The  facile quote comes from Stephanos Bibas, a University of California law professor:

In his article in The California Law Review, Professor Bibas wrote that plea bargaining is a market that requires supervision. “It is astonishing,” he wrote, “that a $100 credit card purchase of a microwave oven is regulated more carefully than a guilty plea that results in years of imprisonment.”

That’s certainly true, but provides absolutely no guidance for the court in fashioning a rule or remedy, and therein lies the big issue in Lafler v. Cooper, to be argued before the Supreme Court.  Cooper and its companion case, Missouri v. Frye, involve bad plea bargain advice that prevented the defendants from copping out, to their detriment.

As Adam Liptak puts it:

Anthony Cooper shot a woman in Detroit in 2003 and then received laughably bad legal advice. Because all four of his bullets had struck the victim below her waist, his lawyer said, Mr. Cooper could not be convicted of assault with intent to murder.

You know how juries are always rational and predictable, so no problem going to trial.  Except Cooper was convicted and sentenced to 15 to 30, instead of the 4 to 7 he could have had.

At least Mr. Cooper heard about his plea offer. Galin E. Frye’s lawyer never told him that prosecutors in Missouri were willing to let him plead guilty to a misdemeanor and serve 90 days in prison for driving without a license. When Mr. Frye did plead guilty after the offer expired, he was sentenced to three years.

The cases involves two issues, one that doesn’t seem much of a stretch and another that presents a very significant problem.  The first is whether bad plea bargain advice falls within Strickland at all, since the guarantee is effective assistance at trial, not at plea.  The argument is that the second prong, prejudice, can’t be met since no defendant is guaranteed a plea offer anyway.

Last year, 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was 94.

The courts below had no problem holding that competence applies to all critical stages, and the Padilla v. Kentucky certainly provided strong support for the proposition. 

A brief from New York University’s Center on the Administration of Criminal Law urged the justices to consider what it called “the inherently coercive and asymmetric confrontation between prosecutor and defendant,” one in which the assistance of a competent defense lawyer is vital. More than half of federal offenders sentenced in 2009 had not completed high school, the brief said; only 5 percent had completed college.

Without the lawyer doing his job of advising a defendant properly as to the efficacy of a plea bargain, most defendants will be screwed.  It’s no stretch to argue that prejudice is suffered when a four year deal is lost to 15 years because the lawyer blew it.  But the much harder issue is what to do about it.

The defense argues that the remedy is to return the defendants to the status quo ante, allowing them the opportunity to accept the plea bargain they were denied by their lawyers ineffective assistance.  On its face, a very reasonable outcome.

The prosecution, however, raises the perpetual specter of lawyer and criminal colluding to get a free ride at trial.

A federal judge in Mr. Cooper’s case tried to roll back the clock, requiring officials to offer him the initial deal or release him.

That allowed Mr. Cooper, convicted of shooting a woman, “to play with house money,” Bill Schuette, the Michigan attorney general, told the justices in a brief in Lafler v. Cooper. Mr. Cooper could take his chances at trial and, if he lost, insist on the rejected plea deal, he said.

The fear is that after a full jury trial, and conviction, the lawyer says, “Oops, I forgot to let the defendant know about the plea offer of 17 minutes incarceration. My bad, judge.”  Since there no official set of ears listening in on the communication between lawyer and client, there’s no one to dispute neglected or horribly wrong advice.  Or, in the case of a lawyer and client deciding to beat the system, collusion to give defendant a trial without risk. 

At SCOTUSBlog, the problem is summed up:

The states and their amici suggest that adoption of the lower courts’ approach will discourage pleas, encourage collusion between defendants and their counsel, and open the floodgates to post-conviction or post-guilty plea appeals and habeas petitions.  The defendants and their amici argue that the parade of horribles is unrealistic, that collusion is unlikely given legal ethics rules, and that effective counsel is crucial to the integrity of the plea process, particularly given that prosecutors possess significantly more information than defendants during plea negotiations. (Emphasis added.)

