There are a variety of costs associated with the criminal justice system that aren’t discussed in polite company, from the time lost to arrest and incarceration to the hard-earned money paid out to lawyers to defend.  One of my favorite questions from potential clients is “why do I have to pay if I’m innocent?” 

But Massachusetts has raised cost to a new level, by approving a shift of costs to the defendant even when the he prevails.  That’s right: Lose, you pay. Win, you pay.  Either way, you pay.  Via  Turley, from the Newspaper :

Motorists issued a traffic ticket in Massachusetts will have to pay money to the state whether or not they committed the alleged crime. According to a state supreme court ruling handed down yesterday, fees are to be imposed even on those found completely innocent. The high court saw no injustice in collecting $70 from Ralph C. Sullivan after he successfully fought a $100 ticket for failure to stay within a marked lane.

Bay State drivers given speeding tickets and other moving violations have twenty days either to pay up or make a non-refundable $20 payment to appeal to a clerk-magistrate. After that, further challenge to a district court judge can be had for a non-refundable payment of $50. Sullivan argued that motorists were being forced to pay “fees” not assessed on other types of violations, including drug possession. He argued this was a violation of the Constitution’s Equal Protection clause, but the high court justices found this to be reasonable.

“We conclude that there is a rational basis for requiring those cited for a noncriminal motor vehicle infraction alone to pay a filing fee and not requiring a filing fee for those contesting other types of civil violations,” Justice Ralph D. Gants wrote for the court. “Where the legislature provides greater process that imposes greater demands on the resources of the District Court, it is rational for the legislature to impose filing fees, waivable where a litigant is indigent, to offset part of the additional cost of these judicial proceedings.”

In a quirky decision, the Appellate Division, Second Department  reversed the Staten Island attempted murder conviction of Henry Tucker based upon the prosecution’s use of his post-arrest, post-Miranda silence to contradict his trial testimony fingering another man, “Mustafa,” as the shooter.  From the New York Law Journal :

When arrested in connection to an October 2008 Park Hill double shooting, Henry Tucker refused to answer any questions after being read his Miranda rights.

A police officer then told him he would be charged with two counts of attempted murder, prompting Mr. Tucker to say, “I was there, but I didn’t shoot anybody.”

Mr. Tucker made no further statements until his June 2009 trial, when he again maintained he was present but not the shooter. He instead fingered his friend, an unapprehended man named “Mustafa.”

The typical argument by the prosecution when a defendant offers testimony at trial that exculpates himself is recent fabrication, meaning that given the time between arrest and trial, he invented a story that gets him out of the jam.

To impeach Mr. Tucker, prosecutors at cross-examination repeatedly questioned whether he had told police that Mustafa was the shooter. On summation, Assistant District Attorney Kathleen Naughton told jurors that “an innocent person when they’re arrested for a crime they didn’t commit and they know who did it will say [who] did it.”

The argument was that if Tucker’s claim at trial was truthful, he would have spoken up at the time of his arrest.  His failure to do so, to pin the blame on Mustafa, when he did blurt out that he wasn’t the shooter, undermines the credibility of his trial testimony.

The majority held, notably in contrast to the United States Supreme Court’s  misguided  decision in  Berghuis v. Thompkins, that Tucker’s refusal to answer questions wasn’t converted to a response by his denial of guilt.

“[H]aving deliberately availed himself of his right to remain silent, the defendant’s failure to give a more complete exculpatory statement to the police ‘may simply [have been] attributable to his awareness that he [was] under no obligation to speak’ to the police, including to implicate his friend in a shooting, and to his knowledge that his decision not to speak would not be used against him at trial,” the majority said in an unsigned opinion, citing the 1981 Court of Appeals ruling People v. Conyers, 52 NY2d 454.

Rather than go down the road of the minefield that the Supreme Court has crafted around the invocation and exercise of Miranda rights, the majority concluded that once a defendant chooses silence, it means something and won’t be so easily ignored.

In dissent, Justice Reinaldo E. Rivera wrote:

“Where, as here, a defendant speaks to the police and omits exculpatory information which he presents for the first time at trial, the defendant’s credibility may properly be impeached with that omission,” he wrote, adding that the evidence against Mr. Tucker was overpowering.

