The Criminal Lawyer

The LSAT is essentially the law school entrance exam in the United States. One’s score on that test is a big factor in determining which law school one will get to attend (if any). The law school one attends has an enormous influence on what sort of jobs will be available on graduation, and thus one’s entire career. So the LSAT is kind of a big deal, if one is considering a career in the law.

The college students most likely to be considering a legal career, of course, are those majoring in “Pre-Law.” So one would expect that, after four years of undergraduate preparation, they’re the most likely to ace that LSAT.

But as it turns out, Pre-Law and Criminal Justice students have the worst average scores out of 29 college majors. The students with the best scores? Math majors, Economics majors, and Philosophy majors.

The data has recently been published in a study by Michael Nieswiadomy, an Econ professor at the University of North Texas. The study, “LSAT Scores of Economics Majors: The 2008-2009 Class Update,” can be downloaded here.

Here’s what’s going on: The LSAT is mainly a logic test, with some reading comprehension thrown in. The logic problems aren’t terribly challenging — the logic puzzles one finds in the supermarket checkout line are much harder. But to answer them correctly, one needs to have an analytically-trained mind.

This is precisely the kind of mind that Math majors, Econ majors and Philosophy majors have formed during their four years of undergrad. (Physics is lumped in with Math because that’s all Physics is any more.) Philosophy is all logic and reasoning. These majors, in fact, essentially teach students how to think.

And that is precisely what law school does. Law school doesn’t teach you how to be a lawyer, but how to think and reason like one.

So really, it’s hardly surprising that the LSAT scores are distributed this way.

-=-=-=-=-

College students have often asked us what courses they ought to take, to best prepare themselves for law school. Our answer has always been “History, Philosophy and Economics.” History, because that teaches you to analyze your sources and root out details, and also because the common law is nothing but history. Philosophy, because it teaches you to think and analyze and reason out an argument. And Econ, because half of the legal principles out there these days come from Economics, whether you realize it or not. All three of these, if mastered reasonably well, provide a rock-solid foudnation for the practice of law at the highest levels, as taught in the finest schools.

And apparently, they help you get in, too.

(Hat tip: TaxProf Blog)

We’ve asked it before, but what the heck is going on with some of these federal prosecutors nowadays? There was the whole Ted Stevens fiasco over the winter, when the feds actively withheld exculpatory evidence and witnesses in their rush to convict the former Senator. Then the 7th Circuit directed an acquittal after the feds blatantly misrepresented the facts in a food labeling case. The W.R. Grace case was screwed by federal prosecutors who withheld exculpatory evidence and gave the judge reason to say he has “no faith in anything the Government says” any more.

And now we get yet another case of the feds blatantly misrepresenting the facts. This time, the 9th Circuit reversed and ordered a new trial, though it’s doubtful that there will be another one.

The case is U.S. v. Reyes, decided this morning. This was one of those options backdating cases that were all over the news for a while back in ‘06 and ‘07. (”Backdating” is when a company retroactively picks an effective date for stock options, so as to maximize the potential value of those options. It’s a crime when the extra value isn’t accounted for as an expense, because then the books give investors a false image of the company’s finances.)

Gregory Reyes was the CEO of Brocade Communication Systems. In August 2006, Reyes was charged with securities fraud and related crimes for backdating options without properly accounting for them. At trial, his defense was that he had no intent to deceive. He just signed off on the options in good-faith reliance on his company’s Finance Department.

High-ranking Finance Department employees had given statements to the FBI, describing how they knew all about the backdating scheme. But they didn’t testify at trial. Instead, the prosecution called a Finance Department employee who said she didn’t know about the backdating.

The prosecutor was well aware of the fact that others in the department knew all about it. But during closing arguments, he told the jury that the Finance Department employees “don’t have any idea” that backdating was going on.

After several days of jury deliberations, Reyes was convicted. He was sentenced to 21 months in prison with $15 million in fines. That was stayed pending appeal.

