If you call a tail a leg, how many legs does a horse have? Four, calling a tail a leg does not make it a leg.

The problem with Hunter is that if you focus on the content of the communication that was the subject of the discipline, i.e. This Week in Richmond Criminal Defense, it would appear to be political discourse and not commercial speech, as opposed to the rest of his website. Hopefully Hunter appeals this and the outcome will be a determination that a blog is simply a neutral platform that could be used for advertising, but doesn’t need to be, and that it depends on the content. 

To which I say: so what? What hypothetical client out there didn’t know that cases were different but now realizes there’s no guarantee of success in any legal matter? And what’s to stop the lawyer from later implying or outright stating to the client some form of promise or assurance or guarantee of a particular outcome?

It’s ethics theater, it’s not a real solution to the problem of unrealistic client expectations (or of deceptive advertising).

A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.

Many of them don’t even know they’re innocent.

And the feds have no plans to tell them.

Justice Department officials said it is not their job to notify prisoners that they might be incarcerated for something that they now concede is not a crime. And although they have agreed in court filings that the men are innocent, they said they must still comply with federal laws that put strict limits on when and how people can challenge their convictions in court.

“We can’t be outcome driven,” said Anne Tompkins, the U.S. attorney in Charlotte. “We’ve got to make sure we follow the law, and people should want us to do that.” She said her office is “looking diligently for ways, within the confines of the law, to recommend relief for defendants who are legally innocent.”

Perhaps the government is only allowed a limited amount of “outcome driven,” and they’ve squandered it on putting these people into prison. Now that they’re legally innocent, there’s no “outcome driven” left to get them out. 

The nature of the problem arose from one of the happiest/saddest aspects of the law, the appellate reversal.

Decades ago, Congress made it a federal crime for convicted felons to have a gun. The law proved to be a powerful tool for police and prosecutors to target repeat offenders who managed to escape stiff punishment in state courts. In some cases, federal courts can put people in prison for significantly longer for merely possessing a gun than state courts can for using the gun to shoot at someone.

To make that law work in every state, Congress wrote one national definition of who cannot own a gun: someone who has been convicted of a crime serious enough that he or she could have been sentenced to more than a year in prison.

The rule of thumb was always that courts would interpret a statute in such a way as to criminal the fiction over the reality, under the theory that no one should avoid imprisonment because they didn’t actually do the wrong alleged.  It was enough that they could have done it. That, the courts would smugly announce, will teach others to keep their noses clean.  Deterrence is also, frequently, a fiction.

For years, federal courts in North Carolina said that did not matter. The courts said, in effect: If someone with a long record could have gone to prison for more than a year for the crime, then everyone who committed that crime is a felon, and all of them are legally barred from possessing a gun.

Last year, the U.S. Court of Appeals for the 4th Circuit said federal courts (including itself) had been getting the law wrong. Only people who could have actually faced more than a year in prison for their crimes qualify as felons under federal law.

The 4th Circuit’s decision came in a little-noticed drug case, United States v. Simmons, but its implications could be dramatic. For one thing, tens of thousands of people in North Carolina have criminal records that no longer make having a gun a federal crime. About half of the felony convictions in North Carolina’s state courts over the past decade were for offenses that no longer count as felonies under federal law.

Hooray for defendants going forward.  Bummer for defendants already imprisoned.  This doesn’t alter their factual conduct, that they had a prior conviction and possessed a weapon.  Rather, it just says that the crime for which they were convicted is now an un-crime.  But as long as it was a crime at the time, even if only because the courts screwed up by misinterpreting the law, “justice” allows you to rot.

While the USA Today investigation focuses on one somewhat parochial offense, what we delightfully call “felon in possession,” this is hardly a unique situation. The same happened with “use and carry” in connection with drugs, and of course there’s the glorious crack cocaine sentencing disparity that took Congress a few decades to straighten out.  And a biggie, the Supreme Court’s Booker decision, holding the Federal Sentencing Guidelines “advisory” rather than mandatory, rendering all those sentences rammed down judge’s throats an unfortunate exercise of misinterpreted obligation. 

Sorry, defendants. I would have given you 24 months, but the guidelines made me give you 121.  But not to worry, you ‘ll be out soon enough. Maybe. If you live that long.

