The Deal on Cop Interrogation

Mark Draughn at WindyPundit was surprised. I bet many others will be as well, having likely read stories about it over and over, and wondered why police officers get a better deal out of the 5th Amendment than anybody else. Radley Balko has been chronicling the flotsam of cops doing wrong, yet suffering no apparent ill consequences, for quite a while. It’s nearly a daily event over at the Agitator.

I’ve always known that police officers get special treatment when accused of a crime, but I always assumed it was just a good deal that the cops gave to other cops. I never knew there was an official court ruling about it.

It’s not just a perk of the job. It’s the law.

Radley Balko points to a St. Louis Post-Dispatch article about the Garrity Rule :

In 1967, the U.S. Supreme Court resolved it with what came to be known as the Garrity Rule. It says a public employee can be compelled by threat of discipline to admit criminal activity, but the information cannot be used for prosecution.

Wikipedia puts it a slightly different way:

The Garrity warning is an advisement of rights usually administered by US federal agents to federal employees and contractors in internal investigations. The Garrity warning advises suspects of their criminal and administrative liability for any statements they may make, but also advises suspects of their right to remain silent on any issues that tend to implicate them in a crime. It was promulgated by the US Supreme Court in Garrity v. New Jersey (1967). In that case, a police officer was compelled to make a statement or be fired, and then criminally prosecuted for his statement. The Supreme Court found that the officer had been deprived of his Fifth Amendment right to silence.

Mark reacts by saying he doesn’t understand the rule. My guess is that he understands Garrity v. New Jersey perfectly; what he doesn’t understand is why cops get a completely different rule than everybody else. The irony is that the Garrity Rule is based on the rationale that police officers don’t lose their 5th Amendment right by virtue of being cops, when the point of the rule is give cops a level of protection that no one but cops enjoy. Essentially, while the rest of us can be questioned after an arrest, provided we’ve been given Miranda warnings, not cops. What’s really going to make Mark’s head explode is that the Garrity Rule isn’t the only problem. It gets worse.

Police officers are invariably represented by a union, and invariably, the union contract provides that an officer cannot be interrogated after arrest without either a cooling off period or a union representative present. The ability to investigate a crime, when the suspect is a cop, is thus controlled by a union contract. What a deal! Welcome to NLRB v. Weingarten, which applies in a special way for cops than it does for any other union employee since the cops would be interrogated by their own.

So why are police given special treatment? Is a crime committed by a police officer less of a crime, less harmful, less significant than a crime committed by anyone else? Is the harm to the victim less painful? Is the harm to society less worthy of prosecution? It might well be argued that a crime committed by a cop is more significant, more blameworthy. After all, we give cops an enormous amount of power and authority, and if they can’t be trusted to conduct themselves lawfully, it’s a far bigger problem than crime in general. If anything, cops should be held to a higher standard of behavior by virtue of their oath and position.

But it’s just not the way things flesh out. The rationale in favor of protecting a police officer’s privilege against self-incrimination is fine, even laudable. It’s just that the same rationale doesn’t apply to everyone else. Cops are allowed to use any weapon to get us to confess, short of ignoring our invocation of the right to remain silent and counsel. Even these qualifications are mangled, subject to the greatest precision lest the invocation be deemed equivocal. It’s a trap for the unwary.

So while the Garrity Rule is wrapped up with a nice ribbon by the typical lofty love language of the Constitution, it’s a gift only for police. Mark’s initial reaction, that it’s just a perk of the job, was right. The only aspect he misunderstood is that it’s not a gift from one cop to another, but a gift from an appreciative court to the police. It’s tough to be a cop. Don’t they deserve those great rights that they happily ignore when it comes to the rest of us?