This morning, in an opinion byJudge Schroeder, the 9th Circuit held that this was prosecutorial misconduct, and reversed the conviction, ordering a new trial. Reyes argued that he didn’t know the Financial Department wasn’t accounting properly for the backdating, and the feds argued that the Financial Department didn’t know about the backdating. So that was a key question for the jury to decide. And the feds had lied to the jury.

And this wasn’t just a simple little throwaway line, either. The prosecutor did not even limit his argument to the testimony of the witness he’d cherry-picked to give the false impression that nobody in the Finance Department knew about it (which might actually have been permissible). No, the prosecutor:

asserted as fact a proposition that he knew was contradicted by evidence not presented to the jury. In direct contravention of the statements given to the FBI by Finance Department executives that they did know about the backdating, the prosecutor asserted to the jury in closing that the entire Finance Department did not know about the backdating, and further that the government’s theory of the case was that “finance did not know anything.”

“Our theory is that those people didn’t know anything. . . . [The cherry-picked witness] says finance didn’t know. Did you need everybody in the Finance Department to come and tell you that they didn’t know?”

The government even displayed for the jury a diagram explaining the prosecutor’s position that the Finance Department did not know of the backdating. The prosecutor asked the jury to assume other employees of the Finance Department would testify that they did not know about Reyes’ backdating procedure, when the prosecutor knew they did.

Federal prosecutors have “a special duty not to impede the truth.” As the 9th Circuit pointed out today, there is good reason to hold prosecutors to a higher standard: Their words carry the weight and imprimatur of the government itself, which can be very persuasive to a jury.

The 9th Circuit didn’t go so far as to direct an acquittal or dismiss the indictment, because the defense had also played it pretty aggressively. Instead, they ordered a new trial. It is anyone’s guess whether the feds will be up to the task of trying the case all over again, years after the fact. But we’ll go out on a limb and predict that this case will never see a jury again.

For crying out loud, feds! And for shame.

If you are charged with a crime, the stakes couldn’t be higher. Unlike civil lawsuits, which are merely about money, criminal prosecutions are the real deal. You can lose your liberty, rights, reputation, and opportunities down the road. You can lose your life, or a substantial part of it. So you obviously want a lawyer who can do the job well.

Fortunately, the criminal defense bar is full of lawyers who are good at what they do. The vast majority do a fine job, working very hard in difficult circumstances to get the best results they can for their clients. They’re smart, dedicated, and wise.

However, there are a few out there that one might want to avoid. They fall into 7 general categories, described below. YMMV, and there may be outstanding attorneys out there who nevertheless fall into one or more of these categories. For the most part, however, these types should be retained with caution:

-=-=-

1) The Dilettante

You’ve just been arrested for armed robbery. You need a lawyer, and fast. But you don’t know any lawyers. Fortunately, there’s Mr. Paper, your dad’s corporate lawyer. Your dad asks him, and Mr. Paper says he’d be happy to represent you. This is great! He’s very respected, and smart as a whip, and he’s known you since you were a baby, so you feel very comfortable hiring him.

Mr. Paper, meanwhile, is thrilled. He hasn’t seen the inside of a real courtroom since the day he was sworn in. He’d love to get a little of that real courtroom action, just for once. He’ll take a couple of hours now to bone up on criminal procedure, and learn what he needs to as it comes up. He’s a quick study, and he’s negotiated tons of very difficult business deals in his day, so how hard could it be?

Unfortunately, it’s not as easy as that. He doesn’t speak the language. He doesn’t know what the judges and clerks expect him to do and say. He won’t know what the prosecutor needs to hear. If you’re lucky, the prosecutor will recognize that your lawyer doesn’t know what he’s doing, and throw him a bone or two to prevent an ineffective-assistance-of-counsel do-over.