Will “ethical rules” eliminate the collusion problem?  It’s certainly done wonders for deceptive internet marketing.  My take is that while the problem raised by the prosecution with what would otherwise clearly be the appropriate remedy, the court cannot systemically rule that criminal defense lawyers, as opposed to prosecutors or any other discrete group of lawyers, are so inclined to violate their ethical obligations that a rule is fashioned that presumes unethical conduct.  Unless they court is prepared to do the same for prosecutors when it comes to Brady.

Many of the problems can be cured by formalizing the plea bargaining process, such as putting offers in writing or on the record in the defendant’s presence. Of course, this wouldn’t stop the hypothetical offers (Prosecutor: if I were to offer your client 1 to 3, would he take it?) or affect the negotiation process, at least it would prevent what happened to Frye, where the defendant never knew an offer was made,

As for bad advice by the criminal defense lawyer, if the court comes up with a solution to that, we can all rejoice.  With the bar as low as it is, and the general concern being far more about whether Mr. Green will show up than whether a client is competently advised, the problem goes far beyond the horribles of plea bargains. 

And lest anyone note that it’s not just defense lawyers, it’s most assuredly not.  But since the Supreme Court is overwhelmingly protective of prosecutors, so that they shouldn’t get so nervous when they violate defendant’s constitutional rights that they forget to be brave with heinous murderers, it wouldn’t hurt to give a small fraction of their belief in the integrity of lawyers to the guys and gals at the other table in the well.  It’s not the defendants fault that lawyers aren’t always what they should be.  While it’s a sound argument that they should suffer for their deeds, they shouldn’t suffer their lawyer’s incompetence.

Update: It seems like oral argument  didn’t go too well for the defendants.

Asking judges to go back and figure out on appeal whether a suspect would have taken a plea deal before a trial, whether a judge would have accepted it, whether a prosecutor would have withdrawn it or whether the negotiations would have fallen apart “is simply unworkable,” said Justice Anthony Kennedy, who is often a tiebreaker votes on divisive issues.

And it gets worse.

Several justices seemed concerned about how changing the plea system would affect prosecutors and judges. For example, it’s easy for a criminal facing a decade in prison to say he would have taken a plea deal for one year after a judge has sentenced him to 10 years in prison, justices noted.

But the negotiations are going on before trial, and by “not accepting it he has a chance of going scot-free” if a jury finds him not guilty, Chief Justice John Roberts said.

After conviction and sentencing, Roberts said, “presumably the defendant will always say, ‘I would have taken that deal, because it’s better.’ So how is a judge supposed to go back and decide whether that’s true or not” on appeal?

Of course, if it’s in writing, or in open court, well then we wouldn’t have to guess. But then, I wasn’t arguing the case, now was I?

The link from Ed at  Blawg Review bore a lot of similarities to my ongoing twitter campaign to smack KitchenAid for its failure to fix my new fridge, which is getting less new even as we speak.  It came from a blog ignominiously called Inbound Internet Marketing Blog, and I get the shudders just typing those words.

Written by Jeanne Hopkins, the post was entitled Complaining Via Twitter? Don’t Expect Much. It seems I’m not the first to try and see whether the utility of social media is all the faux social media pundits claim it is.

Years ago, I was a member, and later chaired, the amicus committee for the New York State Association of Criminal Defense Lawyers.  At the time, it was an active committee, its procedures formed by Malvina Nathanson, who took her work very seriously.  The committee not only addressed cases where our involvement was requested, but actively sought out cases involving important issues of law.

We often argued, and disagreed, about which cases to support, and if support was appropriate, what position to take.  It’s hardly simple.  There were cases where the outcome sought by the defense had the potential to be enormously disruptive to law that was more generally beneficial to defendants.  Principle played a huge role in making these decisions, as did concern that a crucial issue of law was in the hands of a defense lawyer who might not be up to the task.  A great case in the wrong hands could spell disaster for criminal defendants.  We tried not to let that happen.

