Archive for July, 2009

D.C. Circuit: No Extra Prison Time for Rehabilitation

Tuesday, July 28th, 2009


The D.C. Circuit weighed in today on an important issue that has split the circuits evenly: whether a sentencing court can give extra time in prison, to increase the opportunity for rehabilitation of the prisoner. Some circuits say it’s fine, some say it’s prohibited by law.


18 U.S.C. § 3553 says there are four purposes of criminal punishment:
(1) “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;” [retribution]
(2) “to afford adequate deterrence to criminal conduct;” [deterrence]
(3) “to protect the public from further crimes of the defendant;” [removal]
(4) “to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” [rehabilitation]

18 U.S.C. § 3582 says that a sentencing court has to consider those four purposes of punishment in deciding whether to impose a prison sentence, and in deciding how long a prison sentence should be. However, it adds that the court must recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

In other words, the law implicitly recognizes that prison, in and of itself, doesn’t rehabilitate people. Departments of “Corrections” have nothing to do with correcting people’s behavior. (It’s Orwellian, isn’t it? And so is the concept of incarcerating people for the purpose of re-education.)

This comes as no surprise to anyone with any experience with the criminal justice system. Imprisonment does not make people stop committing crimes. Studies have shown that roughly 83% of people who get arrested will never get in trouble again after that one single encounter with the system. Either they’re scared straight, or their behavior was a one-off exception to an otherwise blameless life. This is why we have consent decrees, adjournments in contemplation of dismissal, and the like. Most people, if given a second chance, will never get in trouble again. Incarceration is completely unnecessary to “rehabilitate” these people.

The other 17% or so? They keep coming back. Incarceration does not stop them from getting in trouble again once they get out. It is stupidly obvious that prison does not rehabilitate repeat offenders.

Rehabilitation is not so much an aspect of punishment, so much as it is an opportunity incidental to it. There certainly are life-altering programs, typically long-term programs, that can get people out of drug dependencies or ways of life conducive to criminal behavior. But these are exceptions, not the rule. They change circumstances, not behavior. And they can sometimes be best administered in an incarcerated setting — but often they are just as effective in a non-jail setting.

Meanwhile, the circuits are split on just what § 3582 means when it says “the court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall . . . [recognize] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

Some circuits — like the Fifth, Sixth, Eighth and Ninth Circuits — say that the court should not decide whether to impose prison based on considerations of rehabilitation, but it is okay to increase a prison sentence for the purposes of rehabilitation. Other circuits — like the Second, Third, Tenth and Eleventh Circuits — say that courts shouldn’t increase prison sentences, either.


Today, the D.C. Circuit joined the Second and Third Circuits in saying that § 3582 prohibits courts from increasing a prison sentence for the purpose of rehabilitation.

In re: Sealed Case**, No. 08-3029 (July 28, 2009) dealt with an older defendant with a long rap sheet and a drug addiction. His name is sealed because at one time he had tried to cooperate with the feds, albeit unsuccessfully. The defendant pled guilty to selling less than five grams of heroin. Ordinarily, with his criminal history category and acceptance of responsibility, this would have given him a sentencing range of 24 to 30 months. However, what with his felony record and all, his Guidelines range wound up being 151 to 188 months (12.5 – 15.5 years).

This is only advisory, of course, and the court then weighed the various § 3553 factors to figure out what sentence to actually impose. The judge said his recidivism was due to his drug addiction, and the case only involved a small amount of drugs. The judge added that the defendant could benefit from some of the programs available in prison, and that these “would actually be more available and more useful for the defendant over a somewhat longer period of time than it would over a very short period of time.”

In the end, the judge went down to a sentence of 132 months (11 years), along with a recommendation that the defendant be admitted to the prison’s “500-hour” drug treatment program.

The defendant appealed, saying that the judge would have given him a shorter sentence, but increased the sentence for the purposes of rehabilitation, and that was improper. It urged the Circuit to adopt the rule of the Second and Third Circuits.

The government, on the other hand, said they should adopt the Ninth Circuit’s rule instead, permitting increases in sentencing for the purpose of rehabilitation.

In its 2-1 ruling today, the D.C. Circuit said that the plain language of the statute bars courts from seeking to achieve rehabilitation through imprisonment. A defendant can be imprisoned for other purposes, and then take advantage of rehabilitative programs while in jail, but those programs cannot be the reason for incarceration.