If you’re not so lucky, however, you’re screwed. Maybe you could have gotten off on a technicality, but Mr. Paper never realized it. Maybe you could have gotten a better plea offer, but he didn’t know how to get it. Maybe you could have won at trial, but Mr. Paper didn’t know how to prepare, couldn’t cross-examine to save his soul, and wasn’t able to get the point across to the jury. He got his jollies, and you got jail.

Identifying traits: Refers to your case as a “project.” Brags to all his friends and clients that he’s “got a criminal trial coming up.” Uses phrases like “buy-in,” “going forward” and “what’s a Mapp hearing, again?”

-=-=-

2) The True Believer

This lawyer seems great, at first glance. She is ready to believe you didn’t do it! In fact, she’s convinced of your innocence! She’s going to fight the government tooth and nail!

The True Believer does not negotiate. Her clients are innocent. Innocent people do not plead guilty. There will be no plea here. This case is going to trial!

So far, so good, right? Maybe not. You may have noticed a certain lack of objectivity here. This is the hallmark of the True Believer. She is immune to reason. She is incapable of seeing your case for what it is, flaws and all. She’s crossed the line from “zealous advocate” to “zealot.”

The True Believer has an anti-authority streak so wide, it blocks her vision: All cops are liars! All evidence is planted! All confessions are coerced! The system is corrupt! It’s just a machine that shoves innocent people into prison! It’s racist! It’s classist! It’s… you get the picture.

Her clients may feel good, knowing that she is so strongly on their side. But her clients suffer for it, in the end. Maybe there really was rock-solid evidence against them, and a conviction was practically guaranteed, but a decent plea bargain could have been negotiated. It didn’t happen, though. She’d rather take a spectacular defeat than earn a quiet victory. And now the client is slammed with a sentence that’s more severe than they could have gotten.

Or maybe the case did have weaknesses. Sometimes the evidence is flawed. Sometimes the cops do lie. Sometimes there was a rush to judgment. But who is going to believe a defense attorney who has made a career of crying wolf? Certainly not the judges and prosecutors who have put up with her antics all these years. And that’s too bad, because had she retained some credibility she might have been able to convince them to drop the case, or at least reduce it.

The True Believer is hamstrung by her belief in her client’s innocence. She is incapable of giving wise counsel, dealing with obstacles, or negotiating with the government.

The True Believer’s clients suffer worse penalties because of her. And the injustice of it all only feeds her convictions, of course. It’s so unfair! Nobody listens to the truth! It’s a conspiracy of apathy! It’s systemic racism! And so it goes…

Identifying traits: Righteous indignation. Tendency to substitute slogans for thought. Willing, if not eager, suspension of disbelief.

-=-=-

3) The Social Crusader

Not to be confused with the True Believer, the Social Crusader is out to change the world. The system is broken, and he’s going to change it! That is a laudable goal, of course. And there are ways it can be achieved — perhaps through getting involved in politics, writing editorials, and the like. But instead of trying to persuade those who actually make the rules, he’s taken his political activism to the one place where it does more harm than good: the courtroom.

It doesn’t matter if the Social Crusader thinks that a drug crimes are punished too harshly; his client is still going to be punished according to those laws. It doesn’t matter if he thinks capital punishment is inherently cruel and unusual; his death penalty client still faces it. It doesn’t matter if he thinks the police shouldn’t be allowed to search places that the law lets them search; the evidence is still going to be admitted.

The Social Crusader wastes his time fighting the law from within, and his clients suffer dearly for it. Instead of challenging the evidence, and perhaps winning the case, he fights policy and loses. Because it’s not about right or wrong, it’s about what can be proved.

The Social Crusader also cannot negotiate. How could he even think of allowing his clients to plead guilty to something that shouldn’t even be a crime? So forget about getting a good plea bargain with this guy.

This guy simply doesn’t understand that political activism is not his job right now. His job is to get the best outcome he can for his client. One does this, not by arguing what the law ought to be, but by dealing with the law as it is. Instead, he’s living in a fantasy world, ignoring cruel reality. His client, living in real life, suffers for his lawyer’s failure to deal with it.