At Volokh Conspiracy,  Orin Kerr and  Ilya Somin discuss NYU lawprof  Richard Fallon’s article on the ethics of lawprofs signing on to amicus briefs.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite.

For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

If I were a law clerk, I would ignore the names of professors who are signatories but not authors of amicus briefs. In my experience, some of the professors who sign on to amicus briefs don’t even bother to skim the briefs filed in their name. Those who read the briefs sometimes have serious reservations about their content, and others simply don’t know enough about the area of law to determine if the brief is accurate. Caveat scriba, you might say.

The reason I ask this question is that it seems utterly obvious to me: of course legal scholars (and scholars from other fields who sometimes submit amicus briefs, like historians) cannot just sign briefs willy-nilly, or on the sheer basis that the signer agrees with the desired outcome or the general drift of the argument.  As long as a brief is designated a scholars’ brief, each individual who signs it must be convinced of the detailed arguments made in that brief.  Period.  Fallon argues that many professors who sign amicus briefs don’t live up to that obligation, and I believe he is right.  My operating assumption is that when this happens, it’s because the signer has an ideological commitment to some outcome and is willing to accept some arguments he or she may not agree with, or to sign without looking closely and deciding whether he or she agrees on the particulars or not.  I consider this an abdication of scholarly responsibility, and although Fallon nicely lays out some of the underlying issues and complexities, ultimately I see this as a no-brainer.

Long ago.  And oh so far away.  You got a speeding ticket passing through South Cacalacca.  Well, you figured you would never make that mistake again. No, not speeding, but passing through South Cacalacca, and for 30 years, you waved as you flew over it, never thinking again about that lonely summons sitting quietly in a clerk’s office somewhere awaiting payment that never came.

Guess what? It’s ba-aaa-ack.

Patricia deWeever got a surprising notice recently from the state of Massachusetts, saying her license would be suspended if she didn’t settle parking tickets she received 25 years earlier in New Jersey.

Huh? Twenty-five year old parking tickets? The state of Massachusetts isn’t kidding, and neither are New Jersey and states and cities across the country which are turning to collection agencies that specialize in tracking down people who owe them money from the days of Ronald Reagan’s and George H.W. Bush’s presidencies. Those tickets were written often before such records were even computerized.

What? You thought nobody would ever figure out how to use a computer to locate the scofflaws of days gone by?  It’s money, and few things motivate government more than getting money. Especially money that comes from miscreant scofflaws. Like you.

So it’s ancient. You don’t even remember it. You can’t be sure you ever got the ticket, or if so, whether you deserved it.  So what?  The time to fight died with Reagan’s Star Wars missile defense plan, and it’s not written in stone. All it waited for was the chance to find you again. And now it did.

What about the statute of limitations, you cry.  How could something so old come back to bite you in the butt decades later?

While many states have a statute of limitations on prosecuting felonies, there are few that have such limits on prosecuting parking tickets and moving violations. New York State is one of the few, with a statute of limitations of eight years and one day from the date of judgment.

Yes, New York is an enlightened state, though I bet some grocery clerks wish it was otherwise now.  But it’s not going to help you in South Cacalacca, where that unpaid judgment will not only linger forever, but track you down and find you.

Private corporations track down the old scofflaws in exchange for a cut of the ticket revenue, so it doesn’t cost municipalities anything to hunt people down. One such company is Massachusetts-based Municipal Management Associates (MMA). On the firm’s website, it boasts reeling in $753,440 in uncollected parking violations for Springfield, Mass., over 17 months, out of a total of $5.6 million that was on the books.

For the government, it’s found money.  For the collectors, it’s great business. For you, it’s, well, tough.

One of the frustrating things for consumers is that details of a 20-year-old ticket are sketchy or non-existent. The fines add up to a couple of hundred dollars, and most draw the conclusion that they will pay it rather than endure the hassle of hiring a lawyer, or pursuing a Byzantine process of challenging it. In deWeever’s case, she will end up paying New Jersey $129 to settle the tickets plus a nebulous $100 license reinstatement fee, so she can legally drive in New Jersey to go visit her mother. On top of that, Massachusetts is also charging her $100 to reinstate her license in that state.

