The Criminal Lawyer

Over the past couple of days, the news has been filled with stories about using microbes to identify suspects. Everyone has all kinds of bacteria all over their bodies, of course, and whenever you touch something you leave a smudge of your bacteria behind. On Monday, researchers at CU-Boulder published a study where they swabbed computer keyboards, tested the DNA of the bacteria they found, and saw that those bacteria’s DNA more closely matched the bacteria on the computer users’ skin than the bacteria on other people’s skin.

That’s all the study found. The bacteria on your keyboard have DNA that more closely matches the DNA in the bacteria on your fingers, than that of bacteria on other people’s fingers. Frankly, although that’s a nifty result and the scientists deserve to be praised for their work, it’s really a very modest finding. Not exactly earth-shaking.

But as usual, the media took this modest finding and blew it way out of proportion. The study’s authors insist that the project “is still in its preliminary stages.” The media make it sound like we’ll be seeing this stuff in court before we know it. The fact is that using microbial DNA to link a suspect to a crime scene is not going to be a reality any time soon, if ever.

For one thing, there is as yet no reason to conclude that your particular bacteria are as unique as your fingerprints or your personal DNA. Bacteria do not use sexual reproduction, after all, and so their DNA is less diverse than human DNA. The uniqueness of your bacteria is very much an open question.

We don’t even have a baseline of what bacteria are even normal to find on human bodies. A single person will have a huge variety of different microbial populations on different parts of his skin — the microbial mix on his fingertips is not the same as the mix on his nose or his toes. All the various types of bacteria people can have will need to be isolated, all the different DNA each kind of bacterium can have will need to be sequenced, all the various combinations will have to be analyzed, and a massive amount of comparisons will have to be made.

In other words, there will need to be many more studies, based on way more data, plus some pretty robust statistical analyses of large populations, before any scientist can reach the same conclusions as those you’ve been reading in the news. That’s going to take a very long time, even with the accelerating advances in DNA sequencing technology.

Still, it really is an intriguing idea. After all, a perpetrator may not leave behind any blood, sweat or tears. Fingerprints may not be obtainable from fabric or wiped surfaces. But he may still leave behind a smudge of skin oil, containing his own unique blend of bugs. If that’s so — and again that’s a big “if” — then this could be a useful forensic tool to help figure out whodunit.

Just don’t hold your breath.

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And now for something completely frivolous.

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Galactic Empire Imperial Security Bureau
Office of Legal Counsel

[3/15/03 ABY]

MEMORANDUM TO CENTCOM ISB

Re: Interrogation Branch Treatment of Rebel Combatants

You have commanded this Office to examine the legal standards governing interrogations of terrorist “rebel” combatants in Imperial custody. You have specifically directed that we examine both current Imperial law and former Republic law that might apply.

An earlier draft of this memorandum, recommending the humane treatment of prisoners for the combined purposes of propaganda and more reliable intelligence, was rejected prior to submission. (See incident report, D. Vader, anoxic demise of Cpt. Jorad 2/5/03.)

It is the conclusion of this Office that the Emperor’s protections generously extended to his adoring subjects do not extend to rebel combatants, who have rejected those protections. This may at first seem contrary to the principle of general applicability, that the Emperor’s laws apply to all within the galaxy, whether they consent to such laws or not. However, that would be a misconstruction when applied to the interrogation of enemy combatants during an ongoing armed conflict. Detaining and interrogating enemy combatants is an important element of the Emperor’s authority to defend the Empire, its institutions and its subjects.

The Emperor enjoys complete discretion over the conduct of war, and so no law can infringe on his ultimate authority. We presume that none seek to provoke a confrontation with the Emperor over the scope of this authority. Therefore, the law must be construed in such a way as to avoid any such conflict, by determining a reasonable alternative interpretation consistent with the Emperor’s sole authority in wartime. The Emperor therefore has the authority to adopt the recommendations contained herein, and any others he deems appropriate.

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The situation in which these issues arise is unprecedented in galactic history. Several coordinated terrorist attacks took place in rapid succession three years ago, resulting in the destruction of a critical government edifice known as the Death Star. These attacks were brought about by a small but highly motivated organization of religious fundamentalists, purporting to serve a higher “force.” The attacks caused an unprecedented level of destruction, killing thousands of civilian workers, disrupting political and commercial activity for nearly seven days, and resulting in economic costs still being assessed. These attacks were merely the latest in a violent campaign that had been continuing for several years.

Under all standards of intergalactic law, the Death Star attack triggered the Empire’s right to use force in self defense. (See, e.g., Article 51 of the nonbinding Local Group Charter.) The galaxy is now in a state of war.

Leaders of the Rebellion remain at large, with access to active terrorist cells, suspected former “Jedi Knights,” and other resources. It has been reported that they are regrouping for another coordinated strike against an Imperial government edifice, as yet unspecified. (See interrogation minutes, XXXXCLASSIFIEDXXXX.)

Given the ongoing threat of Rebel terrorist attacks, the capture and interrogation of Rebel operatives is imperative to our Imperial security and defense. Because of the asymmetric nature of terrorist operations, information is perhaps the most critical weapon for defeating the Rebel Alliance. The Rebel Alliance is not a governmental entity, and has no fixed planetary system as its base of operations. It has no fixed, large-scale military or civilian infrastructure. It deploys personnel, materiel and finances covertly, and it attacks without warning using unconventional weapons and methods. (See appendix C, “The Force: Jedi and Sith Weaponry.”)

As the Death Star attack and subsequent events demonstrate, it seeks to launch terror attacks against purely civilian targets, and seeks to acquire weapons of mass destruction for such attacks. (See appendix B, news accounts of incents on Mimban, Hoth and Bespin.) Because of the secret nature of rebel operations, obtaining advance information about the identity of Alliance operatives and their plans may prove to be the only way to prevent direct attacks on Imperial systems. Interrogation of captured rebel operatives is often the only way to obtain such information.

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Current interrogation practices have not been particularly effective. Mind probes and truth sera are flawless when used properly, but the staggeringly high incidence of improper use and reporting (see analysis report of interrogation of L. Organa) have led to their abandonment in favor of more direct techniques. Unfortunately, due to the previous reliance on mind probe technologies, few are trained in effective personal interrogation. Current practices of haranguing, wheedling and cajoling are just as ineffective as the (equally common) blaster shot in the head.

It is recommended that Interrogation Branch institute practices involving actual physical discomfort and pain. Although these have until now been avoided by Imperial forces — and in fact are prohibited by the current Army and Fleet manuals — the use of torture to extract intelligence is necessary and lawful in order to prevent another tragedy like the Death Star.

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We understand that the word “torture” is loaded with negative connotations, but will leave the official formulation up to the Propaganda Branch. We could spend dozens of pages in tortuous reasoning to justify not calling it torture, but we believe that would be counterproductive. It would merely invite further criticism from enemies and undermine the credibility of this report.

“Torture” is defined as:

an act committed by an Imperial official with the intent to inflict severe, non-routine pain, either physical or mental, for the purpose of defeating another’s free will.

Clearly, that is precisely what is required here. Captured rebels are not divulging their compatriots’ whereabouts and plans, precisely because they choose not to. This free will must be overcome, if we are to gain intelligence critical to galactic security. Interrogation officers must therefore be trained in methods of inflicting pain so as to defeat the free will of their prisoners.

This Office proposes the construction of a special facility, a chamber in each Imperial Fleet flagship and in each major surface installation, specifically designed for the infliction of “torture.” This chamber, which this Office has begun referring to informally as the “Star” Chamber, would be equipped with various devices capable of inflicting pain without — and this is crucial — without killing the captive or otherwise rendering him incapable of divulging intelligence.

A research team was dispatched to the Hutt lord Rokko, widely reputed to be a master of torture. We are still awaiting the team’s return, now long overdue. In the meantime, we suggest that each “Star” Chamber be equipped with the following, and that officers be trained in their use. (We recommend that D. Vader be trained first, given his dismal interrogation record.)