A Contemptible Baptism

What made Joseph Reyes decide that he had to baptize his daughter at that moment? He’s got his explanations, all of which fall flat, but he ignores one really important reason to hold up. The judge ordered him not to. From GMA :

Joseph Reyes pleaded not guilty for allegedly violating a court order issued by Chicago family law Judge Edward R. Jordan who had barred Reyes from taking his 3-year-old daughter to church following a dispute over religion with his estranged wife. Reyes’ wife, Rebecca Reyes, is Jewish.

Reyes and his wife are in a bitter divorce battle, and the question of what faith their child should be raised in is pushing the boundaries of child custody arrangements.

Reyes’ decision to baptize his daughter without his wife’s permission resulted in what some are calling an extraordinary court order: Jordan in the Circuit Court of Cook County, Ill., imposed a 30-day restraining order forbidding Joseph Reyes from, according to the document, “exposing his daughter to any other religion than the Jewish religion. …”

When Joseph and Rebecca Reyes married, he converted to Judaism to please his wife’s family. Not a good reason to change religions, but people do things for love. The couple had a child, who (not surprisingly given Joseph’s conversion) they parents decided would be raised Jewish. Still, the marriage failed (also not a surprise, given the depth of religious antipathy), and the divorce is an unpleasant one.

When Joseph Reyes decided that he was going to expose his daughter to his religion, Catholicism, and have her baptized, Rebecca sought injunctive relief. The court ordered a 30 day TRO, usually issued pending determination of the motion to maintain the status quo ante. Naturally, Joseph, had to bring her to church while the TRO was in effect. And brought a TV camera crew along for the personal religious experience.

Reyes had his explanations at the ready. He never stopped being Catholic despite the conversion. He was deeply religious. He didn’t really violate the court order.

“Going to church, I don’t think I violated the order,” he told “Good Morning America.” “In terms of Judaism, based on the information I was given, Catholicism falls right under the umbrella of Judaism.”

In a YouTube video of the subsequent visit to church, Joseph Reyes says, “I am taking her to hear the teachings of perhaps the most prominent Jewish rabbi in the history of this great planet of ours.”

Somehow, I doubt this argument is going to fly. It couldn’t be more clear that Joseph’s actions were deliberately times to flout the court order and create this controversy. After three years of raising his daughter Jewish, 30 days wouldn’t break him.

Yet the question remains, should the court have issued the TRO? Eugene Volokh thinks not.

Eugene Volokh, a professor at the UCLA School of Law, said a parent who has visitation rights “usually has the right to expose the child to his religious beliefs, teach the child his religion, to take the child to religious services, unless there seems to be likely psychological or physical harm stemming from that exposure.”

That’s not to say the Eugene suggests it’s acceptable to violate a TRO, even if the underlying order may be unconstitutional. While my reaction to the TRO was a shrug, seeing it as the usual course of maintaining the status quo pending determination, Eugene saw it as an improper prior restraint on speech/religion. Via email, Eugene explained:

Where First Amendment rights are involved, TROs aimed at preserving the status quo may well be improper. That’s certainly so in a typical free speech case; for instance, even if one can get a permanent injunction against a libel after a trial at which it’s proved to be a libel – and some states allow this – one generally can’t get a TRO or a preliminary injunction, even if that’s necessary to preserve the status quo by minimizing the damage to the target’s reputation. See generally Lemley & Volokh, http://www.law.ucla.edu/volokh/copyinj.htm .

The status quo, per the story, was that the parents had agreed to raise the child Jewish, thus raising the question of whether that altered the calculus as to the enforcement ot the status quo pending decision. Eugene responded:

As to the prior agreement, I’ve seen no evidence that there was a binding contract to raise the child Jewish for the rest of the child’s childhood. There was an agreement that the child will be raised Jewish, but such agreements are generally intended as agreements to go along with something so long as one thinks that’s the right thing. An analogy: Say you agree with your wife that you’ll take a particular high-paying but potentially unpleasant job; I take it we wouldn’t see this as a binding contract with her that you will continue to work at that company so long as they’ll have you, but rather a tentative agreement to go to work there and to stay working there so long as you yourself think is right for you and for the family. Likewise, an agreement not to tell your child about sex until he hits puberty would probably not be a binding contract not to say such things, but just a statement of your intentions (plus perhaps some modest moral obligation), subject to change if circumstances or even your attitudes change.

