Who’s Your Lawyer?

When a client retains counsel, he expects that person to be standing next to him in court. It’s not an unreasonable expectation. Yet Eric Turkewitz posts about the problems that can happen when the lawyer who shows up in court is someone a client has never seen before.

The case Turk discusses is a civil case, Kane v. City of New York, though the gravamen of the action involved injuries suffered in a false arrest at the hands of the New York City Police Department, and there was an issue relating to asking questions at the deposition about the plaintiff’s prior arrests. While convictions are fair game, arrests are generally off the table, as they are mere unproven accusations. But the lawyer on the case couldn’t make the court appearance one day.

Then came the problem. The lawyer had a conflict and hired a per diem to handle the next conference. The lawyer, knowing the sensitivity of the case, gave directions to the per diem. But the per diem dropped the ball. S/he then gave the case to another lawyer because s/he was too busy with other conferences that day. The specific directions regarding this case got lost in translation. The new order was not good for the plaintiff.

Too busy. This comes as a shock to the client, who may intellectually understand that they aren’t the only client represented by the lawyer, but still believes that they are the lawyer’s primary concern. And they should. It’s not a client’s job to concern themselves with the lawyer’s calendar. Every client is entitled to believe they are the lawyer’s only client, or at least the lawyer’s most important client.

The reality for lawyers is that they aren’t entirely in control of their lives. Judges adjourn cases to dates of their convenience, and conflicts happen regularly. Most of the time, it’s just a matter of timing, moving from one room to another, one building to another, so that every case is covered properly. One case may be heard at 9:30 a.m. while another gets pushed back to 11:00 a.m., but that’s about the worst of it.

However, the busier a lawyer is, or the poorer he is at coordinating his schedule, the more likely it becomes that he can’t handle his obligations properly. For lawyers who work beyond a limited geographical area, they are constrained by the laws of physics and can’t magically transport between courtrooms hundreds of miles away.

Then there is trial. When a lawyer is on trial, there is nothing else that comes before it. No court appearance, no matter how critical to the client, takes a lawyer away from trial. Few clients have difficulty appreciating this, as they want the same for themselves when they go to trial. Similarly, most judges give greater latitude to lawyers on trial, who at worst are forced to submit affirmations of actual engagement to explain why they can’t be present that day.

High volume lawyers, the guys who have a trial a day, a couple of appeals the same morning, run for courtroom to courtroom, courthouse to courthouse, have a problem. For these lawyers, the inability to stand next to a client is a fixture of their practice. Indeed, the inability to pay any attention to their cases is the norm, as one can’t be in two places at the same time, no less ten. Preceding every trial are numerous appearances in court, and if they can’t be everywhere. Nor can they do the hundreds, or at least tens, of hours of office work necessary to be prepared.

The client who retains a high volume lawyer never knows who will be standing next to him in court, and whether their “lawyer” knows anything about them or their case. They get a fill-in, whether it’s someone on staff or a per diem lawyer, a lawyer paid a pittance to show up and be the warm body before the court. They may wear a suit and tie, look like a lawyer, be capable of generally using lawyer-like words, but be nothing more than a place-holder.

Much of the time, the stand-in isn’t expected to do much of anything. The problem in Turk’s example is that the message given to the first per diem got lost before reaching the second. So the client retained counsel who adequately instructed the person he thought would be present, who failed to adequately instruct the lawyer who ultimately appeared, who sold the client down the river. It doesn’t take two warm bodies to give rise to a disaster.

There is a reason why a criminal case comes before the court is somewhat regular intervals, whether because the judge wants to make sure the defendant hasn’t decided to take an extended vacation in the Maldives or because there is real work to be done. Either way, every appearance matters. The defense never knows what will happen, whether a plea offer is made, or a significant bit of information conveyed that, to the attuned ear, can be used to turn a loser into a winner. If nothing else, it often gives the prosecution the opportunity to announce “ready for trial” when they aren’t because they know the stand-in isn’t going to try the case, thus stopping the speedy trial clock to the defendant’s prejudice.

No court appearance is a throw-away. Every court appearance matters. Every single one.

It’s one thing when a lawyer is on trial, making it impossible for him to be present in court to stand beside another client. It happens. And then there are the rare emergencies, such as a call from a judge to be present the next day for a critical event. It happens.

But if this is the routine, that the client finds himself standing beside a lawyer he doesn’t know regularly, or worse still (and this happens), a person who isn’t even a lawyer, there’s an inexcusable failure of representation. Most lawyers have a few lawyers in whom they repose trust, and with whom they will cover emergencies when they can’t be avoided. These are solid lawyers, the sort who are strong enough to have been retained in the first place, and who the retained lawyer can be certain will handle the matter with diligence and care. But when it goes a step beyond, or when it becomes so routine that trust and competence is replaced with nothing more than availability, the client’s interest is lost.

The lawyer may want the case, need the money. But if you can’t handle logistically handle what you take in, you are every bit as incompetent and unethical as the lawyer who tries to dabble in fields he knows nothing about. It’s not about you claiming your stake in whatever cash the client has in his pocket, but providing the representation you’ve obligated yourself to provide.

If you aren’t there, you can’t do it. Sending in warm bodies to cover the inconvenient appearance isn’t good enough. Your client is angry with you, and he is right to be. You make excuses, but you’re full of it. You took on the case and you are responsible for handling it properly. You’re too busy is never an acceptable excuse.

Book Review: Disrobed by Judge Frederic Block

When the review copy of Eastern District of New York Judge Frederic Block’s book, Disrobed, An Inside Look at the Life and Work of a Federal Trial Judge, arrived, it dawned on me that this time I may have bitten off more than I could chew. Judge Block is not only one of a handful of EDNY judges who doesn’t cause bile to rise in the throats of defense lawyers, but is generally quite well-regarded.

