The Criminal Lawyer

Over the weekend, the NYT printed an article calling the Supreme Court under C.J. Roberts the “most conservative in decades.”  “The court not only moved to the right,” the article said, “but also became the most conservative one in living memory, based on an analysis of four sets of political science data.”

We admit to reading the article with a fair amount of skepticism.  Whenever political science folks or sociologists or others of their ilk start talking about the Court being “conservative” or “liberal,” we get uncomfortable.  The words have very different meanings for politicos than they do for jurists.  A judicial conservative is not necessarily supportive of right-wing politics.  A jurist who is politically conservative may well be fairly liberal in his jurisprudence, especially if he’s using his opinions to further a political agenda. 

The article did nothing to assuage our discomfort.  As we feared, it conflated the concepts of political and judicial conservatism.  The article really focused on whether rulings were more or less likely to be favored by conservative political platforms. 

To be fair, the headline really is misleading.  The article itself says at least twice that “the recent shift to the right is modest.”  And it does point out not only that ”the court’s decisions have hardly been uniformly conservative,” but also that “the court’s decisions are often closely aligned with or more liberal than public opinion.”

But the basis of any analysis is its presumptions.  And the presumptions applied here are beyond simplistic.  “In the database, votes favoring criminal defendants, unions, people claiming discrimination or violation of their civil rights are, for instance, said to be liberal.  Decisions striking down economic regulations and favoring prosecutors, employers and the government are said to be conservative.”  Forget being beyond simplistic, it’s downright misleading.

Notice that the focus is on who prevailed in the case, not why the Court sided with them.  Just because a criminal defendant won his appeal, for example, that does not mean the justices were being liberal when they sided with him.  The Melendez-Diaz case, after all, pretty clearly restrains the prosecution and favors defendants, by requiring chemists to testify at trial as to their analysis of alleged drugs.  Who wrote the majority opinion?  Scalia.  Hardly a liberal.  His reasoning?  Very conservative: this is little more than an application of existing 6th Amendment law under Crawford.  Scalia is one of the most conservative justices, and yet he’s also the Court’s biggest protector of 6th Amendment rights.

Similarly, just because a civil-rights claim prevails, that has nothing to do with whether the decision itself is particularly liberal.  And if the civil-rights claimant loses, that doesn’t mean the decision was conservative.

The analysis is flawed from the get-go, because it focuses on the wrong thing entirely.  The focus should not be on who won, but why they won.

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We also made a face when we read this bit: “The Roberts court is finding laws unconstitutional and reversing precedent — two measures of activism — no more often than earlier courts.  But the ideological direction of the court’s activism has undergone a marked change toward conservative results.”

No, no and no.

Judicial activism is not measured by finding laws unconstitutional.  Judicial activism is creating new law where none existed, or legislating from the bench — it is another way of saying the court is exceeding its authority.  When the law is different from how a judge thinks it ought to be, an activist judge changes the law.  Merely applying existing constitutional law, however, and finding that the legislature has passed a statute that happens to be unconstitutional — that is precisely what the courts are supposed to do in the first place.  It is the opposite of judicial activism.

Reversing precedent isn’t so much a measure of activism, either.  Some precedents ought to be reversed for perfectly good reasons, such as a change in societal circumstances that necessitated the precedent in the first place.  There is nothing activist about saying “applying the Constitution to fact set A resulted in rule X, but now we have fact set B and rule X doesn’t follow any more.”  What is activist is deciding not to reverse a no-longer-applicable precedent, in order to advance some policy interest.  (Grutter, anyone?)

Recently, there’s been an Orwellian movement on the left to redefine the phrase “judicial (more…)

“There has been a spate of particularly brutal and senseless attacks on the police,” according to Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice, and a former police officer and prosecutor. “It seems to me, [there is] an unprecedented level of disrespect and willingness to challenge police officers all over the place.”

What a telling quote.  (We’d have missed it, too, if Scott Greenfield hadn’t written about it today.  Apparently this was quoted on Fox, and we’ve never gotten around to actually watching or reading Fox News.  We get our news mostly from Fark and the WSJ.)  We have no data with which to verify the claim that police are getting attacked more often.  Nor are we aware of any studies showing an unprecedented level of disrespect for the police.  But like all good anecdotal claims, it seems right because it meshes with our own perception — regardless of whether our perception accurately reflects the truth.

In other words, it’s telling not because it is true, but because it feels true.

Perception is everything.  Reality has a way of catching up.  It’s true of almost every human endeavor except pure math and the most rigorous science.  Perception either is truth, or it becomes truth.

And the perception is that people have “an unprecedented level of disrespect” for the police.  Accurate or not, it’s fast becoming the truth.

