Archive for September, 2010

“This offer is only good today.”

Thursday, September 30th, 2010

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of (more…)

That Good, Huh?

Wednesday, September 29th, 2010



Instead of coming up with an original idea, we prefer to tell you why yours is wrong.

Tuesday, September 28th, 2010


Everyone knows that the indigent defense system in this country is broken.  The courts have mandated that every jurisdiction has to pay for indigent criminal defendants to get a lawyer.  It is required.  The vast majority of criminal defendants are indigent (or have no legitimate source of income, and so can pass for indigent).  So the taxpayer winds up paying for the lawyer for most criminal defendants.  This results public defender agencies that are understaffed, underpaid and overworked.  Or assigned counsel plans, where private attorneys are assigned to indigent defendants, and get paid a pittance.

Sadly, a lot of indigent defenders are either inexperienced or not very good at it.  Both kinds of indigent practice do attract fantastic lawyers who aren’t in it for the money, but they’re in the minority.  Indigent practice also attracts lawyers just starting out, who are willing to forgo a bigger paycheck for more experience.  And both kinds of practice attract lawyers for whom this is really their only way to make a living — for whatever reason, they don’t compete in the market for paying clients.

Also, indigent defenders tend to be insanely overworked.  Those who rely on assigned-counsel work for their pay often must take on an overload of cases just to make ends meet.  And those working full-time for a public defender’s outfit have an overload of cases whether they want one or not.  This has a predictable effect on the quality of their work, their ability to deal with (or recognize) non-routine cases, their resources to investigate and prepare, and pretty much everything else.

Furthermore, neither approach gives the defendants themselves any say in who gets assigned to represent them.  If they don’t get along, or there’s someone else who could have done a better job, then too bad.

There’s no economic pressure for indigent lawyers to do better.  If they do better or worse, they still get paid the same.  They’re still getting that next indigent client, whether they want one or not.

Finally, even with the abysmal pay, the cost to municipalities and states is still enormous.  There’s a lot of this kind of work to be done, and those nickels and dimes add up fast.

What to do about it?

Well, over at the Cato Institute (we’re big fans of Cato), professors Stephen J. Schulhofer and David Friedman have published a paper called “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System.”  Go ahead and read it; we’ll wait.

For the TL;DR crowd, Profs. Schulhofer & Friedman propose that all present forms of indigent defense be abolished.  Get rid of public defenders and assigned counsel and all permutations thereof.  In their place, simply give defendants vouchers that they can use to pay the defense attorney of their choice.

Brilliant, no?  Defendants can choose whomever they wish to defend them.  Market forces will drive out the crappy lawyers currently impeding justice for the impoverished.  There will be no more of the crushing caseloads that practically guarantee malpractice.  Fewer innocents will be wrongly convicted, because they’ll have more experienced and talented representation, and there will be more resources and time available for rooting it out.  It’s a winner for everyone!

Well… about that… (more…)


Tuesday, September 28th, 2010

Nicholas Marsh (pictured) committed suicide over the weekend.  He and the other prosecutors in the Ted Stevens fiasco were being investigated for their handling of the case, after the judge found them to have withheld exculpatory evidence from the defense.  (See our previous posts on this here.)

After dismissing the case against Sen. Stevens (who died earlier this year in a plane crash), the judge appointed a special investigator to look into the DOJ’s conduct.  The special investigator, Henry Schuelke, is expected to complete his probe shortly.

That does not mean, however, that Mr. Marsh’s awful decision had anything to do with the investigation.  There are any number of reasons for this 37-year-old professional to have chosen to take his own life.  Until more is known — and there is no reason why we should ever be allowed to know the source of this man’s private pain — it would be shameful speculation to connect it to the ongoing investigation.

Our sympathies and condolences go out to his family.

Tape Away – Maryland judge rules that cops have no expectation of privacy during traffic stops

Tuesday, September 28th, 2010

You’ve probably all seen the video by now of the motorcyclist recording himself speeding down a Maryland road, only to get pulled over by a plainclothes cop who leaps out brandishing a gun and otherwise behaving inappropriately.  And you’ve probably heard how the motorcyclist is now facing trial on charges of illegal wiretapping, for the recording of the officer.

The case has become the most visible in a rising tide of police backlash against citizens videotaping them while they abuse their authority.  We wrote on this (and the reasons why the police are losing respect) here.

Well now Judge Emory Pitt has thrown out the charges against the motorcyclist, ruling that police and others who exercise their authority in public “should not expect our actions to be shielded from public observation.”  You can read the Baltimore Sun article here.

Although this isn’t controlling precedent for any other courthouse, the ruling makes perfect sense. A police officer — or anyone else, for that matter, who is doing something in the open in as public a place as a freeway — would be an idiot not to expect that others are going to see what he’s doing. If it’s freely observable by the general public, then what possible expectation can there be that it’s private?

The same goes for cops who get taped beating people in a plaza, tasing people in an auditorium, or even just being dicks at a demonstration. The public is watching. So there’s no reason why the rest of the public shouldn’t be allowed to see it as well.

As Balthasar Gracián wrote in 1647, “always behave as though others were watching.” Good advice. Perhaps soon the police will begin taking it to heart.

A Pattern of Misconduct by Federal Prosecutors?