1) Binders and other restraints, to ensure the prisoner’s immobility. Escape during interrogation is embarrassing enough. Escape during torture would defeat the whole purpose. There is anecdotal evidence that the current “one size fits all” binders do not, in fact, fit all. Special designs are probably required.

2) Nerve stimulators. Whether using electricity, fire, force fields or other sources of energy, an array of stimulators could be placed in a bed-like arrangement. The prisoner’s body could then be moved into contact with the bed, so that pain receptors on the body would be highly stimulated, creating the sensation of suffering without any actual physical harm. The stimulators could be applied to the entire body, or to specific body parts, at the discretion of the interrogator.

3) Sensory overload devices. Some species are acutely sensitive to particular senses, to the extent that a sensory overload can cause enough discomfort to override free will. Wookiees, for example, have ears particularly sensitive to high-pitched noises (though for some reason the whine of spacecraft engines and weaponry are actually soothing, more research is needed there).

4) “Shaming” staff. Some cultures in the galaxy are more averse to shame and disgrace than they are to physical pain. It is therefore recommended that each “Star” Chamber employ staff specially trained in the arts of finger wagging, insults, aspersions, slander, and sexual assault.

Other recommendations are welcome. It must be noted, however, that “waterboarding” is not to be used, because it is not torture.

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Over at our favorite blawg Simple Justice, Scott Greenfield has an intriguing discussion about how clients and lawyers often have very different ideas about what makes a good lawyer. “Crappy lawyers,” it seems, will still have “happy clients” when the clients can’t tell the difference between “likeable” and “competent.” But “likeable vs. competent” is a false choice. Really, clients are looking for something else.

We have to admit to being perplexed at times by the things our clients are most grateful for. In court this morning, for example, a client was gushing with praise — not because we’d won an important victory that would get him back on the street, but because we’d bothered to go back to the cells to explain it all to him afterwards. For one thing, we’ve always figured it’s just common courtesy to make sure one’s client knows what’s going on, and it’s weird to be commended for mere manners. But more importantly, what mattered to this client was not the skill of his lawyer, but a feeling of personal attention. The victory he literally shrugged off, but he couldn’t stop talking about how much our discussion afterward meant to him. This happens routinely.

But most of our clients are more sophisticated. What they want in a lawyer is not someone who’ll hold their hand, but someone who can get the job done. They have complex cases, and they know what skills and experience to look for (and insist upon). But even among these kinds of clients, attorney expertise is often secondary to other concerns. Reputation, price, the knowledge that someone else is taking care of it for them, even the satisfaction of knowing you’ve retained the most expensive firm in town — all of these things can and do trump the mere ability to do the job better than the next guy.

But no matter what the client values most, it’s all really the same thing. Clients who love the incompetent clowns, just like the clients who value prestige or convenience, just like the clients who value experience and ability — there are all kinds of things clients say they’re looking for, but what they’re really looking for is someone they can trust.

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Trust really is the key, we think, to client feelings about their lawyers. Trust can be earned with proven ability, but it’s not the only way. Nor is it even the best way. After all, being good at your job does not equate to people knowing you’re good at it, or even knowing you exist.

People trust others for a lot of different reasons. But they all boil down to a shared personal connection. Think of all the people (not institutions) you trust, and count how many of them you trust for any other reason. We bet you counted zero. If there is trust, there is a personal connection. The reverse is also true: if there is a personal connection between the client and the lawyer, there is going to be trust.

So we have no difficulty believing that a truly incompetent lawyer, a real embarrassment to the profession, who nevertheless visits clients in jail and takes the time to listen to them and empathize with them, is going to be considered more trustworthy by clients than a skillful attorney who does none of those things.

It makes perfect sense, really. A lawyer who is truly sympathetic to his client is more likely to be trusted to do the right thing for the client. A lawyer who might do the job better, but remains a stranger, is just not going to be trusted the same way.

So maybe it’s not just good manners. It’s also good sense.

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It’s off-topic, but a phrase near the end of that post makes us feel the need to get back on our high horse: “the question seems to come down to whether it’s more important to get the client’s money [emphasis ours] by meeting the client’s likeability needs or to provide the client with great service.”

Now, in no way is Mr. Greenfield suggesting that the goal is to “get the client’s money.” [UPDATE: In a nice followup email, Mr. Greenfield put it very well this way: "My point was that the lawyer who is willing to do anything to be likable, at the expense of competence, is only trying to get the client's money."] But, unfortunately, there are quite a few lawyers out there who actually do think that their goal is to “get the client’s money.” And we have huge problems with that attitude. So we’re taking the opportunity to once again point out that this is not, and cannot be a lawyer’s goal.

We really have a problem with any lawyer whose purpose is profit. If you’re in the law for the purpose of making money, you shouldn’t be in the law. The law really is different. It is not a business. It is a profession.

That’s an important word. It gets used indiscriminately, but there are actually only three professions: the law, medicine, and the clergy. The professions are different from every other work in that the first and only concern is the good of the client/patient/parishioner. Profit does not and cannot enter into it. The instant that a professional has an interest in profit, he is no longer a professional, but a businessman. His interests are no longer those of his client, but are his own. We are trusted (aha, so it’s not off-topic after all!) to make life-changing decisions for our clients on their behalf, and do the right thing for them. We lawyers are not businessmen, our interests are not our own, we really are supposed to be different.

Don’t get us wrong, there is nothing wrong with charging money, even a lot of money, for one’s services. But using the law as a means for separating people from their money is simply unprofessional.

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Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your plea back. A plea that was negotiated, where you testified under oath that you committed specific conduct, and where there was no actual duress… sorry, you’re not getting it back. Merely being pressured to take a plea doesn’t count. Even being under a colossal amount of pressure isn’t enough. Everyone is under pressure when they take a plea. You weighed the odds, and decided to cut your losses. You don’t get a do-over unless someone else totally overrode your free will, you sincerely did not want to take the plea, under any circumstances, but someone forced you to do it anyway. And you’d better have some real, solid proof of it.

And point 3-B is that you never, never, never, NEVER plead guilty if you are in fact innocent. Do you hear me? NEVER!

Given all the evidence in Conyers’ case, it seems unlikely that she pled guilty despite being actually innocent, and the judge definitely didn’t think so. He’d just finished a trial against one of her fellow conspirators where there was a lot of evidence tending to confirm her guilt here. So her feeble claims of involuntariness here probably only rubbed him the wrong way.

Fourth, if you want the court to go down from the Guidelines, give the judge a reason. Do not simply say “I think that given everything that exists in this case, and I’m not going to elaborate on any of them, I think the court should depart from the guideline range and I think that would be fair.”

You know what? There are a bunch of factors the judge is allowed to consider. Many of them are listed in 18 U.S.C. § 3553. Why not — we dunno — go through them and make arguments for the ones that actually apply? Just saying.

Fifth, if you want a downward departure for accepting responsibility, don’t proclaim your innocence at the last minute.

Sixth, if you want a downward departure for cooperating, you’re actually going to have to give the government something it can use. If all you’re going to tell the feds is stuff that is “conclusory and not firsthand evidence which can be used in a court proceeding,” you’re not going to get any benefit.

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Now there is plenty you can do at sentencing. You can challenge the government’s Guidelines calculations quite often. You can challenge the grounds and calculations for various enhancements. You can argue specific reasons for mitigation, downward departures, and even complete variance from the Guidelines if justice demands they not apply. There is a tremendous amount of room for good advocacy in a federal sentencing. We’ve succeeded in having the Guidelines completely disregarded, in getting judges to agree with us and not the government, so we know it happens.

You just gotta make sure the client gets the memo.

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This is amazing. Sequencing an entire human genome is now going to be cheap and fast. We predict this will be a game-changing technology for the use of DNA technology.

Right now, DNA evidence is looked at much like fingerprint evidence. With fingerprints, law enforcement doesn’t compare every single ridge and whorl to see if there’s an exact match. Instead, particular locations are compared, to see if those locations are the same. And there’s a lot of subjective interpretation that is needed to make that call. DNA evidence is no different. The entire DNA sequence is not compared. Instead, a handful of locations are compared, to see if the DNA at those locations is the same. And there’s a lot of subjective interpretation that is then needed to make that judgment call. This can call DNA evidence into question, particularly when there are mixtures, degraded samples or equipment glitches that create room for errors of judgment.