What if I hated his book? Even though he’s now a senior judge, he remains active and I could very well end up before him on a case. Notwithstanding my desire to believe that Judge Block was bigger than holding a less than fabulous review against a lawyer, his anger toward Steve Dunleavy of the New York Post hadn’t abated. But then, everybody knows that Dunleavy was a pandering nutjob, and if I was going to review the book, it was going to be an honest review. Hopefully, Judge Block will consider it in light of the parsimony clause.

If you want a tell-all book from a sitting judge, replete with dirt about his colleagues and hot stories of what happens in chambers, this book won’t do it for you. The closest it gets to salacious is the passing reference to Judge Block’s post-divorce dating, and it’s not going to form the basis for a viagra commercial. Judge Block is invariably gracious and complementary to pretty much everyone he’s ever met in his life. Even the two people named in the book who he clearly despised, his former law partner and Suffolk County political boss, Dominic Baranello, and Dunleavy, are tarred more by lack of good things to say than insults. The overarching concern with judicial temperament is apparent on every page.

The first part of the book surveys Judge Block’s life as a Suffolk County, Long Island, lawyer, leaving the impression that the only question that need be asked of any Suffulk County lawyer is why they didn’t get the hell out of Suffolk County. Judge Block’s early years were marked by taking any case that walked in his door, and quite surprisingly, he was the defense lawyer in People v. Clayton, giving us the beloved Clayton motion. For you non-New York lawyers, this is the motion to dismiss an accusation in the interests of justice.

Yet he wasn’t really a criminal defense lawyer, and as his later description of an investigation he commenced as President of the Suffolk County Bar Association into impropriety in the county in obtaining confessions shows, he had no idea this was a problem until he read about it in the National Law Journal. While Judge Block tells this story to show his boldness, fairness and concern, stepping up to reveal impropriety, it inadvertently reveals that he was totally unaware of what was happening around him. Given that this was well-known by every criminal defense lawyer in the county, it’s disconcerting that he had no clue until he read about it in the paper.

In this way, the book is far more revealing than I suspect Judge Block intended. In part two of the book, about his experiences becoming and being a judge, he tells of the United States Attorney’s discomfort with him, as not being part of the prosecutor to judge feeder network, making him less than trustworthy. By Judge Block’s account, he’s rather proud of his independence, and often expresses concerns that aren’t necessarily shared by the government.

And yet, in his stories about his appointment process, courthouse security and life in the courtroom, Judge Block’s deference to the fine people in government, from AUSAs, US Marshals and Special Agents, comes across loud and clear. Having read this book, I will never argue that Judge Block should find that an agent lied. While I don’t think this was part of his thoughtful effort at transparency, what comes across clearly is that Judge Block is quite deferential to all the people one would expect. Big name lawyers and big name firms are all mandarins of the bar. Heads of bar associations are all great leaders. And the Department of Justice lawyers who held his hand through the Senate confirmation hearings are great humanitarians. Humanitarians don’t lie, you know.

While reading Disrobed, I was constrained to dog-ear page after page for what wasn’t said, as much as the implied undercurrent, that was disturbing. An example:

A customs officer once told me that only about 10% are caught. These swallowers do all sorts of things to avoid detection. I have had pregnant women, blind men, little children, and a dog before me. The poor animal almost died on the plane. The guy who came to retrieve him at the airport was arrested. Being bothered by cruelty to animals, I gave him a stiffer sentence than usual. He was upset when I told him that he would not be allowed to bring his dog to jail with him. The Drug Enforcement Agency saved the dog’s life, named him Cokie, and trained him to be one of its best drug sniffers. Lots of couriers probably got nabbed because of Cokie.

In this short quote, we’ve learned that Customs, DEA, dog hits and the pervasiveness of unstopped drug couriers are subjects you don’t want to raise before Judge Block. While I’m sure he didn’t mean to be so revealing, his sweet embrace of Cokie, the wonderful drug sniffing dog, pretty much precludes prevailing in an argument as to forensic science fraud of dog hits. Judge Block won’t be buying what you’re selling.

Yet, Judge Block’s admiration for Judge Jack Weinstein is clear, and he suggests that he’s more inclined to be a bit “mavericky” as well. His empathy for defendants is express, and reflected in his disdain for the Sentencing Guidelines and being relegated to judicial bean counter. In many respects, Judge Block uses this book as a vehicle for trying to move the lack of concern for fairness and empathy toward defendants more toward center. While he won’t say that it’s off the charts on the government’s side now, you get the sense that he wants to and, if he wasn’t still getting his robe dry-cleaned, he would.

Much of the book is a rather banal view of a very powerful position, as if written by Judge Block as told to him by Pollyanna. Then again, it’s a book by a sitting judge. What can you expect? There are some interesting discussions of the internal workings of the courthouse, and if nothing else, you learn who a judge leans on when something bad happens, and why it won’t help to challenge aspects of a system that even a mavericky judge holds sacred. And that covers almost all of it. It’s not good news, but it’s something you ought to know.

The book is an easy and quick read, well-written for the most part. The real story isn’t in the words, but what’s written between the lines. If you expect a judge to finally spell it all out for you, this book won’t do. But if you want to know what thoughts belie their otherwise neutral comments, this book is a goldmine.

Puppies and Wheelchairs

If you have the desire to find out what inmates of the asylum are saying when they think no one is listening, click into a twitter conversation among two other people and read. For whatever reason, the back and forth is almost private even though it’s available to anyone who cares to look. In the information age, people forget that every voyeur can watch at will. I did this the other day when Radley Balko was explaining puppycide to someone.

The twitterer asked Radley why are cops murdering dogs. Radley responded :

Because they can. No training, no consequences.