It’s not entirely clear to me that this agreement wasn’t binding, even though it may not have been in writing with the usual formalities. There was reliance, perhaps detrimental estoppel, at the time and the parents acted upon it by having a child and raising the child Jewish. Moreover, it seems fairly clear that Joseph’s finding religion has more to do with the bitter divorce than any love of a prominent Jewish rabbi, making his change of mind disingenuous and intentionally antagonistic.

That said, it seems that the wife, Rebecca, is similarly making a mountain out of a molehill. If her daughter is Jewish, then a baptism is nothing more than a quick bath without soap. That it holds religious significance for Catholics doesn’t change its lack of religious significance to her. Nor will a three year old suffer any harm from the experience, any more than a visit to church will fundamentally alter the child’s life.

So the parents are locked in a bitter divorce and are acting out of spite for each other by using the daughter as a weapon. What else is new? If this was truly a clash of religious beliefs, the legal aspect might well present a truly difficult conundrum. But since religion is secondary to spitefulness, and since there was a court order in effect at the time that, and no harm would have been suffered had Joseph waited it out and argued his position as to a permanent injunction, I find it difficult to imagine how he could prevail. The rule, comply now, appeal later, seems fully applicable, Eugene’s prior restraint argument notwithstanding.

For those who think criminal cases are ugly, they are nothing compared to the anger and bitterness of a divorce.

That’s Why You Get To Sit On The Big Bench

That our Constitution has come to be regularly defined by a single vote is bad enough. But when the Supreme Court Justice who casts that deciding vote, Anthony Kennedy, speaks out against the very evil that he voted to maintain, it reduces the notion of constitutionality to a farce. That’s worse.

Today’s New York Times editorial addresses a speech given by Justice Kennedy at Pepperdine University law school, where he was critical of California’s absurd three-strikes law.

Justice Anthony Kennedy spoke out against excessive prison sentences this month in California, criticizing the state’s deeply misguided three-strikes law. It was a welcome message, delivered with unusual force. Much of the blame for the law, however, lies with the Supreme Court, which upheld it in a decision on which Justice Kennedy cast the deciding vote.

He turned more serious, however, on the subject of incarceration. Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education.

Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.”

This would be the same Justice Kennedy who held that a life sentence for shoplifting, as a third felony, did not violate the 8th Amendment’s cruel and unusual punishment clause based on its glaring disproportionality. We’re not talking about mere incrementally increased punishment, but dropping the atom bomb.

When a Supreme Court Justice states, “that’s sick,” might we think that it’s bad enough to violate the 8th Amendment?

As the editorial properly notes, Justice Kennedy’s speech clearly gets it right. So why then is the 5th vote in favor of its constitutionality? Judicial modesty perhaps? Is “sick” not sick enough? Mind you, this was a 5-4 decision, with Justice Kennedy casting the deciding vote. It’s not like he would have been going out on a limb, all crazy and such, to make it a 5-4 decision the other way.

It’s wonderful to hear a Supreme speak his mind outside of the parameters of a decision. It certainly provides a far greater feel, maybe even a meaningful understanding, of who this person is who holds such vast power over our law. But there is similarly no way to reconcile such public pronouncements with the failure to use the power entrusted to a justice of the Supreme Court to make decisions consistent with this belief.

Of course it would be easier for the justices if voters and elected officials would rid the courts of the burden of having to pass judgment on bad laws. It takes the onus off the justices and they won’t be responsible for making the tough decisions. But that’s what the job is, whether they like it or not. It’s making tough calls when the public and politicians stray from the Constitution to sate whatever blood lust arises from the issue of the day. This is the job of being a Supreme Court Justice. You’ve got the power to do something about it, and you’re expected to have the guts to use it.