The government argued that this only prohibits choosing jail over a non-jail sentence based on such considerations. Once the sentencing court has decided to incarcerate, § 3553 requires courts to consider rehabilitation, so it must be a reason for determining the length of the sentence.

The Circuit said this made no sense. “If, as the government concedes, imprisonment is not an appropriate means of promoting rehabilitation, how can more imprisonment serve as an appropriate means of promoting rehabilitation?”

The court went on to find that the sentencing judge’s comments indicate that the defendant probably got extra time so as to give him more opportunities for rehabilitation. It was reasonably likely that his sentence would have been shorter, otherwise.

Maybe not a dramatically shorter sentence — after all, the judge did say that selling heroin is serious, and that the defendant had a lifelong pattern of recidivism. But that’s not the point. The point is that the defendant might have gotten a shorter sentence.

Any unwarranted extra time in prison is unfair. It’s not what our system is supposed to permit. So the Circuit vacated the sentence, and remanded for new sentencing.

The defendant might wind up getting the same sentence at the end of the day. But the sentencing court is going to have to explain that the reasons for the length of the sentence do not include the extra opportunity for rehabilitation from extra months in jail.


This exacerbates the split among the circuits. And the issue is an important one, involving the deprivation of liberty and freedoms for the purposes of social engineering.

We wouldn’t be surprised to see the Supreme Court take up this issue in the near future. Perhaps even with this case.

Is the Law “Elitist?” Of Course It Is. So?

Wednesday, July 22nd, 2009


Over at the WSJ’s Law Blog, Ashby Jones has posted an interesting piece called “Is Law an ‘Elitist’ Profession? Discuss.” Ashby saw an article on “The Lawyer,” a British website, reporting that there is little social mobility of lower classes into the legal profession. And he wonders if we have a similar situation in the U.S.

– – – – –

Obviously, the issues are different in the U.K., where they actually have defined socio-economic classes. People born into the working class tend to stay there. There is a cultural basis for this caste system, which has been the way of things for centuries.

This is further reinforced by the educational system. Children are tested young, and are routed into schools based on their demonstrated aptitude. At age 11, 90% of students have wound up in noncompetitive “comprehensive” schools. The remaining few are admitted to selective schools that accept those whose scores are in the top tenth (or sometimes the top quarter).

The better jobs — not just doctors and lawyers, but also military officers and government officials — are mostly filled by people who got into the selective schools at age 11, and who then went on to get their degree.

Back in January, Prime Minister Brown decided that this has to stop. More people from comprehensive schools need to be represented in the professions and the military. So he appointed former health secretary Alan Milburn as “Social Mobility Czar,” chairing a commission tasked with figuring out how to get working-class students into these higher-class careers.

Milburn’s committee has now produced a white paper (outlined here), concluding that the problem is not so much that schools are selecting the students, but that wealthy parents get to select their schools. His solution is the equivalent of school vouchers — if a community’s schools tend to underperform, then let the parents opt to send their kids to better-performing schools, where they’ll at least have a fair shot of demonstrating their ability.

That sounds like a decent step to us. We’d prefer a system that opens doors, rather than closing them, and the U.K. has a long way to go in that direction. But it’s a good step.

In the meantime, the practice of law in England is likely to continue to be limited to graduates of the better prep schools, whose parents are more likely to have had higher-level occupations, and who share similar backgrounds. Lower-class students are going to continue to have few opportunities for joining their ranks.

And for those who do get past all the hurdles, and get their law degree, prospective barristers still have to get into one of the Inns of Court, get accepted into a chambers, and live on little income for at least the first year. It’s not as if one can just hang out one’s shingle — one does have to break into the club.

– – – – –

But is that what happens in America? Certainly not. Yes, there are people who have advantages of birth and wealth, who get into schools they might not have otherwise. And there are some kids whose schools are so bad, whose communities are so anti-achievement, whose parents are so uninvolved, that they may never get the chances they ought to have had. But for the most part, the doors of opportunity are always open. When doors are shut, it’s not because the system closed them, but because the individual chose to.

Lawyers in the U.S. come from every walk of life. Some come from privileged backgrounds, others come from (what passes for) poverty. Their parents are just as likely to have been blue-collar as to have been white-collar. A kid can screw up all the way through high school, go to an okay college for undergrad, and get good enough grades to go to a law school. People can go to the finest law schools in the country after spending years pursuing an entirely different career. America truly is the land of second chances. One’s background is not a barrier to entry, here.

