Archive for April, 2010

Gawker Gets It Wrong

Tuesday, April 27th, 2010

gizmodo

As everyone reading this is probably aware, last Monday the website Gizmodo announced an exclusive look at Apple’s iPhone 4, which hasn’t been officially released yet. In their post (here), they said “you are looking at Apple’s next iPhone. It was found lost in a bar in Redwood City, camouflaged to look like an iPhone 3GS. We got it. We disassembled it. It’s the real thing, and here are all the details.” The post was written by blogger Jason Chen, and featured video of him showing details of the phone, and a lot of photos.

As time went on (see all the posts here), it came out that Gizmodo had paid $5,000 for the phone. The guy they bought it from wasn’t the phone’s owner, but had merely found it in a beer garden back in March. An Apple employee had lost it there.

So, if they bought it from someone who wasn’t the owner, and they knew it was supposed to be a secret, did the folks at Gizmodo commit any crimes here?

Law enforcement got involved very fast. By Friday, law enforcement in San Mateo had gotten a search warrant (viewable here) to seize Jason Chen’s computers, disks, drives, and any records pertaining to the Apple prototype 4G iPhone.

The search warrant was executed that same day, and a bunch of computer stuff was seized (the inventory is also viewable here).

Yesterday, the chief deputy district attorney for San Mateo County told the WSJ’s “Digits” blog (here) that nobody’s saying a crime happened or not. They’re still investigating.

Meanwhile, however, Gawker Media (the owner of Gizmodo) issued a letter on Saturday (viewable here) stating that “under both state and federal law, a search warrant may not be validly issued to confiscate the property of a journalist.”

In support of that statement, Gawker Media cited California Penal Code §1524(g) (viewable here), which prohibits search warrants for items described in Evidence Code §1070.

Evidence Code §1070 (here) says a judge can’t hold a journalist in contempt for refusing to disclose his sources, or for refusing to disclose unpublished information gotten while preparing a story.

So we have to ask, does Gawker Media know what it’s even talking about?

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There’s a big difference between a search warrant and (more…)

Dear HuffPo: Here’s why we have statutes of limitation

Friday, April 23rd, 2010

 

So we took a few minutes just now to check out some headlines with Google’s “Fast Flip” news browser (which, by the way, is super-cool). And this headline totally caught our eye: “Some Sex Crimes Get a Pass – Why?”

That’s a damn good question! What do you mean, some sex crimes don’t get prosecuted — that’s appalling! Either the crime is something society doesn’t think worth punishing, or prosecutors aren’t doing their job! So we checked it out.

What we found instead was a totally inane article on the Huffington Post, leading off with the following lines: (more…)

7 Criminal Defense Lawyers to Avoid

Wednesday, April 21st, 2010

[Ed. note — this article is reprised by popular demand.]

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:

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1) The Dilettante

dilettante.png

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?”

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2) The True Believer

true-believer.png

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 (more…)

Supreme Court Finds Animal-Cruelty Law to be Unconstitutionally Overbroad

Tuesday, April 20th, 2010

supreme court fountain

Congress screwed up again.

Animal cruelty sucks. It’s against the law, in one form or another, in every single state. The feds wanted to outlaw it, as well. But they have that pesky jurisdictional hurdle to overcome, which they always try to get around by invoking interstate commerce. So in 1999, Congress passed a law making it a crime — not to commit acts of animal cruelty — but to have a photo or video of a living animal being wounded or killed, with the intention to place that depiction into interstate commerce for commercial gain. 18 U.S.C. §48.

That’s pretty awkward. And it doesn’t outlaw the actual cruelty itself. It’s sort of meant to stop animal cruelty from happening, by making it a federal crime to sell videos of it. Which is pretty lame and stupid, hardly a deterrent at all.

The law was really intended to focus on “crush videos,” which showed the killing of kitties and puppies, for an audience that derived sexual pleasure from such images. See Internet R. 34. The acts depicted in such videos are already against the law in every state, but there you go.

So Robert Stevens was a pit bull enthusiast and documentary film maker. He sold videos that were not “crush videos,” but which did depict dogfighting. Stevens said they were educational, to provide perspective on the phenomenon. The feds said they violated section 48.

This morning, an almost unanimous Court ruled that the statute is unconstitutionally overbroad. (Read the opinion here.) Writing for the majority, Chief Justice Roberts focused not on the First Amendment issues that had been raised (which would have required the carving out of new First Amenment law), but instead zeroed in on the fact that this statute is supposed to apply only to specific types of “extreme” material.

Overbreadth analysis doesn’t require the making of new constitutional law. All you do is (more…)

It’s the Culture, Not the Caseloads

Tuesday, April 13th, 2010

overworked

The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.

The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.

One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.

But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.

So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.

So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.

Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.

The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.

So the trick is to get better, not more, prosecutors. How do you do that?