That Justice Anthony Kennedy believes this to be so fundamentally wrong that he would call it “sick”, yet votes to uphold its constitutionality. Now that’s sick.

Universal Public Defender and The War Council

As the debate continues on whether Norm Pattis’ radical idea for a Universal Public Defender system that would cover those who are neither indigent nor financially capable of a meaningful defense, an email came in from the New York Criminal Bar Association. This is the New York City, primarily Manhattan, flavor of the criminal bar, and they will be holding a war council this Wednesday to decide whether, and how, to challenge the City’s RFP that would likely spell the death of 18B in the City. For those outside, 18B is the system of private lawyers being assigned indigent defense.

In response to my concerns about a UPD system, Norm argues that my fears are overblown.

Having a universal public defender service does not mean conscripting all members of the bar and making them government employees. It means that all members of the bar can apply to be appointed off a list of qualified defenders. It also means that making your way onto that list, and remaining there, requires demonstrating minimal competence in the difficult work of defending the accused.

Not all lawyers will seek such appointment. Those who don’t want strings attached to what they do can compete for the private dollars swirling in the wake of the arrests of the affluent. But the middle class, those folks not indigent but without the means to hire a full defense team, won’t be facing the resources of the state armed only with the wits of the lawyer they could afford.

I see this statement as marginally accurate but quite naive. Gideon has a better take, noting that the vast number of case are already covered by public defense, leaving only a slice between the rich and everyone else to be addressed:

Which brings us to the one category that would really benefit from some modification of the public defender system: the poor-by-everyone-else’s-standards-but-not-poor-enough-to-get-a-pd.

This is the class of defendants who make a little too much to fall below the artificially low income threshold and don’t make nearly enough to realistically hire a lawyer and fund the tools of an adequate defense. It is these people that we need to be worried about. Several times have I expressed disgust at the indigency cutoff and the arbitrary enforcement of these “guidelines”. What might get you counsel in one court, county or state may not get you counsel in another. There needs to be an honest and serious rethinking of the guidelines.

While moving the bar of indigency upward would alter the calculus somewhat, and rid us of the assumption that poor means dirt poor, and anyone who isn’t dirt poor is wealthy enough to afford to pay for a criminal defense, it reduces the number of people who fall into the no-man’s-land of criminal defense but does not eliminate the problem. People who are solidly middle class, maybe even upper middle class, really aren’t equipped to handle a serious criminal defense.

I think Gid might be surprised to learn how many people appear to be doing fine but, when pressed to come up with a substantial amount of money quickly, find themselves wholly unable to do so. As a public defender, Gid probably doesn’t have to deal with this often. As a private criminal defense lawyer, I probably see this more regularly. I suspect this is what Norm is talking about, rather than the guy with a 3 year old car and nothing else.

Norm’s dismissal of my concerns, however, may be a bit premature. Witness the NYCBA war council. While 18B only covers indigent defendants under the current system, meaning that we’re talking about the really indigent rather than the mere house-poor indigent, and lawyers are preparing to go to war. They know. Without the income derived from 18B assignments, it’s unlikely that they will survive. This is the bread and butter of many a law practice. This is how they pay the bills and feed the family. Without it, they’re toast.

There will be a handful of lawyers who have no need to participate in a UPD system, and will opt out. The vast majority will have no choice but to take whatever the government gives. Without this work, their practice cannot survive. They cannot survive. Sure, some may switch to real estate closings and wills, and dabble in criminal defense when the odd retained case comes their way, but most will never see a criminal case again. Not every lawyer has a practice base in the filthy rich, and, frankly, the rich don’t get arrested all that often. That’s why it makes the papers whenever they do.

My best guess is that such a system will virtually eliminate the existence of a private criminal defense bar. For the vast majority of private criminal defense lawyers, who aren’t the short list for the prosecuted rich, the choice will be sign up or find some other way to earn a living. There simply won’t be enough regular retained criminal cases for them to maintain a practice. At that point, the government will control the purse strings of, say, 98% of the criminal defense bar.