It may well be that you never received the ticket, or didn’t deserve it, or the cost or circumstances of fighting it just didn’t work out at the time.  Whatever. 

In the age where everything about you is readily available online, this initiative shouldn’t come as any surprise.  Just wait until libraries figure out they can collect those late fees for failure to return Pat the Bunny.

No need to harp on the loss of privacy or the invasiveness of government in our mundane lives.  But there’s no walking away from ancient history anymore.  That uncool cop after that wild college party doesn’t remember you either, but 25 years later, he gets the last laugh.  Suck it up and pay. You’re not going to beat it.

H/T Hinterlands correspondent, Kathleen Casey, who has never violated a traffic law. Ever.

I’ve often said that I could be rich if only I had larceny in my heart.  The opportunity is there, sometimes rammed down my throat by desperate clients who abandon any firm grasp of reality in the vain hope of avoiding the consequences of their actions. 

What am I talking about?  A surprising number of clients believe that there is a way, someone, something, for them to buy themselves out of their troubles. They look in my eyes, a sheepish grin on their face, and ask whether there’s a person I might know, be it a judge, a clerk, a cop, anyone, who would take a suitcase filled with money and make these problems go away.  There must be someone, they say, as their look turns to desperation.

What if I told them what they want to hear?  Sure, there’s this guy who can do magic.  But it will cost you, big. Huge.  When they’re facing a lifetime in prison, they can deal with “huge.”  All reason shuts down and they will do anything.  Anything.

But, it’s not 100%.  There’s always the chance that something goes wrong, someone sees something and it all gets blown.  Maybe it doesn’t happen.  It’s not a lock, and you don’t get your money back.  Are you still willing to do it?

Abraham Moses Fisch, 52, a criminal defense attorney in Houston, was arrested this morning on charges of conspiracy, obstruction of justice, money laundering and conspiracy to commit money laundering, federal prosecutors said.

According to the indictment, Williams, although not an attorney, held himself out as someone who could resolve criminal cases through his contacts with government officials. Williams,  Fisch and Bertman worked together to solicit federal criminal defendants as clients under false pretenses. They claimed to the defendants that Williams had the power to cause their criminal charges to be dismissed or their sentence reduced if they would hire Fisch as their attorney, pay a large sum of money to Fisch and Williams and then provide Williams with information about their crimes. Williams claimed he would then pass that information along to contacts in various federal agencies. In return, Williams claimed his contacts would cause the criminal charges against the defendants to be dismissed or their sentences reduced.

The charges against Fisch, as reflected in the indictment, leave much to be desired.  They don’t seem to capture the factual allegations proffered by the government, and strike me as poor charging choices given what they claim Fisch did.  But that’s the government’s problem, and if they can’t figure out how to properly charge a defendant, then the charges should be tossed.

That said, the factual allegations, of Fisch and Williams running a scam to suck the ill-gotten gains from criminals who are sufficiently desperate that they will fall for such an absurd scheme, have the smell of reality.  Whether Fisch did it, who knows.  That’s for the government to prove.

But I can state with absolute certainty that this scam happens.  And there is no word in the lexicon to express the depth of my disgust for any criminal defense lawyer who would do this. 

When Gillian Hadfield, a law professor at the University of Southern California, proposed in  Washington Post op-ed that Wal-Mart be allowed to field its own law firm, it made a splash.  Lawyers hated it, as an affront to professionalism, and non-lawyers hated it because it involved lawyers, and they just plain hate lawyers.

John Eligon at the  New York Times raises the issue of whether the time has come for the United States to join Australia, and now United Kingdom, by allowing non-lawyers to own law firms.

Imagine an afternoon trip to a Wal-Mart: You pick up socks, a flat-screen television and a microwave meal. After checking out, you stop in the photo studio at the front of the store for a family portrait, and then shift one booth over to a lawyer, who drafts your will or real estate contract.