I did something I shouldn’t do, but it being twitter and all, I did it anyway. I interjected. My rudeness was duly ignored. But my reason is that Radley is the foremost chronicler of puppycide I know, and though it may be a very small niche, it’s an interesting and important one in understanding the nature of how police interact with the world around them.

If a newspaper has a question about puppycide, the reporter will call Radley. If there is a TV show on Animal Planet about puppycide, Radley’s face will grace the screen. He’s the go-to guy on puppycide, so it mattered to me that when he explained why cops murder dogs, he got it right. His twit was two-thirds wrong. Granted, it was just a twit, but it was mostly wrong.

Cops do not shoot dogs because they hate dogs. They don’t roam the town in search of dogs to shoot. They don’t take independent joy in killing the family pet. It may seem that way, but it’s not the case. So the answer isn’t “because they can,” being of a dog-killing sort and murdering them whenever the opportunity presents itself.

Cops kill dogs because of the First Rule of Policing, make it home for dinner. If a dog is perceived as a potential threat to the officer’s safety, no matter how slight, the cop will shoot the dog dead. It’s not that he wanted to kill another dog, but that there was no way, none, that he was going to suffer a scratch, no less a vicious bite.

The cost of killing the dog was marginal compared with the cost of protecting himself from harm, no matter how slight. Dogs are fungible. Cute, but as easily replaced as a pair of faithful blue jeans. While someone will cry over the killing, they will get over it, get a new dog, and fall in love all over again. The officer, on the other hand, is irreplaceable. There isn’t a cell on his body that he’s going to sacrifice for a dog if he doesn’t have to. And he doesn’t have to.

Which brings to light the second error in the twit, no training. To the contrary, this is precisely because of training. It is drilled into their head, in training and in their daily work that the most basic rule of policing is surviving the day unscathed. This is chiseled into their heads, and is indeed a foundational maxim in the law. This is why a cop can frisk someone whenever he feels any potential threat. There may be no express constitutional right for police officers to put their own safety above everything else, but it’s in there in decision after decision.

Radley’s third point, that there are no consequences, is a critical one. Consequences inhibit action. They cause a person to stop and think. If I do this, what will happen to me? The corollary is if I don’t do this, what will happen to me? In a comment thread at PoliceOne about the use of force, cops ripped chiefs and academics for asserting that resort to force ignores the training in tactics designed to avoid its use.

Easier said then done. Always easy to write it on paper. At 0dark30 hours I’m dealing with an out of control subject no matter what the incident I’m not going to pull out the book of Chief rules to take action. I’m going to move to whatever I need to control and win the situation. If verbal judo is going to do it fine, if my glock 19 is the answer well so be it. We need to back our street officers when they have to use extreme measures and stop running from our responsibility to do our jobs. Will we have some that will cross the line, probably, but hpw about all the officers lives we may save by being proactive.

Or this:

I have been a use of force/defensive tactics instructor for over 7 years in a department exceeding 100 sworn personnel with a city of 100,000. After reading the comments in the above article I am grateful for the use of force support in our department from the Chief on down. We are not here to play around, get hurt, and sure as hell not get killed… Several basics I follow on the street that have not let me down: always back your play, don’t say it if you can’t do it. Rule of thumb, ask, tell, make, again lawfully. Finally when it is time for force, make it swift, make it strong and make it count. Ending a fight fast is better for all involved.

Or this:

So the chief prefers that we go hands-on and risk a personal serious injury or death? This doesnt make sense. Resisting an arrest, either actively or passively, is still resisting and I will be taking that individual into custody. If I’m not getting compliance with direct my verbal communications, then verbal orders, why not use force that keeps me just a little safer? The suspect is the one that brought this incident upon themselves.

Notice a theme permeating these comments? Aside from exaggerating their perceived risk of harm (though, as most cops would point out, you never know whether the upshot will be a scratch or death until afterward), there is no way a police officer is prepared to willingly risk harm to himself rather than do harm to another.

A Houston police officer entered a group home for the mentally ill, and shot and killed a double amputee in a wheelchair. The reason is that the man had an “object” in his hand. It turned out to be a pen. It could have been a knife. Or it could have been the pen the pierced a police officer’s eyeball. The cop was not prepared to find out.

“He was approaching them aggressively,” said Houston Police Department spokeswoman Jodi Silva. “He was attempting to stab them with what is now found to be a pen.”

Maybe there was a chat in the secret confines of the Houston Police Department, cursing the officer for needlessly shooting a man with only one arm and one leg. No police chief wants to attract public scrutiny, especially when it appears obvious to members of the public that trained police officers should have been able to subdue this man without killing him.

But he was a crippled. He was mentally ill. He was a throwaway human being. No cop is going to let himself be killed, maimed, scratched by a man like this. After all, everybody loves dogs, and yet they shoot puppies, don’t they?

Courting Disaster

Twice in the past week, I’ve met with people who thought it best to seek legal counsel because they didn’t do anything. The way I phrase my questions is not to elicit what they did, but to ascertain what the prosecution alleges they did. It’s not only the more important question, but relieves the pressure of responsibility. The problem is that the response came back, “I don’t know, because I didn’t do anything.” That’s not helpful.

I don’t mind these consultations, as I charge for them and these nice folks are on the clock as they tell me what they want to tell me. But I expect to provide value to everyone who pays me, and these folks are no different. They’ve come to me for a reason, and part of my responsibility as a lawyer is to elicit information that enables me to ascertain that reason and address it. But I can’t beat them into submission. Well, maybe I can, but it’s really not a good practice.

One of the foremost outcomes people want when meeting with a lawyer is to be told they will be fine, they can go home afterward and sleep soundly that night, unafraid of the terrible things that kept them awake the night before. And some lawyers provide this, “advising” that all will be well and they have nothing to be afraid of. They say they did nothing, and so they have nothing to fear.