Expectations that the courts, as the majestic arbiter of justice, will not only clean up its own mess, but make it right, rarely turn out as well as one might hope. It’s not that judges don’t eventually get it right, sometimes, but that it can take years, decades, before they finally say, “oops, we’re sorry, but we got it all wrong.”  And the fact that it cost a human being his life, it cost children and spouses a substantial part of their lives, and fundamentally changed the future for thousands of human beings who suffer the consequences for these interpretive errors, can’t be helped.  It takes time, you know, to get it right. A whole lot of time.

When you talk to a fellow through a plexiglass partition about why his frustration, his bewilderment, at how wrong all of this is and how the interpretation by a bunch of robed people is so utterly detached from reality, there’s really no good explanation. At least nothing that will soothe their anger.  It understandable that they hate us, their lawyers, for participating in a system that can perpetrate such outrages in the name of a silly mistake.  That we didn’t do this to them is of little comfort. We didn’t stop it either.

But when we disconnect fundamental concepts like mens rea from crimes, or when Congress enacts vague, facile laws to fix the evil du jour that the public is told will give us a perfect world, you end up with a bunch of people prosecuted, convicted and sentenced who, when the heat of the moment passes and calmer minds consider, committed no crime.  At least, committed no crime in retrospect, as if it makes them feel better to find out after it’s too late that they’re now an un-criminal.

Meet former Westminster, California, police detective Anthony Nicholas Orban.


He was just a normal law enforcement officer, until one night he had a yearning for a woman.  No woman, apparently, had a yearning for him.  And so he took matters into his own hands.  Well, to be more precise, he took his semi-automatic service weapon into his own hand and shoved it into the mouth of a waitress under the ill-conceived assumption this would make him more attractive.  It did not.

From the Los Angeles Times :

“He was a highly trained officer who wanted to have sex. He had sex on the mind. Don’t forget that,”  Deputy Dist. Atty. Debbie Ploghaus told jurors in her closing arguments earlier this week.

The woman, then 25 and working as a waitress at Ontario Mills Mall, testified that Orban chambered a round in his semi-automatic service pistol, shoving the barrel deep into her mouth as tears rolled down her cheeks. “He said if I cried, he would kill me,” the victim told jurors. “Then he pulled the gun out and said, ‘I think we’ll continue this in the desert.'”

At trial, the defense was a variation on the twinkie defense; Zoloft made me do it.

Defense attorney James Blatt had argued that Orban was rendered “unconscious” by use of the antidepressant, and therefore was not responsible for his actions in the brutal 2010 attack in Fontana.

A defense psychiatrist testified that Orban had stopped taking the prescribed antidepressant, then resumed it at full dose, provoking a psychotic break during which he was not fully aware of his actions.

The prosecution ridiculed the defense as “baloney.”  After all, it’s outrageous to suggest that drugs created to be mind-altering might be, well, mind-altering.

The jury didn’t buy it.

The jury of eight women and four men began deliberations late Tuesday and reached the verdict Wednesday morning. It found the defendant, Anthony Nicholas Orban, a Marine veteran of the Iraq War, guilty of two counts of rape, two counts of forced oral copulation, two of sexual penetration with a foreign object, one count of making a criminal threat, and a sentence enhancement of using a firearm in commission of a kidnapping.

The underlying facts, of Orban going out to a bar to get drunk and find a woman, suggests that what came later wasn’t the product of a psychotic break.  His conduct was calculated, not merely to commit a rape but to do so in a way that would prevent his getting caught by taking his victim to the desert where he could rape her unobserved. 

But that doesn’t mean that the ingestion of the SSRI sertraline hydrochloride played no role, and more importantly, should be so easily dismissed.  The prosecution argued that raping women wasn’t a side effect of Zoloft, which may be accurate as far as it goes. But disinhibition, the inability to control impulse, is a  known side effect, and disinhibition gives rise to an individual acting upon his worst impulses without the control of rational thought.

In other words, it’s quite possible that Orban’s conduct was affected by Zoloft.

The twinkie defense, and its various permutations, has been the subject of such enormous public ridicule as to be easily rejected by a jury despite medical testimony to the contrary.  In a way, it’s much like false confessions, something that jurors refuse to accept because it fails to comport with their experience.  After all, they’ve taken medicine and it never made them rape anyone.

On the other hand, the defense is facile, a ready excuse for inexcusable conduct.  Is society prepared to give every Zoloft user a free rape?  Or worse?  Not likely.