Whether it’s someday decided that people no longer deserve a defense, should a conservative Supreme Court issue a 5-4 decision overruling Gideon v. Wainwright as being one of those wacky liberal penumbras, or whether they just choke lawyers by tightening the purse strings should money get tight (it could happen) or the decision be made to allocate scarce resources elsewhere, like bombs, criminal defense will be at the mercy of the State.

It’s not that I disagree with Norm, Gideon, Bennett or Kindley about the problem. It’s a real problem, and like them, I both see it and feel for those who suffer for the inability to be able to afford a meaningful defense. I’m just not ready to hand over the control of the criminal defense bar to the compassion of the government or the American people. With a UPD system, that’s precisely what I see happening. And so do the lawyers who will attend the NYCBA war council, who have good reason to fear that this spells the end of their private criminal defense practice.

Working For The Man

Of the handful of questions that criminal defense lawyers are asked regularly, “why do I have to pay if I’m innocent?” is right up there. And it’s a good question. Defendants don’t ask to be prosecuted. Defendants, not to mention their families, may well be rendered destitute by the cost of defending themselves against spurious accusations. Who needs that?

A move is afoot to shift the cost of prosecution, which includes the cost of defense, to the government. Norm Pattis has started a blog dedicated to the idea. Mark Bennett is one board following an idea promoted by John Kinley. As they note, it’s not merely the cost of the lawyer, but the ancillary costs, most notably costs for experts witnesses, that can kill you. It’s a problem we all face.

While poor defendants are given lawyers, as well as some basic level of access to experts, it’s not all it’s cracked up to be with defense lawyers carrying enormous caseloads, often far beyond the ability of any lawyer to adequately handle. But even the defendant who can afford a lawyer is tapped beyond the ability to pay when it comes to handling the cost for all the elements that go into a good defense (not a great defense, but merely a good one). When it reaches the point of losing a house to pay for a witness, and with no guarantee of either success or efficacy, hard choices often dictate that the kids need a roof over their head.

The problem is clarified by the asymmetry of the defense that can be mounted by the wealthy from that of everyone else. Why should the wealthy get “more” justice than others? Why should the non-wealthy be denied the ability to defend themselves fully? Good questions.

But this Utopian ideal, free criminal defense for all, may not be the panacea desired. Just as the defense provided poor people falls short of that which the wealthy purchase now, for reasons wholly outside the control of their lawyers, it smacks of a race to mediocrity for all. Too many defendants, too much need, not enough money, would plague the system. Price control over the costs would chase many away from the practice, from lawyers to experts who won’t work for state dictated rates. Just because a bureaucrat thinks that $27 an hour is plenty doesn’t mean the rest of us have to go with the program.

More than that, I fear giving the government this much control over the criminal defense bar. Some will sign up because it’s welfare for lawyers, diminishing the need for lawyers to perform their best to satisfy their client’s needs. When clients don’t pay, lawyers don’t perform. It happens.

If the criminal defense bar becomes dependent on the government for its livelihood, we likewise become dependent on the government for our existence. One day, somebody gets it into their heads that they don’t like us anymore and, poof, we’re done. One bad Supreme Court decision and Gideon is toast. A vital private bar, beyond the reach of the government, must continue to exist if we’re going to be positioned to fight for the accused. If our children’s next meal depends on government largesse, we have sold our independence for good. We’re just another cog in the government wheel.

Put us on the government payroll and we work for the Man. Do we really want to serve the Man? Not me. I serve my client, no one else.

3 Years Ago Today

The first post on Simple Justice was published February 13, 2007, a day when I didn’t have enough to do. It seems like only yesterday, though 3092 posts have since seen the light of day.

I’ve made a lot of friends. And more than a few enemies. But it’s always been interesting. I’ve learned a lot and hope some of you feel the same way. And I’ve never run out of things I want to write about. It may happen some day, but not yet.