Of course, this is almost always a lie. The other day, Mark Herrmann asked why lawyers are turned into liars. As some of the commenters at Above the Law suggested (in a shockingly relevant reaction to the post), no one forces lawyers to lie. Rather, it’s a matter of convenience and avoidance. Lawyers speak the words that are most advantageous to their position and don’t speak the words that are going to get a judge angry with them or compel a client to run for the door. The problem is that truth isn’t what people necessarily want to hear, and lawyers (like pretty much everyone else) prefer to give people what they want to the extent it allows lawyers to get what they want from them.

Clients don’t want to know that they are in trouble. They don’t want to hear that they are facing certain choices, none of them good. Who would? But telling them what they want to hear doesn’t change what they’re facing, the choices available to them. In most instances, whispering sweet words in their ears deprives them of the opportunity to prepare for what they are about to face. In other words, it often makes the situation worse.

It may well be that they did nothing wrong. It may be that they did nothing from from their unique perspective. It may also be that they did wrong, but refuse to acknowledge it. Regardless of which it may be, or whether it’s some other variation on a theme, a person staring down the barrel of a gun called “prosecution” has a problem, whether they deserve it or not. Closing your eyes doesn’t make the gun go away, it just prevents you from seeing it.

While the phenomenon of denial happens with people regardless of the crimes involved, there is a huge difference between the person arrested, as is usually the case for someone charged with a street crime, and someone who faces the possibility of prosecution, as happens with “white collar” crime. The latter problem is exacerbated by the pervasive belief that they’re not “criminals,” they didn’t “murder anyone,” and therefore it’s absurd that anyone should be investigating them or entertaining their prosecution. “Why don’t they go out and catch the real criminals?!?”

I’ve long despised the characterization “white collar crime,” as it perpetuates the misguided belief that it’s just a big misunderstanding to be worked out like gentlemen over tea at the United States Attorney’s office. A prosecution for “white collar crime” is just as brutal as any other crime, except it usually involves a lot more paper. A sentence for a “white collar crime” is just as horrible as a sentence for any other crime, except it’s more likely to be served in a camp than supermax, though you can’t always count on that either. And few people who perceive themselves as non-criminals are well suited to any incarceration, regardless of ambience.

The point is that if you’ve been given the opportunity to prepare in advance for the pending storm, don’t squander it by embracing denial. You’ve been handed a gift. Granted, not something that was on your birthday list, but a gift nonetheless. You have the ability to make choices, even if the options suck, and can take action to afford yourself the best possible chance to prevail. Trust me when I tell you that guys detained pending trial are at an extreme disadvantage. You are free. You can do things to help yourself. You can prepare.

To waste this opportunity is a crime. The relevant inquiry isn’t whether you did anything, but what can you do under the circumstances to help yourself. If you are mired in denial, you won’t do anything. Yet the gun is still pointed at your head. Seize the opportunity when it’s available. Embrace your reality and deal with it. Nothing else is going to help you, and when you get the knock on the door in the wee hours of the morning, there will be no comfort in believing that you did nothing wrong.

The Rights of the Unappreciated

Just as many complain about their treatment at the hands of the police, the police complain of their treatment at the hands of others. And bad as you have it, some police officers believe they have it far worse. This isn’t an outsider guessing at what a cop is thinking (a great parlor game, by the way), but what cops have to say for themselves. From Police One :

A photo of Boles’ dead body began circulating the city. The St. Louis Police Department launched an internal affairs investigation into who took the photo and how it was disseminated.

Ultimately, the Department sought a court order for responding officers’ cell phone photo records, claiming the officers were not cooperating with the investigation and providing the relevant information voluntarily.

A spokesman for the local Police Officers Association was quick to respond, telling the media how awful it was for morale to know your administration:

“[D]oesn’t think that you have the same [Fourth Amendment] rights as every criminal out there has.”

I hear the same confusion in my training about officers’ 1st and 4th Amendment rights — and liabilities — in the internet age. It comes in the form of:

“You mean I put everything on the line to protect and serve and I have fewer Constitutional rights than criminals who violate other peoples’ rights?”

Simply put, yes.

Brush away that tear. There’s more.

[A] New Orleans police officer who commented on a local TV station’s website about the fatal shooting of teenager Trayvon Martin by George Zimmerman. The officer posted, “Act like a Thug Die like one!” When another commenter named “Eddie” questioned whether the officer was racist and a hoodie sweatshirt made someone a thug, the officer replied:
“Eddie come on down to our town with a ‘Hoodie’ and you can join Martin in HELL and talk about your racist stories!”

The officer was suspended and then resigned. The first two reader comments to the article on PoliceOne illustrate confusion:

“When are officers across this country going to learn that your 1st Amendment rights are severely restricted?”

“Absolutely disagree! Our 1st Amendment rights are not restricted simply because we chose to join the law enforcement profession. Nowhere in my Oath of Office did it say “and I forfeit the following USC rights…”

Feel the pain. Feel the anguish. And you thought it was just power and free donuts.

Not only is the article, not to mention the commentary, bizarrely yet facilely misguided, but it feeds the antagonism police feel toward others. And this is what police are telling, teaching and spreading amongst themselves. Before you get unduly outraged, it bears a certain similarity to those who hate all cops, impugn their motives at every turn and relies on facile rationalizations to blame them under every circumstance. Then again, they have guns and shields, which makes their threats of harm a bit more serious.

What this shows isn’t that cops have fewer rights than anyone else, but different responsibilities. When they speak in uniform or as a self-identified police officer, they can’t spew the hatred, threats and venom they feel as private citizens because they are speaking as an agent of government.

That’s the job they chose, taking on a distinct role. On the bright side, they get to shoot dogs whenever they feel the slightest hint of personal threat. On the dark side, they can’t put every cool pic they have on the internet. We all have trade-offs in life, just as we can’t fully exercise our First Amendment rights to police officers or they will think us contemptuous of their authority, and we prefer not to be beaten.