The concept may not be that far-fetched.

The concept, in fact, has some very interesting aspects, not the least of which is the potential to match the needs in obtaining inexpensive legal services with the needs of lawyers to make a living.  The volume of business that could come through Wal-Mart’s doors could prove staggering, and eliminate much of the problem for both sides of the equation.

The Wal-Mart lawyer, by having a steady stream of walk-in clients, no drain of time and resources for marketing, collections, managing a business, free consultations, and all the other things that suck time out of a day that relate to the business of being a lawyer rather than its practice, could serve more clients for less money, with efficiency and effectiveness, and provide lower cost services while earning a very respectable living, better than they could do on their own.

Are you too good to serve Wal-Mart customers? 

But there’s a problem, as Wal-Mart, in exchange for giving you an office in its store, wants something in return.  It wants to own your business.  Well, actually its business, where you’re an employee and you work for Wal-Mart.  Yeah, there’s always a rub.

“The idea is that nonlawyers might not have the same codes of ethics,” said Andrew M. Perlman, a legal ethics professor at Suffolk University Law School and the chief reporter for the American Bar Association’s Ethics 20/20 commission, which is preparing the draft recommendation. “They might not be bound by the same sense of professional responsibility and might push the lawyers to do things that they should not be doing to chase the dollar rather than abiding by the rules of professional conduct.”

One ethical concern is about lawyer-client privilege, as shareholders would have an interest in knowing who the firm’s clients were and the specifics of their cases. Another is that lawyers might feel pressured, for example, to settle a lawsuit to make shareholders happy, no matter what the best interest of their client was.

These aren’t just “ideals” of little practical importance, but factors that guide lawyers every day.  The reason they seem less compelling to non-lawyers is precisely the problem, they don’t live their professional lives in a way the places the interests of client above self, and see it as some archaic remnant of more genteel days. 

That’s the difference between a lawyer and a businessman.  The businessman puts profit first. The lawyer puts client first.  True, that isn’t the case with the Slackoisie, but the solution is to raise the Slackoisie to a minimal professional level, not reduce lawyers to the level of the Slackoisie.  Yet this isn’t the view from the gutter.

But such thinking derives from the naïve assumption that the lawyers “who currently own law firms are not motivated by profit,” said Ken Fowlie, the executive director of Slater & Gordon, an Australian law firm that was the first in the world to become a publicly traded company.

If anything, going public has increased transparency, Mr. Fowlie said, and has separated the ownership from the lawyers, giving the lawyers more distance from business side pressures than in traditional partnerships.

This conflates distinct issues. Obviously, lawyers want to be profitable so we can feed the kids like everyone else. That’s not an issue.  The question is how profitable, and what we’re willing to do, and not do, to achieve the highest possible profit.  Business will suck the blood out of customers if needed to gain a profit. Lawyers (in an ethical world) will not.

Lawyers profit motive is strong, but different.  We love profit as much as the next guy, but temper our yearning with our primary duty to the client.  Sometimes, we have to bite the bullet and let profit suffer to fulfill our obligations to the client.  We would be laughed out of the board room for this.

So the question changes from allowing non-lawyer ownership of law firms to how non-lawyers can get their money out of the deal while letting lawyers fulfill their duty unfettered by overlords with a different ethical perspective.  While this isn’t my  first choice of a long term solution to the problem of unaffordable legal services, I believe this is a problem that can be overcome with some nifty Chinese wall-type structure of corporate joint venture.

Not every lawyer will want to be a Wal-Mart lawyer. Nor will every client.  There’s no necessary correlation between working at Wal-Mart and providing low-rent services, just as the Sony TV sold there is no different than the one sold for twice the price at a boutique. 

There will be inherent limitations to the amount of time available, and it’s not entirely clear that the cost of legal services will be sufficiently reduced by the supply chain savings to satisfy the public’s needs.  If a lawyer’s time is reduced from $150 an hour to $100, is that enough to make his services affordable?  Probably not.

