Archive for October, 2011

When Is It Unfair to Get a Fair Trial?

Monday, October 31st, 2011


“You are saying it was unfair to have a fair trial?”

That was a fair question put by Justice Kennedy at oral argument today. The issue is whether a criminal defendant can be deprived of the effective assistance of counsel (for Sixth Amendment purposes) when a lawyer screwup prevents him from taking a plea deal.

The issue was presented in two companion cases, Lafler v Cooper and Missouri v. Frye. In Lafler, defense counsel gave bad advice, so that the defendant rejected a plea offer and went to trial instead. In Frye, the defendant did take a plea, but an earlier more favorable offer had never been conveyed.

Everyone accepts as given that the lawyers in these cases screwed up big time. The issue is only whether the screwups were so deficient as to rise to a constitutional violation.

Defendants do not have a right to a plea bargain, of course. The Supreme Court has spoken pretty firmly on that one. The plea bargain is, however, almost universally lauded — it allows defendants to cut their losses, prosecutors and courts to free up resources, and gives the system a chance to impose a “more fair” penalty than that which the legislature would otherwise have imposed. Plea bargains are wonderful. But there is no constitutional right to them.

Given that, the layman might be forgiven for scratching his head and wondering why these two cases were granted cert in the first place. (Laymen do that, you know.) There was no constitutional right being deprived, and there’s no doubt about the reliability of the conviction, so how could there possibly be ineffective assistance here?

That’s pretty much what the government argues — that there’s no prejudice, so there’s no Strickland problem. Being convicted after a fair trial is not prejudicial. Voluntarily taking a guilty plea is not prejudicial. The mere fact that a less harsh sentence could have been gotten with a better lawyer may perhaps be a pity, but it is not prejudicial. A do-over ought to be out of the question.

But Padilla held that ineffective assistance applies to the plea bargaining stage, that failure to advise as to immigration consequences can require just such a do-over. So the defendants argue that what was prejudiced was the outcome of the plea process itself, and not the outcome of the case. The issue for them is not whether the defendant would have been convicted or not, but whether ineffective assistance deprived them of the opportunity to get a better deal.

Both defendants argue that the correct fix would be to give them a chance to accept the earlier offer that, but for their lawyers’ failing, they would have accepted in the first place.


There is a fear that, if the defendants win, there will be a rash of appeals claiming that prior plea offers hadn’t been conveyed, or had been rejected for stupid reasons. Who wouldn’t want to take advantage of a chance to cut their 10-year sentence down to the 2-year offer that was originally rejected? How easy is it to claim that a lawyer told you something stupid, or didn’t tell you anything at all, especially as those discussions aren’t typically recorded or transcribed — it’s a he-said-she-said at worst, and who knows what lawyers might not be persuaded to bend the truth and swear out an affidavit substantiating the defendant’s claim?

One might also fear that, given this safety valve, defendants would be more likely to take cases all the way to trial, on the off chance that they win, knowing that if all else fails they can just go back to their saved game from the plea levels. That would sort of undermine the courts’ stake in plea bargaining, clogging the courts rather than freeing them up.

These are policy issues that may well be persuasive to the justices. Not law issues, so much as practicalities.


But what did the justices actually say today? That might give a (more…)

Using Neuroscience to Gauge Mens Rea?

Monday, October 31st, 2011

Over at Edge, in a short video, we get an intriguing look at criminal justice from the perspective of neurological science.

Put all this together, as you can see here, and we discover little areas that are brighter than others. And this is all now easily done, as everyone knows, in brain imaging labs. The specificity of actually combining the centers (where information gets processed) with the actual wiring to those centers has been a very recent development, such that it can be done in humans in vivo, which is to say, in your normal college sophomore. We can actually locate their brain networks, their paths: whether they have a certain kind of connectivity, whether they don’t, and whether there may be an abnormality in them, which leads to some kind of behavioral clinical syndrome.

In terms of the Neuroscience and Justice Program, all this leads to the fact that that’s the defendant. And how is neuroscience supposed to pull this stuff together and speak to whether someone is less culpable because of a brain state?

Then you say, well, okay, fine. But then you go a little deeper and you realize, well, this brain is a very complicated thing. It works on many layers from molecules up to the cerebral cortex; it works on different time scales; it’s processing with high frequency information, low frequency information. All of this is, in fact, then changing on a background of aging and development: The brain is constantly changing.