While the majority failed to see the evidence as particularly overwhelming, it didn’t dispute that a defendant’s credibility can be impeached by a prior omission that suggests that his trial testimony is a recent fabrication.  Rather, the court held that the exercise of his right to remain silent and refuse to answer questions cannot be used, even as a means of challenging Tucker’s “Mustafa” revelation.  The right to remain silent, once invoked, cannot be used against a defendant for any purpose.

What’s significant about this decision is that firmness of the court’s holding in light of the ongoing federal mushiness of Miranda invocations.  As the Supreme Court appears bent on dismantling Miranda, turning its exercise into a hypertechnicality rather than a shield to protect constitutional rights, the Second Department both strongly backed its invocation, without the subsequent exculpatory blurt somehow undoing the certainty of invocation by silence, and similarly held firm on the notion that the defendant’s enjoyment of a constitutional right cannot be used against him, even when it proves highly material to his credibility.

Of course, while the majority held that the evidence aside from the silence used to impeach the defendant’s credibility was not so overwhelming as to preclude its finding that there was a reasonable possibility that he would have been acquitted, Tucker will still face retrial, and the other evidence, eyewitness identifications of him as the shooter, plus video and still images of the shooting.  It would be highly premature to say that Tucker’s out of the woods.

Still, given the evidence against him, the strength of the majority decision is certainly worthy of note, and supports the vitality of New York’s independent constitutional protections of a defendant’s right to remain silent, and ability to exercise his Constitutional rights without fear that it will come in through the back door to bite him in the butt. 

The win by Kathleen E. Whooley of Appellate Advocates promises Tucker a fairer trial, but it’s still going to be a huge uphill battle.

One of the longtime bulwarks of the blawgosphere, SCOTUSBlog, is gone.  Having served to make  Tom Goldstein a player in that rarified niche, Supreme Court litigation, what once reflected some of the finest blawging is gone.  In its place, an enterprise has arisen.

SCOTUSBlog is now under the “exclusive sponsorship” of Bloomberg Law, whose funding allows it to do mainstream.

The sponsorship represents a tremendous public service by Bloomberg Law.  It allows us to improve and expand the information we distribute about the Court.  We now have four full-time staff.  Along with our reporter Lyle Denniston, Amy will devote almost all her time to editing and directing the blog; Kali and Kiera have converted to full-time blog employees.

Despite this staff, expect a fairly new direction in Supreme Court commentary.

Substantively, we are continuing our transition to more expert coverage.  Last Term, we published symposia with leading commentators, as well as coverage of individual cases from professors like Ronald Mann and Orin Kerr.  This Term, we have commitments from many more prominent academics to take responsibility for merits cases in their fields of expertise.  So we expect that the quality of our analysis will improve considerably.

Instead of getting a lawyer’s view of the decisions, anticipate the “prominent academic’s” approach, Not that they don’t have the time and inclination to write, some at enormous length and in excruciating detail, about important (and inconsequential) decisions, but the days of the “quick and dirty” or pragmatic reaction appear past. 

As for the views of readers, whether lawyers, lawprofs or lay-people, it’s clean and smart or the highway.

To comment, you will need to log in.  This involves a simple registration process, and all of the information provided during the registration process will remain confidential.  Registration is not required just to read the blog or community posts by other readers.

Of note, we will heavily moderate the community for civility and substance (in the sense that the comment has to be substantive, not that we have to agree with it).  We will delete comments and ban commenters when they fail to meet our standards.  Our goal is not to limit or to manipulate the debate.  But we will aggressively control its tenor and ensure that its quality is high.  By “high” quality, we don’t mean that the comments have to be lawyerly or contain detailed legal analysis.  Rather, they have to contribute to the discussion in some fashion, even if by asking further questions.  We hope many commenters will be non-lawyers.

Comments of this sort are a blawgers dream.  We all want brilliant and fascinating discussion, or at least a reasonable facsimile.  There’s nothing about Tom’s new “community” approach that is particularly novel, though he puts together as many rules and controls as the internet has to offer in order to keep the riff-raff out.