That a defendant who has otherwise demonstrated no inclination toward criminal conduct suddenly engages in something horrendous, as did Orban, seems to suggest that this isn’t his character, but his medication, at work.  But this too is a slippery slope, since accepting the premise that mind-altering drugs can cause an otherwise law-abiding person to engage in a terrible act doesn’t change because of an alleged propensity. If it’s the drugs, it’s the drugs. If it’s not, it’s not.  Guessing games don’t prove anything either way.

This is a particularly difficult issue, since drugs (which can include all manner of things that alter a brain’s chemistry) can obviate the mens rea, and most of us remain of the belief that it’s the intent rather than the mere outcome that distinguishes a crime.

But how to know?  As more mind-altering drugs become available (and are even sold over the counter), and as more people take drugs to achieve their personal level of “normal,” this problem becomes more acute.  The answer, unfortunately, remains elusive, and to the extent that drugs are a very real defense to the formulation of criminal intent, are increasingly unlikely to be accepted by a jury.

But for one factor, Louisiana criminal defense lawyer Claiborne Brown’s handling of his realization that he could not defend his client would be a textbook example of doing it right.  The defendant, Joshua Cumberland, was accused of raping two girls, ages six and nine.  Brown found that he just couldn’t do it.

…the defense attorney stood and confessed to the judge that he’d done an inadequate job representing his client, a 25-year-old Slidell man accused of raping two young girls. Attorney Claiborne Brown refused to proceed, despite the judge’s threats to hold him in contempt of court.

And Judge William Burris did exactly what he threatened to do, holding Brown in contempt of court for refusing to “perform his duties.”

Note the specifics of Brown’s position.  He blamed himself, not his client.  He did not throw his client under the bus, justifying his decision by disclosing client confidences.  Rather, he laid his decision solely on his own shoulders, that he could not satisfy the defendant’s right to competent counsel. 

Even when faced with the threat of contempt, Brown put his duty ahead of self-interest.  No doubt he realized that Judge Burris wasn’t joking, making empty threats to see if he could scare Brown into line.  Yet, Claiborne Brown didn’t waiver in his position. He did not blink.

But Brown did not concede. “I cannot further participate,” he insisted.

“We’re not going to play these games,” Burris said incredulously. “That’s all I see this as — game playing.”

Brown apologized but held his ground. “Is there any reason I shouldn’t hold you in contempt?” Burris asked.

“No, your honor,” Brown replied. He then was led out of the courtroom by the bailiffs.

The irony appears to be that Brown shouldn’t have been the lead counsel at all.

Cumberland hired an attorney from out of state, who hired Brown as his local co-counsel. The out-of-state lawyer did not show up for the trial or any prior hearings.

Brown has been practicing law in the state since October 1998, according to the Louisiana State Bar Association.

By Tuesday, Brown filed a motion describing himself as unqualified to provide adequate counsel. The defendant’s family hired a consultant to watch over Brown’s shoulder, the judge said from the bench. That consultant found him to be incompetent, and Brown agreed.  But Burris denied the motion.

The article neither names nor explains what became of the out-of-state lawyer who should have been the primary defender,  As Brown came into the case as the carpet-bagger’s local counsel, it was never his intention to serve as lead. Nor does the article explain the role of the consultant, though all of this suggests that the defendant had the wherewithal to retain a lawyer well-suited to the case.

So what gives rise to the reservation about Brown’s handling of himself, and his inability to proceed as lawyer for the defendant?  Claiborne Brown’s motion to be relieved came two days into trial, a jury selected and seated, and following opening statements and two witnesses.

A jury was seated, and the state had called two witnesses, totaling at least $2,000 in expenditures, Burris noted. The two little girls traveled hundreds of miles to testify.

It would set a “horrible precedent” to call off the trial with no obvious signs that the lawyer was incompetent; Brown had given a fine opening statement and adequately questioned witnesses, Burris noted.

Whether fears of a “horrible precedent” are real can be subject to debate, but it’s hard to conceive of why Brown’s epiphany came two days into trial rather than, say, the day he was retained or any time in between.  There reaches a point of no return, and clearly that point comes before the jury is sworn.

That Judge Burris, noting that a defendant on trial isn’t entitled to a good lawyer but merely one who isn’t overtly incompetent and doesn’t sleep through the truly critical portions of testimony, disputes Brown’s (and the defense consultant’s) assessment of his work.  Brown says he is inadequate. While a judge may blow some smoke for the purpose of moving the case forward, a declaration of incompetence is tough to overcome.  After all, no one knows better than Brown what he should be doing for his client.