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So how come?  That’s easy.  Disrespect must be earned.  People tend not to disrespect others until they’ve been given a reason to.  But once respect is lost, it is practically gone forever.  Reputation works that way.  And when people lose respect for an authority figure, the effect is even worse.  There’s a sense of betrayal.  A violation of trust.  When a trusted authority figure has betrayed that trust, the natural response is not mere disrespect, but hostility.

In recent weeks, there has been talk of more and more people getting arrested for videotaping the police.   It’s nothing new — we’ve been reading such stories for several years now, ever since cell phones started being kitted out with video cameras.  Still, it’s a topic of the day, and we’ve had a few conversations with people on both sides of the issue.  Leaving aside the whole wiretapping issue, however, (a typical explanation for such arrests in states without a one-party-consent rule, though it’s still bogus when the taping is in public and not remotely unlawful eavesdropping), it sure seems like cops are making these arrests because they’re afraid of being made to look bad.  Perception matters.

Are they afraid of misperception?  Sure.  “The camera doesn’t lie,” folks say.  But that’s demonstrably false.  Look at that famous video of Rodney King getting clubbed by a swarm of cops.  It sure looks like he’s getting hit for no good reason, doesn’t it?  But the video doesn’t show King going 80 mph through residential neighborhoods after a 100+ mph freeway chase, it doesn’t show King acting like he was flying on PCP when he got out of the car, it doesn’t show him fighting off multiple officers who tried to handcuff him.  The video actually shows the cops acting by the book, doing exactly what they were supposed to do — get him on the ground and keep him there.  He got hit with batons when he kept trying to get up, and the cops struck him to keep him on the ground.  The jury acquitted the cops, because they did it by the book.  But there was rioting and mayhem as a result, because the perception was different.

The camera does lie, because it doesn’t tell the whole story.  Cops suddenly rushing up on a guy for no apparent reason, frisking him, and arresting him — that looks bad if you didn’t know the guy had sold crack to an undercover a few minutes before.  But the camera didn’t catch that.  But guess what, that’s still the cops’ problem, and rightly so.  Eyewitnesses in the community didn’t see it, either, after all.  Is it any wonder why some communities have a strong perception that the cops keep grabbing people for no good reason?  Because that’s what they see.  Right or wrong, that’s the perception. 

And it’s the cops’ job to manage that perception.  Nobody else’s.

But the cops have to be afraid of legitimate perceptions, too.  The camera does happen to catch a whole lot of real police misconduct.  Cops abuse their power all the time.  They do lock people up without good reason.  They do hit, shoot, tase people without good reason.

This misconduct is nothing knew.  There have always been (more…)

The police need a warrant to search your home.  Except when they don’t.  The warrant requirement of the Fourth Amendment is there to protect your privacy, and sorry, but sometimes your privacy isn’t the most important thing at the moment.

One exception to the warrant requirement is the Emergency Exception.  In a nutshell, it says the police are allowed to go into your home without a warrant when there is good reason to believe that someone inside is seriously hurt, or in danger, and needs their assistance right away.

Different states define the rule in different ways.  In New York, the rule was set in 1976 in the Mitchell case.  Mitchell has two objective conditions, and one subjective condition.  If all three are met, then the police are allowed to go in without a warrant.

Objectively, the circumstances have to be such that a reasonably prudent officer would have thought there was an emergency at the time.  Objectively, the officers on the scene had to have probable cause to believe that there was an emergency inside the house.

Subjectively, the officers had to actually be going inside to help.  They couldn’t be using the emergency as a pretext to really look for drugs, for example.

So far, so good.  Sort of.

One problem is that there is no requirement here that the police actually believe there is an emergency.  There is no subjective requirement that the police on the scene be aware of the circumstances that would lead a reasonable person to think there was an emergency.  There is no subjective requirement that the police on the scene actually think there’s an emergency.

That’s not a huge problem under the Mitchell rule, because the no-pretext prong sort of implies that the police need to subjectively believe there’s an emergency.

But what happens if you take away that no-pretext prong?  You get an absurd rule.  Police who did not themselves believe there was any emergency could still go in without a warrant — and hope that some clever prosecutor down the road can come up with a scenario where an objective cop, aware of all the circumstances that the police themselves might not have been aware of, might have thought there was an emergency.  And if you think no New York police officer would break down your door in the hopes that it can get justified down the line (if your case even gets that far)… well, the word “naive” springs to mind.

Well, guess what?  Back in 2006, in its Brigham City decision, the U.S. Supreme Court specifically rejected the no-pretext prong of the Mitchell rule.  The Court was being true to its 15-year trend of rejecting subjective rules in federal Fourth Amendment law.  The Supreme Court line of cases does not care whether the police had some pretext or ulterior motive.  So long as there was some legitimate basis for the police conduct, they don’t really care what the police themselves were thinking.