Neither is money a barrier to entry. Scholarships abound. Student loans are everywhere. If someone wants to go to law school, the money is there.

Graduating law school is more a matter of diligence than intelligence. A hard-working student of average intelligence is probably going to do better than a bright kid who doesn’t put in the same amount of effort. Ditto for passing the bar. In fact, once you’re in law school, it’s strictly up to you whether you become a lawyer or not.

In America, practically anyone can become a lawyer if they so desire. Put in the time, do the work, and the doors are open.

– – – – –

Still, there is plenty of elitism in the American legal profession. Some of it is good, and some of it is bad.

The good elitism is that we are as close to a true meritocracy as one can get. You want to get into a top law school? Then earn the best grades. You want to get a judicial clerkship? Then be one of the best law students. You want a high-paying job with a big firm? Then bust your ass and prove yourself. You want the best clients? Then do the best work, and word will get around. No client or employer cares who you are or where you come from; they only care what you’ve accomplished and what you can do.

Frankly, we think the law could use a little more of this “good” elitism. It is, perhaps, too easy to become a lawyer in America. Law schools are abundant — every university wants one, because they are cash cows. Whoppingly disproportionate student-faculty ratios mean lots of tuition and little overhead. If a student is willing to consider a school that’s not exactly top-tier, there is a law school out there eager to accept him.

And passing the bar? That bar is set far too low, for our liking. One doesn’t need to demonstrate any reliable mastery of the subjects, but only a passing familiarity with them. A six-week prep course is all most people need to get a passing grade the first time out. And once a young lawyer has squeaked by with, essentially, a D on the exam, he never again has to take another exam to prove his fitness to practice law. The bar exam is not a fitness test, and never has been. All it has ever been is a mild hazing exercise that we all had to go through, and by gum so are these whippersnappers today. Only as an afterthought does it weed out those few who cannot even manage a passing grade. We’d prefer to have the bar exam require demonstrated competence in one’s area of practice, certify lawyers to practice in that area, and require re-certification every five years.

That’s the “good” elitism. Is there “bad” elitism in our profession? You bet.

Some of it is a holdover from the bad old days when we didn’t let in ethnic or religious minorities, people of insufficient family background, or others who just didn’t fit in. Some of this was outright prejudice.

Some of this, however, was a legitimate belief that a member of a profession must not be in a position where he is working for the fees. A professional’s first and only duty is to the client, so the second he start doing it for the money he has crossed the line — his own interests are now competing with those of his client, and that is beyond wrong.

That’s as true today as it ever was. But in the old days, the principle was applied too ham-fistedly. Instead of instituting ethical rules to ensure that the law remained a profession, and didn’t devolve into caveat emptor shopkeeping, we instituted rules and practices that said “we don’t want anyone who has to actually work for a living.”

This attitude underlay all kinds of barriers to entry. The most significant were the ABA accreditation rules for law schools, which made it harder for evening or part-time students to get their degree, and making it harder for low-income schools to gain or keep their accreditation. Students who had to work their way through school, and schools that catered to working-class and lower-middle-class students, had an uneven playing field. The rules were tougher for them than for the upper-class kids.

Those ABA accreditation standards, by the way, are still in effect. They may have lost their original discriminatory purpose, but that doesn’t mean they aren’t still having an effect on entry into the practice of law. Evening and part-time students aren’t allowed to take enough credits to graduate in three years like their full-time counterparts, and are required to spend more years in school, and their schools have to jump through hoops to maintain the programs. The schools themselves have to maintain expensive facilities, the most expensive of which is an up-to-date law library. All those pocket parts are expensive as hell. (What, in this day of electronic research you thought they could dispense with pocket parts and replacement volumes? Surely you jest.)

The legal profession protects itself. We are the biggest and most powerful cartel you can imagine. We’re the politicians. We’re the judges. We make the laws. We enforce the laws. We control entry into our profession. We regulate ourselves. Nobody else regulates us, makes rules for us, or acts as a watchdog. It’s all us. So these things aren’t likely to change any time soon.

And yet we’ve come a long way. We have a ways to go, obviously, but nobody can seriously claim that the legal profession is closed to people of lower socioeconomic class. Nobody can seriously claim that the legal profession is closed to minorities, or women, or people of a given religion. The door may not be open as widely as it could be, but it’s still open enough to admit almost anybody who wants in.