If one were to compare the entire genome, however — all 3.3 billion base pairs of it — there would be much less room for interpretation and error.

The problem is that sequencing an entire genome has, to date, been prohibitively expensive. The first genome was a massive undertaking. As of 2009, only 7 people’s genomes had ever been sequenced. The time and expense needed to compare the genomes from a bit of evidence and from a single suspect would take forever and cost a huge amount of money. It’s just not practical.

But if the new technology announced in this WSJ video is for real, all that could change very soon.

If the technology is available to analyze and compare all 3.3 billion base pairs rapidly and cheaply, the current system of comparing 9 or 10 or 13 loci will be woefully inadequate. The current system relies on interpretations that can be incorrect, and statistics that can very easily be misinterpreted. A full-genome comparison knocks out most of the interpretation and guesswork, and eliminates the need for statistics.

Statistics won’t be necessary any more, because (with the exception of identical twins) no two people share the same genome. So leaving aside identical twins, the odds of someone else sharing your genome are nil.

Statistics are only used now because we only look at a few loci, not the whole genome, and all kinds of people share the same alleles at each of the various loci. Presuming the independence of the stats at each locus, the odds of a match at each locus get multiplied to reach truly astronomical odds against there being a random match. (Remember, though, that the stats don’t say anything about the odds against this being the match. And also remember that a test with even a 99.9% success rate will have false positives 0.1% of the time — and given the low odds of a correct positive match in the first place, the chances of a false positive actually occurring are amazingly high, in the realm of a coin toss.)

This can be a boon to innocents who otherwise might be wrongly charged based on bad DNA interpretations. It can also give society at large greater confidence that people convicted based on a full-genome match are rightly convicted.

Sure, we defense attorneys would lose some arguments for reasonable doubt in the wiggle room of current DNA analysis. But we’d gain arguments against those who would continue to use the present-day analysis when there is a more exact method available.

It hasn’t happened yet. But it’s coming soon. We can’t wait to see how this shakes out.

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A couple of weeks ago, we taught another CLE course for the good folks at West Legal Ed Center, in our “Hope for Hopeless Cases” series. This one was on ways to defend cases where the government is going to use DNA evidence to prove your client’s guilt. (Here’s a link.)

DNA evidence can be just devastating. The science is good, after all. And to a lot of potential jurors (and judges and lawyers, unfortunately), “science” is another word for “magic.” Which is another word for “I don’t have to understand how it works, all I know is that it must be so.”

This can often be a wonderful thing, when the science is used correctly, and for the limited purposes to which it is suited. When used correctly, DNA evidence can free the innocent, and help ensure that we really are only punishing the guilty.

The problem is, DNA evidence is all too often used wrong.

And when that happens, the wrong people can get convicted.

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And now today we read a good article in the latest Washington Monthly called “DNA’s Dirty Little Secret: A forensic tool renowned for exonerating the innocent may actually be putting them in prison.” (Link here.)

It’s a good article, about the case of John Puckett, who was convicted in 2008 of an old murder from 1972. It was a brutal rape and murder, with about 20 suspects at the beginning, but the case went cold. Then in 2003 the police tested the DNA found in the evidence. It was old DNA and degraded, and it was also a mixture of multiple people’s DNA. The results were compared to California’s DNA database, and there was a possible match with Mr. Puckett. He hadn’t been a suspect in 1972, but based on this apparent match — and on nothing else — he was prosecuted and ultimately convicted. Jurors have since said that they convicted because of the statistical odds quoted to them at trial, and that if they had known the stats of false positives — which were one in three — they never would have trusted the government’s stats like that.

The article highlights the fact that DNA evidence may be based on good science, but by the time it gets to a jury it can be seriously flawed. Contrary to popular belief, DNA evidence is not objective. It involves a huge amount of subjective interpretation and judgment calls. And whenever human beings have to interpret data and make judgment calls, there is a lot of room for reasonable doubt.

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Contamination, of course, can be a huge issue. Cops screw up when they collect biological evidence, when they stick it in evidence bags, and when they ship it off to the lab. There’s all kinds of opportunities in the real world for a suspect’s DNA to get mixed up with the evidence sample. We’ve worked on at least two cases in the last six months where that is exactly what seems to have happened.

But leaving aside contamination, there are all kinds of ways that experts can look at DNA evidence results and draw the wrong conclusion.

There are technical errors in the lab, for one thing. Sometimes they analyze the wrong evidence. Sometimes the machines doing the analysis aren’t working properly. Sometimes the lab doesn’t test control samples and negative controls, to see if the machines are working right, and whether they’re giving false positives. They almost never do double-blind analysis. Often, analysts will manually adjust the data results, adding or deleting data (!) when it doesn’t look right to them.

There are analytical errors all the time, too. They’re comparing two results — the evidence itself, and the exemplar of the suspect. They never match perfectly, not ever. So errors arise when comparing the two samples. Or judgment calls must be made that give rise to reasonable disagreement (a/k/a “reasonable doubt”) — especially when the evidence is a mixture of more than one person’s DNA. Two people can make four peaks at each locus, and there are 6 different ways to interpret those four peaks. Three people in the mix jump that up to 15 different interpretations. At each locus. That’s a lot of room for judgment and doubt.

There’s another thing called the “observer effect,” which is rampant in labs serving law enforcement. The analysts are often told by the police exactly what they think the evidence will show, or why they need to prove your client did it. And the test are never double-blind, so the analyst’s pre-existing ideas will become the filter through with the evidence is interpreted. Even the plainest evidence that doesn’t match the preconceived notion, it just gets explained away. Happens all the time. It’s a normal human behavior. That’s why double-blind testing exists in the first place.

Lots of things can be mistaken for other things. Machine errors can be read as actual data, and can hide other data. And often enough the test isn’t run a second time to see what the result would have been without that particular error. Same goes for degraded DNA samples and PCR errors.

Beyond analytical concerns, of which there are far more than we’ve mentioned here, there can be significant problems with the way the statistics are handled. The underlying stats, just like the underlying science, are perfectly valid. The problems come up when the stats are used incorrectly, to imply something that they really don’t mean. The Puckett case involves the false-positive fallacy — the odds of a false positive can be very very high, even in a test that has an unbelievable success rate. There’s also the birthday paradox, whereby the odds of two people matching each other — even against astronomical odds — approaches a coin toss in large real-world populations. And don’t forget the “prosecutor’s fallacy,” named for the unfortunate tendency to refer to the statistics as the odds that the defendant isn’t the right person. A good defense attorney can often show to the jury that the numbers don’t necessarily mean what the prosecutor says they mean.

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DNA evidence, at best, can only tell you whose DNA you’re probably looking at. It cannot tell you how it got there, what happened, or who did it. And just because the DNA may even probably be your client’s, that doesn’t mean he necessarily did the crime. Just like with a fingerprint, there needs to be more, a lot more, to tie him to the commission of the actual crime. People forget this. And all the DNA witnesses can do is evaluate their data; they cannot evaluate the case itself.

So good lawyers shouldn’t let the DNA evidence become the case. It’s just a tool, like a fingerprint. Nothing more. It’s not magic, it’s not infallible. There’s plenty of room for error.

This can be room for reasonable doubt, but it can also be room for convicting the innocent. Hopefully, the more lawyers and judges learn about the downside of DNA evidence, the fewer wrongful convictions we’ll see.

But we’re not holding our breath in the meantime.

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Try this on for size:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes:

(1) a scheme or artifice by a government official whereby the government official’s position is used for the private gain of any person or entity; or

(2) a scheme or artifice by an officer of a corporation, partnership, nonprofit organization or labor union, whereby the officer’s position is used for the private gain of any person or entity and not for the benefit of the officer’s shareholders or members.

If Congress had half a brain, this is what 18 U.S.C. § 1346 would look like. The whole point of the section is to prevent official corruption. A politician or bureaucrat who steers a contract to a buddy, or a corporate CEO who enriches himself instead of his shareholders, or a union boss who mismanages the pension fund — basically anyone who breaches a trust to act on behalf of those he represents.