Identifying traits: Says things like “draconian drug laws,” “someone ought to do something about…,” “the law is an ass.” Tends not to wear suits, preferring activist chic that sends a message, an anti-suit that is just barely permissible in court. Weird hair. Doesn’t talk about you or the facts of your case much, if at all.

-=-=-

4) The Whiner

At first glance, this lawyer seems like she’s totally going to bat for you. She’s constantly advocating for her clients, trying to get prosecutors to make better offers. When she’s not on the phone, she’s in court making an argument. What’s not to love?

The problem is that she’s not actually making arguments. As Michael Palin put it, “an argument is an intellectual process,” and that’s not what’s happening here. Instead of saying things like “here’s why my client deserves a better offer,” the whiner resorts to “why can’t you just give him a misdemeanor?” or “aww, c’mon, can’t you give him probation?” Repeatedly. Over and over again. In every phone call. A typical conversation might go like this:

Whiner: Oh, come on, why can’t you just give him a misdemeanor?

Prosecutor: Because he sold heroin to an undercover and three others in a school zone, he doesn’t have a drug problem, and this is the third time he’s been caught doing it. He’s already had his second and third chances, and I’m not going to offer anything less than a year this time around. Now of course, I only know what the cops told me, and if there is something else I need to know that would change my mind, I’d love to hear it.

Whiner: But I don’t understand why you can’t just offer the misdemeanor!

Repeat for ten minutes.

The strategy may be simply to wear down the other side until they give in. But we’ve never seen it work. All one gets is a pissed off adversary who is entirely justified in never returning one’s calls again.

The Whiner tries the same tactics on judges, with even less success.

One would think that, after having this strategy fail time and time again, the Whiner might consider trying something new. But she doesn’t. She just whines harder.

True story: We were in court watching a pathetic performance by a Legal Aid lawyer widely known to be one of the worst Whiners. As usual, it didn’t work. Later, out in the hallway, we saw her supervisor chastising her. Really laying into her. What was the supervisor saying? “You weren’t whining enough! You need to be whining more! Why weren’t you nagging them?” And more of the same. We kid you not.

So apparently some defense attorneys are actually trained to do this. But it’s lazy, substituting persistence for advocacy. Instead of thinking or doing some actual lawyering, the Whiner just tries to wear down the opposition with entreaty and supplication. It’s not a strategy we would advise.

Identifying traits: Permanent pout or moue. Nasally voice. Puppy-dog eyes.

-=-=-

5) The Fraidy Cat

It’s true, some lawyers really are afraid of going to trial. Maybe they have stage fright. Maybe they don’t know what to do in front of a jury, and know it. Maybe they’ve had one too many bad experiences. Whatever the reason, they’ll do anything to get out of going to trial.

That’s not a good trait for a defense attorney to have. Sure, 99% or more of criminal cases never go to trial. But nobody knows which ones are going to be the lucky few that do. As time goes on, and a case starts looking more and more like it might actually go to trial, the Fraidy Cat starts getting the urge to just take an offer — any offer.

There are two problems with that. First, some cases really do need to go to trial. Sometimes the cops got the wrong guy. Sometimes the evidence just isn’t good enough. Sometimes, people get acquitted. But nobody gets acquitted until after they’ve had a trial. And Fraidy Cats don’t go to trial, so their clients aren’t likely to get acquittals. Their clients are more likely to get counseled on the wisdom of taking a plea instead. (Now many of those clients probably should take a plea, but what about the handful who maybe shouldn’t have?)

The second problem is that criminal practice is a small world, and reputations get around. A lawyer who has a reputation for backsliding on the eve of trial is just not going to get great offers. Even in a difficult case with tricky evidence, where ordinarily a prosecutor might be willing to lower his offer to avoid the uncertainty of trial — there’s no need to do that, when everyone knows this case is never getting in front of a jury.

The Fraidy Cat is often a Whiner as well.