7 Criminal Defense Lawyers to Avoid

Monday, July 20th, 2009

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:


1) The Dilettante


You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”


2) The True Believer


This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of objectivity here. This is the hallmark of the True Believer. She is immune to reason. She is incapable of seeing your case for what it is, flaws and all. She’s crossed the line from “zealous advocate” to “zealot.”

The True Believer has an anti-authority streak so wide, it blocks her vision: All cops are liars! All evidence is planted! All confessions are coerced! The system is corrupt! It’s just a machine that shoves innocent people into prison! It’s racist! It’s classist! It’s… you get the picture.

Her clients may feel good, knowing that she is so strongly on their side. But her clients suffer for it, in the end. Maybe there really was rock-solid evidence against them, and a conviction was practically guaranteed, but a decent plea bargain could have been negotiated. It didn’t happen, though. She’d rather take a spectacular defeat than earn a quiet victory. And now the client is slammed with a sentence that’s more severe than they could have gotten.

Or maybe the case did have weaknesses. Sometimes the evidence is flawed. Sometimes the cops do lie. Sometimes there was a rush to judgment. But who is going to believe a defense attorney who has made a career of crying wolf? Certainly not the judges and prosecutors who have put up with her antics all these years. And that’s too bad, because had she retained some credibility she might have been able to convince them to drop the case, or at least reduce it.

The True Believer is hamstrung by her belief in her client’s innocence. She is incapable of giving wise counsel, dealing with obstacles, or negotiating with the government.

The True Believer’s clients suffer worse penalties because of her. And the injustice of it all only feeds her convictions, of course. It’s so unfair! Nobody listens to the truth! It’s a conspiracy of apathy! It’s systemic racism! And so it goes…

Identifying traits: Righteous indignation. Tendency to substitute slogans for thought. Willing, if not eager, suspension of disbelief.


3) The Social Crusader


Not to be confused with the True Believer, the Social Crusader is out to change the world. The system is broken, and he’s going to change it! That is a laudable goal, of course. And there are ways it can be achieved — perhaps through getting involved in politics, writing editorials, and the like. But instead of trying to persuade those who actually make the rules, he’s taken his political activism to the one place where it does more harm than good: the courtroom.

It doesn’t matter if the Social Crusader thinks that a drug crimes are punished too harshly; his client is still going to be punished according to those laws. It doesn’t matter if he thinks capital punishment is inherently cruel and unusual; his death penalty client still faces it. It doesn’t matter if he thinks the police shouldn’t be allowed to search places that the law lets them search; the evidence is still going to be admitted.

The Social Crusader wastes his time fighting the law from within, and his clients suffer dearly for it. Instead of challenging the evidence, and perhaps winning the case, he fights policy and loses. Because it’s not about right or wrong, it’s about what can be proved.

The Social Crusader also cannot negotiate. How could he even think of allowing his clients to plead guilty to something that shouldn’t even be a crime? So forget about getting a good plea bargain with this guy.

This guy simply doesn’t understand that political activism is not his job right now. His job is to get the best outcome he can for his client. One does this, not by arguing what the law ought to be, but by dealing with the law as it is. Instead, he’s living in a fantasy world, ignoring cruel reality. His client, living in real life, suffers for his lawyer’s failure to deal with it.

Identifying traits: Says things like “draconian drug laws,” “someone ought to do something about…,” “the law is an ass.” Tends not to wear suits, preferring activist chic that sends a message, an anti-suit that is just barely permissible in court. Weird hair. Doesn’t talk about you or the facts of your case much, if at all.


4) The Whiner


At first glance, this lawyer seems like she’s totally going to bat for you. She’s constantly advocating for her clients, trying to get prosecutors to make better offers. When she’s not on the phone, she’s in court making an argument. What’s not to love?

The problem is that she’s not actually making arguments. As Michael Palin put it, “an argument is an intellectual process,” and that’s not what’s happening here. Instead of saying things like “here’s why my client deserves a better offer,” the whiner resorts to “why can’t you just give him a misdemeanor?” or “aww, c’mon, can’t you give him probation?” Repeatedly. Over and over again. In every phone call. A typical conversation might go like this:

Whiner: Oh, come on, why can’t you just give him a misdemeanor?

Prosecutor: Because he sold heroin to an undercover and three others in a school zone, he doesn’t have a drug problem, and this is the third time he’s been caught doing it. He’s already had his second and third chances, and I’m not going to offer anything less than a year this time around. Now of course, I only know what the cops told me, and if there is something else I need to know that would change my mind, I’d love to hear it.