But instead, Congress wrote this nonsense:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

For one thing, anyone can commit this crime, not just people who owe a duty to a constituency. Moreover, instead of a straightforward definition, this is hopelessly vague. Nobody knows what “the intangible right of honest services” means. Does it include an employee who’s playing solitaire instead of reviewing a file? Does it include a politician making promises he can’t keep?

Nobody knows.

And that’s just how federal prosecutors like it. Actual corruption charges, like bribery and extortion, are notoriously difficult to prove. But a mail/wire fraud charge, based on deprivation of “honest services” — that could mean anything, and so anything they can prove could count. Actions that don’t fit any particular category get to be called “fraud.”

Unethical behavior is now criminal. Contractual breaches, especially in the employment arena, also seem to count.

The courts have had a hard time applying this statute, differing widely on what counts and on how to instruct juries. Earlier this term, the Justices on the Supreme Court sounded like they have real problems with the statute. They seem even to wonder whether it’s void for vagueness. Criminal laws have to be specific enough to put you on notice that certain conduct could land you in jail, and a law where nobody even knows what it means certainly could be unconstitutionally vague. The Court hasn’t decided those open cases yet, presumably because they were waiting for one more to be argued.

And that gets us to today’s Supreme Court arguments in the case of Enron’s former CEO, Jeff Skilling.

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Enron was the nation’s 7th-largest company in 2001, when it suddenly came to light that its net worth was zilch. Bright people who had no clue what they were doing had created a bizarre house of cards that came tumbling down in an instant. The city of Houston, Enron’s headquarters, was devastated for years to come. Some people had clearly done wrong — CFO Andy Fastow and friends had profited hugely from schemes that broke the rules. It was less clear, however, whether CEO Jeff Skilling had acted improperly, or whether he even knew of any shenanigans. It was hard to say that he or the directors misrepresented anything to investors, as the company’s activities were pretty well documented. (For an excellent account of what happened and didn’t happen, see Kurt Eichenwald’s definitive “Conspiracy of Fools.” Malcolm Gladwell did an excellent piece in the New Yorker, as well, called “The Talent Myth,” about the culture there, and another one called “Open Secrets,” about the paradox of too much disclosure.)

Jeff Skilling was convicted in 2006 by a federal jury in Houston. The main charge against him was that he committed wire fraud in order to deprive the shareholders of his “honest services.” He got 24 years.

Skilling’s case is now before the Supreme Court on two grounds. The first is whether he was deprived of a fair trial by not moving the case somewhere other than Houston. The second is whether “honest services fraud” is constitutional.

Skilling’s merits brief says it’s unconstitutional, because it’s so vague that even the courts can’t define it. The DOJ responded that the law is perfectly fine, that the lower court rulings follow a general three-pronged rule: “a breach of the duty of loyalty, intent to deceive, and materiality.” Artificially increasing Enron’s stock price was his way of getting “additional personal benefits at the expense of stockholders.”

Leaving aside the paradox of screwing shareholders by increasing the value of their shares, the government’s argument makes academic sense. We like it when an underlying policy can be found that explains a disparate variety of court decisions. It helps us figure out what the next court decision will probably be, and why. Maybe even help us influence that decision.

But still, there is no denying that the honest services statute has been roundly criticized from the get-go. And we mustn’t forget that Congress passed it in the first place, back in 1988, in response to the Supreme Court’s ruling in McNally v. U.S., expressly rejecting the idea that one could defraud others, not just of money, but also of this intangible “right.”

“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” asked Judge Jacobs of the Second Circuit, in his 2003 dissent in U.S. v. Rybicki.

And back in December, during oral arguments in the cases of Conrad Black and Bruce Weyhrauch, the Supreme Court justices seemed to be unanimous in their dislike of the statute. We all knew Scalia despises the law, previously writing that it “invites abuses by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs. It seems to me quite irresponsible to let the current chaos prevail.” During the December arguments, he called it “mush,” and the other justices joined in. Breyer and Roberts went so far as to suggest from the bench that the law might be unconstitutional, it’s so vague. The justices pretty much ignored the underlying facts of the cases, and just talked about whether the law itself was any good. None of them suggested that it was.

So it’s hardly surprising that Skilling’s case got advanced on the calendar, so it could be included in the set of opinions to come down on this issue.

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At oral argument this afternoon, the justices repeated their seemingly unanimous disapproval of the statute.

Roberts started off by throwing Skilling’s lawyer a softball question: “Skilling owed the Enron shareholders honest services. He acted dishonestly in a way that harmed them. I don’t understand the difficulty.” Given Roberts’ known difficulties with the statute, this was obviously a cue for counsel to explain exactly why there is a problem here. It took the lawyer a little hemming and hawing to get around to it, but soon he was on a roll, and the justices let him go for a good long time without interruption. They didn’t challenge him once on his explanations of why the statute is overbroad, or why it is unconstitutionally vague.

When the government’s lawyer got up, however, they jumped all over him. First about the voir dire/venue issue, and then right into this one (after a snarky segue by the Chief). Kennedy got the ball rolling with “the point is that the courts shouldn’t rewrite the statute; that’s for the Congress to do.”

Scalia picked up on his own language from the December 9 oral arguments and said “Well, suppose you have a statute that makes it criminal to do any bad thing, okay? Now, it’s clear that murder would be covered. All right? Nobody would say that murder is not covered by that. Does that make the statute non-vague? Just because you can pick something that everybody would agree comes within a denial of honest services, doesn’t mean that when you say nothing but honest services, you are saying something that has sufficient content to support a criminal prosecution.”

The government replied that “honest services” has become a term of art. But Roberts stepped in, saying that’s nonsense, because a term of art is shorthand for something that has a defined meaning, and this phrase has anything but a well-defined meaning. The case law on point is “fuzzy.” If people have to wait for the definition to evolve by common-law judicial opinions, then “it kind of puts the prospective defendant in an awfully difficult position. Two cases the government wins, one it loses, and he’s supposed to keep track of that. That doesn’t sound like fair notice of what’s criminal.”

Justice Ginsberg asked what the jury was instructed in this particular case, and the government lawyer had to agree with Scalia that its definition was “a little circular.”

When given a hypothetical situation of an employee using a company computer for personal use, the government said it wouldn’t count, because there’s no fiduciary duty. This got a reaction from several of the justices. This was a new interpretation of the rule, and Scalia asked where it came from, and the government lamely replied “I think it’s inherent.” Kennedy asked “what authority do I look to, to see that some employees are fiduciaries and others are not?” The government said it would come out of agency law.

Alito wondered how there could be a situation where there’s a fraud, when the benefit is in the form of a fully-disclosed compensation. The government admitted that this is a “logical extension” of its position, and “the Court can evaluate” whether it counts here.

Then things got silly for a bit. Sotomayor said, hold on a moment, suppose “I’m a councilperson in a jurisdiction that is considering a tax increase or a tax break, and I vote for the tax break, and I happen to have property that qualifies. Is that a breach of the statute?” The government said it may well be criminal. It depends on whether the government can prove intent to screw the voters. The prosecution would have to have evidence that this was an intentional thing, before it could press charges. “That doesn’t give me a whole lot of comfort,” replied Scalia.

Scalia pointed out that you could satisfy all of the government’s prongs, and still only have a contract violation. “So I know I am liable to have the contract terminated, and maybe for damages for the contract. And you say: And also, by the way, you know, you can go to jail for a number of years, because, oh, yeah, it’s very vague, but you intended to deceive and that’s all, that’s all you need to know.”

Breyer pointed out a contradiction between the government’s position here, and its position in December: “You said intent to deceive, intent to violate the law. I believe in another case you are saying they don’t have to have an intent to violate the law because there was no State law that prohibited whatever was at issue.” This is “a big difference.” In response to the government’s reply, Breyer said that people would now need “to carry around with them an agency treatise” to figure out if they’re committing a crime or not. The problem is, people won’t know what’s unlawful.

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This has to be very heartening for Mr. Skilling. We like to call cases ahead of time here, so we’re going to go out on a limb — though probably not all that far out, really — and predict that Mr. Skilling is going to be getting a new trial.