It seems curious that Tom emphasizes his hope that many commenters will be non-lawyers, given that SCOTUSBlog’s direction seems to be uber-law-geek with the reliance on academics rather than lawyers (or judges, for that matter) who will use these decisions in the trenches.  I expect it has more to do with the expansion of his reader base, given that lawyers comprise a relatively small universe of potential readers,  but Supreme Court sausage-making is hardly the sort of stuff that benefits from the common touch.

Goldstein’s entrepreneurial spirit is nothing to sneeze at.  He’s turned himself into a viable Supreme Court commodity, and his blog into the primary destination when it comes to all things Supreme Court.  Granted, it was more recitation and description than hard commentary, but that left something for the rest of the blawgosphere to do.  And Tom has now effectively monetized SCOTUSBlog, electing revenue over his Great Humanitarian Award.  Most of us would do the same.

Yet there’s something about this shift from, say, the amateur enthusiasm and freedom of a blawg unfettered by corporate concerns and one that adopts the mantle of officialdom.  There’s something about commenters who are vetted to create a “smarter” discussion, particularly given how many lawyers offer some incredibly dopey observations, but give rise to responses that generate light as well as some occasional heat.

Most disturbing is the resort to the formulaic approach of “ask the expert,” and the expert invariably being someone with scholarly credentials so that their every utterance comes with built-in academic credibility.  We see it in newspaper articles and on television news, the lawprof opining about things he’s never personally touched and only seen from afar.  We were knee deep in ideas from people who have never actually done the things they speak about with such refined expertise.  Now we’ll be neck-deep.

For those of us who have long appreciated SCOTUSBlog being there, being the first resource for Supreme Court decisions, briefs, reports, it seems unfair and unappreciative to question Tom Goldstein’s effort to make money off his blog and further his career as a Supreme Court litigator.  And yet, I can’t help feeling that we’ve lost a trusted friend, a reliable neighbor, who is moving from the ‘hood to the corporate bigtime.  And that our comments will be deemed too stupid and unworthy to make it onto the small screen.

Best of luck to Tom Goldstein, but don’t forget the lawyers who actually do the work in the trenches.  We’re not likely to bring you fame, big bucks or scholarly prestige, but we’ll be the ones cleaning up the mess left behind by the Supreme Court.

A front page story in the New York Times trumpets Sentencing Shift Gives New Leverage to Prosecutors.  Oh my, did I miss something?  Did I miss something that so monumentally huge, and so fundamentally affects my very own practice area? 

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

While lawyers were busy representing clients, fighting fights and cutting deals, making sense of the mess people make of things, taking relatively easy problems and turning them into monumental fiascos, a bunch of lawprofs held a virtual symposium directed toward one goal: the end of lawyers.

At Truth on the Market, a group of lawprofs (with a notable non-lawprof,  Walter Olson of Overlawyered) discussed  “Unlocking the Law: Deregulating the Legal Profession.”  The scope of discussion was broad, venturing from the elimination of law school entirely to the elimination of the monopoly entirely.  The scope was explained:

Welcome to “Unlocking the Law: Deregulating the Legal Profession.”

Licensing and regulation of lawyers, long questioned by scholars, is emerging as an important public issue.  Legal costs are rising for individuals and firms with increases in litigation and regulation.  These costs tax business growth and entrepreneurship and impede ordinary Americans’ access to the civil justice system.  Meanwhile, the development of new business structures and technologies and significant regulatory moves toward opening up competition for legal services in the UK and elsewhere are forcing policymakers to address lawyer licensing and regulation.   The U.S. is certainly not immune from the economic and other institutional forces nudging toward a reconsideration of existing licensing and regulation regimes.  It is an excellent time to reexamine the costs and benefits of existing and alternative regimes in light of these changes.

It’s unlikely that lawyer licensing will completely die.  It will be hard to reconcile complete deregulation of law practice with continued licensing of doctors, tour guides and horse dentists.   But there’s an important difference between lawyers and these other professions:  the prodigiously powerful lawyer interest group has managed to restrict access to the extremely broad field of human activity called the “practice of law.”  This regulatory monolith is bound to fracture.