But the question isn’t always their right to speak their mind, but what speaking their mind tell us about them. For example, an expression that might be seen as a good reason to seek psychiatric treatment as a private citizen could form the basis for a belief that a police officer is unfit to be given and gun and set loose on society. The issue isn’t the right of free speech, but the right of a person who has exercised free speech to be a cop. If what you have to say suggests that you are a danger to society, then maybe you shouldn’t be handed a gun and shield?

But don’t pull out that tiny violin just yet. Police still have a few rights in their bag, such as the right to remain silent as exercised by former Bell, California Police Chief Randy Adams. Fighting for his due, a pension of $510,000 following his glorious one year tenure as Chief, CalPERS tried to turn the tables on him.

Already one of California’s highest paid public pensioners, former Bell Police Chief Randy Adams this week asked a state pension panel to double his retirement pay to reflect the huge salary he received during his brief stint as the top cop in the scandal-plagued city.

If Adams wins his case, which is being heard in Orange County, his pension would zoom to $510,000 a year, making him the second-highest-paid public pensioner in California.

On the witness stand Thursday, Adams invoked his 5th Amendment right to not incriminate himself 20 times, including when asked about his Bell salary, which was among the highest law enforcement paychecks in the nation.

For the uninitiated, there is no entitlement more sacred to law enforcement than their pension. They earn it by risking their lives every day on the streets protecting you from the criminals. Even if they sit in an office, the biggest risk they face is a paper cut and they can’t distinguish between the people they’re trying to save and the criminals they’re saving them from. Be thankful puppies are all furry, or they might be shooting children by mistake.

Rather than complain about how criminals have more rights that cops, every sworn officer should think long and hard about Chief Randy Adam’s invocation of his right not to incriminate himself during his testimony to get his rightful pension and thank their lucky stars they are cops in America. They may not be able to whine as freely as they like, but no one can stop them from saying the most important thing:Viginti et ex.

H/T FritzMuffKnuckle

The Value of a Good Alarm System

The motion to suppress in People v. McNair probably would have gone down in the usual way, Via Eric Dolan’s RocLaw:

At the suppression hearing, Officer Ryan Hartley testified that he received a tip from a “concerned citizen” that the defendant “sells cocaine and carries a handgun.” Based on that tip, Officer Hartley and other members of the Rochester police department went to the defendant’s home, and watched as the defendant arrived in a minivan, entered the residence, and then exited about 15 minutes later and drove away.

So Rochester Police made up an excuse to stop Christopher McNair, as Whren encourages them to do, No, driving a minivan is not, in itself, a crime in New York, though it should be. Upon being stopped, the defendant, naturally, acted in a way absolutely determined to reveal a crime.

The defendant jumped out of his car and appeared “to place something under the vehicle.” Said “something” turned out to be a bag of crack. Defendant was arrested, and the arresting officer took the defendant’s keys to Officer Hartley, who was still back at the defendant’s house.

In the meantime, Hartley remained at McNair’s house and dutifully safeguarded it while all constitutional protections were afforded the defendant.

At the suppression hearing, Officer Hartley testified that, at about 8:00pm, he used the defendant’s keys to open the porch door of defendant’s house, but only so that he could knock on the inner door to see if anyone else was in the house. Officer Hartley “testified that knocking on the door caused the door to open and an audible alarm was triggered.” As the police had yet to obtain a warrant to search the defendant’s house, Officer Hartley testified that “the perimeter of the location was secured,” some other officers went to get a warrant, and the house was not entered and searched until the warrant was obtained at about 11:00pm, at which time the guns and drugs were found.

Slam dunk, right? Maybe even a medal for Best Police Officer Ever? Not so fast. As the This entry was posted in Uncategorized on September 21, 2012 by SHG.

Why We Need A Law Dictionary

When I was admitted to our “family” law school in 1979, my cousin, Harlan, gave me the gift of a Black’s Law Dictionary, Revised Third Edition. Inside is an inscription which, to this day, reminds me why I don’t like Harlan. Yet, it was my introduction to the secret mystical language of the law, despite its omission of stercus accidit.

Little did I appreciate, back then, how mystical that language would be. At A Public Defender, Gideon writes about the Connecticut Supreme Court’s decision in State v. Ward.

The Court was presented with the following factual scenario: a man who works for a company in Massachusetts that does business with a company in Connecticut commits a crime here in CT and then returns to his home in MA. Twenty years later, he is arrested and charged with the commission of that crime.

Twenty years is not only a long time, but well beyond the statute of limitations in most states. Most, but apparently not all. Connecticut has a tolling provision that provides that the statute doesn’t run during the period that a person “has fled from and resided out of this state.” “So what,” you say. The defendant never “fled” from arrest and prosecution.” Ah, that’s because you don’t have the Connecticut edition of the law dictionary.

To non-lawyers, fled means, well, fled.

The verb “to flee” generally invokes the image of a person running away from a negative event or circumstance. And certainly in the criminal context, the word means to run away from the criminal consequences of one’s illegal actions, viz., an investigation or prosecution.

But to the erudite Yankee judge, it means something entirely different.

We note, however, that the common usage of the term fled connotes a meaning that a defendant is running away from something. The term fled as we have ascertained from the dictionary definition means to run away from danger—in the context of § 54-193 (c), we understand this term to mean investigation—and hurry toward a place of security—in the context of § 54-193 (c), we understand this term to mean outside of the jurisdiction. We conclude, therefore, that § 54-193 (c) may toll the statute of limitations when a defendant absents himself from the jurisdiction with reason to believe that an investigation may ensue as the result of his actions.