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The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.

But the oral arguments convinced us thoroughly: Both sides are stupid.

So we wrote back on October 8, when this case was argued. This morning, the Supreme Court issued its decision.

While Shatzer was in prison on another conviction, allegations arose that he’d molested his son. A detective went to the prison to interrogate him. Shatzer invoked his Miranda right to counsel, and the detective ended the interrogation and left. Shatzer went back into general population, and the investigation was closed. Three years later, another detective began investigating again, went to the prison to interrogate Shatzer, and this time Shatzer waived his Miranda rights and incriminated himself. The Maryland Court of Appeals said his statements should have been suppressed, because there was no break in custody between his invocation of his right to counsel and his subsequent interrogation, because he’d stayed in prison the whole time.

At oral argument, Maryland proposed an idiotic rule that any break in custody, no matter how short, would end the Edwards presumption that the invoked rights were still invoked. That would just allow catch-and-release until the suspect broke down and waived his rights.

Shatzer’s position was even more idiotic — that invoking the right to counsel in one case now, counts as an invocation of the right to counsel in all future cases he may ever have, even in other jurisdictions decades later.

We suggested a simple rule:

1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…

2) And if there was a break in custody, so that an objectively reasonable person would have felt free to leave his questioners…

3) Then there is a rebuttable presumption that his invoked right to counsel continues to be invoked with respect to any subsequent questioning about the same underlying allegations.

4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)

The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.
This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case

In today’s decision, the Supreme Court agreed with us that the positions taken by both sides are absurd. But they didn’t impose a new rule. Instead, they merely focused on what counts as “uninterrupted Miranda custody” for the purposes of Edwards.

First, the Court imposed a bright-line rule, in the hopes of preventing catch-and-release tactics. They said that, once a person has been released from police custody, a period of 14 days must elapse before he can be said to have waived his Miranda rights voluntarily. So if a suspect invokes his rights, ending the interrogation, and he is released from custody, he cannot be interrogated again for 14 days. Once that fortnight has passed, the Court felt that enough time had passed for the suspect to shake off the coercive effects of custody and get back to normal life.

That’s a bright-line rule, and so that’s going to create injustices on either side of the line for suspects who are more or less able to shake off the coercive effects of custody. Which can be truly traumatizing.

The Court has always liked bright-line rules for police conduct, of course, because it leaves less room for police judgment or discretion, which makes it easier for the police to know what they’re allowed to do. The thinking goes that the less gray area there is, the less likely police will be to cross the line, and the more likely individuals will not have their rights violated. That may be true so far as it goes, but only at the cost of new injustice for those whose individual circumstances would move the line. What’s reasonable for me may not be reasonable for you.

Scalia tries to avoid this interpretation by reassuring us that Edwards only creates a presumption about the voluntariness of the waiver — “a defendant is still free to claim the prophylactic protection of Miranda [by] arguing that his waiver . . . was in fact involuntary.” But that’s buried in footnote 7. We doubt that this is going to be picked up on by every suppression judge out there.

Even so, we’re still not terribly happy with the bright-line rule here. It seems highly arbitrary. Scalia, who wrote the opinion, does remind us that “the Edwards rule is not a constitutional mandate, but a judicially-prescribed prophylaxis. . . . a judicially crafted rule is justified only by reference to its prophylactic purpose. . . .” and then went on to say that some arbitrary term limit is needed to prevent the Edwards rule from being either meaninglessly brief or absurdly eternal.

And his reasoning is nothing if not arbitrary. All he says is “we think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption will not reach the correct result most of the time. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”

What basis does he have for that feeling? None. They wanted a bright-line rule, instead of a reasonableness rule, and bright-line rules are by their very nature arbitrary. We guess we should appreciate that Scalia didn’t insult us by trying to force some statistics into supporting his gut feeling. At least he’s being straight with us.

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On the issue of whether Shatzer was ever released from custody in the first place, this was a novel issue for the Court. (Well, they’ve been asked to decide it a couple of times before, but they chose not to address the issue.)

Ordinarily, Miranda custody is when “there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” That’s certainly the case when the suspect is already in prison.

But Scalia steps back to look at the policy underlying the Miranda rule in the first place. The whole point of the Fifth Amendment protections here is to ensure that the government does not override the free will of the individual. No Star Chamber. The government has the power to hurt you, or to punish you, or to increase your punishment. Using that awesome power to force you to convict yourself out of your own mouth, against your own will, is anathema to American jurisprudence.

He doesn’t say it as clearly as that, but that’s what he’s getting at. He says that a sentenced prisoner has a ground state of control over his life, and once he’s returned to that ground state, released from the control of his interrogators, he’s released from custody. Makes sense. Also, the interrogator can’t make his punishment or incarceration any worse.

So the concerns we have with Miranda custody don’t exist with a person who was already in prison for something else, and is released back to his normal incarceration. “The inherently compelling pressures of custodial interrogation ended when he returned to his normal life.”

On that point, we can’t help but agree.

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We’ll just note here that yesterday, the Court decided another Miranda case, Florida v. Powell. That one’s fairly limited and commonsensical. Tampa police Miranda warnings stated that “you have the right to talk to a lawyer before answering any of our questions,” and “you have the right to use any of these rights at any time you want during this interview.” The Florida Supreme Court thought that was misleading, because it didn’t explicitly state that you have the right to have a lawyer present during questioning. But the U.S. Supreme Court said that there’s really no other interpretation of the two statements. If you can consult with a lawyer before answering any question, and if you can exercise that right at any point in the questioning, that pretty much means you have the right to have a lawyer present the whole time.

Yes, the warnings were artlessly composed, but they actually give more information than the basic one. They say you’re entitled, not just to have a lawyer there, but also to talk to him before answering any question. Hard to say that it violated anyone’s rights.

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The Supreme Court is back in session, well rested from a three-week vacation. (We don’t remember the last time we took three weeks off. Wonder what that must be like.) They opened the day this morning with two interesting per curiam decisions.

The first, Wilkins v. Gaddy, is about what counts as “excessive force” against a prisoner. There was some confusion among the circuits here.

This was a case coming out of North Carolina. A prisoner named Wilkins asked a prison guard for a grievance form. The guard, Gaddy, lost his temper. Wilkins claims that Gaddy threw him to the ground and beat him up, until another officer came and pulled him off. At the end of the day, though, his only injury was a bruised heel and some lingering pain.

The Fourth Circuit said that didn’t count as “excessive force,” because there wasn’t much injury. The main case on point was Hudson v. McMillian, 503 U.S. 1 (1992), which the Fourth Circuit had been interpreting to mean that the prisoner’s injuries had to be more than de minimis. And a bruise on your heel is about as de minimis as it gets.

The Supreme Court reversed, saying that’s not at all what Hudson was saying. Calling the Fourth’s reading of that case “strained,” the Supremes clarified the rule in no uncertain terms: the focus is not on what happened to the prisoner, but on what the corrections officer did.

The issue is not how significant the injuries were, but whether the correction officer’s force was “nontrivial,” and “was applied maliciously and sadistically to cause harm,” rather than as part of “a good-faith effort to maintain or restore discipline.”

So, just because a prisoner got hurt, that doesn’t mean he was subjected to cruel and unusual punishment. People can get hurt for other reasons; that makes sense. What matters is whether he was assaulted, subjected to unjustifiable ill treatment. The extent of injury doesn’t have anything to do with whether his rights were violated in the first place — they merely go to “the damages he may recover.”

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The second case decided today, Thaler v. Haynes, is a Batson case out of Texas.

This was a death penalty case, so the stakes were high. There’d be some pressure on everyone involved to do it right. But the criminal law being what it is, things went weird from the get-go.

When the attorneys questioned potential jurors during voir dire, they were in front of Judge Harper. But when they sat down to exercise their peremptories, they were in front of a different judge, Judge Wallace, who hadn’t been there for the questioning. An unnecessary wrinkle that only caused problems, as it turned out.

Because the prosecutor struck a Black woman named Owens, and the defense cried Batson.

