another excessive (or inadequate, for that matter).  Whether framed in terms of months or years, it’s all just numbers at the time of sentence.  As it’s served, it’s day after day after day, perhaps for the rest of a person’s natural life.  Who knows what makes a sentence fit a crime?

Doug Berman at Sentencing Law and Policy ponders this when asking whether a guidelines sentence of 30 years for a computer hacker who was caught in possession of 1.8 million bank and credit card numbers is “ludicrous”.


Max Ray Vision, who legally changed his last name from Butler, had pleaded guilty in June to his role in an online clearinghouse where identity thieves shared stolen information.  A self-taught computer whiz who fell in love with the devices as an 8-year-old boy in his father’s computer store, Vision told Senior U.S. District Judge Maurice B. Cohill Jr. that he was mesmerized by “the thrill of hacking, being addicted to it.”

Bespectacled, soft-spoken and articulate, the 37-year-old Vision told the judge he had changed and realizes what he did was wrong. “You probably hear that a lot, but it’s absolutely true,” he said.

Cohill’s sentence was based on a joint recommendation by federal prosecutors and Vision’s public defender, Michael Novara.  Federal sentencing guidelines suggested a sentence of 30 years to life, which Novara called “ludicrous.”

Is it “ludicrous”?  Prosecutors claimed a loss of $27.5 million, based on a calculation of $25 per number cost to banks for each stolen number.  There was $86 million in fraudulent purchases traced to the numbers on the computer, and Vision netted about $1 million from selling numbers.  Aside from restitution, the sentence imposed was 13 years. due in some part to Vision’s cooperation.

Doug doesn’t find the 30 year guidelines sentence nearly as ludicrous as Vision’s lawyer.


Given the facts of this case and the reality that, in the words of the prosecutor here, the “amount of damage a person can cause with a keyboard in this day and age is astronomical,” I am not so ready or eager to assert that the guideline-recommended sentence of 30 to life really was “ludicrous.”  Let me explain.

First, though maybe it is unfair to compare Max Ray Vision to Bernie Madoff, I do think it is reasonable to suppose that Vision may be among the “worst of the worst” financial hackers.  If the “worst of the worst” Ponzi schemer earned himself 150 years in prison, is 30 years for the “worst of the worst” financial hacker really so out of whack?  Moreover, I think the need for, and potential value of, general deterrence in this setting is pretty strong, especially with respect to others who may be inclined to join an “online clearinghouse where identity thieves shared stolen information.” 

Finally, and perhaps most important, the threat of decades in prison no doubt was a primary reason Max Ray Vision was willing to plead guilty and has “continued to work with the government” to help bring down other financial hackers and identity thieves.  Though few are eager to either admit or endorse the value of extreme guideline sentences to induce pleas and cooperation, the threat of extreme sentences always serves to grease the wheels of the criminal justice system.
While I often find it difficult to put a finger on Doug’s sentencing philosophy, he’s made his position clear in this case.  In the extreme case, extreme sentences are an acceptable fit.  The general deterrence value of 30 years serves its purpose, as does the fist in the velvet glove to “gently persuade” the defendant to cooperate.

From my perspective, the guidelines sentence should be measured differently.  Initially, Bernie Madoff’s sentence should never be the bar by which others are measured, taking for granted that it was an appropriate sentence.  Nothing has skewed the relationship between financial crime and sentence worse than the Madoff sentence, and it is the dangerous new constant in sentencing.  This is not to trivialize what Madoff did, but to rationalize financial crime with other types of crime.  Being the “worst of the worst” Ponzi Schemer still isn’t the equivalent of mass murder.  We’ve run out of years when we start accepting the Madoff sentence as appropriate.  The only sentence left is life plus cancer (h/t Jeralyn Merritt)

This was a financial crime.  Certainly, it causes suffering by its victims, and it most assuredly has victims beyond the financial institutions that make stealing numbers easier than taking candy from a baby.  But it isn’t murder. It isn’t rape.  There has to be a differential of culpability between financial crime and violent crime.  Without it, proportionality is lost.  It’s not that a financial crime isn’t serious; it’s that it isn’t as serious as blowing up a building and killing a few hundred people.  It isn’t as serious as a serial child rapist murderer.  It’s just not as heinous, and yet we’ve compacted sentences to leave no room to distinguish between crimes of a very different nature.  As I’ve suggested half-jokingly, the Ponzi schemers might as well as knocked off a few people along the way, since it wouldn’t have had any real impact on their sentence.  There’s something very wrong with the fact that my joke smacks of reality.

As for the threat of excessive sentence serving what Doug finds to be the salutary purpose of inducing pleas and cooperation, the gap between our views widens exponentially.  Pleas and cooperation are not inherently a good thing, particularly when coerced by a potential sentence that is so excessive that it will push a theoretically innocent defendant to forego trial rather than risk an adverse verdict, or say anything to cooperate and get the beloved 5K1.1 letter.  The more excessive the sentence, the worse the impact on the exercise of rights and the adherence to the truth. 

Some people assume that every guilty plea is legitimate and every cooperator is telling the truth and serving a societal interest.  I do not.  I know from experience that people plead guilty when they aren’t, or aren’t as guilty as the prosecution claims.  They do so out of fear of consequences.  This is fundamentally wrong, and an integral part of our system.  It’s the natural by-product of excessive sentences, making it too risky to fight for those whose tolerance can’t take it.