Thanks to everyone, friends and foes alike, for reading.

The Dirty Harry Syndrome

Doug Berman reports of a 10th Circuit decision reducing the sentences of $40 million Ponzi-schemers Norman Schmidt and Charles Lewis.

The district court properly calculated Schmidt’s guidelines sentencing range and he has not overcome the presumption of reasonableness of his within-guidelines 330-year sentence (which is reduced to 310 years by our setting aside his convictions on four counts).

What a bunch of softies, cutting sentences willy-nilly and letting these guys fall through the cracks. Though as Doug notes:

I suspect that Schmidt won’t be too eager to celebrate the fact that his projected release date has now been moved up from the early fall of 2291 to the early fall of 2271. Indeed, because Schmidt is in his mid 70s, I would wager he won’t end up serving even one-tenth of his new sentence. Just leave it to a white-collar scoundrel to find a technicality like life expect any to ensure he never has to serve the bulk of his (apparently reasonable) prison sentence.

The point is that people perceive our system as unduly lenient, pro-defendant, soft on crime. This despite the fact that sentences of multiple lifetimes are considered reasonable punishment for non-violent crimes. I keep suggesting to white-collar defendants that they might as well kill a few of the people they don’t like while they’re at it, since it’s not like a few more years on the back end is going to hurt any.

What makes the American public see the system in such a bizarrely false way? We’ve got more people, per capita and in real numbers, in prison than anywhere else on the planet, and still that’s not enough to sate the lust.

Jonathon Simon at PrawfsBlawg attributes it to our glorious cinematic heritage.

[M]ost Americans still imagine our courts to be the leaky and lenient institutions they were (unfairly) depicted as being in 1970s backlash movies like Dirty Harry (1971). As our justice system comes instead increasingly to resemble the hardened core of the robotic killing machines in the Terminator series, our ability to set proper limits to our own quest for security is very much in question.

It’s clear from the comments here, mostly from non-lawyers, Texans and personal injury lawyers, that Dirty Harry remains very much in their thoughts. Anger and revenge, exemplified by the desire to shoot people for walking on their lawn, as well as the desire to shoot people for posting on a blawg suggesting that they should not shoot people for walking on their lawn, prevail. There’s a lot of anger out there.

It doesn’t appear that we will shake this misperception by logic or reason. It’s not grounded in logic or reason, and no amount of cases to the contrary appear to change it. While people may agree that a particular outcome is unjust, they are still stuck on the notion that the system as a whole is notoriously soft on crime. The fact that our government, regardless of who sits in the big chair, feeds into this national psychosis for its own benefit, the maintenance of power and control through fear, doesn’t help, but it similarly doesn’t force people to stay with the program. We can stop drinking the Kool-Aid anytime we want. We just, apparently, don’t want to.

If Simon is right, there is only one thing to do. Make a movie. Where are the anti-Utopian movie makes, the Aldous Huxleys and George Orwells of this generation. Get their agent to call James Cameron’s agent and put a deal together to create the movie that will change it all. Forget Michael Moore. We need a big movie, not some Indy puff piece about justice and a fat guy with a microphone. Special Effects are critical.

Until then, we can take hope from the 10th Circuit cutting 20 years off the back end of a 330 year sentence. Break out the bubbly. Reasonableness has been achieved. Justice was done.

The Trio of Doom

The credit goes to Bruce Carton, who read about the idea and liked it. Since he’s now go the keys to Legal Blog Watch, it seemed like a natural. The panel that Avvo let slip away would be his for the asking, and so Three Angry Lawyers became a reality. Sorta.

Brian Tannebaum, Mark Bennett and this curmudgeon, have each been critical of marketing and social media gurus, though not always in the same way or for the same reasons. This will likely come as a surprise to some, who might have expected us to be on the same page about all of this. More interestingly, by using this new-fangled webcast technology, those who have read our thoughts may enjoy putting faces, voices and real-time attitudes, to the words.