(Batson, for those of you playing along at home, is a case that says race cannot be a valid basis for a peremptory challenge, which ordinarily can be for any reason. It’s a strange decision, because it’s not written to protect the rights of the individual defendant. It doesn’t matter if the people being excluded are of the same race as the defendant. The prosecutor can raise a Batson challenge to defense peremptories as well. The reasoning is that it’s not the defendant’s right’s being violated, but the rights of potential jurors. Seriously. We told you it’s a strange one. But we use it as if it somehow were protecting the defendant’s rights, perhaps to a representative venire or some such.)

After crying foul, the defense had to make out a prima facie case that the prosecutor was excluding Black people. They seem to have done so, and so then the burden shifted to the prosecutor to give an explanation for striking Owens that had nothing to do with race.

The prosecutor said Owens’ demeanor and body language indicated that she wasn’t taking the proceedings seriously, and that she wouldn’t be neutral when considering the death penalty.

The defense argued that there was no way Judge Wallace could assess that explanation, because he wasn’t there to see the jurors’ demeanors himself during questioning.

Judge Wallace ruled that there was no Batson violation, the case went to trial, Mr. Haynes was convicted, and he was sentenced to death.

Haynes appealed on the Batson issue, lost, and the Supremed denied cert. He lost a state habeas petition, and then went for federal habeas. The District Court said no, but then the Fifth Circuit found otherwise:

An appellate court applying Batson arguably should find clear error when the record reflects that the trial court was not able to verify the aspect of the juror’s demeanor upon which the prosecutor based his or her peremptory challenge.

So the Fifth Circuit said no court could ever adjudicate this issue here, because all anyone has is the paper record of Owens’ questioning, and there’s no record of her demeanor. So they ordered a new trial, a complete do-over.

This morning, the Supreme Court reversed. The two cases cited by the Fifth Circuit, Batson and Snyder v. Kentucky, nowhere say that a judge can’t accept a demeanor-based explanation unless that same judge was also a witness to the demeanor. Batson said the judge has to consider all possible explanatory factors. Snyder dealt with a peremptory challenge where the prosecutor gave two explanations, one of which was demeanor; the judge didn’t explain why he overruled the objection; the Supreme Court then held that the demeanor explanation could have been enough, but there’s no way to know whether the judge relied on it or on the other one, which wasn’t good enough.

In Snyder, the Court even specifically said that, although the trial judge’s observations are of great importance when the explanation is based on demeanor, they’re not necessary — as when the judge doesn’t remember that particular juror’s demeanor.

So today, the Supremes clarified once and for all that there is no requirement that the trial judge had to have observed the juror’s demeanor, when that’s the explanation given after a Batson challenge.

This is going to give prosecutors a little more wiggle room to just make up some bullshit story when they have a Batson challenge, but only in cases where the judge got replaced halfway through (impossibly rare), or where they’re confident that the judge wasn’t paying attention (sadly not rare at all). We’d like to say that no prosecutor would ever do something like that, but we’ve seen even worse, so this isn’t exactly heartening.

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Holy crap, our last post was more than three weeks ago? We knew we were busy out here in the trenches, but didn’t realize we were that busy!

We don’t mind going a week without posting something. This isn’t the kind of blog where each post is a brief observation with a link, which lends itself to multiple posts per day. We love to read them, but we don’t write one. And we sure aren’t doing this in some misguided attempt to attract clients or maximize SEO or generate revenue — we really just write this because we want to — so there’s zero pressure to keep generating content regardless of quality.

But still… three weeks is too long. We’ve got plenty to write about, so we’d better get to it! BRB

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“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be unworkable. At oral argument on January 11, it sounded like Justice Alito, at least, was buying into that argument (Tr. at 16, lines 16 to 18). And there was hope that Justice Sotomayor would be that one extra vote to undo Melendez-Diaz.

In our previous post, we pointed out various reasons why such hopes weren’t based in reality, and why the claims of expense and burden don’t hold water. We seriously doubt that anyone at the Supreme Court bothers to read this blog. But these observations are fairly self-evident, we think.

So it was no surprise to see a one-sentence smackdown from the Supreme Court this morning:

We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009).

It is so ordered.

In other words, if the states do not put the chemist on the stand in the People’s case, then they violate the Confrontation Clause. End of story. Bureaucratic convenience does not trump individual rights.

As for all those prosecutors’ offices who whine that it can’t be done? We’d ask them to look at New York City, whose courts are far busier than theirs ever will be, and who nevertheless manage the job as a matter of routine. Defense counsel often stipulates to the substance being what it is, and when there is no stipulation then getting the chemist to court is no more challenging than any other police employee who’d rather not be there. It’s just part of the job, and amazingly enough it works out just fine.

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The Fourth Amendment says the police can’t go into your home or other private place without a warrant. Over the years, we’ve come up with a lot of exceptions to the warrant requirement. So many, in fact, that getting a warrant has become the exception, and the exceptions have become the norm.

That’s because privacy isn’t the only interest society has here. The various exceptions to the warrant requirement allow the police to go in when other important interests outweigh the privacy interest.

One common exception to the warrant requirement is the Emergency exception. Under the emergency rule, the police can go in when there is good reason to believe there’s someone inside who needs help right away — either they’re seriously hurt, or they’re in danger.

In New York, that rule was formalized by the Mitchell case in 1976. The Mitchell rule has two objective conditions, and one subjective condition. If all three are met, then the police would be allowed to enter under the emergency rule. The objective conditions require that a reasonably prudent officer would first have thought there was an emergency, and second would have had probable cause to believe the emergency was inside the place to be searched. The subjective condition was that the police had to actually be going inside to help someone — the emergency couldn’t be a pretext for some other ulterior motive such as looking for evidence.

For about 15 years, now, the U.S. Supreme Court has been rejecting subjective rules like that. So far as federal law is concerned, the Supremes don’t care if the police had some ulterior motive or pretext. So long as there was a legitimate basis for the police conduct, they don’t care what the police were actually thinking.

So in 2006, in the Brigham City case, the Supreme Court specifically addressed the three-part Mitchell rule, and said New York’s subjective condition is not required under federal law. All federal law requires is that the police had an objectively reasonable basis to believe that there was an emergency, and probable cause to believe that the emergency was inside the place to be searched.

That’s only the federal rule, however. Federal law only provides a minimum of protections, a base line of individual rights. The states can’t give less protection, but they can certainly grant greater protections. So New York remains free to adopt the Brigham City rule, or keep the Mitchell rule, or come up with a new one. (New York could even get rid of the emergency exception altogether, though that would be a silly result — nobody wants the police to be forced to watch helpless from the sidewalk while someone is being beaten to death on the other side of a window.)

But to date, New York’s courts have neither adopted nor rejected the Brigham City rule. It’s still up in the air whether the subjective prong will continue to be part of the rule in New York. This uncertainty has been going on for nearly four years now, and that’s bad for all concerned. It’s certainly high time to settle the issue.

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The other day, we were asked for a solution. We were arguing an appeal here in New York last week, which dealt only with the objective prongs of the rule. The People were appealing from a suppression ruling, and they were claiming that the search was good under the emergency doctrine of Brigham City. The hearing court never applied the subjective prong of the Mitchell rule, so its validity was not really at issue in the case.

So imagine our surprise when the court asked us what New York’s rule ought to be now, whether the state should keep or abandon Mitchell’s subjective prong. We were surprised, but not unprepared of course. We proposed that there does need to be a subjective part of the rule, but not the pretext rule of old.

There needs to be a subjective belief on the part of the police that their search was lawful. They had to have some justification for their search at the time, whether it was an emergency or some other exception to the warrant requirement. Nobody wants a rule that gives the police an incentive to commit a bad search, knowing it’s bad, in the hope that some clever prosecutor down the road can think up some objective justification after the fact.

So what would our proposed rule look like? Let’s take a crack at writing it out in plain English.

Under the Emergency exception, the police may conduct a warrantless search when:

1) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have believed that a person was in danger of serious physical injury or death;

2) Based on evidence actually known to the searching officer before commencing the search, a reasonably prudent officer would have thought it more likely than not that the emergency was inside the place to be searched; and

3) Before commencing the search, the searching officer actually and reasonably believed the search to be justified by this or some other exception to the warrant requirement.