It’s similarly true that people will cooperate, whether to lie about others or manufacture crimes so that they can “solve” them and get the prosecution to need them, to love them, to cut them a break.  Why do young AUSAs believe that yesterday’s criminal is today’s totally honest cooperator?  It may be enlightened self-interest, but that doesn’t make it truthful. 

When a potential sentence serves as an incentive for the innocent to plead guilty, or liars to cooperate, then the system has failed.

By using the word “ludicrous” as the bar, Doug has set up the question in a way that makes it nearly impossible to dispute.  Ludicrous is a very vague, very extreme bar to reach.  If the question is whether a 30 year sentence for Vision is extreme under the criteria set forth in §3553, my answer is absolutely.  Ten years is a lifetime to Vision, and any other hacker inclined to do what he did.  Deterence will be achieved.

If the question is whether the sentence is so extreme as to shock the conscience, then I’m afraid not.  Not because it shouldn’t be, but because extreme sentences have become so commonplace, so normal, that it’s almost impossible to find a sentence for a serious financial crime shocking anymore.  And this, I fear, is what is truly ludicrous.

Colin Samuel’s Other Blawg Review

While I rarely find it difficult to write a post here, the one thing that’s proven painful for me to do is write a blawg review.  I’ve done so twice, and both sucked.  Big time.  They were just awful.  Whether you enjoy posts at Simple Justice otherwise or not, these two blawg reviews were both nightmares to write as well as read. 

But there are a few people whose skill at writing blawg reviews is remarkably.  These include Turk (who is currently the source for the motherlode of Scalia curiosity after his brother Dan received a letter back from the Associate Justice on the topic of secession, which has gone viral throughout the blawgosphere) and this year’s Blawg Review of the Year winner, Kevin Thompson at Cyberlaw Central.  But the Undisputed King of Blawg Review is none other than Colin Samuel at Infamy or Praise.  After winning BR of the Year for three years running, Colin was banned from ever winning again so that someone else would have a chance.  Colin was that good.

Which finally brings me to the point of this post.  Quietly, Colin posts his own mini-blawg review every Wednesday, called A Round Tuit,.  They open with the same weekly introduction:


A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What’s that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I’ll share a few posts which are worth your attention.

From there, Colin goes on a journey through the blawgosphere, not merely providing links to posts that interest him, but juxtaposing the posts from various blawgs to show debates raging in the blawgosphere, different perspectives and his two cents on the subject.  A Round Tuit is like a master class in blawg review, a one-post survey of the most interesting stuff being written in the blawgosphere.

Colin is already up to A Round Tuit 19, and I never miss one. But I have been remiss in showing Colin some appreciation for this effort in putting this together, week after week, for the benefit of the rest of us.  If you haven’t take a look, you should.  If you don’t read it weekly, you’re missing something great.

Thank you, Colin, for showing the rest of us how a master does a blawg review.  You are the best.

Structural Deficiencies

While criminal defense lawyers are better at some things than most other lawyers, one thing that we do not tend to do particularly well is embrace structure.  At What About Clients?, former Olympic ice dancing costume designer Dan Hull praises the virtues of structure.



I mean structure–a real standard for working–and “practicing structure” every day. It’s the discipline of: (1) having a plan or strategy for any one project (client or non-client), (2) meeting internal project deadlines (not just “jurisdictional” ones) no matter what, and (3) insisting that everyone in your shop “buy into” the discipline of keeping to that overall plan or strategy and timetable.

“Structure” is not just the hard process of getting things done. It’s a frame of mind and a value which must be sold to others in your shop–like the importance of making that 5 minute call to a client about a loose end at the end of the worst day you can remember, even while you could do it the next morning at 8:00. It’s realizing that letting anything but emergency tasks “slide” makes you inefficient, unlikely to meet your real goals, and tired.
Some men dream of glory.  Others dream of structure.  Want to bet who wins the prize?

The problem for CDLs is that we tend to be solos, small firm at best, and have no one watching over us at every moment to make us feel guilty for letting something slide to tomorrow.  Of course, something new arises tomorrow, and things just get pushed down the road until it’s too late.  I’ve seen so many instances of criminal defense lawyers trying desperately to get critical work done at the last minute because they neglected it when it first came in the door.  And more than a few end up explaining this to the grievance committee when they miss the deadline.

My approach is that of the obsessive-compulsive.  I feel the desire, even need, to do work as soon as it’s on my plate.  If a motion schedule is set in court, with motions due in a month, you can bet that I’m working on that motion today.  Not tomorrow. Not next week. Certainly not in a month. Today.  Do it now, get it done. 

Others do not appreciate my approach.  Because it’s essentially anal, I expect others to have their work done ASAP, regardless of whether it’s urgent or not.  It’s just how things should be done.  Those who adhere to a different philosophy find people like me irritating.

Not learning the value of pushing non-urgent but important things along at a steady pace has cost us dearly. As motivated as lawyers often are, our discipline for sticking to anything and seeing it through is often poor; again, unless it’s urgent, we just don’t see its value. Do our best clients run their businesses that way?

This attitude is the norm, and we lawyers–who rarely innovate or take a leadership position on anything in commerce–are just fine, thank you, with it. After all, “all the other law firms” are mediocre on the discipline of getting things done, and have “crisis-only” mentalities. “Why shouldn’t we be that way?”

So we waste time blowing off important, but longer-term projects. Worst of all, we send to others in our firms, and especially to younger lawyers, the message:



“No worries–just work on a barely adequate level; don’t do things until you have to; and if it’s not urgent, let it slide.”


It makes me feel better to know I’m not the only lawyer who works this way.  And it explains why ice dancing costumes by Hull always had that “finished” look.