Here’s webcast.

Here’s the back story. In preparation, the three of us emailed each other with such deep questions as “are we doing this?” to “does Greenfield even know what a webcam is?” This was truly a “seat of the pants” operation, with no idea where we would be starting or where it would go.

While the webcast shows the three of us, plus our intrepid host, I was unable to see either Bruce or Brian on my screen, and could barely hear them. Bennett was visible, in a twisted, psychedelic acid-trip sort of way, which was disconcerting to say the least. As the webcast was about to begin, Bennett figured out how to use the texting feature, and began sending me texts regarding Tannebaum’s physical appearance and attire (or lack thereof). As I now know from the images, Tannebaum was wearing clothes and you can’t even see his fly, thus precluding any possibility of Bennett knowing whether it was properly closed.

I’m sure that younger lawyers would handled these texts in stride, being far more experienced with them than I am, but I was easily distracted by Bennett’s texts, not to mention his lurid descriptions. Obviously, Bennett had no problem texting during the course of the webcast, demonstrating his strong multitasking and tech skills.

Brian, in the meantime, had just finished his double Vente hi-test mocha latte frappucino, and was amped up for the show. What some of you may not know is that we have a long history of baiting Brian, who has a slight tendency toward the sarcastic. It’s all in good fun between us, and so no one takes the mocking as real. In fact, this was about the nicest we’ve ever been toward each other. It was downright calm compared to our usual exchanges.

Unfortunately, we never really focused on a particular issue and addressed anything with nuance or depth. It was all very superficial, which I attribute to the awkwardness of the medium and the brevity of the webcast. Had we chosen a specific subject up front, we might have dealt with it in a more fruitful fashion. The synergy that might be expected from having the three of us in the same room wasn’t there when we were talking at a picture (or a black square) on our computer screens. As substance goes, however, this webcast failed to satisfy.

It was fun to play with the guys. And it would be a lot more fun to do it again, but next time with a better plan and more of an opportunity to have a deeper discussion. In the meantime, we learned two very important things. First, that Tannebaum buys shoes off the internet. Second, that we need to make sure Tannebaum has a beer beforehand rather than spend his morning at Starbucks on his laptop sucking up those mocha frappucino lattes.

One Little Smack

Deborah McGraw, the victim of a petty larceny, expressed the perfectly natural desire to give the alleged perp, Dallas Jarrett, a good smack. Just one would do, and then they would be square as far as she was concerned. Kanawha County prosecutor Stewart Altmeyer conveyed the offer, jokingly perhaps, to drop the charges in exchange for a smack. Jarrett agreed. Oh boy.

From the Charleston Gazette :

According to [Kanawha County Prosecutor Mark] Plants, Altmeyer jokingly conveyed the victim’s suggestion to Jarrett and his lawyer. Jarrett was represented by assistant public defender Katherine Kessell, according to court records.
Jarrett and his lawyer accepted the offer, Plants said.
“Although the victim was happy with the outcome, this result is just unacceptable,” Plants said. “The Legislature does not allow for physical contact as a form of punishment, and even if it did, a judge would have to make that decision, not a prosecutor.”

Turns out, the joke was on Altmeyer, who has been suspended without pay for one month, and will have this follow him around forever.

While “alternative” sentence options have presented problems before, this one is particularly curious in that the proposition was to dismiss the charges, leaving Jarrett free to go about his life as if nothing happened, in exchange for a smack. He agreed to it. His lawyer agreed to it. The victim agreed to it. No judge involved. While the situation is not significantly different than that in Bedford County, Pennsylvania, where two women were forced to stand outside the courthouse with signs saying that they stole money from a 9 year old on her birthday, in order to get the prosecutor to recommend probation, it somehow has a different feel to it.

Clearly, a good smack by the victim isn’t one of the potential sentences available for the offense. While a victim may ask for it, Altmeyer had no authority to offer it in exchange for dismissing the charge. Legally, it was very wrong.