Were the practice of law deregulated, allowing anyone to offer a variety of legal services, the prices of the simplest services would surely decline. Equally important, the amount of legal training received would vary across the legal services field. At present, everyone sitting for a bar exam in most states must obtain the equivalent of three years of instruction at an ABA-accredited law school. Surely, three years of law school are not necessary for lawyers handling simple divorces, real estate transfers, or traffic violations.

Under current ABA-sponsored state rules, only lawyers can own law firms. Such a restriction obviously excludes entrepreneurs who might find innovative new ways to deliver legal services, perhaps as complements to other services, such as accounting or business consulting. There is no good reason why lawyers should only work for lawyers in delivering legal services to third parties. More diversity in legal services firms would likely promote innovation and provide consumers of legal services with more options and potentially lower prices.

The obvious argument for occupational licensure in any profession is that it sorts out incompetent and unscrupulous practitioners.  In the practice of law, surely the road to competence is not only through three years of an ABA-accredited law school. At the very least, prospective lawyers could be freed to pursue their legal training wherever they choose and then to sit for a bar exam. And the bar exam could have several variants, depending on the sitter’s intended specialty. Why, for example, should those intending to handle domestic disputes be well versed in all of the technicalities involving complex financial transactions?

Everything old is new again, and don’t call me Shirley.  Back to the apprentice days, and a push for specialization at the earliest years, meaning the death of lawyer as generalist.  Or could Crandall be suggesting the down-sizing of lawyer to Legal Practitioner?

The voices of reason in this symposium turn out to be Walter Olson and  Gillian Hadfield, a lawprof who has long been a forceful advocate for affordable legal representation.

Although it has the zing of a slogan that I myself have often used, the call to ‘deregulate’ the legal profession is misleading.  Yes, most of us who argue that the legal profession is excessively closed to competition—in a way that hampers both access and innovation, as I have argued in recent papers—think that the entry barriers are too high.  But the legal profession is not only over-regulated, it is also under-regulated.  The regulatory regime lawyers and judges have put in place is overly protective of lawyers’ interests and insufficiently protective of the public’s interest in an accessible, innovative, and efficient legal system.  So the goal should not be ‘deregulation’ but ‘right-regulation.’

Hadfield’s challenge isn’t to dismantle legal education and regulation, but to take it out of the exclusive hands of lawyers and introduce others into the mix of crafting legal economic policy.  For this, Crandall immediately takes her to task:

Gillian Hadfield argues that “right-regulation,” not deregulation, is the right palliative for what ails the legal-services industry. But how are we to know what regulation is “right”? Nothing in her posting suggests that three years at an ABA-accredited law school is necessary for the execution of many of the tasks that we now confine to lawyers. Her plea for subjecting the legal services market to the general laws governing coinsumer protection, professional negligence, or antitrust does not translate into the necessity of retaining the current entry barriers for the practice of law. She also argues for transferring the regulation of the legal profession from lawyers and judges to other institutions without explaining why industry-specific regulation is necessary or could could possibly be welfare enhancing.

Anything short of rape and pillage, apparently, is cause for a fight among academics.  Always a bright spot when reading their posts. 

Olson’s vision is far more pragmatic than the academics. The  only thing worse than the regulation of litigators would be the deregulation of litigators.

As a libertarian, I mostly concur in the critique of occupational licensure made famous by (among others) Milton Friedman. For the most part, licensure is a consumer-unfriendly affair that protects incumbent practitioners from competition, locks out promising new methods of service provision, and interferes with voluntary dealings between professional and client. It is dubious enough as applied to occupational groups such as doctors and plumbers, and downright ridiculous (as the Institute for Justice keeps reminding us) as applied to groups like cosmetologists, florists and interior designers.

But lawyers are different. No, seriously — they are.

Bet you didn’t see that coming.

I am not convinced that deregulating the power to commence this sort of civil process and demand money from an opponent for calling it off — in effect, to widen the existing pro se exemption so as to allow anyone to proceed pro se on behalf of anyone else they can get to sign up — would reduce the amount of unjustified legal aggression in a system that already has plenty of it and to spare.