Whiner: But I don’t understand why you can’t just offer the misdemeanor!

Repeat for ten minutes.

The strategy may be simply to wear down the other side until they give in. But we’ve never seen it work. All one gets is a pissed off adversary who is entirely justified in never returning one’s calls again.

The Whiner tries the same tactics on judges, with even less success.

One would think that, after having this strategy fail time and time again, the Whiner might consider trying something new. But she doesn’t. She just whines harder.

True story: We were in court watching a pathetic performance by a Legal Aid lawyer widely known to be one of the worst Whiners. As usual, it didn’t work. Later, out in the hallway, we saw her supervisor chastising her. Really laying into her. What was the supervisor saying? “You weren’t whining enough! You need to be whining more! Why weren’t you nagging them?” And more of the same. We kid you not.

So apparently some defense attorneys are actually trained to do this. But it’s lazy, substituting persistence for advocacy. Instead of thinking or doing some actual lawyering, the Whiner just tries to wear down the opposition with entreaty and supplication. It’s not a strategy we would advise.

Identifying traits: Permanent pout or moue. Nasally voice. Puppy-dog eyes.


5) The Fraidy Cat


It’s true, some lawyers really are afraid of going to trial. Maybe they have stage fright. Maybe they don’t know what to do in front of a jury, and know it. Maybe they’ve had one too many bad experiences. Whatever the reason, they’ll do anything to get out of going to trial.

That’s not a good trait for a defense attorney to have. Sure, 99% or more of criminal cases never go to trial. But nobody knows which ones are going to be the lucky few that do. As time goes on, and a case starts looking more and more like it might actually go to trial, the Fraidy Cat starts getting the urge to just take an offer — any offer.

There are two problems with that. First, some cases really do need to go to trial. Sometimes the cops got the wrong guy. Sometimes the evidence just isn’t good enough. Sometimes, people get acquitted. But nobody gets acquitted until after they’ve had a trial. And Fraidy Cats don’t go to trial, so their clients aren’t likely to get acquittals. Their clients are more likely to get counseled on the wisdom of taking a plea instead. (Now many of those clients probably should take a plea, but what about the handful who maybe shouldn’t have?)

The second problem is that criminal practice is a small world, and reputations get around. A lawyer who has a reputation for backsliding on the eve of trial is just not going to get great offers. Even in a difficult case with tricky evidence, where ordinarily a prosecutor might be willing to lower his offer to avoid the uncertainty of trial — there’s no need to do that, when everyone knows this case is never getting in front of a jury.

The Fraidy Cat is often a Whiner as well.

Identifying traits: It can be hard to differentiate a Fraidy Cat from a normal lawyer. One of the best ways is to insist at your first meeting that you won’t plea bargain, but will insist on a jury trial. And watch his eyes. If he tenses up like a cornered baby rabbit, you might consider probing further.


6) The Caseload Crammer


On the whole, it’s good to be busy. More cases mean more fees, and more job satisfaction. But too many cases can be worse than too few. The Caseload Crammer has way too many cases.

Often, the Crammer is getting most or all of his fees from low-paying court-appointed work. This kind of work is fine if one is starting a new practice, or wants to supplement one’s normal caseload with some indigent work. But these cases pay very little. A lawyer who relies exclusively on them is going to need to have more than he can probably handle, just so he can eat.

A client whose lawyer has hundreds of other clients probably isn’t getting that much attention. That may not be a problem if your case is strictly routine. It may actually be a bonus, if your lawyer does thousands of cases just like yours every year. If your facts aren’t that unique, if the issues are identical to everyone else’s, and he knows what he’s doing, then it might be okay.

But what if your case isn’t the same as everyone else’s? If your case has unusual facts, unique issues or tricky questions of law… sorry, but this lawyer just doesn’t have time to deal with it effectively — if he was even able to break from routine enough to spot the issue in the first place. He just can’t afford to do the work your case requires. If he takes time away from his other cases to put in the hours your case needs, then he risks committing malpractice in those other cases. He’s more likely just to put in the minimum effort on your case.

Don’t take our word for it. This is exactly the argument that court-appointed lawyers make when they ask for higher fees: Such a lawyer needs to take on so many cases at the existing rates that he flirts with malpractice just to make a living.

Identifying traits: Malnourished. Sleepless, red eyes. Tends to recite courtroom litanies in his sleep.