How do you tie this together to capture what someone’s brain state might be at a particular time when a criminal act was performed? And I should have said it more clearly — most of this project was carried out asking, “Is there going to be neuroscience evidence that’s going to make various criminal defendants less culpable for their crime?”

Well, probably not. Even if this were to become reality — which it isn’t, yet — the whole focus of mens rea culpability is what the defendant’s mental state was at the time he committed the act. Even if police officers were equipped with infallible handheld brain scanners, so they could get a mental reading at the moment of arrest (and oh, the fascinating Fourth Amendment issues there!), the moment of the crime is past. The reading is not evidence of what the brain was doing five days ago, or even five minutes ago.

And at any rate, it’s not usable science yet. So why bother thinking about it now?

To his credit, the speaker, neuroscientist Michael Gazzaniga, admits as much.

Now, the practicing lawyer asks “is this thing useful, can we use it tomorrow? Can we use it the next day? Can’t? Out. Next problem.” So, after four years of this I realize, look, the fact of the matter is that from a scientific point of view, the use of sophisticated neuroscientific information in the courtroom is problematic at the present.

But then he says “it will be used in powerful ways in our lifetime.” What powerful ways? Mainly the ability to show that someone simply couldn’t have thought a certain way, because his brain doesn’t work that way. This defendant shouldn’t be punished like a normal adult, because his brain isn’t wired like a normal adult, and he could not have had the same mens rea as one would otherwise expect under the circumstances. Research is showing that children and teenagers are wired differently, as well, which could affect juvenile justice.

That’s useful for the defense. It could be a valuable tool in raising defenses showing that mens rea was lacking, because it couldn’t have existed. Not useful for prosecutors, more than showing that it was just as theoretically possible as for any normal human, which is sort of presumed for everyone anyway. So yay for science.

Another way it’s expected to be useful, however, is preventing future crimes. Stopping the next mass-murderer before he actually starts shooting kids on campus and whatnot. Of course, we immediately get creeped out the second anyone (more…)

Happy Halloween

Monday, October 31st, 2011





Happy Halloween

The Legal Profession Needs More Bars to Entry, Not Fewer

Tuesday, October 25th, 2011

On the New York Times op-ed page today, Clifford Winston asks the question “Are Law Schools and Bar Exams Necessary?” The writer, an economist with the left-ish Brookings Institution think tank, answers with a resounding “no.” They only increase the cost of entry into the profession — and thus the cost of legal services — while doing nothing to ensure the quality, honesty and accountability of the lawyers performing said services.

His diagnosis is on the nose, but his prescription is bad. He is right that simply graduating from an ABA-accredited law school and passing the bar are not sufficient quality control. But his solution — eliminating such barriers to entry — is the exact wrong approach. If anything, the barriers to entry need to be higher.


Law school, as experienced by most law students, is an enormous investment with little application to the actual practice of law. The first year is great for teaching how to spot issues and do the necessary legal research to answer questions, and for instilling core principles that underlie our jurisprudence. But beyond that first year, the time spent in class after class could be better spent in an apprenticeship where one learns how the law is actually practiced — and more importantly, acquiring the experience and judgment required to advise and deal with clients. Apart from the exceptional few who truly get a lot out of their continuing studies as preparation for real life — in particular, those who take advantage of clinical programs — law school after year 1 is a bit of a wasted opportunity for the run-of-the-mill students

The cost of law school is staggering, but only in part because of the requirements of maintaining ABA accreditation. These costs could be trimmed. The law library is the single greatest mandatory expense, what with the required accumulation of endless paper volumes of statutes, regulations, case law, treatises and their myriad pocket parts and updates. It’s a required expense, but not a necessary one, especially as everything’s been available digitally since forever.

Most of the cost of law school is not mandated, but the result of simple supply-and-demand. Tons of people want to go to law school, either to fulfill a calling or to make money or get status or just kill time until they find themselves. The demand drives up tuitions. Add to that the subsidy of student loans, and the price gets driven ever higher. Costs, on the other hand, remain fairly low. Staffing is not an enormous cost, considering. The ratio of students to professors is huge. When you figure 400 students in a section, each paying however many tens of thousands of dollars in tuition, the salaries of the handful of professors teaching them account for a minor fraction of it. Because of this, and the apparently endless supply of prospective students, law schools are a veritable cash cow — which is why so many have popped into existence in recent decades.

