Archive for January, 2011

Playing Games with Client’s Lives

Friday, January 28th, 2011

 

Criminal law is about as serious as it gets.  Our clients’ liberty, reputations, freedoms, rights, opportunities, property — and even their lives — are at risk.  What we do affects not just our clients, but their children, their parents, the victims, and the community at large.  What we do is not a game.

So why do so many defense lawyers play games?  Cute little tactics, essentially dishonest, which never work.  All it seems to do is hurt their clients.  And yet they persist.  Boggles the mind.

Our job is to minimize the penalty our clients must suffer — preferably none whatsoever.  We do that by giving prosecutors new ways of looking at the situation, by challenging the legality of evidence, by showing juries that the evidence doesn’t mean what the government says it meant, and by skillful negotiation.

We do not accomplish that by, for example, routinely filing cross-grand-jury notice in NYC without having discussed with our clients whether they’d even consider testifying in the grand jury, doing so solely for the purpose of getting a prosecutor to call, or just to jam up the prosecutor to make their life difficult.  At the very least, it pisses off the prosecutor, who is less likely to give a decent offer as a result.  An offer might be taken off the table entirely, on the grounds that nobody who thinks they’re innocent should plead to anything.  The lawyer loses credibility, is seen as basically dishonest, and so it’s harder for him to negotiate a better deal or persuade the prosecution that they might have it wrong in this case.

We do not accomplish that by making cute little arguments in court that have no chance of success, and only serve to piss off the judge.  Once again, the lawyer loses credibility, comes to be seen as dishonest, and so it’s harder to win legal arguments that actually have merit down the road.  It only does the client a disservice.

We’re not going to give a laundry list of examples.  Every courthouse has its own idiosyncrasies.  But you get the point.  There’s nothing wrong with taking advantage of rules and procedures to the client’s best advantage, but nothing is gained if that’s done in a dishonest manner.  The client actually loses.

The better practice is to be (more…)

More Google Mistrials

Friday, January 21st, 2011

Back in the infancy of this blog, we wrote a piece called “No More Google Mistrials: A proposal for courts to adapt to modern life.”  In it, we lamented that our jurisprudence hadn’t caught up with the realities of the internet age, and that mistrials were still being called whenever jurors got caught looking stuff up online.  We pointed out that it wasn’t exactly a new phenomenon — people had been Googling stuff for years — so it was high time the courts got caught up.

Amazingly, this post seems to have escaped the notice of the “they” who make up the rules of how a trial is to proceed.  Heavens forfend, but it might even be possible that a number of judges may never have even heard mention of it.  Stranger things have happened, though we can’t think of any offhand.

Be that as it may, the internet is forever, and it seems to get read from time to time.  Mainly by members of the press, it appears, and usually right after yet another Google mistrial has been declared.  That’s when we seem to field calls about it, anyway.

And that’s what happened earlier this week.  We were on our way to handle a case out in the rust belt, and were driving past Wilkes-Barre, Pennsylvania (a town near and dear to our heart ever since we landed a small plane there in a freakishly windy day back in our teens, a simple refueling that wound up involving the National Guard, a mistaken identity, extremely obliging air traffic controllers, and an absurd amount of adrenaline — though that’s a story for another time).  When we happened to get a call from a reporter right there in Wilkes-Barre, calling to discuss a Google mistrial that had just happened there.  (You can read the resulting article here.)

We basically said the same things in the interview as we’d written a couple of years ago, which is news enough right there.  Our opinions and positions do tend to evolve as we learn new facts or new ways of looking at old facts, so it was a nice surprise to read our old blog post for the first time since we’d written it and find that it’s pretty much what we’d just said.

But on second thought, we actually said some new stuff in this interview.  Some new policy considerations came to mind.  The reporter gets the credit for this, because unlike most reporters who just want a quick sound bite so they can get back to banging out their story by deadline, this reporter debated us.  She flatly challenged our position, saying that few if any would agree with us, and demanding that we defend it.  It was a pretty skillful interview.  Pity none of the good stuff made it into the article.  We blame the editors, of course.

So for the benefit of those who have bothered to read this far, here’s the good stuff:

-=-=-=-=-

We don’t want jurors going out and (more…)

Still here

Friday, January 21st, 2011

No, we haven’t posted anything this week.  We got swamped, what can we say?  Busy is good.

Need Some CLE?