But New York hasn’t had to deal with the issue though.  Not, that is, until a case we argued earlier this year.  

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This January, we found ourselves before the Second Department one month after the Supreme Court had reaffirmed (more…)

We’re one of the few Republican defense lawyers out here — and perhaps the only one living in Manhattan, so it’s odd that we’re so intrigued by the race for the Democratic nomination for the Florida Attorney General race.

Well, maybe not so odd.  The issue of character has come up, and that always gets our interest.

We’ve been pretty outspoken about the role of prosecutors.  Judgment and strength of character are the key prerequisites for those who would exercise the awesome discretion we give them.  We may have been spoiled by our formative experiences in the SDNY and Morgenthau’s Manhattan DA’s office, but we’re frequently appalled by the very lack of judgment and character we find among prosecutors in some other offices.  (And with respect to Florida, we often tell the story of how we got up and walked out of an interview with the Dade County DA’s office back when we were in law school.  It had come out that their office philosophy was to zealously try to convict anyone the cops arrested, regardless of the justice or the rightness of doing so.  We’d thought they were just testing us, but when it turned out that the interviewers were deadly serious we politely informed them that we couldn’t work for them.)

A state attorney general is a prosecutor. An AG’s role is a combination of consumer protection and crime-fighting.  As head of the office, an AG sets the tone for everyone working there.  Every assistant AG investigating an insurance scam is going to be influenced by the culture of the office, which comes straight from the top.  There’s a reason why the Manhattan DA’s office is so vastly superior to nearby Nassau County’s office, and it has everything to do with who’s running the show.  So even though the elected official never handles a case him- or herself, the character of that official is of the highest importance to the citizens of the state.  (We remember a few years back, after Andrew Cuomo took over as New York’s AG, there seemed to be a general exodus from that office of our former Manhattan colleagues who had gone there.  Character at the top seemed to us to be the primary reason for their leaving.)

And that brings us to the Democrat nomination for the Florida AG, and why we’re taking the time to write about it.  The candidates for the nomination (more…)

Over on the Volokh Conspiracy, Prof. Ilya Somin has a good post today on whether the bar exam ought to be abolished.  He agrees with Elizabeth Wurtzel that the exam “is primarily a test of memorization,” the bulk of which will be irrelevant to any given lawyer’s actual practice.  We are not fans of the bar exam, either, but we think the solution is not to abolish the exam, but more and better bar exams.

Nobody in their right mind believes that the bar exam is a reliable indicator of who is going to make a good lawyer.  It doesn’t test judgment, reasoning or understanding.  More importantly, it doesn’t test actual skills that lawyers need to know — it doesn’t test to see if a transactional lawyer can put together a contract that does the job, or to see if a trial lawyer knows how to get his evidence admitted, or to see if an estate lawyer can craft a plan that will carry out the client’s wishes with a minimum of fuss.

We remember Prof. Whitebread’s lecture from our Bar/Bri course back in ’97, where he admonished us not to seek a perfect score on the bar exam.  “You only need a passing grade,” he said.  “You don’t need to get them all right; you only need… a gracious plenty.”  And he was right.  The bar is not all that high.  As a barrier to entry, the bar exam doesn’t really do a whole lot.

Prof. Somin would abolish the bar exam, he says, because it keeps out too many lawyers.  “The high salaries of lawyers combined with the high cost of even very basic legal services show that we have too few lawyers rather than too many.”  He is wrong.  The bar exam hardly keeps anybody out.  The profession does not have too few lawyers; it has too few good lawyers.

We usually argue the point from the other angle, when it comes up in conversation.  “It’s not that there are too many lawyers,” we say, “but that there are too many bad ones.”  And it’s true.  The profession has a glut of licensed practicing lawyers who are not terribly good at what they do.  We encounter them on a daily basis.  They’re out there, they’re all over the place, and they make the rest of us look bad.

All they had to do was stick out a few years of some law school and get a barely passing grade, then memorize some of this and some of that and barely pass the bar.  For the rest of their careers, these lawyers will never again have to demonstrate any actual competence in anything in order to remain licensed practicing lawyers.

This is where the bar exam needs to change.  We should definitely abolish the one we’ve got.  It’s just a holdover from the bad old days when (more…)

Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t (more…)

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.)

After reading the complaint in its entirety, we have to say that it’s mostly stupid.

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint].
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint].
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2].
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3].
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit.

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (more…)

Dang, the whole week has gone by already?

It’s been a week of long days and late nights here in the trenches, so please excuse the lack of posting here.  (Our bloodstream must be 70% coffee by now.  As we found ourselves saying out loud on the record yesterday, we’re not jittery… just really really alert.)

Have a happy Independence Day, and we’ll be back after the weekend!