One byproduct of all these new law schools is a dilution of the quality of legal education, and thus the quality of many graduates with a JD. This is not to denigrate those with degrees from lower-tier schools, many of whom provide better services than some top-tier grads after gaining greater experience in the trenches. But whenever someone complains about “too many lawyers,” what they’re really complaining about is “too many bad lawyers.” Making it harder to get into law school, and then making it harder to actually get one of those JDs once there, would weed out many of the incompetent and misguided before they can do any damage to a real client.

The solution is not to abolish law school, but to make it harder and more relevant. Change the accreditation standards away from expense for its own sake (which, like several other such ABA standards like those for evening students, are actually holdovers from an earlier time when they existed to discourage minorities and those who needed to work for a living from joining the profession), and instead make the accreditation turn on selectivity of admissions and the quality of education provided. Require clinical courses (another astronomical expense, but one which makes sense). Require a uniform grade curve, so that performance can be measured accurately across multiple schools. Require practical courses alongside the general and theoretical, especially in the second and third years. Require more rigorous training in practical ethics, not just the bare-minimum survey everyone’s been doing since the ’70s.

Don’t eliminate the barrier; make it meaningful.


With respect to the bar exam, as we’ve said before, nobody in their right mind believes (more…)

When All Eyes are On Them

Thursday, October 20th, 2011

Every now and then, a lawyer will get a call from someone in desperate need of help. They’re being stalked, spied upon, wiretapped and harassed by the government. They don’t know why, there’s no reason for it, but the fact remains that every time they turn around, they catch a glimpse of agents tailing them. Watching them from a window. A familiar face in a passing car. Words overheard on the subway that the victim herself just said on the phone the other day. They’ve gone to the police repeatedly, only to be ignored or rebuffed. They’ve sent countless letters to their elected representatives, only to get polite empty letters in reply. It’s clearly a conspiracy, and they are suffering from it.

And indeed, they are suffering. It’s making their lives miserable. They’re desperate for help. Everyone they turn to seems to be in on the conspiracy. They’ve amassed heavy files over the years, documenting their failed attempts to make it all just go away (which they sometimes FedEx unsolicited to various lawyers, trying to find someone, anyone, who can help).

This is rarely something that lawyers can help with.

The human brain is marvelous in lots of ways. One thing it’s awesome at is spotting patterns. Pattern recognition helps you navigate through a complex world and make sense of events. Spotting patterns helps you evade predators, figure out social situations, drive in traffic, and analyze complex scientific data. It’s something a small child can do that the best computers are still a long way from doing. But not all patterns are meaningful. Any set of random events will throw out something that looks like a pattern, every now and then. So another awesome thing the brain does is filter out the meaningless patterns, so you only have to take notice of the important ones.

But in some people, the part of the brain that filters out the meaningless from the meaningful is broken. Apparent patterns are thrust upon their consciousness with the same force as real patterns requiring action. It can manifest itself as (more…)

Myth #3: “I was Entrapped!”

Thursday, October 20th, 2011

So you were hanging out with your buddy Joe, a guy who buys weed off you every now and then. Joe tells you he knows a guy who’s looking to buy more than Joe usually gets, and offers to introduce you. One thing leads to another, and soon you’re making a big sale to this new guy. As soon as everything changes hands, you’re cuffed and arrested. Turns out your buddy Joe was an undercover all along. He set you up! A cop! That’s entrapment, right?

Or maybe you were a out on a call, meeting another poor schlub at his hotel room to trade a little physical pleasure for a little cash. As is your practice, you make sure to confirm he’s not a cop first. He says no, you discuss what he’d like to do and for how much, and now you’re in handcuffs. What the hell? He lied to you! A cop! That’s entrapment, right?

Or maybe you were out protesting the latest outrage du jour, and you and your buddies decide to move the protest to a major thoroughfare at rush hour. The cops don’t stop you until you’re there, and then they arrest you. They let you do it! The cops! That’s entrapment, right?

Nope, nope, and nope.

Entrapment is not what most people think. It’s not when the police conspired with you to commit the crime. It’s not when your decision to go ahead with the crime was based on a police lie. And it’s not when the police didn’t stop you from committing the crime.

The police helping you commit a crime is not entrapment. Entrapment is when the police made you commit the crime, when you wouldn’t have done so otherwise.