But at least a person can walk into a lawyer’s office, conduct a proper interview to determine needs and solutions, and look a lawyer in the eye without having to mortgage the farm.  It’s a real start in the crucial discussion of how the future of lawyering can serve the needs of real people, and holds the potential of preserving the profession while providing for the legal needs of people.

While I don’t usually do requests, my pal  Dissent was pissed about the fact that lawyers treat client files without sufficient respect for privacy.  She had a point.  Via Office of Inadequate Security :

Don’t lawyers have a duty of confidentiality – apart from any state laws that might apply – about disposal of records with personal information? I am, well, frankly annoyed at all the news reports I’ve seen about lawyers or law firms not disposing of records securely. Here’s yet another one, this time from Louisiana:

Below the interstate at Dalrymple and along the sidewalk, there are documents strewn about with personal information – names, account numbers and addresses just lying around for anyone to pick up.

But that’s not all. 9 News found court documents, some with social security numbers, bank statements complete with account numbers, even a Mastercard account number.

The law firm from whence the files came had told its cleaning company to dispose of them. Apparently, the cleaning company figured the interstate was the perfect place to do so.  While outsourcing and clouds are all the rage, the files ended up on the side of the road, exposing a whole bunch of people’s personal information to view and, potentially, abuse. Nice, right? Nobody talks about the folks you hired to do a job properly, but don’t. It’s not enough to pay someone else and wash your hands of it.

My lame explanation to Dissent was that it costs money to dispose of files properly, and lawyers are cheap.  Back in the old days, when there was no such thing as shredders, they were typically tossed in the garbage.  A really high class firm might burn them, but that would cause smog, and nobody wants that.  Truth be told, the elimination of dead files after the time to hold them elapsed just wasn’t much of an issue.  It should have been, and it must be today.

Shred old files.  Protect client privacy by properly destroying old files in a way that no one can access them.  Not even the employees of your cleaning company, who might see the side of the interstate as a really great place to dump them. 

Even if you hire a service to perform the shredding, it’s your responsibility to make sure it’s done, and done properly.  They aren’t lawyers, and they might not share your lawyerly concern for privacy.  They might even take your money and still dump the files on the side of the interstate.  It’s your responsibility to see that they don’t. 

Once again, Pogo was right.  Destroy files properly.  I know it costs money, and there’s nobody to bill for it.  Being a lawyer is such a burden.

Having dealt with Dissent’s beef, now one of my own. I’ve been deluged with calls from young, out of work lawyers who have gotten jobs cold-calling lawyers for a variety of companies selling everything from case management systems to promotional gimmicks to put on your vanity wall.

I understand that you need the money. I really do.  I also understand that you would much rather get a job practicing law than sit at home in your undies and call up people who despise you. Nobody wants to be despised.

But you’re annoying those of us who have work to do.  Here’s the deal: First, if you cold call me, do not get on the phone and ask for “Scott.”  We’re not old friends. You have not been invited to address me informally.  The only thing this does is piss me off, and I absolutely guarantee you that I will not buy anything from someone who pisses me off.  I am Mr. Greenfield to you, until I inform you otherwise.

Second, if you lie about where you’re from or what you want, you are a liar.  Even if I have the slightest interest in whatever you’re selling, I won’t buy it from a liar.  If you tell the truth, you may not get through to me, but at least you aren’t a liar.  Either way, you won’t make a sale, but if you take the liars path, you won’t make a sale and you will go to hell.

Third, don’t ask me how I’m doing. Don’t ask me how I currently manage my files.  I don’t want to chat with you. I don’t tell cold-callers about how I do anything in my practice. I’m busy and you are wasting my time. That’s when I immediately hang up the phone.

Fourth, if I tell you I’m not interested in whatever you’re selling, say good-bye and hang up.  If you push it, I will be rude.  No, I don’t care about your feelings. Not at all.