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This seems to be nothing more than good common sense.

Unlike previous language, we go out of our way here to specify that the objective basis has to be based on facts known to the officers at the time. They can’t justify their search with facts that they only learned about later — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search just because they happened to find an injured person there. Similarly, they can’t justify their search with baseless suppositions that have no foundation in what they knew at the time — if they don’t have reason to think someone’s injured inside, they can’t justify their bad search after the fact with a hypothetical scenario they clearly hadn’t considered at the time. (And if you think this should go without saying, you should read the People’s brief in the case we just argued.)

We also go out of our way to replace legalese with its plain language definition. So “basis approximating probable cause,” for example, becomes “more likely than not.” This makes the rule more comprehensible, and thus more easy for police to follow and courts to enforce. We’re a big fan of plain language.

Most importantly, of course, we changed the pretext language of Mitchell to a more reasonable requirement that the police at least think they have some lawful basis for their intrusion. And that they have some reasonable basis to think so. They don’t have to have subjectively thought there was an emergency at hand, but they had to have subjectively thought their search wasn’t unlawful.

Any other rule, we think, would send precisely the wrong message to the police. The cops would have an incentive to go ahead and commit searches they know to be bad, on the off chance that some clever prosecutor can think up a justification after the fact (which is precisely what happened in the case we just argued, if you’re wondering).

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We could be wrong, however. So we invite suggestions on what the New York rule ought to be. What do you think?

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Yesterday, we were talking with a colleague about whether we’d ever take a terrorism client. We frankly don’t have any more qualms about defending that type of case than about any other type. But the conversation turned to whether such cases ought to be brought in the courts in the first place. And we just don’t think terrorism should be fought in the courts.

In the years before 9/11, the U.S. dealt with terrorism as a criminal matter. Conceptually, it was no different from any other multiple homicide: the bad thing would happen, law enforcement would try to find out whodunit, and if the suspect was still alive and could be arrested then he’d get prosecuted.

This didn’t work so well. Some people eventually got punished, but the system didn’t stop or deter any future attacks. The criminal justice system can’t do that, after all. It’s purely an after-the-fact thing. Its job is to punish people after the crime is already committed. The courts can’t act proactively to prevent crimes that haven’t been committed yet — punishing people before they’ve done anything would be outrageous. No, proactive national defense is the job of the armed forces.

More than that, our criminal justice system is flatly contrary to the goals of counterterrorism. Preventing terrorist acts requires intel. Any client of mine is going to shut up the second I’m retained, if not sooner. And law enforcement isn’t allowed to arrest people before they’ve done anything wrong. Nor can they coerce confessions, or get wiretaps or search warrants on mere suspicion alone — which is all you’ve got during most investigations. So much for your intel. The White House says we can get intel as part of a plea, but as Mike Mukasey points out in today’s WSJ, any plea is going to take place years after the information would have been of any use.

Law enforcement is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

So it’s hardly surprising that our reliance on the courts and law enforcement alone didn’t get the job done. Because it’s not their job. In the terrorism cases before 9/11, the criminal justice system did its job about as well as can be expected, but it failed abysmally at the task of counterterrorism. It will continue to fail, if we decide that’s how we’re going to fight it.

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On January 25, 1993, Mir Aimal Kansi got out of his car during a red light at an intersection near CIA headquarters, and with an AK-47 shot every male in sight. He drove off and wasn’t pursued. (He actually took a wrong turn into our parents’ cul-de-sac nearby, and our mother watched him trying to find his way, but she thought nothing of it afterwards because the police announcements described a completely different car.) Surprised at the ease of his escape, Kansi caught a flight to Pakistan the next morning. Eventually, his roommate reported him missing and the police found the AK-47 under Kansi’s bed. By that time, he was long gone, being sheltered by a Pashtun tribe in the Afghan border regions (sound familiar?). There was no extradition treaty with Pakistan, so the U.S. didn’t bother with the extradition process. Four years later, they just went in and kidnapped him after luring him out with a smuggling ruse. He was eventually tried in Virginia state court, which sentenced him to death. Kansi was executed at the end of 2002, after many more terrorist attacks had taken place. His body was sent back to Pakistan, and his funeral was attended by province’s entire leadership, the army commander, and the nation’s ambassador to the U.S. It’s safe to say that our criminal justice system didn’t do much here to combat terrorism, or even deter it, though it did eventually punish the culprit.

One month after the CIA shooting, on February 26, 1993, Al-Qaeda terrorists set off a powerful truck bomb under the World Trade Center, hoping to topple Tower One into Tower Two. Ramzi Yousef masterminded it, drove the van an lit the fuse. The project was financed by his uncle Khaled Sheikh Mohammed, and several others took part. It didn’t go exactly as planned, but six people were killed and more than a thousand were injured. Law enforcement didn’t know how it had happened, but the NYPD and FBI began looking for clues. The VIN number on a piece of axle eventually led to Abdul Yasin, the Iraqi who had constructed the bomb. Yasin was taken to FBI headquarters in Newark, questioned briefly, and released. Yasin caught a plane back to Iraq the next day, and his whereabouts are now unknown. Ramzi Yousef’s apartment was then searched, where the police found bomb-making stuff and the business card of Al-Qaeda’s chief bomb-maker and money-launderer Mohammed Khalifa. Ramzi Yousef was not captured, and escaped to fight another day. Khalifa was arrested in 1994 for his role in the bombing, as he was preparing to leave for the Philippines, but the U.S. simply deported him to Jordan. Jordan let him go, and he continued to prosper until he was assassinated in 2007. A few of the henchmen were tried in 1994, and got life sentences. Subsequent events show how abysmally the criminal justice system failed here.

In 1995, anti-government radical Timothy McVeigh copied the truck-bomb idea to retaliate against recent atrocities committed by the feds at Waco and Ruby Ridge. He succeeded in blowing up the federal building in Oklahoma City, killing and injuring hundreds, including the children in the day care center. McVeigh walked away, but his Darwin-Award stupidity got him arrested and ultimately convicted. He got pulled over 90 minutes after the bombing for driving without a license plate, resulting in his arrest for a concealed weapon. He wasn’t suspected of the bombing yet, but he copied the 1993 bombing so well that he gave the feds a road map that eventually led them right to him: he also rented a Ryder truck, the VIN on a part of the axle identified the truck, which was recognized by the motel workers where he’d checked in under his own name. A couple of days later, after he was released on his gun charge in state court, the feds took him into custody. His accomplice Terry Nichols turned himself in that same day, and a search of Nichols’ home turned up all the bomb-making stuff and plans. McVeigh’s own sister would testify against him. Thousands of law-enforcement personnel took part in the investigation, 28,000 interviews were conducted, literally tons of evidence were amassed, millions were spent, and after a massive trial in 1997 McVeigh was sentenced to death. On June 11, 2001, he was executed. The system did its job here, but that’s all it did.