Entrapment is when you would not have committed the crime, period, if the police hadn’t made you do it. If you’d never sold drugs in your life, but the undercover begged you for weeks to do the deal to save him from being killed by his supplier… maybe that’s entrapment. If you were not going to that hotel room as a prostitute, but for a purely social encounter, and the cop gave you money you’d never asked for… that’s probably entrapment. And if the cops out-and-out told you and your fellow protesters to go onto that street, and then arrested you for doing what they told you… that’s entrapment.


Different states deal with this differently. Some look at your (more…)

Tarnished Justice: Cops Meet Their Quotas, Even When Crime is Down

Thursday, October 13th, 2011

If you belong to a certain population, who cares if you get arrested for no reason? Certainly not certain parts of the NYPD, according to former detective Stephen Anderson. If there’s an arrest that needs to be made, and you don’t have a guilty person to arrest, you just “arrest the bodies to it — they’re going to be out of jail tomorrow anyway, nothing is going to happen to them anyway.”

It’s an attitude that is all too prevalent in law enforcement, one that is far too easy to fall into: It’s just no big deal.

Except it is a big deal.

Here’s what happens to you when narcotics officers arrest you for no good reason: You’re forcibly kidnapped, usually in public, in some of the most shaming circumstances imaginable. You’re hauled off in handcuffs, which fucking hurt. You’re fingerprinted, and a rap sheet is created, and unless you are very lucky the fact of this arrest will be part of your official record for the rest of your life. You’re charged with a crime, perhaps a felony. To support the charge, officers like Anderson will provide some real drugs and say they found them on you. Maybe they’ll sit around and try to come up with an incriminating statement they’ll say you “blurted out” on the scene. Faced with overwhelming evidence, you may (more…)

The Criminal Lawyer Turns 3

Thursday, October 6th, 2011

Huh, we kept it up for another year. Three years of The Criminal Lawyer, happy birthday to us. To be sure, three years is by no means venerable in the blawgosphere, and we’ve only written about 300 posts in that time, but it’s nice to say that it’s made it past the terrible twos.

There were a few small changes this year. A few tweaks to the appearance, some new code to make things run more smoothly. We ran an experiment to see how ads worked with the blog, but decided they weren’t worth the ugliness, so as soon as the experiment was over so were they. We also broke down and got a Wacom tablet, to improve our photoshopping and create the occasional drawing (like the one above). We sometimes spend more time on the image, now, than on the writing (which isn’t saying much).

A bigger change was to free up commenting. We’d made it difficult to comment before this year, but now it’s pretty easy. We’re still fairly heavy-handed with the monitoring, and anything resembling spam goes bye-bye. But the number of meaningful and useful comments has certainly gone up. We’d like to see it continue. (When a post attracts no comments, we attribute it to the fact that what we said was so self-evidently true and complete, that not a word needs to be added to its perfection.)

Despite lobbying from Scott Greenfield, we did not switch from the editorial first-person plural to the more usual first-person singular. Sorry, Scott.

Our readership certainly improved dramatically this year. Individual posts sometimes get more hits in a day than the whole blog used to get in a month. Spikes in readership didn’t really coincide with any particular post, seeming to come out of the blue, but our pieces on law school and entering the legal profession seemed to bring the most immediate (if temporary) spikes.

The bits on law school and the legal profession certainly got more people upset, that’s for sure. It’s a shame when someone gets upset at something we’ve said, but they are always free to cancel their subscription.

The one post with the single greatest number of hits — triple even the most popular law-school post — was the one about prison being a problem rather than a paradox, and is it solvable. But that wasn’t even one of our favorites. We’re more partial to the ones on overcriminalization and legal policy, wonk that we are.

The most common Google searches that brought people here this year were variations on things like “why become a lawyer,” “what to say to a judge at sentencing,” and “can an undercover cop lie about being a cop.” We tried to answer the most common pressing questions here. Another very common question people Googled, which was not addressed there, is whether the LSAT tests you on math. Last time we checked, it did not. Hope this helps.

The most amusing Google searches that brought people here more than once included such things as “adam smith galleon” (79 visits), “show of hands” (55 visits), “lawyers to avoid” (oh, thank you very much — 36 visits), “chutzpah defense” (23 visits), and 88 visits from the oddly specific “how to win friends and influence people in the digital age,” which was the title of a post we wrote back in February, and oddly enough the title of a book that was just published two days ago. (Don’t worry, author of said book, we won’t sue. The substantive stuff we write gets lifted by other blogs and news sites often enough — even our original copyrighted artwork has appeared on reputable websites of well-known news organizations and the like. We’ve decided to take it all as flattery.)