Wally throws the cold water of reality on the theoretical happy faces, that while deregulation offers the promise of a lawyer for everyone (if not everyone being a lawyer), it comes with a side of insanity and incompetence that can’t be ignored.  Not surprisingly, the scholars paid no heed.

In the wrap-up, Tom Crandall takes note of  what shockingly happens when you put a bunch of like-minded people in the same virtual room.

As we approach the end of this Symposium, I am struck by how much consensus exists on this subject. Of course, we are not conducting this exercise under the auspices of the ABA. Nevertheless, there is sufficient intellectual backing for a major push to begin the deregulation of legal services.

It’s always heartwarming to know that scholars think sufficiently highly of their views of things other people do to demand change.  While this recap, obviously and necessarily, scratches the surface of this symposium, and is open to every person involves parsing my omissions at painful length and in excruciating detail (because their words and ideas demand a full airing to appreciate their brilliance), it struck me as worthwhile to point out to lawyers that this was happening off in some ivy covered tower where lawyers never tread.

The discussions were largely superficial, with old arguments rehashed without much scrutiny or recognition of the flaws.  Still, most of the revolutionary changes were neither, but rather the same modest proposals that lawyers have been pushing for a while now, and lawprofs have been resisting tooth and nail because, well, law school is absolutely perfect.

But the rhetoric of a failed profession is something to fear, as it gives rise to such irrational and disjointed pronouncements as the death of law schools, which will be seized upon by the shallow and ignorant as a justification for ignoring the ethical and professional obligations as commerce is elevated to the only thing that matters.

I wonder if that’s what the scholars had in mind?

Via Radley Balko, a brave Miami police officer, whose name isn’t revealed by NBC Miami, took down 22-year-old Gilberto Powell.  According to the official police report:

The report said officers spotted a bulge in Powell’s waist band and when they tried to pat him down, he tried to flee. Police say Powell broke free as officers tried to place him in handcuffs, hitting his forehead on the ground.

Powell hit one of the officers in the chest and continued to struggle until one of the officers “struck [Powell] in the left side of his face with an open hand in an attempt to subdue him,” the report said.

After Powell was finally handcuffed and questioned, the officers realized he was “mentally challenged, was not capable of understanding our commands, and that the bulge in his waistband was a colostomy bag,” the report said.

Shockingly, the story from Powell and eyewitnesses differs from the official account.

[Powell’s family attorney, Phillip] Gold said Powell and other witnesses claim police body slammed him to the ground, bloodying his face and eye and causing contusions to his head. The injury to his eye may still require surgery, Gold said.

Even worse, Gold claims Powell’s colostomy bag was “ripped right off his body.”

For anyone with even a slight familiarity with Down Syndrome, the absurdity of the police conduct, and report prepared to justify it, is about as patent as can be.

It would be no stretch for one of the brotherhood to be muttering, “hey, even some kid with Down Syndrome can have a gun in his pants and blow away a cop.”  After all, the first rule of policing not only demands that cops place their safety above a good beating of a kid with Down Syndrome, but always provides a handy excuse for any violence needed to make certain that a stop initiated by police over the dreaded colostomy bag/pistol (it could happen).

One of the most brutal problems facing people with physical or intellectual disabilities is that they don’t necessarily have the capacity to satisfy the commands of every cop on the street.  Deaf people can’t hear, no matter how loudly they are ordered by a cop to do so.  Blind people can’t see. Same thing.

And that’s not a reason to beat them, shoot them or harm them.  This conflict between the police need for control and the fact that not everyone on the street is a perp, is physically or mentally capable of being a supplicant and not every bulge is a Magnum .45 cannot continue to result in harm to those most vulnerable.  This cannot be tolerated.

And why isn’t the cop who did this to Gilberto Powell named? 

For the past six days, a group called  Occupy Wall Street has been staging a protest against the influence of greed on American politics.  With free pizza.  What? You know nothing about it? Not a word in the news?  Well, that’s because it’s been fairly uneventful and therefore ignored.  That’s over.

