The Criminal Lawyer

Every defense attorney has their own favorite metaphor for what we do.  Some talk of it like a street fight, envisioning a slugfest with the cops or the court or DA (or all three).  Others speak as if it’s a poker game (with the other side usually holding all the aces).  Occasionally, we even hear chess analogies.  Well, for whatever reason, we tend to think in fencing terms.

On the one hand, this makes little sense, as we haven’t fenced much since our kids started coming along.  (Literally.  Our wife went into labor with the first one right in the middle of us getting trounced by some French guy in an épée tournament.)  But on the other hand, we do find the analogy extremely useful.

Like fencing, much of what we do is reactive.  There’s something they teach fencers called the “tactical wheel” which starts off with a simple attack, which gets countered by a parry and riposte, which gets countered by a feint, which gets countered by a counterattack into the feint, and so on until you’re reacting with a simple attack.  You’re always reacting to what your opponent did, and trying to use your reaction to score off him instead.  That’s pretty much what we do.

Note that each reaction is not merely a defensive parry.  If all you’re doing is deflecting attacks, you can never win.  Eventually, one of them’s going to get through.  Every defensive action is an attack of some sort.  You win by taking the game to the other guy.  You go on the offense.  Make the other side react to you.  The best defense, as always, is a good offense.

And as in fencing, you pretty much have to take your opponent as you find him.  Different tactics are going to work with different situations.  It’s nice to know what works when.

That whole “tactical wheel” thing only really works, of course, if both you and your opponent are of intermediate skill.  A novice doesn’t always do the smart thing, which throws such rote tactics into disarray.  An expert, with a zen-like empty mind, is not hindered by the rule of thumb, and is free to react to this particular action in the most effective way.  Still, there is something to be said for a rule of thumb.  When all else fails, you have something to fall back on, which at the very least assures you of a solid, workmanlike job.  It may not be elegant, but the odds are safe.  And with the vast majority of opponents, it’s going to be all you need.

So what would such a tactical wheel look like for criminal defense?

It’s not going to be as (more…)

On our main website, we wrote a brief primer on international law, mostly for our own enjoyment.  (The same reason why we write this blog, actually.)  To our constant amazement, it gets cited heavily around the internet, and has been on the syllabus of at least a couple law school classes.  So now we feel all obligated and stuff to keep it accurate and up to date.  At some point, we added a section on the subject of Lawfare.  Briefly put, Lawfare is the use of the law (yours or your opponent’s) as a tool of warfare, either to gain a military advantage, or to deny one to your adversary.  It’s too long to excerpt here, but you can read the section here, if you’re interested.

But if you’re really interested, an even better précis of Lawfare can be found in Gen. Mark Martins’ guest post this morning over at Lawfareblog.  His posts this week have been building up to this one, a great summary of the concept, with the depth of insight one would expect from the commander of the Rule of Law Field Force in Afghanistan.  Go read all of his posts, for sure, but this one is outstanding.

First, Gen. Martins sums up three competing definitions of the term.  ”Meaning A,” as he puts it, refers to the hijacking of Western sensibilities of justice and civil rights, by those who do not share such sensibilities, in order to undermine Western resistance.  ”Meaning B” is a wholly unrelated concept, an intellectual battle over the scope of national security law.  ”Meaning C” is a Western strategy that turns the cynical strategy of Meaning A on its head, an approach that applies the rule of law to all counterinsurgency tactics, thereby providing the legitimacy that is so important in a war of perceptions.

If he had stopped right there, this would have been a valuable enough contribution.  But he goes on to provide five clear observations about each of these three concepts, which makes it a must-read.  The first point is probably his best, that each definition contains a kind of hamartia or tragic flaw that could undermine it.  Meaning A cries “unfair,” which is sort of silly in the context of war, where ruses and propaganda are about as fair game as it gets, and without which few victories are ever achieved.  Meaning B, the contest of ideas alone, can bestow undeserved legitimacy and moral equivalence on the ideas of the enemy, which could lead to the very undermining of the principles one seeks to advance.  Meaning C, “by placing the law in service as a ‘tool’ of war, risks undermining the authority of law itself.”

Go over there and read the rest of it.  In the meantime, we need to go update our primer.

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UPDATE: Happy Thanksgiving!  Gen. Martins posted a followup this morning, “Lawfare: So Are We Waging It?” Written from Parwan, Afghanistan, it begins:

The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF).  But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

The post goes on to discuss the subject in more detail.  But we want to stop right there and shout out “he’s writing all this in between engagements in a goddamn war!”

The feds are really ramping up their insider-trading enforcement.  But instead of going after real insiders, they’re going after consultants and investors who use them.  This is a big risk for the feds, and they could lose big.