So here’s to another year. We’re going to keep writing this whether anyone else reads it or not. (And if you stop reading it, you’ll be in good company, including such fine people as our wife, who stopped reading it nearly three years ago.) We do it strictly for our own enjoyment, and we very much like doing it. If you like it too, that’s great, and thank you for stopping by. If you don’t happen to like it… well, who can blame you.

Why Should I Have to Pay for a Lawyer When I’m Innocent?

Wednesday, October 5th, 2011

Illustration of the Old Bailey during the Regency period.

In Patrick O’Brian’s The Reverse of the Medal, one of the novels in his brilliant Aubrey-Maturin series set during the Napoleonic wars, one of the main characters winds up being prosecuted for insider trading. Jack Aubrey, a heroic naval captain, is completely innocent — but the evidence against him looks bad, he’s up against a win-at-all-costs prosecutor, and the judge is a mean sonofabitch. His solicitors have just retained a top-notch barrister to represent him. The following exchange between Jack and his friend Stephen Maturin is something one might hear in lawyers’ offices even now:

“It appears that Mr Lawrence is a very clever lawyer indeed, and I suppose I should be glad; but upon my word I cannot see that I want a lawyer at all. […] This affair is nothing like those miserable [civil cases], with innumerable obscure points of disputed contract and liability and interpretation that have to be dealt with by specialists; no, no, this is much more like a naval matter, and what I should like is simply to have my say, like a man called before his captain, and tell the judge and jury just what happened. Everyone agrees that there is nothing fairer than English justice, and if I tell them the plain truth I am sure I shall be believed. I shall say that I never conspired with anyone, and that if I followed Palmer’s tip I did so with a perfectly innocent mind, as one might have followed a tip for the Derby. If that was wrong, I am perfectly willing to cancel all my time-bargains; but I have always understood that guilty intent was the essence of any crime. And if they confront me with any man who says that what I say is not true, why then, the court must decide which of us is to be believed — which is the more trustworthy — and I have not much fear of that. I have every confidence in the justice of my country,” said Jack, smiling at the pompous sound of his words.

“Have you ever been present at a trial?” asked Stephen.

Jack’s is a common misconception, that the criminal justice system is nigh infallible, and that innocence will out. Those who have actually had some experience with the criminal justice system, however, are more inclined to share Stephen’s skepticism. Injustice happens with alarming frequency, in real life. Evidence is falsified, words are twisted, mistakes are made. Juries are unpredictable, hamstrung and sometimes foolish. Lawyers miss issues, miss facts, and miss deadlines. Prosecutors abuse their discretion or fail to use it. Innocents are convicted by reliance on the unreliable. Innocents convict themselves by plea, rather than take the risk of greater penalty should they lose at trial. The criminal justice system is predisposed towards punishment; once caught up in the system, whether innocent or guilty, the chances of being punished are significant.

We’re not all monsters in the system, of course. For the most part, the (more…)

Falling Economy, Falling Crime

Tuesday, October 4th, 2011

Endless Origami: Crime Rates

Or maybe not…

For some reason, common wisdom would have it that crime should go up when the economy is going down. Violent crime in particular. Apparently, the thinking is that less prosperity leads to increased frustration and desperation, leading to more beatings killings muggings and rapes. As if the people who otherwise would commit such crimes are less likely to do so when banks are lending and people are investing in new and bigger business ventures.

Of course, common wisdom is frequently wrong. Which is good, because as we’ve pointed out before, the economy is going to continue to suck. Europe is facing massive uncertainty in the face of its Mediterranean peoples voting themselves the treasury. Here in the U.S., the Obama administration, elected on a platform of “hope,” is doing everything in its power to kill off any hope that investment in growth would be worth the risk. Instead of ensuring the stability and predictability necessary for economic growth, the governments of Europe and the U.S. are only spreading uncertainty and worry. It is now pretty much a certainty that a double-dip recession is upon us.

But the economy just isn’t that strong an influence on crime. During the prosperous 1950s and 1980s, violent crime went through the roof. During the Great Depression and the recent Crappy Recession, violent crime plummeted. The influence of economic hardship on crime is just not that strong. It is certainly not cause-and-effect — any effect is likely limited to exacerbating the effect of those things that actually do drive up crime. And right now, those things aren’t driving crime up.

So what are those things? What factors do drive violent crime? And are they going to come back any (more…)