Identifying traits: It can be hard to differentiate a Fraidy Cat from a normal lawyer. One of the best ways is to insist at your first meeting that you won’t plea bargain, but will insist on a jury trial. And watch his eyes. If he tenses up like a cornered baby rabbit, you might consider probing further.

-=-=-

6) The Caseload Crammer

On the whole, it’s good to be busy. More cases mean more fees, and more job satisfaction. But too many cases can be worse than too few. The Caseload Crammer has way too many cases.

Often, the Crammer is getting most or all of his fees from low-paying court-appointed work. This kind of work is fine if one is starting a new practice, or wants to supplement one’s normal caseload with some indigent work. But these cases pay very little. A lawyer who relies exclusively on them is going to need to have more than he can probably handle, just so he can eat.

A client whose lawyer has hundreds of other clients probably isn’t getting that much attention. That may not be a problem if your case is strictly routine. It may actually be a bonus, if your lawyer does thousands of cases just like yours every year. If your facts aren’t that unique, if the issues are identical to everyone else’s, and he knows what he’s doing, then it might be okay.

But what if your case isn’t the same as everyone else’s? If your case has unusual facts, unique issues or tricky questions of law… sorry, but this lawyer just doesn’t have time to deal with it effectively — if he was even able to break from routine enough to spot the issue in the first place. He just can’t afford to do the work your case requires. If he takes time away from his other cases to put in the hours your case needs, then he risks committing malpractice in those other cases. He’s more likely just to put in the minimum effort on your case.

Don’t take our word for it. This is exactly the argument that court-appointed lawyers make when they ask for higher fees: Such a lawyer needs to take on so many cases at the existing rates that he flirts with malpractice just to make a living.

Identifying traits: Malnourished. Sleepless, red eyes. Tends to recite courtroom litanies in his sleep.

-=-=-

7) The Showoff

Here’s another one that seems fine at first glance. He seems great! After all, he told you so himself. The Showoff likes to brag and boast and bluster about how amazing he is. He may wear too-expensive suits, and unnecessarily showy jewelry. He knows everyone, as he’s sure to let you know. And he may be pretty well-known himself. In fact, one of the most dangerous places in town is any spot between him and a TV camera.

But behind the boasts, there is no substance. The Showoff is just an empty suit.

But how can you tell if someone’s just a Showoff? After all, there’s nothing wrong with bragging. We all do it, and clients like to know that they’re hiring someone with experience. And it’s good and proper to dress as well as one can. And there are plenty of well-known attorneys who have earned every bit of their fame.

The problem with the Showoff is, he just doesn’t have what it takes any more — if he ever did. He can’t live up to his own hype. He may have had the chops once, back when he was busy earning that reputation. Or maybe he just had some lucky breaks. But now he just can’t do the heavy lifting any more. You’ve been lured into thinking you’ve retained a superstar, and what you really have is nobody special.

Maybe it’s all the bragging and schmoozing and more schmoozing, so he doesn’t have the time to master the facts and issues of your case. Maybe it’s just that he’s coasting, and doesn’t realize he ought to be working harder. Whatever the reason, you’re not getting superstar representation. He doesn’t know the law like he should. He hasn’t learned the facts. He hasn’t grasped the complexities. He’s not prepared, and it shows. And that’s just deadly.

Identifying traits: Talks more about himself than about your case. Tendency to sell past the close. Slick as a phony politician.

The geniuses over at Cracked.com rescued their “Mad Magazine” ripoff from the dustbin of history, when they went digital and found a unique voice, focusing more on the oddities of real life than on satire. A typical headline will bear the words “badass” or “retarded,” which sums up their worldview. We admit to checking it out almost daily.

Here’s a recent post, which begins:

Let’s face it, people will say anything to get out of going to jail. For instance, stats show that less than one percent of insanity pleas actually work, since for every one guy who truly has something broken in his brain, there are at least 99 scumbags who’re just making shit up.