7) The Showoff


Here’s another one that seems fine at first glance. He seems great! After all, he told you so himself. The Showoff likes to brag and boast and bluster about how amazing he is. He may wear too-expensive suits, and unnecessarily showy jewelry. He knows everyone, as he’s sure to let you know. And he may be pretty well-known himself. In fact, one of the most dangerous places in town is any spot between him and a TV camera.

But behind the boasts, there is no substance. The Showoff is just an empty suit.

But how can you tell if someone’s just a Showoff? After all, there’s nothing wrong with bragging. We all do it, and clients like to know that they’re hiring someone with experience. And it’s good and proper to dress as well as one can. And there are plenty of well-known attorneys who have earned every bit of their fame.

The problem with the Showoff is, he just doesn’t have what it takes any more — if he ever did. He can’t live up to his own hype. He may have had the chops once, back when he was busy earning that reputation. Or maybe he just had some lucky breaks. But now he just can’t do the heavy lifting any more. You’ve been lured into thinking you’ve retained a superstar, and what you really have is nobody special.

Maybe it’s all the bragging and schmoozing and more schmoozing, so he doesn’t have the time to master the facts and issues of your case. Maybe it’s just that he’s coasting, and doesn’t realize he ought to be working harder. Whatever the reason, you’re not getting superstar representation. He doesn’t know the law like he should. He hasn’t learned the facts. He hasn’t grasped the complexities. He’s not prepared, and it shows. And that’s just deadly.

Identifying traits: Talks more about himself than about your case. Tendency to sell past the close. Slick as a phony politician.

20 Years Sounds About Right for Dreier

Monday, July 13th, 2009


So Marc Dreier was sentenced today to 20 years in prison, plus forfeiture of $746 million and restitution of nearly $388 million (that’s more than a billion dollars, with a “b”). That’s his punishment for his guilty plea to conspiracy, securities fraud, money laundering and wire fraud. The feds had asked for 145 years in prison, and Dreier’s counsel Gerald Shargel had asked for a sentence in the 10-12.5 year range.

We have to say, we’re not offended by this sentence. It’s high enough to be meaningful, but not so high that it will scare away future plea bargains in white collar cases.

It’s important to have a meaningful sentence, if the justice system is to function properly. If justice is not perceived to be done, then law and order lose their authority. For many years, white collar crimes were seen to be treated unjustly, with sentences too low for the harm done. A massive financial fraud could have many more victims than a violent street crime, and can do far more damage to each victim by taking not just their wallet, but the savings representing a lifetime of labor. But until recently, such frauds were punished far more lightly.

In recent years, however, the pendulum began to swing the other way. From Tyco to Enron to MCI to Madoff, we saw white-collar sentences lurch upward and upward. Madoff’s 150-year sentence earlier this summer was just amazing, and not at all proportionate to the harm done. The pendulum had swung too far.

If that was to be the new par for the course, white collar sentencing would be just as unjust as it was in the days of the old slap-on-the-wrist. In addition to the very real problems of perception, in a world where perception equals reality, there is the separate problem of efficiency.

If people think they’re going to get slammed at sentencing whether they plead guilty or not, as Madoff did, then there is no point to pleading guilty. One might as well take one’s chances with a jury and shoot for the off chance of an acquittal. It happens.

(As an aside, there’s an old story of a band of soldiers in medieval China, who had become lost in a swamp en route to a muster. The penalty for being late was death. The penalty for rebellion was death. So they rebelled. And eventually toppled the government. Extreme punishments have had extreme public reactions throughout history. *Cough*drug laws*cough*)

Here, the government wanted 145 years for Dreier, to punish him for putting one over… not on mom and pop investors, but on sophisticated hedge funds who really ought to have done their homework. That would be just five years less than what Madoff got, for essentially doing the same thing. But it would have been a horrible outcome for our criminal justice system if they actually got their way.

Fortunately, Dreier drew Judge Jed Rakoff, who has been vocal in opposing the recent trend towards ever-higher sentences in white collar cases (in addition to his criticism of the severity of the U.S. Sentencing Guidelines). Rakoff is making him give back the money he filched, and forfeit his ill-gotten gains, and serve a prison sentence equal in severity to his crimes.

Nobody can reasonably say Dreier got off light, and nobody should complain that his sentence was unjustly harsh. We think Judge Rakoff nailed this one.