It’s understandable that Brown may find himself incapable of providing the degree of zeal his oath demands. Not every lawyer can stomach sex offenses, particularly when they involve something as horrific as the rape of children. Indeed, I’m one of them, and I don’t take such cases because of it.

But then, this isn’t something that you figure out in the middle of trial.  If the nature of the case precludes a lawyer from providing a zealous defense, then don’t take the case in the first place.  If you thought you could do it but, after learning more about the case, find it impossible, then get out at a stage when no prejudice will accrue to the defendant.  Give the defendant an opportunity to retain a lawyer who will provide him with the defense he deserves. Mid-trial is not the time to figure out there’s a problem.

While there is much to say about Brown’s handling of this flagrantly awkward and prejudicial situation, particularly that he didn’t suggest in any way that his client’s conduct, his client’s guilt, was so repulsive that he had to run away.  But the failure to realize this in a timely fashion is inexcusable. 

The situation before Judge Burris was untenable, as he was right to question Brown’s midnight confession of inadequacy, and likely had no choice but to hold him in contempt.  While his conclusion that Brown was competent because he was able to say “howdy” without tripping over himself doesn’t prove competence, he was similarly confronted with a box full of happy jurors and a defendant who was entitled to have them decide his fate.  It’s hard to blame the judge for the defense lawyer’s egregious error.

It’s okay to decide that a case, a defendant, a crime, isn’t for you. Do it up front.  Once you’ve assumed the obligation, and once your change of mind inures to the defendant’s prejudice, the time to change your mind is over. Fulfill your duty.

H/T ABA Journal

I’m deluged with lawyers, marketers, the ABA, and pretty much anybody with email or internet access, telling me how the internet is going to save us.  By “us,” I mean lawyers and those who use lawyers. String together as many vague, fuzzy words as necessary, which proves that it’s where lawyers will find the path to wealth and prestige.

Which compels me to wonder how to account for reality.  Over at Popehat, Ken talks about the latest internet crazy. As anyone who has either spent some time online, or taken a stand on anything remotely resembling principle, has learned, the internet is filled to the brim with crazy.  Ask Marc Randazza. Ask me too.

Or then there are the lawyers who believe their next legal fee is coming via the internet, only to learn that they’re the latest targets in the Nigerian scam that’s been around for at least 30 years, but has gained incredible new life online. An email comes in from a “new client” and a lawyer is thrilled. After all, isn’t this how clients will be finding counsel in the future?  Isn’t this what lawyers are counting on?

Or maybe it’s just the tire kickers, the clients without money or who read the “how to hire a lawyer” advice on co-op advertising sites that scam lawyer and client alike in order to sell advertising at a penny a click.  These are the one who believe you need to interview a few hundred lawyers and ask insightful questions like “how many cases like this have you handled” before they demand pro bono representation.

Years ago, the sound of a ringing telephone brought a smile to my face. If it was a new client, they would come by way of a former client or a lawyer who knew me, and who knew the nature of cases I took, the quality of work I did, and the fees I charged.  It was rarely someone who was considering retaining me, but someone who sought my representation.  The first meeting was not an interview, but getting started.

Today I cringe when the phone rings.  What will it be now, a shop-lifting case in Phoenix?  A post-appeal request for pro bono?  Maybe some incomprehensible harangue about the evils of the system and why I (you da lawyer, you supposed to fix it) am obliged to end it?

A while back, I noted that the blogosphere is the great equalizer.  We don’t always know who we’re dealing with, whether male or female, black or white, young or old. The problem is it extends far beyond the positive, the elimination of irrelevant bias, and deep into the realm of more troubling humanity.

Twitter sends me emails about new followers, and sometimes I look to see who they are, pondering the essential question of why anyone would want to follow me.  Most of the time, the bio is a flagrant advertisement, whether it’s for their legal, marketing or SEO services.  The child-like come-ons, once slightly novel, have become utterly predictable in begging that I follow their journey to whatever they want me to buy.

Buy?  I don’t know who you are. Are you a nutjob, a tire-kicker, a Nigerian prince?  Some of you might be great lawyers, or great people, and if I ever had a chance to know you, I would want to go to dinner with you and send you business.  But I will never know because there’s nothing about the internet that allows me to generically distinguish you from the liar, the moron, the incompetent and the dishonest.  It’s not that you’ve done anything wrong, but the internet, the great equalizer, makes everyone look the same.