Here are seven of the most bizarre criminal defenses ever mounted in court… some of which are made even more bizarre by the fact that they actually got off.

It’s not the most complete list. Heck, we can think of plenty more oddball defenses. (The “Twinkie” defense is a popular favorite.) But it’s a good list, nonetheless.

Read the rest at the link.

Not again. It looks like yet another instance of federal prosecutors exercising terrible judgment.

Writing for a unanimous Supreme Court this morning, soon-to-retire Justice Souter clarified what “facilitation” means in criminal law. A buyer calling up a drug dealer to arrange the purchase of some drugs does not count. Apparently, the feds didn’t get the memo.

In this case, Abuelhawa v. U.S., Mohammed Said was a suspected drug dealer whose phone was wiretapped. The wire intercepted six calls from a buyer, Salman Abuelhawa, in which Mr. Abuelhawa arranged two small purchases of cocaine.

The amounts Mr. Abuelhawa bought were strictly misdemeanor level — just one gram each time. But in a bizarre move, the feds charged him with six felony counts of “causing or facilitating” the sales during those intercepted phone calls.

After recovering from the “you’ve gotta be kidding me” stage, Abuelhawa moved to dismiss those charges. But no, the District Court (the Eastern District of Virginia, in Alexandria) said it was perfectly proper to charge a buyer with facilitation of the sale. He was convicted, and appealed to the Fourth Circuit.

The Fourth Circuit also ruled that it’s fine to charge a buyer with facilitation, saying that the word “facilitate” should be given its common meaning, “to make easier or less difficult, or to assist or aid.” Abuelhawa’s request to buy “made the sale possible,” and therefore counted as facilitation.

Ably represented by Joseph McEvoy, of the excellent Virginia law firm of Odin, Feldman & Pittleman, the defendant took it to the Supreme Court.

Writing for the majority, Justice Souter essentially opined “you’ve gotta be kidding me” — only in more genteel language. The government’s overly literal use of “facilitate” he described as sitting “uncomfortably with common usage.”

Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer’s part is already implied by the term “sale,” and the word “facilitate” adds nothing. We would not say that the borrower facilitates the bank loan.

The feds argued that the facilitation wasn’t the request to buy, but rather the use of a cell phone to do so. A sale can happen without using a cell phone. Using a cell phone makes it easier to sell drugs. So therefore “Congress probably meant to ratchet up the culpability of the buyer who calls ahead.”

Souter respectfully pointed out that this argument was stupid. Congress made it a misdemeanor to buy the drugs. It meant for Abuelhawa to be charged with a misdemeanor. It did not mean him to be charged with facilitating the dealer’s felony.

* * * * *

We prosecuted drug dealers for years here in Manhattan, and we have to wonder what these Virginia feds were smoking. No prosecutor in their right mind would seriously consider charging a buyer with facilitation. A lookout is a facilitator. A steerer who directs buyers to a particular dealer is a facilitator. A “stash man” or a “money man” who holds stuff for the seller is a facilitator. The buyer is never a facilitator.

When, as here, a hyper-technical reading of the statute might conceivably result in a charge that nobody intended, a good prosecutor simply smiles wryly at the inept wording of statutes in general. But to actually file such charges would require a shocking lack of judgment.

Judgment. It’s something we require of our prosecutors. They have people’s lives, liberty and reputations at stake. They have victims who need justice. They work within a system that relies on them to do the right thing. So it is imperative that they have the uncommon sense to do, not what is technically allowable, but what is actually appropriate.

Not every prosecutor lives up to the challenge, of course. But lately the feds have been showing a remarkable lack of judgment. This case is just one of many in recent years where federal prosecutors have committed forehead-smacking acts of WTF.

So we have to ask… WTF? Seriously. Federal prosecutors have a well-deserved reputation for being bright, dedicated, hard-working and sensible. But in case after case lately, federal prosecutors have made colossal boners of bad judgment. What’s going on? Did we change how we hire people? Did the pool of applicants change? Did the internal culture change? We’d like to know.