MySpace Judge Agrees with Us

Friday, July 3rd, 2009


Remember the Lori Drew case? She’s the mom who was convicted last Thanksgiving for creating a fake MySpace persona, which she then used to harass a teenaged girl until the girl committed suicide.

After she was convicted, we argued that her conviction stretched the meaning of the statute too far. Here’s what we wrote:

The underlying statute, the Computer Fraud and Abuse Act, is a federal law intended to prevent hacking. Drew created a fictitious MySpace account, which was used to harass the girl. In doing so, Drew violated MySpace’s terms of service, though she apparently never read them. By violating the terms of service, Drew got unauthorized access to MySpace’s servers, and the prosecution went out on a limb to argue that this technically violated the CFAA.

But does it really?

Plenty of pundits are now doubting that the verdict will survive an appeal. Congress clearly intended the law to criminalize hacking into someone else’s computer. That’s different from creating a fictitious screen name — a very common and socially acceptable occurrence.

Terms of service are conditions imposed by websites which govern permissible use, and which almost always prescribe penalties that may be imposed for violations. These penalties normally range from warnings and temporary disabling of access, to permanent denial of access. The relationship is essentially contractual.

But if the prosecution’s theory is upheld on appeal, then breaching such conditions would have criminal consequences.

Criminalizing this kind of behavior isn’t exactly far-fetched. Crime is essentially that behavior which society considers so threatening that the guilty must be punished with a restriction on liberty or a loss of property. The existence of a civil remedy does not preclude something from being criminal — a thief is civilly liable to return what he stole, but still faces jail regardless. And there may be something to an argument for criminalizing the false personas on social networking sites frequented by minors, to protect society from predators.

But that’s clearly not what Congress was trying to do here. Furthermore, the prosecution’s stretched interpretation is just too overbroad. Rather than being narrowly tailored to focus on those who violate the TOS of a child-used site for the purpose of committing a nefarious or dangerous crime, the prosecution’s theory simply criminalizes all violations of any site’s TOS agreement. A court of appeals is likely to find that an improper application of the law.

Lori Drew was scheduled to be sentenced today. (Well, technically yesterday. Thursday. We’re still working, so it’s still Thursday to us.)

But she wasn’t sentenced. Instead, Judge Wu threw out her conviction. According to CNN, he refused to uphold the jury’s verdict because the guilty verdict would set a bad precedent that anyone who violates a site’s TOS could also be found guilty of a misdemeanor. Criminalizing all violations of a site’s TOS agreement is not what the law is designed to do. Because it technically allows such improper application of the law, it is probably unconstitutional for vagueness.

This was just an oral decision. Wu is expected to issue his written decision soon.

Great minds think alike!

How Would a “Cultural Relativity” Defense Work?

Thursday, July 2nd, 2009


Amir Efrati has an interesting article in today’s Wall Street Journal, headlined “Cultural Background Gains Traction as a Legal Defense.” It’s a well-known fact that some things that are criminal in one society are perfectly acceptable in another. Some lawyers are starting to claim that it should be a defense if a person’s conduct — though perhaps criminal on its face — was consistent with the norms of the culture they come from.

To the extent that this affects the mens rea element of a crime, it seems obvious that cultural beliefs can be relevant. If one’s cultural upbringing makes one’s conduct somehow less purposeful, knowledgeable, reckless or negligent, then it ought to be taken into account.

For example, it’s common to charge someone with possession of a controlled substance with intent to sell — usually a more serious charge than simple possession — based solely on the quantity of drugs possessed. If someone has thirty crack vials in their pocket, in the common sense of American culture it would not be unreasonable to presume that they did not have it for personal use. Intent can be inferred from these facts.

But a Laotian immigrant was acquitted of possession-with-intent-to-sell charges by “an all-white, predominantly Republican, South Carolina jury,” after it heard evidence that 300 grams of opium was consistent with personal use in the defendant’s tribe. “It’s their version of Advil,” his lawyer argued. “They’ve been using this for a thousand years.” There was a cultural explanation of why this particular defendant did not have the intent to sell.

The Journal article also mentions the recent case of Nary Chao, a Cambodian mother who was charged with a felony after some busybody turned her in for kissing her infant son’s penis. This is bizarre behavior in America, sure, but in Cambodia it is an acceptable sign of affection. The prosecution was mollified somewhat by this explanation, and “let her plead to a misdemeanor.” The Maine Supreme Court dismissed a similar sexual assault charge against a Dominican mother for similar reasons. In sexual assault cases, or child-endangerment cases, the law doesn’t care so much why you did it, only that you did it.