It started a year ago, when the feds indicted a bunch of people in what we collectively refer to as the “Galleon” case.  For the first time ever, the feds had used wiretaps in a white-collar investigation.  It looked like the gloves were coming off, and the feds were going to start getting down and dirty, using street-crime law enforcement techniques to go after Wall Streeters.

Then in May, Lanny Breuer announced a “new era of heightened white-collar crime enforcement — an era marked by increased resources, increased information-sharing, increased cooperation and coordination, and tough penalties for corporations and individuals alike.”  In the wake of an economic bubble bursting, they were gunning for the suits who had profited.  And unlike the last time they tried, in the wake of the dot-com bubble, now there was no 9-11 to divert their resources.

To some extent, such a strategy is like shooting fish in a barrel.  Real frauds like Ponzi schemes and the like, which can hide amidst a rising market, come to light pretty easily when the market collapses.  And we saw a lot of those prosecutions in the past couple of years.

But to a larger extent, it’s a political strategy.  Going after those who make money by moving it around, instead of creating something of value, is always going to be a populist move.  It wins brownie points for the DOJ and the president.

And now comes the takedown.

On Saturday, the Wall Street Journal reported that the feds had been conducting a 3-year investigation into possible insider trading.  They had been approaching people out of the blue, telling them they were in trouble, and suggesting that they wear a wire (with at least a couple people refusing to do so, and then emailing all their clients to tell them what had just happened).  The feds had been subpoenaing records for a while.  The targets seemed to be Goldman Sachs and consultants who matched knowledgeable industry leaders with hedge fund managers looking for an edge.

That seems to have forced the feds’ hand, and on Monday they started executing search warrants at Diamondback Capital Management and Level Global Investors, which had been identified in the Saturday story.  Then they raided Loch Capital Management later in the day.  We hear that more raids are coming, and as we speak a lot of investment firms are doing some heavy internal reviews, to figure out if they might be on the list.

Because nobody knows what kind of behavior the feds are going after.  And if past performance is any indicator of present results, the feds may just well be going after perfectly innocent behavior.

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The reason is that the feds don’t seem to understand the (more…)

When we were kids, the police were the good guys.  They were who you could turn to if you got lost.  They were the ones who protected us from the bad guys.  They were on our side.

When we were kids, of course, we learned a simplified version of reality.  All the “lies we tell children” because the truth is too complex, or because it’s the way we’d like them to think.  The problem is that lots of us grow up without ever learning the “reality” version of reality.  The results can be tragic.

Because the police are not on our side.  And woe betide the honest citizen who acts like they are.  It’s not that the police are bad.  The vast majority are good, decent folks.  It’s that the police see the world in “us against them” terms.  And we good honest citizens are part of the “them.”

We all know that being a police officer can be dangerous.  When a cop pulls you over, or encounters you on the street, he has no way of knowing whether you’re going to be that one wack-job who pulls a gun or a knife on him.  It happens.  Because the world contains wack-jobs, thugs and the like, we are all potential threats.

But that’s not the half of it.  For a while now, the police have felt embattled.  They’re constantly criticized for violating civil rights.  They’re hamstrung by “technicalities” that make it harder for them to do their job.  Politicians, protestors and the proletariat are constantly pointing fingers at the police.  We civilians are a spoiled, ungrateful bunch.

And hence, the “thin blue line.”  From a police perspective, it’s an us-against-them world, and if you’re not in law enforcement then you’re on the other side.

Now a police officer cannot help but notice that there are only a few of “us,” and a heck of a lot of “them.”  The only thing protecting the police is a perception of their authority.  If the public loses that perception, the police lose their power.  So they desperately need us to respect their authoritah.  Any sign of insubordination must be dealt with right away.

It’s a neurotic worldview.  It’s a perfectly rational reaction, but that doesn’t make it any less paranoid.

And of course their job is not “to protect and serve” — at least not in their eyes.  Their job is to (more…)

For a while there, it seemed like not a day went by without us reading of some firm or other laying off a mess of lawyers.  Things have changed.  Now, it seems as if not a day goes by without us reading of some law student getting upset at the dearth of law jobs out there.  It was bad enough hearing about the lawyers losing their jobs, but the students’ complaints are somehow more upsetting.  And not for the reasons they probably think.

Reading about the firm layoffs, day after day and month after month, evoked some real sympathy for our (mostly) transactional colleagues whose niche was no longer in so much demand.  But it wasn’t all that distressing.  The positions being eliminated had been created to satisfy the needs of a ballooning financial industry, and when the balloon popped, the elimination of those jobs was a rational correction.  Not pleasant, but not distressing.