New York’s Finest, at least those not  under indictment for a ticket fixing scandal, have decided that they’ve had enough of peaceful kids protesting and decided to take an otherwise innocuous situation and make it tense.  Tension leads to the police giving orders and trying to herd feral children, which lead to all sorts of mischief.

Since then, 80 protestors have been arrested. Our brave New York police officers have busily maced young ladies, pulled out the hair of those who didn’t jump fast enough and thrown to the ground people who started at them with disrespectful eyes. 

The mission of Occupy Wall Street, a group comprised largely of articulate, smart, caring young people, is hardly a threat to the police.

On the 17th of September, we want to see 20,000 people to flood into lower Manhattan, set up beds, kitchens, peaceful barricades and occupy Wall Street for a few months.

Like our brothers and sisters in Egypt, Greece, Spain, and Iceland, we plan to use the revolutionary Arab Spring tactic of mass occupation to restore democracy in America. We also encourage the use of nonviolence to achieve our ends and maximize the safety of all participants.

It warms my heart to hear about young people who care about something other than the size of their paycheck or where their next bag of Cheetos is coming from.  Beyond that, I know nothing more about this group, or the young people who are being beaten, than what I can see on the television or youtube videos.  No doubt more will be exposed as the day goes on, and we’ll learn more specifics about their cause and more about how their refusal to pay homage to our boys in blue has disrupted the equilibrium of the universe, mandating the imposition of pain and a bunch of DATs for disorderly conduct.

But I do know one thing, as these young people who may not be great with following police orders but haven’t hurt a fly as far as I’ve heard, get beaten, maced and arrested.  We now have a real protest on our hands.  And this would have faded to obscurity but for the heavy-handed assistance of the NYPD.

While many disdain  marketing philosopher Seth Godin because he’s, well, a marketing philosopher, one does so at one’s peril.  There may be a ton of overly simplistic and ethically dubious fluff in marketing, but those guys, at least the good ones, know one thing really well.  People.

Wondering, as I was, what pushed anonymous lawyers on the internet to promote their strategies and tactics for success while refusing to reveal their identities so as to protect their delicate internet personas, Mark Bennett made some foundational points about rhetoric and persuasion.

The internet has removed all barriers to mass communication. The cheapest way ever to reach large numbers of people is in the comments sections to popular blog posts and newspaper articles, where a commenter’s thoughts might be read by thousands just because he has posted immediately after some highly popular post or article.

Because of these low barriers we have millions of people yammering for attention online. The vast majority of them aren’t exhibiting anything resembling logical rigor; they produce more heat (pathos) than light (logos).

This post (which I urge everyone to read) addresses the failure of illumination despite the appearance of elucidation. 

Aside: I read a highly technical post yesterday about how to repair a small kitchen appliance, which sounded very authoritative to me. For all I know, it was written by an erudite 12 year old, and yet I was ready to subject an expensive appliance to demolition based on this post, because it seemed more correct to someone who was clueless.  An anonymous commenter to the post explained why the OP was completely, disastrously wrong. but I opted to follow the OP’s advice.  As I heard the humm of a finely tuned machine, I loudly praised my technical brilliance, giving no credit at all to the precise information from the OP.  I was lucky.

While Bennett’s post answers questions about the persuasiveness of commentary, the question of what drives a person, particularly one whose thoughts have yet to bear significant fruit, to desire his voice to be heard.  What makes a person seize the opportunity to use the internet to speak to millions when he has nothing to say?  That’s where Godin comes in.

Marketers love the placebo effect because it opens the door to stories and fables and word of mouth and varied perceptions. It gives marketers room to sell more than price and features. The first cultural byproduct this benefit creates is the notion that everyone is entitled to believe what they believe, and it’s rude to question it.

The second, is a real problem, though. If you spend enough time experiencing your own take on reality, you come to believe that what works for you might actually be a universal truth. Marketing plus psychology might equal science, it seems.

For the placebo to work, you have to believe it, but sometimes believing requires suspension of your connection with verifiable fact.

In short, those who feel compelled to publicly offer untested or dubious advice do so, at least in part, because of the placebo effect.  the confusion of personal experiences with universal truths. 