Thursday, September 23rd, 2010

When we left the Manhattan DA’s office some years ago, we firmly believed that prosecutorial misconduct was as rare as it was despicable.  We can’t think of a single one of our colleagues for whom it would have even occurred to cut corners, and it certainly would not have been tolerated by the bosses.  Everyone was just… decent.  The culture wasn’t so much a dogfight as a collegial, practically patrician, management of cases.  Admittedly, we didn’t have much contact with prosecutors from other offices, but surely they couldn’t have been that different.  We all had the same job, to seek justice rather than mere convictions.  And as for federal prosecutors… well, they were just like us, right?  If anything, their culture was even more collegial, and even less likely to result in (ick) prosecutorial misconduct.

As any reader of this blog can tell, we’ve been disillusioned by the reality that prosecutorial misconduct is not only more common than we would have believed, but that it is committed with disturbing frequency by federal prosecutors.  A couple of years ago, we were disquieted by what was going on in the Ted Stevens fiasco.  A year and a half ago, we saw that Judge Posner had to direct an acquittal in a case where the feds made fraudulent misrepresentations, and we wrote that we hoped this wasn’t becoming a trend.  A couple more instances later, we were asking what the heck was going on.  The pattern has only continued since then.  (Here’s a roundup link to our posts tagged for “prosecutorial misconduct.”)

So this morning we were sadly not surprised to read (in USA Today, of all places) a lengthy discussion of the growing problem of prosecutorial misconduct by federal prosecutors.  You can read the whole thing here.

What’s going on?  The article posits that (more…)

On Government

Tuesday, September 21st, 2010

One of our all-time favorite writers, P.J. O’Rourke, has an intriguing little article in World Affairs Journal today, called “Innocence Abroad: The Tea Party’s Search for Foreign Policy.”  Go ahead and check it out, we’ll wait.  As the title suggests, he finds a seeming contradiction between the movement for limited government and the necessity of a strong, centralized foreign policy.

We don’t see the contradiction, frankly.

Regardless of political stripe, Americans tend to believe that the role of government is to do those things we cannot effectively do for ourselves.  We differ on where to draw the line, but the basic idea is the same.  Of course, we have many different levels of government in this country — localities, counties, states, and the feds — so the question breaks down to what should be the role of each level of government.

The essential answer is that each level of government should be responsible for those functions that the level below it cannot carry out.

That means individuals are responsible for most of their own doings.  Government is not necessary, and so has no role there.  Ditto for stuff that can be taken care of by family and community.  Government first gets involved in (more…)

The Rules of the Game

Friday, September 17th, 2010


Note to incoming first-year law students:  The law itself is not terribly difficult.

We lecture to schoolkids from time to time, and they seem to get the concept pretty easily when we explain that the law is nothing more than the rulebook for how to play the game of real life.  It’s not much different from the rules of Monopoly or Sorry or Candyland — there’s just more of them.  Rules can sometimes be stupid or unfair, but they’re still there, and you still have to play the right way.  To learn the law adequately, all one needs to do is learn the rules for a given subset of human behavior, and that’s pretty much it.  If you want to learn the law really well, you also learn the policies behind the rules, so you can  better understand what a given rule is trying to do, and better predict how the rules might change.  The role of a good law professor is not only to teach you what the law is right now, but why it is that way, and what policy seems to explain all those seemingly varying cases out there.

And though the law can be an ass, for the most part it’s straightforward common sense.  Don’t hurt someone else for no good reason.  If you want to drive a car, you have to have some basic abilities before you’re allowed on the public roads.  If you want an enforceable security interest, you need to do the civilized thing and file your lien so the rest of us know about it.  It really is basic.

And most of the time, the policies behind the law are the same ones we learned from our parents.  Take self defense — our folks taught us the same lesson that generations of parents have taught their kids about what to do if a big kid’s trying to hurt you:  First, tell the kid to knock it off.  If that doesn’t work, leave.  If that doesn’t work, get a grownup.  If nothing works, however, hit the kid back… and don’t stop hitting till he can’t hit you any more.  None of our forebears had any legal training, but that’s pretty much what the law says too.  It’s just common sense.  Don’t make a bad situation worse if you can avoid the situation in the first place, but you’re allowed to protect yourself and eliminate the threat if it can’t be avoided.

So the law isn’t very difficult.  It can be complex, and it can be voluminous, but that only makes learning it time-consuming.  Time-consuming is not the same as hard.

We noticed this in law school.  The students who did best were not necessarily the brightest, but were instead (more…)

Why Innocent People Confess

Tuesday, September 14th, 2010

It should come as no surprise to anyone with any experience in criminal law that perfectly innocent people will sometimes confess to crimes they did not commit.  Perhaps they were in a suggestible state, and the police led them to believe they’d done it.  Maybe they were broken by the interrogation and said whatever the cops wanted to hear, just to end it.  Maybe they didn’t really confess, but had their words taken out of context (or invented) by the cops.  (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)

In recent years, there has been growing attention to the phenomenon of false confessions, and folks have begun investigating the reasons why an innocent person will not only confess to a crime he didn’t commit, but will often do so with such detail that it seems impossible for them not to have committed it.  The New York Times had a decent article yesterday on this very phenomenon.  The article reports on a study by UVA (wahoowa!) law professor Brandon Garrett, into reasons why an innocent person may sometimes confess with extraordinary detail.

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at (more…)

By the way…

Monday, September 13th, 2010

We just checked our stats, and during the past week-plus that we took off, we got more hits than ever, and links from quality sites shot up 20%. 

So, basically, the less we write, the more you like us?

Well, too damn bad.  We like writing.

(If you like, you can close your eyes whenever you come here, and just pretend we didn’t write anything.)