And finally, to all those in the cottage industry of scum-sucking vultures trying to take a few points out of lawyers by marketing them, and who somehow manage to put my name on your website as if I have agreed to be a part of your scum-sucking network, and then have the chutzpah to send me emails saying I’ve subscribed to you. there is a special place in hell for you.

Anyone reading this far, please note that Dissent’s beef is far more important than mine.  But since I have the keys to the front door here, I get to throw mine into the mix.  They may be trivial annoyances compared to the serious problem raised by Dissent, but they bug me.

Selwin Days was convicted. Again.  He stood accused of the murder of eccentric Eastchester millionaire Archie Harris and his live-in home health aide, Betty Ramcharan back in 1996.  From the  LoHud Journal News :

The victims were found in Harris’ blood-splattered home at 4 Berkeley Circle. Days, whose mother used to work for Harris and had accused him of molesting her, was arrested in 2001 after his ex-girlfriend tipped off police.

Days confessed to the murder at the time, but subsequently argued that his confession was false and coerced.  Back in 2001, the idea of a false confession to murder was ludicrous. Not so much today.  But this wasn’t the first time Days went to trial.  And it wasn’t the first time Days was convicted.

Days’ first trial in 2003 ended in a hung jury. He was convicted at his second trial in 2004 and given a 50-year prison sentence, which was overturned in 2009. His third trial also hung the jury, which voted 9-3 for acquittal.

The fourth jury, which began deliberations Monday, reached a verdict at 12:05 p.m. Wednesday.

At the first trial, Days’ girlfriend, Cherlyn Mayhew, testified that he bragged to her that he got away with murder.  

In 2003, Mayhew testified that Days had told her he killed two people. She changed her testimony in February 2011, when she said she couldn’t remember what Days had ever told her. Last month, she said she remembered nothing about the case – not even testifying in court earlier.

She was found in contempt and sentenced to five days in jail. Westchester County Judge Barry Warhit then declared her “unavailable” for trial and allowed her 2003 testimony to be read to jurors, as it was at Days’ second trial.

Mayhew testified that Days bragged about getting away with killing an old man and a lady who came across the scene and began screaming.

Both times that Mayhew’s testimony was read to jurors, Days was convicted.

Aside from Mayhew’s testimony and Days’ confession, there wasn’t a shred of evidence against him.  No physical evidence. No eyewitness. No forensics. Nada.  Judge Warhit ruled that Mayhew was an “unavailable” witness, and allowed her 2003 testimony to be read to the jury. 

Mind you, the report fails to say whether the judge found Days responsibility for her unavailability, or whether it was challenged on confrontation, but then, it would have been far more difficult to convict Days without it.  Ironically, when Mayhew testified live, the jury hung.  Only in the two trials where her testimony was read to the jury did they convict.

At the fourth trial, the defense sought to introduce expert testimony on false confessions but was precluded.  Interestingly, the  Court of Appeals decision in Santiago came down during trial, holding that it was error to preclude the defense from using expert testimony to explain why eyewitness IDs were unreliable when there was insufficient corroboration. 

While false confessions are obviously a different matter, both shared the problems of being overwhelmingly accepted by juries and potentially dead wrong, with substantial science behind them to show that they were fraught with error.

The prosecution, as might be expected, rejoiced over the verdict, proclaiming their absolute certainty that Days was a guilty man.  The defense, as one might expect, felt just the opposite, saying he was “100% innocent.” 

The problem, of course, is that if you try someone enough times, fudge a few details on either end of the evidence like putting in the damning testimony of Mayhew without any ability to cross-examine, and then the confession of Days, without the ability to show that false confessions happen, the chances of a conviction increase dramatically. That there were trials in the interim that resulted in hung juries, even hung in favor of acquittal, doesn’t change the calculus; each judges gets to rule on the evidence in the case before him, no matter what some bleeding heart judge ruled earlier that prevented a proper and swift conviction.