I’ve learned this the hard way.  There are people with whom I’ve interacted online for years, only to learn later that I was very wrong about them.  Whether I was naive or just stupid is hard to say, but as my mistake smacked me upside the head, I learned.  Just because you retweet something I wrote doesn’t make us best friends, or make you my new go-to guy for personal injury.

My purpose in writing this isn’t to thwart the myriad businesses and well-intended scams of hungry entrepreneurs who are certain that their future wealth will be found on the internet, but rather because it’s painful to watch others endure the suffering that comes at the hands of the internet.  It struck close to home when I read Ken’s post about his internet psycho, or Marco’s story about how websites in the name of his wife and daughter had been purchased by an internet nutjob.  And for those who haven’t figured this out yet, some of the crazies playing lawyer online are, in fact, lawyers. And crazy. And dangerous. 

Every day, new lawyers come aboard the speeding internet train, praying it hasn’t already left them behind.  They use all the tool marketers tell them they must, writing happy posts and retweeting anything they think will get them a new friend. They phrase their bios and websites and toss in a video to prove their sincere. Some leave out the unpleasant details and show only a perpetual smile.

What they don’t realize is their friends are at best others hoping for the same as them, to get someone to throw them a bone. At worst, they’re following a crazy person or a Nigerian lottery winner.  And when their phone rings, and the caller says they found them on the internet, they will come to the painful realization that they’ve put in this effort, spent their money, for nothing.

It’s not that I don’t enjoy and appreciate the internet. I do, even with all the problems it has. But then, I realize the problems exist and have become generally savvy enough to avoid many of them.  I’ve been around here for a while.  Many others are new and hear only about the joys and wonders of the internet.

It’s unlikely that any lawyer seeking their fortune on the internet is going to heed my words.  It’s been a while since any bar association asked me to participate in a CLE about social media, as they much prefer those who have happy and positive things to say rather than warnings about scams, liars and nutjobs.  Nobody wants to hear the downside. It’s unpleasant.

But once a lawyer has made the mistake of buying into “the future,” they may find their way here.  Maybe some lawyer’s family won’t have to endure a psycho stalker putting up websites about how they’re pedophiles.  The internet may not save you, but it can do you a lot of harm. Maybe I can help somebody avoid that harm. 

There’s an undeniable element of Schadenfreude  in the words of Indiana Fraternal Order of Police president, Tim Downs:

It’s just a recipe for disaster,” said Downs, chief of the Lake County police in northwest Indiana. “It just puts a bounty on our heads.”

(i) A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to:

(1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force;

(2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or

(3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.

The expanse of this law is broad, covering not just entry into a home, but trespass on the curtilage (the lawned area surrounding a home) and even an occupied motor vehicle.  It calls upon a person to exercise a degree of discretion to distinguish between a lawful entry or attack and an unlawful one.  This isn’t an easy thing to do.

Tim Down is afraid, and may well have damn good reason to be afraid.  Then again, so should everyone else in Indiana. As much as the right of a person to defend himself against unlawful force should be a core principle, it also presents a very dangerous problem. A cop afraid is a cop who shoots first.  His fear may be irrational and baseless, though you can bet he’ll come up with a reason for firing before the ambulance arrives, but the First Rule of Policing can never be ignored.  If someone is going to die, you can bet the cop prefers it be you.

Behind this law is the belief that no one, public servants included, have the right or authority to break the law and unlawfully violate your rights.  It’s a beautiful concept, and one that every American, cops included, should hold dear. There is no freedom if it can be wrongfully taken without recourse.

While this seems at first blush to level the playing field, to give police a good reason to pause before engaging in unlawful conduct such as occurred in Barnes, it’s never quite a fair fight.  First, the police will still be the ones to initiate action, meaning they can do so, plan it, execute it, in a way that will invariably favor them and their safety at the expense of the citizen. 

Second, the cops have weapons, and more of them, that you don’t have. Whether tanks, drones or merely a few dozen automatic assault rifles, they are nothing if not well armed.  What are the chances a guy, half asleep, is well-positioned to fend off a SWAT team?  He may get one of two, but his chances of survival are slim to none. Once bullets start flying, the police aren’t going to stop until someone goes down.

Third, the police officer who stops your car, whether you believe rightfully or wrongfully, is coming at you with a serious concern that might not take the stop with equanimity.  He’s going to have his hand on his gun, and he’s going to be ready to use it.  Reach for your registration and it’s a furtive gesture. Boom. Don’t expect the cop to hesitate, and don’t expect the legal system to blame him for it.