I’ve known gregarious lawyers who could walk into a room and captivate it with their charm and personality, walking out with a half dozen new cases and the envy of their peers.  These are lawyers who have reaped huge success from their marketing efforts, with verifiable practices to prove it.  But they aren’t telling others to do what they do, because they know that it’s not their tactics, but their personalities, that make it work. 

If you tried it, you would leave the room a pariah, Rather than charm the pants off others, you would come off loud and obnoxious.  You aren’t them.  If you were, you wouldn’t be asking how they do it. You would already know.

What drives someone to push their belief onto others is the combination of belief, despite the absence of verifiable fact, and the need for validation.  You believe you’re onto something real, like post content on a blog for 52 weeks straight, and you will thereupon become a blogging rock star. Having adopted the plan, and though still waiting for the plan to bear fruit, you want to validate your choice by having others embrace it as well.  You don’t deliberately mislead, because you believe in what you’re doing.  You just don’t have any verifiable basis for it.  It’s the triumph of belief over reality, and you need to share it.

Aside: As I stood there staring at my small kitchen appliance, feeling very satisfied with my handiwork, I knew in my heart that a slight error could have not only fried my appliance, but me as well.  I was screwing with electricity, and I don’t have a close, dear relationship with electricity.  Had the instructions I found on the internet been wrong, even slightly, I might have done some serious damage. I didn’t have the slightest clue, as I put plug into outlet, whether the OP was a brilliant electrical technician or the village idiot, yet I was about to risk my life on his word.

The fact that I’m still alive this morning, and have a cup filled with joe by my side, proves that I know everything there is about fixing small kitchen appliances.  Any questions?

The scenario is the sort that would make for a great law school argument about the merit of a doctrine taken to its logical extreme, except that the logical extreme actually played out before the 9th Circuit in US v. Fitch.  Via Doug Berman :

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

 Affirmed?  You bet.  This is the technically correct result based on the confluence of two separate rules, that sentences are based on the “real crime” as determined by the judge alone at sentence based upon “clear and convincing evidence,” combined with the statutory maximum provided by Congress for the offense for which he stood convicted. 

You know how all those laws say that a person can be sentence for up to 50 years?  Well, as long as the sentence doesn’t exceed 50 years, no problem even if the basis for the sentence was a murder with which he was never charged, was never proven beyond a reasonable doubt and against which the defendant was never given a proper opportunity to defend.

So instead of an effective sentence of around 3 years in a fraud/money laundering case, David Kent Fitch will do almost 22 years for murder.  Sounds wrong to the court.  Sounds wrong to me.  And yet, affirmed.

In dissent, Judge Alfred Goodwin (who has been around long enough to know) takes issue with District Court Judge James Mahan’s “clear and convincing” finding that Fitch did the dirty:

We simply do not know any of the circumstances of Bozi’s disappearance.  We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit.  While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement.  There is certainly no clear and convincing evidence of premeditated murder.  The district court’s finding is simply not supported by the record.  The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion.  Accordingly, I respectfully dissent.

But his issue isn’t so much with sentencing Fitch for a different crime than the one with which he was convicted, but that the sentencing judge’s finding wasn’t sufficiently supported.  What may be behind this dissent is that Judge Goodwin isn’t a big supporter of the idea of sentencing people for uncharged crimes, and he’s using this dissent to backdoor the existing law.

The problem is that the majority, written by EDNY Judge Frederic Block oddly enough (and not one of those crazy 9th Circuit judges the Supreme Court is always smacking around), makes clear that the is wrong but their hands are tied.  Adherence to precedent sucks.

In a comment to Doug’s post, an interesting argument is raised:

This seems to be the perfect situation to raise an as-applied Sixth Amendment challenge: without the finding of a murder, the sentence would have been unreasonable; accordingly, not submitting that essential fact to a jury BRD, as applied in this case, violated the Sixth Amendment.

Use of an as-applied challenge offers a back door to some of the most outrageous applications of law, the logical extremes that are used to shake our confidence in propositions that seem just fine when their theoretical underpinnings aren’t put to the test.  While most of us would certainly agree that an as-applied challenge should be made, and should have been used by the court to avoid this extreme, it doesn’t fix the problem of people being sentenced for uncharged crimes.