You don’t really need to pay them more. It’s a government job, so it (more…)

Stop the Music – 3rd Circuit Slams DOJ’s “Musical Chairs” in Securities Fraud Prosecution

Wednesday, April 7th, 2010

musical chairs

SEC Rule 10b-5 is one of the main securities fraud laws. It says you can’t mislead people in connection with the purchase or sale of a security. You can’t make an untrue statement of a material fact. And you can’t fail to state a fact, when without that fact the statements you just made would be misleading.

That seems simple enough. But federal prosecutors in New Jersey seem to be having a hard time figuring out what that means.

In June 2005, the feds in New Jersey indicted Frederick Schiff, the CFO of Bristol-Myers Squibb, for failing to disclose material facts to investors. Allegedly, Bristol-Myers (a drug company) was paying wholesalers to order more drugs than they really needed, so Bristol-Myers could report higher sales numbers and inflate its stock value. Schiff allegedly didn’t tell investors about it during conference calls and in SEC filings. (See the indictment here and the DOJ’s press release here.) That indictment got thrown out for a grand jury leak, so they got a second one in May 2006, and finally a third one in April 2007 that dropped allegations of accounting violations.

With respect to the omissions, the government kept changing its tune. First, they said the company had a duty to correct misleading statements of others, based on a “general fiduciary duty.” The district court helpfully pointed out that there is no such duty in the law. So then the feds said there was a statutory duty under SEC regs S-K, which might actually have worked, but then they changed their mind and put on the record that they weren’t pursuing that theory. There was a “theory of duty based on falsity of reported sales and earnings,” which the District Court said wouldn’t fly. Then they tried to say the stuff left out of filings is a material omission that is misleading if you include the earlier analyst calls in the context (calling it “all of a piece”). The district court ruled that, no, there is no affirmative duty under either the “falsity” or the “all of a piece” theory. “It defies logic,” the court ruled, “to charge as a crime that an utterance in an analyst call must have other words written in a later SEC filing in order to make the utterance in the prior phone call ‘not misleading.’” Thanks for playing. The feds appealed.

In a unanimous decision today (opinion here), the Third Circuit slammed the DOJ for constantly changing its theory of the case, for playing “musical chairs” with its theory of how Schiff’s conduct counted as an unlawful omission under Rule 10b-5.

More importantly, the Circuit said the DOJ’s ultimate theory of liability here — that Schiff had a “general fiduciary” duty as a “high corporate executive” to disclose the inventory issue — was simply overbroad. “This argument reaches too far.”

This is a big setback for the feds, who now are left with a much narrower (more…)

On Deportation and Duty

Thursday, April 1st, 2010

immigrants

Yesterday, the Supreme Court ruled that defense lawyers must advise their immigrant clients that, if they plead guilty, they could get deported. (Read the opinion here, and you can read more about the case here and here.) In a nutshell, Jose Padilla took a plea to selling drugs, and his lawyer told him not to worry about deportation since he’d been a lawful permanent resident for 40 years. That was erroneous advice. Kentucky wouldn’t let Padilla get his plea back, saying this error was about a collateral consequence outside the criminal justice system, so it wasn’t ineffective assistance for Sixth Amendment purposes. The Supreme Court disagreed, saying it absolutely was ineffective assistance. Defense lawyers are duty-bound, as a constitutional matter, to let clients know that pleading guilty could get them deported.

Note that this burden is on the defense counsel, and not on the court. The court does have to advise defendants that they’re giving up their right to a jury trial and all the other things they’re foregoing, but the court doesn’t have to warn about “collateral” consequences of the plea. And deportation is one of a myriad of potential collateral consequences, including losing a driver’s license, or the right to vote, or the ability to hold a particular job, or government benefits. (There are entire books dedicated to listing and describing all the collateral consequences out there.)

But deportation is different. It’s a dramatic life-changer, often more so than incarceration. It affects the now-banished immigrant, but also his family. So somebody ought to mention it to a defendant before he takes a plea and effectively deports himself.

For that reason, since the days of disco the ABA has had standards of conduct for defense lawyers, requiring us to inform our clients fully and accurately about what consequences they might face. See ACA Standards for Criminal Justice, 14-3.2 Comment 75. Some, but not all, states also require it by law. And some states even require judges to do it from the bench as part of the plea colloquy.

But now the Supreme Court has ruled that, as a matter of constitutional law, failure to inform an alien of the risk of deportation is ineffective assistance of counsel. It violates the Sixth Amendment. So the client can take back his plea and go to trial instead.

Great for clients, some defense lawyers may be huffing, but not for us. Now what, are we supposed to master a whole nother specialty of law, and a notoriously byzantine one at that, just so we can do a constitutionally effective job? That would suck!

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Well no, the rule doesn’t suck. We do not have to all of a sudden become experts in immigration law. We do not have to parse the insanities and inanities of that highly complex field. All we have to do is advise our clients that there is a risk of deportation. And we’d better not tell them there is no risk, when there really could be one.

This really is nothing new. It’s what we’re supposed to have been doing all along. For example, look at (more…)