Days is taking his latest conviction stoically, vowing to continue the fight.  if he gets a fair shake from the Appellate Division, the conviction will be reversed and remanded for a new trial.  Maybe five will be the charm.  If not, there’s always six, seven or eight. 

There is something about riding a motorcycle that makes a person feel a level of freedom they can find nowhere else.  The wind in their face.  The agility of moving about at will.  The sense of being beyond the constraints of mundane limits.  Of course, very few bikers are outlaws, many wearing the same tie to work that chokes the rest of us.  But while on that motorcycle, they’re free.

There’s something about a guy on a bike that makes some cops feel puny and scared.  That’s how Ottawa Hills Police Officer Thomas White must have felt as he stopped Michael McCloskey on his Harley.  Ottawa Hills, Ohio, is a speed trap, a place that pretends to be special despite the fact that it will always be in Ohio.  And the local cops cruise the streets to find someone foolish enough to tempt fate.  McCloskey was feeling free enough to do just that.

Via Steve Magas at BikeLawyer :

On May 23, 2009, Harley rider Michael McCloskey was gunned down – shot in the back – by an Ottawa Hills police officer, Thomas White.  His crime?  SPEEDING – doing more than the 25 mph posted speed!

This story begins when Michael McCloskey and a buddy decided to ride their bikes.  Around 2:15 am they found themselves in Ottawa Hills.  Mr. McCloskey rides a rather loud Harley.

On the video, you can see that Officer White followed the bike for several minutes before he activated his lights and siren.  An agent investigating the shooting testified that it took about “5 seconds” or “600 feet” for Mr. McCloskey to stop the bike after Officer White activated the lights and siren.  Mr. McCloskey testified that the loud bike prevented him from hearing the siren and when he slowed at a stop sign he realized the police car was behind him.

White’s cruiser was equipped with a dashcam, better to prosecute with.  But what it shows this time is the banality of a man shot by a cop.



The action starts at about 3 minutes, with the stop at 3:35.  No big hubbub.  Nothing particularly noteworthy, beyond the few seconds that elapsed between the time the cruiser stopped and the moment McCloskey’s body jerked from the impact of a bullet.  After he goes to the ground, with the motorcycle still between his legs, you see smoke coming from the bike, likely from the burning of his leg by the exhaust.

Ottawa Hills is all about speeding tickets. It’s not about shooting people, something that’s not supposed to happen in the speed trap racket. So White was in trouble.

Officer White was charged with felonious assault with a gun specification.   His criminal case came up for trial in May, 2010, almost a year after he shot Mr. McCloskey.   Officer White is described as a “part time dispatcher and part time officer” for Ottawa Hills.  A special agent investigating the shooting was asked, after reviewing all the evidence, why Officer White shot Mr. McCloskey. He said, “It is unknown.”

But White testified on his own behalf.

…Labeling the situation as a “high risk vehicle stop,” Officer White testified that it would be “unusual” for someone to turn around when he shouted a command to them and so he believed Mr. McCloskey was reaching for a weapon.

…It appeared as if he was reaching for a weapon,” he said. “I feared for my life so I fired one shot…

The jury didn’t buy it either. White was convicted.  At sentence, White maintained that he should not be punished for a “split second decision.”  He was sentenced to ten years imprisonment.

But for the fact that there was a dashcam on former Police Officer White’s cruiser, Michael McCloskey would have been nursing his bullet wound and burned leg in prison, and Ottawa Hills would still be a place that bikers should avoid.

It was a simple question: Is this going to be his life?

One of my co-defendants in  Rakofsky v. Internet came to the realization that the  Rakofsky Effect was playing out, meaning that  Bennett’s first rule might apply.  When a second amended complaint with 1248 paragraphs covering more than 300 pages arrives, it’s a pretty good indication that the synapses aren’t shooting the same way they do in other people’s lobes.

My co-defendant went on:

I can see him sitting alone in his room in the middle of the night, laughing maniacally, tapping away at his keyboard, muttering “this will get ’em,” as he wipes drool from the corner of the mouth hole in his Guy Fawkes mask.