The bottom line is that it’s constitutionally offensive under the 5th and 6th Amendments to sentence a person for an uncharged crime.  You want to put ’em away forever?  Charge them. Prove the crime. Let them defend. Get the conviction.  That’s how the legal system is supposed to work, and the gymnastics that produce this absurd result are offensive and intolerable.  So what if Congress, without so much as moments thought, tacked on a top end of a thousand years in prison just in case some crime that was meant to be stopped by the law was so ridiculously horrible that it demanded a punishment that harsh. 

No, Congress didn’t put upper high ends on criminal sentences just to make sure a court had some leeway to toss in an uncharged murder.  In a vacuum, few would argue that any person should be sentenced for a crime unless guilt was proven beyond a reasonable doubt.  Yet David Kent Fitch is going to prison for murder, and the court says it can’t do anything about it.

Nice system.

This has nothing to do with supporting their views or their means of expressing them.  That’s where this case got all screwed up, where principle died.  Ten of the original 11 Muslim students who were arrested and prosecuted for  staging a protest against Israeli Ambassador Michael Oren at the University of California at Irvine were convicted of crimes.

I may not agree with what you say but I will fight to the death for your right to say it.

Yes, platitudes look great when carved in marble lintels.  Dean Erwin Chemerinsky (of the liberal Chemerinsky’s) tried to fence sit the mess, arguing that these students had no first amendment right to speak out because they were in an academic environment which somehow mandated that free speech was at the largesse of Miss Manners.  But he didn’t think prosecution was justified.  Orange County District Attorney Tony Rackauckas didn’t give a hoot what Erwin thought.

The sentence isn’t jail, which some will argue means that this is no big deal. 

Ten Muslim students convicted of disrupting a speech by the Israeli ambassador on a California university campus have been sentenced to 56 hours of community service and three years of informal probation.

Orange County Superior Court Judge Peter J. Wilson said Friday that the incident did not merit jail time and he added that the probation period would be reduced to one year if the community service is completed by the end of January 2012.

Wrong.  These are students whose futures will be forever altered and diminished by this conviction.  Any conviction, even a misdemeanor, has a serious impact on a life.  It matters.

What matters most, for these ten students not to mention the rest of us, is that their crime is speaking when those with more power than them believed it inopportune.   Marc Randazza draws an interesting analogy:

11 muslim students stood up to heckle the Israeli ambassador. Orange county prosecutor charged them with disrupting an event. While they may not have a right to disrupt the speech without being dragged out of the place, a criminal conviction for political speech is bullshit.

And if it had been 11 Yeshiva students disrupting a speech by a Palestinian, they’d get the medal of freedom.

His point is not that Muslim students are more (or less) worthy than Yeshiva students, but that we can’t help from superimposing value judgments on the merit of speech,  The speech we embrace doesn’t need protecting. 

The choice here was between a free society and an ordered society, and the questions of right and wrong are answered by which society one prefers.  It doesn’t require a person to believe the disrupting speeches is a good thing, a great way to get one’s point across, to believe that the prosecution of the Irvine 11 10 was fundamentally wrong.  I think they handled their protest poorly, that just as they would have wanted a speaker they invited to be able to make his point without protest and disruption, they should have done the same for Michael Oren.  They were rude and intolerant.  They were inappropriate.  There, I said it, they were wrong to do what they did.

And that should not have resulted in their prosecution and conviction for a crime.

It’s all too easy to fall into the rut of rights being situational.  Sometimes one right conflicts with another right.  Sometimes one person’s exercise of a right conflicts with another person’s exercise of the same right.  Sometimes, it just doesn’t mesh with our sensibilities.  Rights are messy, and get messier when they don’t happen to fall along the lines of general consensus.

But when the exercise of rights becomes the basis for a crime, it’s no longer just messy, just the stuff of debate and disagreement.

I may not agree with what you say but I will fight to the death for your right to say it.*

*Unless you don’t do it the way I think you should, in which case I will not only not fight for your right, but will convict you of a crime for having exercised it .

There’s no lintel big enough to carve that into.