If this law restores some degree of balance, appropriate concern without undue fear, then it may well accomplish its goal of telling the Government that it is not entitled to illegally storm a home simply because it can.  Certainly the courts are incapable of stopping this from happening, as if the police had any concern about what a court might say.  That something more was needed to remind the police that they don’t own us is beyond question.

Yet, this may be a recipe for disaster. Not the disaster that Downs fears, but the disaster of cops shooting people first because they fear people exercising their lawful right to resist with force.  As I’m not from Texas, I don’t want to see anyone die. Not cop. Not citizen. No one.

Perhaps the tension this creates will make the police think hard about engaging in unlawful conduct, and potentially breaking the First Rule of Policing.  Perhaps this will produce a blood bath, with the citizen invariably on the south side of a tank rolling north.  The simple answer is for cops to stop engaging in unlawful conduct, but then, the police never seem to grasp why they aren’t entitled to do whatever they please. 

Regardless of who’s to blame, let’s hope that this law serves its purpose and doesn’t become an excuse for roadside murders.  Of anybody.

The Supreme Court of the United State of America held that detainees, say like those held in the lovely island paradise at Guantánamo Bay, Cuba, even if named Lakhdar Boumediene, could challenge their detention in an American court using the device of habeas corpus.  In a 5-4 decision, the Court refused to allow the government to suspend that right. It was a glorious day for the Constitution.

Yesterday, we learned that seven petitions for writs of certiorari were denied because not even four justices of that court thought them worthy.  The  Center for Constitutional Rights issued a press release:

June 11, 2012, New York – Today, in response to the U.S. Supreme Court’s denial of certiorari to the cases of seven Guantánamo detainees who had petitioned the Court for review of decisions by the Court of Appeals for the D.C. Circuit, Center for Constitutional Rights (CCR) Executive Director Vincent Warren issued the following statement:

The Center for Constitutional Rights is extremely disappointed in the Supreme Court’s denial of certiorari in the latest set of habeas cases brought by Guantánamo detainees. By refusing to hear these cases, and any Guantánamo cases since its 2008 Boumediene decision, the Court abandons the promise of its own ruling guaranteeing detainees a constitutional right to meaningful review of the legality of their detention. Today’s decision leaves the fate of detainees in the hands of a hostile D.C. Circuit Court of Appeals, which has erected innumerable, unjustified legal obstacles that have made it practically impossible for a detainee to win a habeas case in the trial courts.  The D.C. Circuit, the country’s most conservative court of appeals, has reversed every detainee victory appealed to it by the government, and as consequence, district courts in D.C. have ruled in favor of detainees in only one of the last 12 cases before them.

 

For nearly 10 years, the Supreme Court’s involvement has been essential in checking the excesses of Executive-Branch detainee policy and in clearing a path in the lower courts for justice for the detainees. The Court’s refusal to get involved at this critical juncture permits the Court of Appeals to continue to rubber stamp the military’s decision-making, undermining our constitutional system of separation of powers.

 

In light of the failure of the courts to carry out their constitutionally-assigned role, CCR calls on the President to fulfill his promise to close Guantánamo, the most infamous prison in the world. He should begin by releasing the 87 men who military, intelligence and law enforcement agencies have unanimously concluded should be released on the grounds that they pose no danger to the United States. 

If you do any federal defense work, you despise the Sentencing Guidelines, both for their draconian approach to sentencing as well as their facile ambiguity, with vague yet overarching rules and are complicated by vague yet incomprehensible application notes. 

While they may not be mandatory (as they were for decades of defendants sent to prison forever because the Supreme Court neglected to mention it until Booker), they remain advisory for all and the rule for guilty pleas, which typically forbid the defense from seeking a below guidelines sentence.  Sure, there’s always a plea for the parsimony clause, but don’t bet your life on it.

So is it just us, or do judges think the guidelines are incomprehensible as well?  Enter Judge Richard Posner, writing for the 7th Circuit in U.S. v. Figueroa.

Economy of words is not a defining characteristic of lawyers, including the lawyers who drafted the sentencing guidelines and application notes and the lawyers and judges who have drawn on the seven factors in Application Note 4 to help determine who is a “supervisor.”…

Application Note 4 relates only to the organizer-leaders; we cannot see what guidance it provides to determining whether a participant who is neither a boss nor a grunt is a manager or (the same thing, just a different word) a supervisor.  When the question is not whether the defendant is a leader or organizer, but instead a manager or supervisor in a hierarchical organization (hence a “middle manager”), there is no need to sweat over the terms “manager” or “supervisor”….