But something strikes me as imperfect about the analogy. That corporal punishment isn’t part of the sentencing structure seems disingenuous. If a person is put to death for a crime, how bad can a smack be? It may not be painless, but it’s quick and then it’s over. Everyone goes home reasonably happy. There’s no sense about this case that the prosecutor applied undue pressure to coerce the defendant into agreeing to the smack. This wasn’t rammed down his throat. Everyone was amendable to the resolution.

In trying to find a conceptual ledge to hang on to, to differentiate the wrong of a non-permitted punishment from the right, the best I can come up with is that the Bedford case appeared to be highly coercive while this case seems to have left everybody satisfied. But that hardly seems to be a sufficient rational basis to justify why one seems so wrong while the other, not so much.

And yet, this smack doesn’t strike me as such a bad way to resolve the case.

“A Broad Range of Experience”

That’s how Democratic Senator Chuck Schumer describes the background of the man he proposes be appointed to the Second Circuit seat formerly held by Sonia Sotomayor. Raymond Lohiar is currently the Chief of the Securities and Commodities Fraud Task Force in the Southern District of New York, a position he’s held for less than a year, having risen through the ranks.

From the WSJ Law Blog :

Out of law school, Lohier (Harvard, NYU Law) clerked for U.S. District Judge Robert Patterson, then spent a few years at Cleary Gottlieb before joining the U.S. attorney’s office in 2000. In his time there, Lohier also served as deputy chief and chief of the Narcotics Unit.

With this resume, Schumer offers very high praise:

“Mr. Lohier is not only a highly qualified candidate for the Second Circuit and a lawyer whose views have been tempered by a broad range of experiences, but, as a proud Haitian American, he is a candidate who would enhance the diversity of the federal bench.”

I don’t know Raymond Lohiar personally. I’ve never had a case with him and, frankly, can’t recall any discussion of him by anyone who has. I’m not inclined to question whether he’s a brilliant lawyer, nor am I particularly disturbed that he’s being offered for an appeals court, rather than start at the bottom (so to speak).

But the obvious implication of Senator Schumer’s statement is that the Lohiar comes to the nomination with one asset that distinguishes him, his Haitian ancestry. For obvious reasons, Haiti is in vogue these days. That Schumer felt compelled to mention this is almost insulting to Lohiar, who I would suspect thinks the appointment would be wonderful, but would hope to have some greater attributes than his heritage to commend him. This is so quintessential Schumer, and unfortunately, Democrat.

The rest of the story, I am sorry to say, is similarly stereotypical. Raymond Lohiar’s “broad range of experience” is a few years as a Biglaw associate and the rest as a prosecutor. He’s never held the hand of a client as the client makes the most difficult decision of his life. He’s never seen the destruction the law can wreak on a family. He’s never gotten to really know good people who make bad mistakes. These are the things that temper a judge’s view.

Will any politician look beyond the safety and impressiveness of governmental titles when selecting someone who will sit on the bench for the next 40-50 years? But this isn’t just an “any politician” situation; This is a Democratic President with a Democratic almost-super majority in the Senate. And they are building a judiciary that would make any Republican administration proud.

The politics are easy to understand. A smooth ride through the Senate and another hole filled. Diversity trumps philosophy and real breadth of experience. But if the Obama administration can’t find a qualified person whose career includes the recognition that the law can be the problem, the police aren’t always our saviors, that order and safety come at the expense of freedom, who will?

I’m sure that Raymond Lohiar will make a fine judge. Whether he will be the fine judge that we hoped would come from a Democratic administration, with the sensibilities that come from a range of experience that might include some hard time in the trenches as, oh, a criminal defense lawyer, is another thing. It appears that no one, Democrat or Republican, is particularly interested in having those sensibilities reflected in their diverse judiciary.

No, the “hopey, changey thing” isn’t working for me yet either.