Nevertheless, many cultural differences are not going to have an effect. They’re not going to excuse otherwise criminal conduct, or mitigate the sentence. A father who physically abuses his child is going to be just as culpable, even thought it is a cultural norm where he comes from. Our society values the child’s safety more than it does the father’s cultural prerogatives. A fundamentalist Muslim family that commits an “honor killing” is not going to be let off the hook just because it would have been expected back home.

The upshot is that any cultural balancing is going to be weighed within the culture of the judge and jury who are doing it. In America, you’re just not going to see accommodation of customs that jeopardize someone’s safety, or cause physical harm.

* * * * *

The clash of cultures doesn’t necessarily involve immigrants. We’ve spoken to people from inner cities who think it’s unfair to get charged with certain crimes, because those are the “white man’s” laws, which shouldn’t apply to them. In some neighborhoods, it’s just as acceptable to smoke a joint as to smoke a cigarette. It’s a cultural norm. So getting popped for it smacks of injustice.

But is it really unjust? Should cultural sensitivity extend to internal cultural differences? Whatever one’s position on the legalization of pot, why should the law apply to one portion of the citizenry and not to another?

As a white-collar defense attorney, we also see lots of people who, consistent with the culture they were raised in, think it is perfectly acceptable to commit financial crimes. It’s not only acceptable to screw others, it’s something to be proud of. This is an absolutely foreign concept to us, and yet there it is. Should ethical relativism mitigate such behavior? Is a fraud any less criminal if it is acceptable in the offender’s community? What if the victim was also part of that community, and shared the same views?

How about spitting in public? It’s against the law. But in some neighborhoods, hawking a big old loogie onto the sidewalk is almost mandatory. Should people in those neighborhoods be exempt from being ticketed, just because it’s the norm there? Why should they be any less subject to the law than a tourist in midtown?

* * * * *

Cultural relativism can be dangerous, if it lets people get away with conduct that others are held accountable for. It engenders a perception that the justice system is not fair. And it is of critical importance that the system be perceived as generally fair. If the system is perceived to act irrationally, then it’s not going to deter crime.

If the system is perceived to excuse crimes based on vagaries of birth or ethnicity, then the system fails. Some people will be more likely to commit crimes, and society will suffer.

If the populace loses confidence in the ability of the system to protect them, because some people are going to get off based on vagaries of birth or ethnicity, then the system fails. People will turn to other ways of protecting themselves, and society will suffer.

On the other hand, cultural insensitivity can also be dangerous. If people are punished for offenses that are harmless, such as the Cambodian and Dominican mothers’ expressions of affection, the system is just as likely to be seen as arbitrary and irrational. If cultural factors are not taken into account when they legitimately affect a critical mens rea element, then the system will be perpetuating injustice. Society will suffer.

For those who insist that the law should apply to all visitors equally, then does that mean Singapore is right to imprison an American who makes a perfectly true statement that harms someone’s reputation? Does that mean Saudi Arabia would be justified in executing a visiting gay couple merely for being homosexual? There are plenty of laws out there in the world that we Americans would not want applied to us with equal force. We’d have a huge public outcry, get the State Department involved, mobilize the media. So why shouldn’t we provide the same cultural sensitivity that we would demand of foreign countries?

Where should we draw the line?

* * * * *

One dividing line could be the one we alluded to above: a cultural norm should not be a mitigating factor or a defense when it caused physical harm, injury, financial harm, or otherwise damaged another person. If the conduct did not endanger anyone else’s safety or property, then a jury ought to be allowed to at least consider cultural factors.

But that is too easygoing. It lets a jury decide not to punish other crimes that society still wants enforced, even though there is no victim. And there would be unjust disparities. A jury would be allowed to excuse a West Indian pot smoker, but a kid from Kansas isn’t going to have the same defense available to him. A jury could acquit a Chinese for boiling a cat alive in lye before skinning and eating it, because that’s the way it’s done back home, but would have to convict a local for the same animal cruelty. A foreign tourist could be forgiven for swimming nude in public, but a resident would get in trouble.

But can we add an extra exception, prohibiting cultural considerations in crimes that offend public sensibilities? Doesn’t that essentially cover everything else?

As the guy said in the movie, when deciding how to enforce the law in a clash of cultures: “It is a puzzlement.”