See how that works? Since the untried, unconvicted defendant should have known that he was guilty of a crime, the court can impute motive to his leaving the state to go home, impose a “reason to believe that an investigation may ensure as the result of his actions,” and convert his returning to his home in Massachusetts into fleeing the non-existent investigation that may ensue in Connecticut. In other words, he fled, even though he didn’t.

And then there’s the Kentucky version of the law dictionary, as related by Kevin Underhill at Lowering the Bar.

First, the facts. WKYT reported on Monday that a 55-year-old Jessamine County man had been cited for riding while intoxicated. The man said he was trail-riding with some friends and had stopped to have something to eat “when the deputy arrived and told me to get off my horse.” He explained that he is severely diabetic and hadn’t eaten, and that is why he staggered after dismounting, not because he was intoxicated.

Certainly a viable explanation, but for the fact that “his blood alcohol level was twice the legal limit, that he was found to be carrying rolling papers and a bag of marijuana, and that his saddle bags contained “several beers and a mason jar which he identified as ‘moonshine.'” Remember, this is Kentucky.

As it turns out, Kentucky has a law prohibiting “[o]perating a vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited.” So what exactly is “a vehicle not a motor vehicle?” Big Wheel? Check. Razor scooter? Absolutely. Law mower? Why even ask. But horse?

A horse is an animal. A horse isn’t operated, but ridden. If one’s driving ability is impaired, so what? As every horseback rider, knows, the horse knows the way back to the barn. And if you leave the door open, the horse can even “drive” himself. Do you know any Big Wheels that can do that? I didn’t think so.

Yet, the language of Kentucky law prevails.

All very interesting, said no one, but aren’t there often statutes that define certain legal terms? Yes, and there’s one here. And sadly for Rooster Cogburn, it defines “vehicle” as including “All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth.…” So while I still like my “animal is not a vehicle” argument, Kentucky has precluded it.

While they just could have prohibited drunk horseback riding, the inclusion of the phrase “all agencies” seems to cover a horse, not to mention piggyback rides from a really special agent of the DEA. Almost interestingly, Lawprof Dave Hoffman at Concurring Opinions picks up on Kevin’s post to suggest that this statutory interpretation would make a good law school exercise.

Seems like a good example to use in a class on statutory interpretation. Isn’t the obvious question what an “agency” is for the purposes of Kentucky law?

Or maybe a better, though less obvious to a scholar, question would be why can’t legislators write laws that say what they mean? In the alternative, another question might be why shouldn’t judges refuse to play along with laws that require contorted definitions in order to make sure the state always wins?

Of course, if they taught law students to use words with actual meanings, there would be no need for Black’s Law Dictionary and Bryan Garner would have to find a real job, like writing fiction books.

11th Circuit Judge Carnes Convicted of Mass Murder of Words

The email from Jordan Rushie had a Lowering the Bar, the 11th Circuit’s majority decision in Holsey v. Warden clocks in a 104 pages. No, I have no clue what it says, as there is no way in hell I plan on reading 104 pages just to see if it’s anything that matters to me. Sure, I read the first sentence, that “[i]n the early morning hours of December 17, 1995, Robert Wayne Holsey robbed a convenience store in Milledgeville, Georgia, and fled,” and sure it was certainly enticing. But if I’m going to spend my time reading, this isn’t what I want to read.

Even the concurring judge has a problem with the opinion.

Although he concurred in the result of the decision last Thursday in Holsey v. Warden, Judge J.L. Edmondson of the 11th Circuit wrote separately to say he did not join in the opinion itself only because, at 104 pages, it was just too long:

I stress that [my refusal to join is] not because the opinion says something that I am sure is wrong or I am sure is even likely wrong. I agree with much of the opinion, at least. But the opinion says a lot and says more than I think is absolutely needed.

Was the issue in Holsey so complex, so sophisticated, so difficult as to compel Judge Carnes to write 104 pages in order to explain the decision. Don’t ask me, I didn’t read it. But if Judge Edmondson says so, I’ll take his word for it. As he explains in his concurrence, he just isn’t willing to take the time either.

Furthermore, no one wishes to join in an opinion that they do not understand fully. It is hard, time-consuming, painstaking work for the panel’s other judges to check long opinions, line by line, cited case by cited case. (Of course, always other cases are awaiting decision and also demand the judges’ time and attention.)

It’s not easy to write a solid opinion, which explains why so few meet their lofty goal. While many offer sweet rhetoric of the sort that warms the cockles of many an angry commenter here, they neither provide a clear rule nor comprehensible language. Despite the superficial appearance of meaning, they string vague words together that are susceptible to any subsequent interpretation as a court might want. And, as Judge Edmondson points out, the more words used, the less clarity they offer.

Why did Judge Carnes murder so many words in his Holsey opinion? As Dan Hull often reminds us, brevity is hard work, a point with which Judge Edmondson agrees:

In my experience, longish opinions always present a strong possibility of error lurking somewhere in the text. That the opinion writer is a skilled and careful judge does not eliminate the risk….

I should say that I, broadly speaking, do not agree that the length of an opinion necessarily reflects the thought, labor, and care that has been invested by judges in their endeavor to decide the case correctly. The shorter opinions often reflect the greater study and thought leading up to the ultimate decision. Mark Twain touched on a related idea: “If you want me to give you a two-hour presentation, I am ready today. If you want only a five-minute speech, it will take me two weeks to prepare.”

When the government doesn’t want the defense to have a clue what the relevant evidence is, they don’t withhold it, but bury the defense in it. When a litigant hasn’t got a decent argument to be had, he moves for an oversized brief and then uses every page of it. When teachers want to push schoolboys to their limits, they assign a ten page paper. The magic of length is drilled into our heads when we’re too young to appreciate the lie. Longer is not better. Better is better. Longer is just longer.