Monday, January 10th, 2011

 

As many of our readers know (because we won’t shut up about it, apparently) we teach a series of CLE lectures for West LegalEdCenter called “Hope for Hopeless Cases.”   Well, this time we’re doing one that’s not part of that series.  We’ve teamed up with Gordon Mehler to teach a course called “Search and Seizure in 60 Minutes.”

Given that we could probably spend a couple of hours talking about any given micro-topic in Fourth Amendment law, one can gather that this is going to be a fairly general introduction, primarily to the various exceptions to the warrant requirement.

Anyway, if you’re looking for CLE credits (I think we’re accredited in pretty much every state that requires it), feel free to check it out.

Oh, Scalia

Tuesday, January 4th, 2011

 

If you’ve been reading this blog for any length of time, you’ll know that we really like Scalia.  We really do.  We like the way he thinks, we like the way he writes, and we like that he’s not a phony.  His law clerks may moan and groan that he’s hard on them, but they’ve actually got it pretty easy, because he knows what he thinks and (more importantly) he knows why he thinks it.  He doesn’t need them to do the heavy lifting for him.

At the same time, we’ve had to take issue with some pretty boneheaded things he’s written or said.  In his attempts to discern what the authors of a given law were talking about, he often misses the underlying policy.  The job of a top jurist or legal scholar is to figure out what the underlying principle is that explains, not only the law as written, but also the jurisprudence and related laws that have flowed from it.  Do the deep thinking to figure out what value our society happens to have, which the authors of the laws and court opinions may not have had the insight to notice themselves, but which nevertheless explains why this particular area of law is the way it is.  Once that root principle is known, it is easy not only to understand what the framers were saying, but also what has been said since, and even predict what is going to be said next.

Take, for example, his interview just published in this month’s California Lawyer.  Near the beginning of the interview, he had the following exchange:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?


Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

He’s right about what a Constitution is for.  The Constitution is not there to detail particular laws, but instead to set the philosophical framework under which laws can be made, and to define and limit the roles of government.  (Most other countries in the world don’t seem to get this, and what they call “constitutions” are really nothing more than statutes.  There really is a difference.)

And he’s even right about the role of the courts in deciding things that are properly left to legislatures.  He cites abortion, for example, which — if it had been left up to the legislatures — would probably have been legal in most or all states by the end of the 1970s, and the country would have moved on.  Opponents would have had their say, they’d have been outvoted, and the legitimacy of the process would have given the law legitimacy, and they’d have moved on.  Instead, it was imposed by judicial fiat, in a horribly-reasoned opinion, with the result that it’s become a wedge issue for nearly forty years.  The Court created law — something courts are not supposed to do, something courts never do well, and something that only de-legitimizes the result.

But he’s wrong when he says the Constitution doesn’t prohibit discrimination on the basis of sex.  It does.  It really does.

Nobody thought that’s what the Fourteenth Amendment meant when it was passed.  Granted.  But that only means they didn’t have the insight to recognize the very principle they were upholding.

The relevant portion of (more…)

Registering the Wrong People

Monday, January 3rd, 2011

 

Sex offender registries aren’t necessarily a bad idea.

For whatever reason, there are certain people who get off on molesting little kids or raping people, and who are not likely to be rehabilitated by a stint behind bars.  It’s how their sex drive is wired. If they get caught and go to prison, they’re not any less likely to stop doing it when they get out.  That’s not how sex drives work.  So they often reoffend.  To minimize this, we put their names on a list, make them register with the local police department, impose restrictions on where they can live and what they can do.  They’re basically on extremely limited parole for the rest of their lives.

Their lives are basically over.  The stigma is the worst our society can dish out.  There’s a fat chance of pursuing any meaningful employment or making something useful of one’s life.  The best that can be said for such an existence is that it’s not prison.

Of course, with people who have demonstrated a clear and present danger, for whom there is a real and realistic concern that they will victimize another child if given half a chance… well, their interests don’t weigh so much any more.

But are these people really the ones who get registered?

Here in New York, a 17-year-old kid can wind up on the registry for having sex with his 16-year-old girlfriend.  A jerk can be registered for grabbing someone’s ass.  Stuff that has nothing to do with sex, like even the mildest forms of unlawful imprisonment, gets you marked a sex offender.  A harmless loser will find himself on the registry for calling up a call girl.  There really isn’t any rhyme or reason to it any more.

These are not things that have anything to do with the policy underlying sex offender registries.  There is zero concern that the people who commit such offenses pose a present threat of molesting kids or committing rape.  It’s an (more…)