First, some news for Judge Posner. While he may not feel it worthwhile to “sweat” the details, trust me when I say that defendants do. A two to four level enhancement under the guidelines means a long time that you don’t get to sleep in your own bad. It matters. A lot. A whole lot.

But one has to admire Judge Posner’s “regular guy” approach to guidelines interpretation.

If a judge, a probation officer, a lawyer, even a defendant, doesn’t know what a “manager” or “supervisor” is, Application Note 4 isn’t going to help him — especially since it’s about organizers and leaders and not middle managers and low-level supervisors, as the cases, hungry for text to hang a decision on, are reluctant to acknowledge.  So we won’t try the reader’s patience with a trip to the dictionary, where we would find other unhelpful synonyms for “supervisor,” such as one who “oversees,” or unhelpful periphrases such as “to coordinate, direct, and inspect continuously and at first hand [in order] to accomplish” some objective.

It’s the old wink, we know what it means, style of judicial interpretation.  Who doesn’t love a judge who winks?

But as long as we’re talking real (as opposed to those “dictionary synonyms” that try the reader’s patience), let’s dig a bit deeper.  Not too many people involved in drug dealing went to business school.  They aren’t necessarily adept at creating hierarchical organizations to facilitate the efficient functioning of their enterprise.  The basic premise of the guidelines, that criminals function much like any business, except that what they sell is illegal, isn’t always the case.

They’re sloppy.  They’re inefficient. People straggle into, then out of, then back into, crime as the opportunity presents itself. They take orders one day and give them another. When the chance to sell some drugs becomes available, they sell.  When there are no drugs to sell, they do something else.

Not every word out of their mouth (and conveniently caught on a wire) is about drugs. If they want rice and beans for dinner, they tell their spouse they want rice and beans for dinner. It’s not code for drugs.  Every time a number is mentioned, it doesn’t mean kilos. It may mean grams. It may mean something completely unrelated to drugs. This is because drug dealing isn’t always a steady job, and even if it is, the people involved aren’t talking about it 24/7. Like other people, they talk about other stuff as well. If they want to drink some beer, they may ask a friend to bring over a six-pack.  Sometimes, a six-pack is just a six-pack.

Years ago, when cell phones were still a novelty and cost about $12 a minute, I borrowed one from a client. We were driving back to Manhattan from the Bronx in the evening, after an arraignment of one of his friends, and I remembered that it was my mother’s birthday and I had neglected to call her. She was deeply hurt when this happened, as I learned the year before when I forgot as well.

I borrowed the cell phone and called my mother, giving her birthday wishes and mentioning, in passing her years on earth.  She was happy I called.

A year or two later, the fellow whose cell phone I borrowed was the lead defendant in a large, multi-defendant wire prosecution.  In perusing the line sheets, I happened upon a call from my guy’s cell phone by  “Unk Male” to “Unk Female” about a “birthday” with a very large number, characterized as “code for drug transaction”  involving an enormous number of kilos of cocaine.  I would have never imagined my very own mother alleged to be an unindicted co-conspirator. And me too.  I explained this to the judge, who had a good laugh about it (as did we all).  But it really wasnt funny at all.

So while Judge Posner may think it’s time to “get real” about the absurd efforts to quantify and categorize, to pigeonhole and rationalize, crime and sentence, and the sanitary theoretical components that go into a detached vision of how crime happens and what makes it more worthy of a severe sentence, let’s not forget one unfortunate detail:  It’s all a crock, start to finish.  Neither the prosecutor, the agents, the probation officer nor the judge has any firm grasp on how a conspiracy happens, or what the participants do, or how “real” the imaginations of people in suits are when it comes to how people on the street behave.

This is all just make-believe on the way in.  How good of Judge Posner to make it real on the way out.  How good of those protecting us from these conspiracies to know how it all really works.

H/T Sentencing Law & Policy

As the FBI investigated New Haven police Sgt. Chris Rubino for his having seized a smartphone and arrested it’s owner for having committed no crime, he took to the media to defend his honor. From the New Haven Register :

 A police sergeant at the center of Internal Affairs and FBI probes said he believed he had a legal right to seize a woman’s smartphone and the video it contained as evidence that police acted properly while arresting a man during a tussle outside a downtown nightclub.