Granted, every case can’t be decided in a three word decision. And most shouldn’t, as the courtesy of a thoughtful explanation is warranted before putting someone to death, for example. There are times when a unduly terse decision conceals the reality that there just isn’t a viable rationale for affirming a conviction, but the is just no way the court is letting a guilty defendant walk. Try to explain and it looks like crap. Better to just type “affirmed, no opinion,” and move on to more fun activities.

An opinion requiring 104 pages, without pictures, presents a problem. You see, as Kevin Underhill noted in a follow-up post, raising issues from the Holsey dissent (which came in at a whopping 44 pages), this was hardly a no-account case.

It seemed worth a second post on Holsey v. Warden to mention the dissent’s view that the Georgia Supreme Court was wrong to hold that the defendant was not prejudiced by ineffective assistance of counsel at trial. She noted that it was undisputed that Holsey is “borderline mentally retarded” (the State’s experts agreed he was not faking) and that he had been abused so severely as a child that neighbors called his home “the Torture Chamber.” And she pointed out that rather than investigating and presenting this evidence at sentencing, “Holsey’s lead defense lawyer drank a quart of vodka every night of Holsey’s trial while also preparing to be sued, criminally prosecuted and disbarred for stealing client funds.” In light of these facts, she believed, the state court’s finding that Holsey had not been prejudiced was unreasonable and he should have received a new sentencing hearing.

I didn’t mention it before so as not to overshadow Judge Edmondson’s very good point that (at least with legal work) longer is not necessarily better, but Holsey had been sentenced to death.

What gets lost in Judge Carnes’ 104 page majority opinion is that a defendant who was “borderline mentally retarded” and defended by a lawyer who “drank a quart of vodka every night” of the trial is going to be executed. This is a decision that needs reading. Yet by making it unbearably long, no one, not even the concurring judge, wants to do so.

First Thing, Make All The Bar Applicants Do Pro Bono

Court of Appeals Chief Judge Jonathan Lippman has made good on his threat to require applicants for the New York bar, starting in 2015, to have completed 50 hours of pro bono. He released his rules yesterday, which define the pro bono duty:

(b) Pro bono service defined. For purposes of this section, pro bono service is supervised pre-admission law-related work that:

(1) assists in the provision of legal services without charge for

(i) persons of limited means;

(ii) not-for-profit organizations; or

(iii) individuals, groups or organizations seeking to secure or promote access to justice, including, but not limited to, the protection of civil rights, civil liberties or public rights;

(2) assists in the provision of legal assistance in public service for a judicial, legislative, executive or other governmental entity; or

(3) provides legal services pursuant to subdivisions two and three of section 484 of the Judiciary Law, or pursuant to equivalent legal authority in the jurisdiction where the services are performed.

Outrageously overbearing, dumping on defenseless law students who are first told to give before learning the joys of unemployment? Nah. Easy, squeasy? Nah. Incredibly vague? Well, yeah. What makes a person of limited means? I know my means aren’t unlimited, so he must be talking about me, right? Not-for-profits are conceptual entities, often funded up the wazoo, not to mention invariably existing to promote an agenda which can be viewed by some as worthy (save the whales) or not so worthy (stop homosexual marriage). Deserving of forced labor? Not necessarily.

And then there are groups seeking to promote justice, which pretty much covers everything from the ACLU to the ones that replaced a fez with a tin foil hat. Or a judicial clerkship, which every law students hopes to do for the public good and not the $280,000 signing bonus they will get from Biglaw afterward.

Despite enough wiggle room in the rules to drive a jury bus through, and the fact that a great many unworthy causes will now eligible to hand out magic pro bono certificates to law students, it’s not these flaws that define the plan. Judge Lippman made clear his expectation that law students will make their pro bono bones in law school clinics, whether they go to school in New York or elsewhere.

“We believe the clinics are the best places to get that experience and it would be foolish to ignore the one place where you know you have the supervision that you need in well-organized programs,” Lippman said. “To ignore that, to us, it would have been sheer folly.”
Services may be completed in any state or U.S. territory, the District of Columbia or any foreign country.
“It is logistically too difficult to require everyone to come into New York and to mandate them to do it here,” Lippman said.

Regardless of what one thinks about the nature and politics of law school clinics, it likely the most sane place to put law students to work, providing some controls on the use of their services and providing some pedagogical advantage to the students, while serving others who are reasonably likely to deserve their help. Not such a horrible thing, right?

Of course, this also dictates to law schools that they not only have clinics, a very costly choice compared to classroom lectures, but they provide sufficient space for every student who needs to complete his 50 hours. While this already exists in most law schools, it shifts the purpose from one of an alternative educational opportunity offered in the hope of making students more “practice ready” upon graduation to a necessity. Whether law schools like to be told by a state’s top judge that they need to provide clinics has yet to be seen, but should the winds of educational theory shift and clinics fall out of favor, their hands will be tied.

The biggest question mark is the efficacy of the plan. According to Judge Lippman, it’s goal is to serve the underserved. But that is easier said than done. What pro bono legal services can a first or second year law student offer? They can fetch coffee for public defenders. They can tell the indigent that someone will speak with them shortly. They can be very empathetic. What they can’t do is provide anything remotely resembling legal representation. They aren’t competent to do so.

Does it help the indigent to be handed an incompetent lawyer? Are they so far down the ladder that a first year law student is all they’re worth? No doubt, law students will tell stories of how fabulously capable they are, given that self-assessment is so notoriously reliable, but is bad lawyering better than no lawyering?

And in light of the fact (and it is most assuredly a fact) that law students are ill-equipped to represent people, which explains the whole existence of law school thing, how much of that 50 hours of mandatory pro bono will go into training law students to perform at least a few legal tasks with relative competency? There isn’t a whole lot one can do in 50 hours to teach someone how to deal with the lives of real people with real legal issues, whose lives or fortunes are on the line, and the pro bono providers can’t just unleash Timmy and Tiffany on the poor without any training.