What is distressing is reading the law students’ lament that there are no jobs waiting for them, that the jobs out there don’t pay enough, that they got saddled with all this debt with no way to pay it off, that the lives of young lawyers are miserable, and somebody (besides the students themselves, of course) must be to blame.  It’s upsetting — not to hear how bad they have it — but to think that so many of these people are getting ready to enter our profession.

To put it bluntly: they are not wanted here.  It only takes a moment’s thought to realize that, if they were wanted, then there would be a place for them.  But the ones complaining loudest seem to be the one who did the least research before deciding on law school, so perhaps they haven’t done this bit of thinking either.

They are not wanted here, because there is no (more…)

That is all.

Those of us who work in the criminal justice system — whether lawyers, judges, social workers or whatever — are fairly cognizant of the fact that the vast majority of people who get arrested aren’t really a problem for society.  Depending on the stats you’re looking at, for something like 83% of the people who get arrested, that first contact with the criminal justice system is their last.  They don’t re-offend, period.  Maybe they’re good folks who just made a mistake.  Maybe they got scared straight.  Maybe their crime was the result of a circumstance that will never occur again.  Whatever the reason, we never see them again.

As we all pretty much recognize this, we tend to give first-timers (well, not murderers, obviously) some benefit of the doubt.  We give the first-arrest guy a chance to prove that, though he may have committed this crime, he’s not really a criminal.  Maybe he gets a consent decree/adjournment in contemplation of dismissal.  Or a conditional discharge, or some period of probation.  Community service.  Something, anything, other than jail.  Some kind of penance, whereupon we can confidently give our blessing and say “go forth and sin no more.”

But what about those who come back?  What about that 17% who re-offend?

They keep coming back, that’s what.  They may have gotten probation last time, but they’re soon going to find themselves in prison.  And once they get out, they tend to re-offend and get sent right back.  Usually within three years, but often within a single year.

The California Department of Corrections and Rehabilitation just released a thorough statistical analysis of these re-offenders.  You can check it out here.  It doesn’t really have much to say about why people re-offend, but it has some useful data on who re-offends.  Good breakdowns by various demographic categories such as age, race, sex, nature of offense, and mental illness.  Also some eye-opening stats on how soon they re-offend, how often, and how long they stay in prison.

A lot of conclusions can be drawn from these stats.  The wrong conclusions can be the most tempting — to (more…)

Let’s wind up this content-free week with a poll.

Criminal defense attorneys are often asked how they can stand to defend people they know to be guilty.  But to see just how off-target that question is, go and ask them what they believe to be the most difficult case to defend.  Most tend to say their hardest cases are ones where they believe their client to be innocent.  Why?  Because now the stakes are higher.  If the client’s guilty and they lose — even after trying their best and giving it their all — the result is that they made sure the system worked right, and their client was justly convicted.  But if the client is innocent and they lose, then their failure means someone who doesn’t deserve it now has to go to prison.

We’re not sure why this somehow means the case is more difficult, though.  More soul-wracking, certainly.  But it doesn’t make the case harder to win.  It strikes us that those who answer this way are conflating their personal emotional challenges with their actual lawyering challenges.  While one may affect the other, they’re not the same thing.

So let’s ask our readers:  Leaving aside cases where you believe your client to be innocent, and other cases which may be emotionally harder to deal with — what kinds of cases do you find to be the most difficult to fight?  Wiretap cases?  Cases with DNA evidence?  Confessions?  Press cases?  Murders?  Financial crimes?  Something completely different?

Post your answers in the comments.  This could be very interesting.

Well we still haven’t had half a moment to compose something worth reading.  So in lieu of an actual post, here’s some more links to stuff.

First, we just went through another election.  We live in Manhattan, which votes overwhelmingly Democrat, so the results were a foregone conclusion no matter which way we voted.  So we voted for candidates from the micro-minority parties: the “Rent is 2 Damn High” party, the “Anti-Prohibition” party, and the ever-adorable little “Republican” party.  Amazingly, none of our candidates won.  But at least they got someone else besides their mothers voting for them.

But outside the Northeastern megalopolis, the San Francisco inkblot, and Los Angeles County, the voters seem to have shoved the Democrats out of their House majority, and left them without a filibuster-proof majority in the Senate, while giving enough state legislatures the requisite Republican majorities to gerrymander in a new direction.

We like this state of affairs.  As a defense attorney, anything that prevents legislators from enacting new crimes, or pushing new idiotic policies whose only visible effect is to put the wrong people in jail for far too long… well, that’s a good thing.  And divided government is just the thing.