Soon after their 1993 bombing, Al-Qaeda compatriots Ramzi Yousef, Khalid Sheikh Mohammed and Mohammed Khalifa popped up again. Yousef had kept busy in the meantime, first trying to bomb Pakistan’s prime minister a few months after the WTC bombing, and then killing and injuring hundreds in the bombing of the Imam Reza shrine in Iran. Now in 1994 they planned to kill the Pope while he visited the Philippines the following year, and then during the distraction they’d blow up 12 airliners in the air crossing the Pacific from Asia to the U.S., killing 4,000 people. The next phase would involve hijacking planes and flying them into landmark buildings. For the bombings, their idea was to plant small explosives on the planes during the first leg of a two-leg flight, concealing the bombs in childrens’ toys, and then get off the plane so as not to be blown up with it. First, they needed a trial run to see if that would work. So on December 11, 1994, Ramzi Yousef got on a Philippine Airlines 747 en route to Tokyo, went into the lavatory to assemble the explosive, and set it under seat 26K, which in older 747s would have been directly over the center fuel tank. He got off the plane at Cebu, and the bomb went off during the leg to Tokyo. It wasn’t over the fuel tank, so the plane didn’t blow up, but the bomb killed the man sitting in the seat. Also, it had been aligned up-and-down instead of side-to-side, so the wall of the plane wasn’t punctured. Still, those were easy details to correct, and the team started working on a dozen more bombs in Manila. Fortunately, a fire in Yousef’s apartment led to suspicions. The Manila police raided the apartment, had a wild rooftop chase, and ultimately seized a laptop containing all the plans. A later raid turned up the plans for flying planes into buildings. Yousef escaped to Pakistan. He was turned in by one of his recruits in return for a $2 million bounty, and brought back to the U.S. to stand trial for the conspiracy to blow up the flights to the U.S. (We watched that trial while interning with the Southern District’s terrorism and organized crime unit, it wasn’t bad.) He was convicted after a long trial in 1996, and got a life sentence. He was later convicted in 1997 of masterminding the 1993 bombing, and got another life sentence. He was convicted again for conspiring in the 1993 bombing (a complete waste of the system’s resources by this point), and got another life sentence. He’s doing his time in solitary at the Supermax in Colorado. Sure, the system punished the culprit, but as we now know it didn’t do a damn thing to prevent future terrorism.

In July 1996, Eric Rudolph decided to protest against abortion and the “global socialist” Olympics. He did so by setting off a bomb during the games in Atlanta. One person was killed, and over a hundred were hurt. Rudolph put three pipe bombs in an army pack, filled the pack with nails, wedged a steel plate in to direct the blast like a claymore, and hid it under a bench. He called 911 to issue his warning, and meanwhile a security guard had already noticed the pack and was clearing the area so the bomb squad could check it out. Before the bomb squad arrived, the bomb went off, and nails flew everywhere. The security guard, Richard Jewell, was at first praised as a hero, but then the feds started investigating him as a potential suspect. The media had a field day with the idea of a failed police officer who planted a bomb so he could be a hero, but in October the U.S. Attorney formally cleared him of suspicion. The feds then admitted that there were no other suspects, and the case went cold. Rudolph probably would have gotten away with it, but like other similar offenders he was emboldened to try it again. He used similar bombs in 1997 to attack an abortion clinic and a lesbian nightclub in Atlanta. The feds were able to figure out they were all made by the same person. Another bomb at an abortion clinic in Birmingham gave them the last clues they needed, including part of a license plate, to tie it all to Rudolph. They tipped their hand, however, allowing Rudolph to flee into the Appalachians. He remained a fugitive for more than five years. He was arrested by accident: while scavenging for food in a garbage can, a rookie cop suspected him of trying to commit a burglary. Five months later, in October 2003, the feds charged him with the four bombings. Time passed. Then in April 2005, Rudolph took a plea to a life sentence, avoiding the death penalty. He’s with Yousef at the Supermax now.

In February 1997, a Palestinian named Ali Hassan Abu Kamal went to the observation deck of the Empire State Building to carry out a suicide attack. He’d left Ramallah in December, and entered the U.S. on Christmas Eve. He bought a gun in Florida, then went up to New York. On the evening of his attack, he went to the observation deck, pulled out his gun, and started shooting into the crowd. One tourist was killed and six others were injured. Then he put the gun to his head and shot himself. Under orders from Yasser Arafat’s regime, the gunman’s family gave a false story that he was suicidal after a failed business venture, but in 2007 the family revealed that it had been a politically-motivated attack on the U.S. for its support of Israel. Law enforcement wasn’t able to piece together his sudden entry from a place known for its suicide bombers, his purchase of a firearm, and travel to a landmark population center. Nor should that have been law enforcement’s job. But others could have.

In September 2001, a lot of bad things happened. Al-Qaeda did it, masterminded by Khalid Sheikh Mohammed again, using a barely-tweaked version of his and Ramzi Yousef’s Phase II plans from Manila. A lot of finger-pointing went on afterwards, because although U.S. intelligence agencies knew a lot, and were expecting “something very, very, very big,” and in August the president’s CIA brief even said Al-Qaeda was determined to strike inside the U.S., the intelligence community didn’t — indeed, believed that they couldn’t — share this information with domestic law enforcement. CIA had minimal capacity to conduct paramilitary operations of its own, and the military was completely uninvolved in countering Al-Qaeda. The FBI had almost no capabilities that could have prevented the attacks, even though it had significantly ramped up its counterterrorism efforts after the 1993 WTC bombing. But as with any other law enforcement agency, its focus was exclusively after-the-fact and case-specific. The FBI’s ability to gather intel was limited, there was no sharing of intel from other agencies, and the FBI didn’t have the training or resources to do anything about it even if they did get anything useful.

But that was because the FBI is not in the job of preventing acts of war. If, during the Cold War, the Soviets had sent a team in to blow up the Capitol Building, it would not have been the FBI’s job to prevent it from happening. Nor would the attackers have found themselves facing criminal prosecution in civilian courts. It would have been treated as an act of war, and the combatants would have been treated accordingly.

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Terrorism is no different. And yet there is this bizarre mindset that it is completely different from an act of war, and is instead nothing more than violent crime. But crime is not the same as deliberately sending attackers from foreign lands with the purpose of killing and destroying, in order to attack the nation itself. That’s war, whether it is launched by a governed nation or by a transnational organization.

Timothy McVeigh wasn’t sent by some foreign opponent, though. Does that make his acts a crime as opposed to war? Yes, and more: They are treason, as well as crime. Article III Section 3 defines treason, and puts it within the realm of the federal courts: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” Congress duly adopted that definition of the offense in 18 U.S.C. §2381, which allows a sentence of death.

What about Eric Rudolph? Yes, that sort of terrorism counts as crime. If he was trying to force a political decision by violence, then it was terrorism, but he wasn’t trying to attack America, so it stays at the level of a crime. And his attack on the lesbian bar wasn’t so much political as a hate crime, really. Not all mass-murder is war, nor is it treason.

So who should be prosecuted in the criminal courts? Not terrorists directed from abroad. Not combatants captured during war, whether declared or not. It should be limited to offenders like Eric Rudolph.

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On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

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Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

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Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

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So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

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We’re on vacation starting tomorrow, and that means we’ve been extra-busy trying to get as much work done as possible beforehand. So we’re not taking the time to post anything particularly thoughtful today. Maybe while we’re on vacation, but not today.

Still, we were pleased to see we were quoted in Crain’s this morning. Essentially, we were asked to comment on a recent USA Today article claiming that white-collar prosecutions plummeted even as the economic crisis worsened. First of all, USA Today’s stats exaggerate things. As the actual statistics (shown below) show, the drop wasn’t that big. And it’s easily explained by the shift in the FBI’s focus after 9/11. And once the political pendulum started to swing back to financial crimes in 2007, more investigations got started, and we’re now beginning to see plenty more white-collar cases.

We weren’t quoted as accurately as we’d have liked, and they said we used to be a federal prosecutor when we were really a state prosecutor, but they did spell our name and firm correctly, so we’re not complaining.

Anyway, it occurred to us that we’ve been getting some good press lately. And that gave us a great idea for a post. Instead of writing anything of substance, we’d just post some links to the various articles, and call it a day. So here’s some shameless self-promotion:

How Dirty Are Hedge Funds? (Forbes, Oct. 20)

Galleon SEC, FBI Informant Roomy Khan Worked at Intel (Bloomberg, Oct. 22)

Galleon Wiretap Defense Not ‘Hopeless,’ Experts Say (Bloomberg, Oct. 28)

Bear Stearns Defense Holds Lessons For Execs (Forbes, Nov. 17)

After Lull, Financial-Crime Prosecutions Seen Set to Rise (Crain’s, Dec. 22)

And for those who need some useful CLE credits, here are the lectures we gave this year (CLE credit good for most states):
Hope for Hopeless Cases I: Defending an Internet Pornography Case

Hope for Hopeless Cases II: Defending Wiretaps and Tape Recordings

Hope for Hopeless Cases III: Better Loss Calculations for Lower Sentences in Financial Crimes

Hope for Hopeless Cases IV: Your Client Confessed! Now What?

Enjoy!

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