Will it be 49 hours of training and one hour of pro bono? What happens when the student fulfills his pro bono requirement, but the case continues? Will the erstwhile indigent client be left high and dry, a trial looming and his interests forgotten as law students get back to acing their Civ Pro final?

No doubt Judge Lippman thought this through, and the vagueness of the plan is intended to be a feature rather than a flaw. Perhaps the idea is that it has to start somewhere, and the details will be fleshed out as problems arise. In the meantime, it’s easy to see another administrative nightmare brewing, and few people saved. If nothing else, law students couldn’t get a more accurate look at what it means to practice law than this.

Not Even Nifong?

Not that it’s the worst example of abuse ever, but when you look prosecutorial misconduct up in the dictionary, you see a picture of MIke Nifong, the former Durham, North Carolina district attorney. His prosecution of three innocent Duke University lacrosse players remains a shining example of why prosecutors can’t be left to their own devices.

And yet, even Nifong’s outrageous conduct may not be enough to get a Fourth Circuit panel to let the case proceed, as appears from oral argument. From the Durham Herald-Sun :

Federal appeals judges reviewing the lawsuits spawned by the Duke lacrosse case voiced unease Tuesday about the chances of their becoming a flawed precedent for the law in five states.

“The question I have about this whole case is whether a bad case makes for some very bad law,” said Judge Harvie Wilkinson III, who’s chairing the three-judge panel that will rule on the city of Durham’s government-immunity claims.

The fear is that stripping Nifong of qualified immunity could lead to, well, bad prosecutors not having qualified immunity, followed shortly thereafter by the sun colliding with the earth.

“What we do here is not just the Duke case,” noted Judge Roger Gregory, the panel’s third member. “It’s going to apply to everybody.”

The notion of prosecutors, or more precisely, the government entities for whom they work, being held accountable for their deliberate wrongdoing clearly shook up the judges. While it might be one thing for Nifong, already outed, disbarred and jailed for a day, the judges recognize that their ruling will stand as precedent against prosecutorial misconduct, to be used against others whose conduct isn’t as well known or universally reviled.

Lawyers for Durham made the usual arguments, that a grand jury indicted and immunity attaches. After all, it’s not like there was no evidence to support the case, as there was always stripper Crystal Mangnum’s allegation that she was raped. It’s not Nifong’s fault it wasn’t true.

Motz summed up the players’ countering argument. “Conspiracy to frame people, I don’t think there’s qualified immunity for that,” she said.

But Wilkinson signaled that he’s uncomfortable with the conspiracy arguments because they could impinge on the normal, day-to-day interactions between police and prosecutors.

“The whole criminal-justice system depends on fairly free and open communication between police and prosecutors. It’s absolutely basic,” he said. “You inject civil liability into the midst of that communication, you could disrupt the candor of it.”

Here lies the crux of the problem, that the law is more concerned with the ease of prosecution, of police/prosecutor communications, then it is with its integrity. “Get it done” is elevated over “get it right.”

This is where many people fail to appreciate the extent of deference the law, and the judges, show cops and prosecutors. This is what gives rise to the anger that “ignorance of the law” is a one-way street, where defendants are prosecuted, convicted and imprisoned for hypertechnical violations of trivial laws and regulations while police and prosecutors can get the law wrong, often way wrong, with impunity.

To some extent, those charged by government to enforce law, and thereby prevent crime and maintain order in society, must be given certain latitude to do their job without fear that they will held personally accountable for a mistake. If that were the case, it could paralyze law enforcement, and thus prevent its ability to function and fulfill its purpose.

Whenever something goes terribly wrong, it’s easy to understand why people demand better. At the same time, it’s critical to remember that they don’t exist for their own sake (even though it often seems that way), but for ours. There are bad people out there, violent people, and we need law enforcement to protect us from them. When a cop stares down a rapist, it’s absurd to demand that he first check his pocket book of statutes to make sure all the elements have been met before preventing insertion. Given the focus on police and prosecutorial misconduct and abuse, it’s easy for forget that they also do good. And sometimes, in the course of doing good, they make mistakes. But they do so on our behalf.

Yet that doesn’t give rise to carte blanche, for a prosecutor bent on playing out a public fraud for a crime that he should have known never happened, and hanging out three students, not to mention smearing the rest, while making himself a national hero standing atop an indictment built on lies.

The dividing line appears to be objective good faith, where a cop or prosecutor can no longer hide behind the pretense that he thought he was on the side of the angels when he knew damn well what he was doing. Clearly, subjective good faith would never work, as it’s far too easy for scoundrels to hide behind the claim that they believed, and often still do, that an innocent person was guilty. Even in many of the DNA exoneration cases, prosecutors maintain that the failure is in the proof, not in the fact of guilt. They remain absolutely convinced that the person they put on death row was guilty, though the DNA says otherwise.

The problem with such a test is that it would require courts to do something for which they have proven themselves particularly poorly suited: concluding that a cop or prosecutor has crossed the line. Given any chance, any explanation no matter how facile, to chalk up a disastrous prosecution to an innocent mistake by otherwise honorable prosecutors, and that’s where they go. Calling out a prosecutor for deliberate impropriety is like ripping out their heart, something judges just can’t seem to do.

With the case of Mike Nifong before them, the Fourth Circuit has the poster boy for prosecutorial misconduct, perhaps the one district attorney whose heart they would be willing to rip from his chest and hold in their hands. But then, their ruling will be precedent for others, the lesser-known, lesser-hated bad prosecutors whose conduct isn’t all that different from Nifong’s. Are they up to the challenge?

Added: A twit by Edward Wiest on this post made a great point:

Hard cases can/will make bad law–either way.

H/T FritzMuffKnuckle