When the President and the Congress are of the same party — regardless of the party — they tend to “accomplish” things.  And that usually means loads of legislation and regulations.  From an economic standpoint, such “accomplishments” are usually counterproductive.  They create false incentives, or artificially shift demand/supply curves to create market inefficiencies and more stupid incentives.  Apart from damaging the economy and needlessly upsetting the citizenry, such “accomplishments” also tend to include more and more crimes and penalties.

A divided government, on the other hand, is less likely to get anything done.  Which means more breathing room for the economy to get back on track.  And at least a slowing of the rate at which criminal penalties are expanding.

Which leads us to the link.  Something we posted over on Urban Elephants a little while ago, predicting that a Republican victory would actually be good for the Democrats, and would probably guarantee an Obama re-election in 2012, despite his disappointing performance thus far.  Click here if you’re interested in reading it.  [UPDATE: Their site seems to be down.  Here's the Google cache.]

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Meanwhile, the good citizens of Oklahoma voted to forbid judges from applying Sharia (Islamic) law when deciding cases.

Really?

Was this a big problem in Oklahoma?

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Finally, Prof. Volokh reports that the Supreme Court has issued a “Call for Response” from the state of Oregon, in reply to his petition for cert on the issue of Oregon allowing non-unanimous criminal verdicts.  While not a guarantee, it’s a darn good indicator that cert may actually be granted here.

He notes:

Note that the call for a response opens up another window for the filing of amicus briefs on our side; such briefs can be filed until Dec. 2. Let me know, please, if you know of some person or group who might be interested in participating.

Go to the Volokh Conspiracy to contact him, if you can help.

No time to post something original today, but wanted to link to some other stuff you might not have seen yet:

First, there was an article in this morning’s WSJ by Law Blog author Ashby Jones, with Joann Lublin, called “Critics Blow Whistle on Law.”  For those who liked our criticism of the FCPA last week, in particular the Dodd-Frank whistleblower provisions, Ashby’s article raises many similar issues with respect to securities-fraud cases in general.

The sweeping Dodd-Frank financial reform law passed in July will apply similar types of financial rewards to a much larger universe of wrongdoing, including many types of securities or accounting fraud or bribery allegations, not covered by prior whistleblowing laws.

The “bounty” provision “runs in direct opposition” to internal fraud-detection efforts put in place or beefed up under the Sarbanes-Oxley law that passed after a wave of accounting scandals, says Richard Crist, chief ethics and compliance officer at Allstate Insurance Co. “It undermines a lot of work that a lot of us have done.”

In the past, companies typically attempted to address certain fraud allegations internally by setting up confidential hotlines through which employees report alleged ethical misdeeds and illegal behavior. But the Dodd-Frank provision offers a financial incentive to ignore a company’s own process and run straight to the government, management lawyers say.

Corporate whistleblowers who take original evidence of financial fraud under the Dodd-Frank law directly to the U.S. Securities and Exchange Commission or the Commodity Futures Trading Commission stand to get between 10% and 30% of a penalty that is over $1 million.

Meanwhile, plaintiffs lawyers eager to handle complaints on behalf of whistleblowers are getting the word out, issuing press releases and publishing articles about the new law and in some instances, running ads soliciting work.

It’s a good article, well worth a read.

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You might also have missed Scott Greenfield’s post on Saturday, “In for a Dollar.”  He’s a prolific writer, so if you waited until Monday to review your blawgs, this one was already below the fold.  But it’s worth scrolling down to find it.

Writing about the literally millions of stop-and-frisks conducted by the NYPD on perfectly innocent people, Scott proposes that the police have something at risk, to give them a personal incentive to think about maybe honoring our civil rights:

Struggling with this question, however, I’ve come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you’re talking about a day without donuts.

Okay, it’s not a foolproof plan.  It’s got some flaws, like the cop who refuses to pay over the $10 and leaves the friskee without recourse.  Or the addicts begging for a frisk so they can get their next fix.

But no class-action decision is going to change anything on the streets, any more than another column by Bob Herbert about a policy that everyone knows stinks, and yet continues unabated, is going to make the police feel really badly about humiliating blacks and Hispanics.

Check it out.

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Finally, as Doug Berman over at Sentencing Law and Policy puts it, “The new guidelines are here!  The new guidelines are here!”

In other words, the new USSG guidelines — including the new reduction of the crack/powder cocaine disparity — are in effect as of now.  (Our criticism of that particular law is here.)

Doug has a lot of useful links in his post, both to the USSG’s own website and to posts by him and others that make sense of the new rules.  It’s worth taking a moment to review what the rules are, now, so go over there and start clicking if you haven’t already done so.

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UPDATE:  Just browsed an excellent thread over on Reddit asking criminal defense attorneys what kinds of cases they find hardest to defend.  One of the responses was by a public defender who didn’t answer the question, really, but whose rant about how the system really works is totally worth linking to here.