“I did absolutely nothing wrong,” said Sgt. Chris Rubino, a 19-year veteran of the New Haven Police Department. “I did my job out there. Whether people want to believe I did otherwise, I can’t change that. People are going to believe what they want.”

I seized your car because you weren’t speeding.
I seized your money because it wasn’t criminal proceeds.
I seized your house because it didn’t contain drugs.
I seized your daughter because she didn’t get raped.
I seized your smartphone because it recorded me acting properly.

A picture taken by another bystander shows Rubino with his foot on the head or neck of the arrestee. Rubino attempted to provide context to the image: The man hadn’t been handcuffed or searched for weapons yet and was spitting blood as officers attempted to take him into custody following a weekend incident behind Pulse Night Club. Rubino’s actions were intended to subdue an actively combative suspect, the sergeant said, as other officers took the man into custody.

“I did what I had to do. My job is to get me and my officers home every night” safely, he said.

He also rejected suggestions that police could have waited and asked the woman to turn over footage at a later time. While images of police acting inappropriately show up on the Internet, he said, when is the last time someone posted videos of police acting appropriately and doing their job in difficult situations, he asked.

“Has anyone ever, ever turned in evidence that was in our favor? he asked. “I asked her nicely three times. I’m not going to stand out there and play games. She’s the one who thought she knew the law.”

The woman stated that it was her constitutional right to film police, a position affirmed by the Justice Department. A New Haven police general order also assures citizens the right to film police doing their job.

In 1972, Leonard Jacoby and Steve Meyers, former classmates at UCLA Law, came up with a novel idea.  Create a law firm to serve the middle class, the nice folks who were priced out of the legal market but still needed a lawyer.  It was revolutionary.

They did things no one else had every done. They advertised. They charged flat fees. They used computers. But the soul of their venture was to do something no one had ever done before, or wanted to do before: be the lawyers for the middle-class. The catchphrase, “It’s about time,” referred to the notion that there were finally lawyers regular people could afford. It was brilliant.



The idea may seem obvious today, but it was audacious and outrageous at the time.  Initially, it was very successful, and soon there were 150 offices, primarily located on both coasts. They handled the full panoply of normal legal work, from wills to criminal, the sort of law that regular folks needed.  The “new normal” was born.

But it gave birth to the idea that lawyers could provide mediocre legal work for lower fees, and tap a new market of people who couldn’t afford top notch lawyers with exorbitant fees.  Suddenly, there were 10,000 lawyers charging lower rates, and offering generic services, for the everyman.  And they started to fight when the money got tight, and they just didn’t count on the tears.

By the mid-1990s, in response to competitive pressures, the firm retrenched to 150 attorneys from a high of 330 and stopped handling many of the ordinary personal bankruptcy, real estate closings, uncontested divorces and will preparation that had been its bread and butter following the firm’s formation, but which had faced a market saturated with lawyers and law firms that adopted many of the innovations that Jacoby & Meyers had introduced, accepting credit card payments, charging flat fees and using computer systems to track cases. By 1994 the firm’s television advertising spending dropped to $2.3 million annually, down from their spending peak at $6.4 million in 1988. The firm shifted its focus to age discrimination, consumer fraud, product liability and sexual harassment, where litigation was more lucrative.

When you’re drowning, you’ll grab at anything you think will keep you afloat, even if experience shows that it isn’t as buoyant as it seems.

The experiment of Jacoby and Meyers taught three lessons. There is a market for legal services in the middle class, but while they want to pay as little as possible, they still expect quality legal representation.  The model of pay less, get less, wasn’t “about time.”

The model was capable of providing subsistence level income to lawyers, which is better than starvation.  But most lawyers hope to eventually plant themselves firmly in the middle class, home ownership, new car, feed their children most nights. That sort of thing. The model wasn’t sufficient to get them there.

But the most important lesson is that every new idea, to the extent it might have any viability, will collapse under its own weight as the market becomes saturated. If someone is selling you the idea, they are also selling it to every other hungry lawyer. It might work for one. It won’t work for all.

My pal, Pat Lamb, writes about the New Normal at the ABA’s silly Legal Rebels blog. His latest post is that we’re not special.  He refers to the dictates of economics, though he omits from the equation the constraints and obligations that distinguish lawyers. Still, he has a point.  Lawyers are as much victims of economics as anyone else.

The laws of economics haven’t changed much since Jacoby and Meyers were friends.  Normal hasn’t gotten any newer.  Even if it works for you for a while, it doesn’t mean you won’t meet the same end as J&M. There is no magic bullet.