Send us your thoughts, and we’ll see about devoting a column to the more thoughtful responses.

The Supreme Court this morning exemplified exactly what’s wrong with the death penalty in this country. In a clear effort to avoid a decision that would impose a death sentence, the Court made a nonsense ruling so it could extend the course of appeals — appeals that have already run for three decades. The Court further delayed an outcome, continuing the stress and injustice of uncertainty to the defendant, the victims, and the criminal justice system.

One Saturday afternoon in 1980, Gary Cone robbed a Memphis jewelry store of about $112,000 worth of trinkets. He led a police officer on a high-speed chase through town and into a residential neighborhood. Abandoning his car, he ran off on foot. He shot a police officer who pursued him, and a citizen who tried to stop him. Re-thinking his abandonment of the getaway car, he tried his hand at carjacking, tried to shoot the driver, but was out of ammo.

Cone ran and hid all that day and into the next morning. He then tried to force his way into an old lady’s apartment at gunpoint, but she refused to let him in. The highly-intelligent Vietnam War veteran was foiled again. But later that Sunday afternoon, he broke into the home of an elderly couple, Shipley and Cleopatra Todd, aged 93 and 79, and brutally beat them to death.

After hiding the bodies, ransacking their home, and shaving off his beard, he made his way to Florida. There, he robbed a drugstore, got arrested, and admitted to killing the Todds and shooting the police officer.

In 1982, he was convicted of the murders, after unsuccessfully arguing that he had been on drugs and suffered from post-traumatic stress, and thus lacked the necessary mens rea. He didn’t really present a lot of evidence to back that up. The jury found him guilty, found the requisite aggravating factors, and sentenced him to death.

In yet another bleak example of modern American capital punishment, Cone spent the next 27 years filing appeal after appeal, up to the Supreme Court and back again.

This morning, the Supreme Court ruled on his federal habeas claim. Cone was arguing that the government violated his Brady rights, by withholding evidence material to his mental state.

On direct review in state court, the Tennessee Supreme Court had affirmed the conviction and the death sentence. Cone then filed a petition claiming various violations, including Brady violations. While the petition was pending, he got to see the prosecutor’s case file, and amended his petition to add more detailed Brady claims. He claimed that his thin evidence at trial would have been bolstered by this stuff, had he seen it at the time.

The reviewing court denied the petition, on the grounds that the Brady claims had already been considered and denied. Cone then sought a writ of habeas corpus, seeking relief for the alleged Brady violation. The Sixth Circuit said no to the Brady claim, because the state decision was based on grounds that weren’t applicable in federal court.

Appeals then went back and forth on other matters. In 2001, the Circuit granted relief for ineffective assistance of counsel, but the Supreme Court reversed that in 2002. In 2004, the Circuit granted relief for the use of an unconstitutional aggravating factor, but the Supreme Court reversed that one also.

Back in the Sixth Circuit in 2007 on remand, Cone once again raised the Brady claim. The Circuit again said no, that the claim was procedurally barred, because Tennessee had relied on independent state grounds in its determination of the Brady claim. And in any event, the prosecutor’s files weren’t Brady material in the first place, because nothing in them would have “overcome the overwhelming evidence of Cone’s guilt” and “the persuasive testimony that Cone was not under the influence of drugs.”

On cert to the Supreme Court this time around, Cone argued that the prosecutor’s file contained witness statements and police reports that would have corroborated his insanity defense during the guilt phase, and would have mitigated the aggravating factors during the sentencing phase. He argued that the Tennessee court’s decision did not rest on grounds that precluded federal review, contrary to the Circuit’s finding.

In its decision this morning, written for the majority by Justice Stevens, the Supreme Court ruled in Cone v. Bell that Cone was right — the Tennessee court’s decision did not rest on grounds that precluded federal review. Nevertheless, Cone was still wrong, because the prosecution’s files were not Brady material — the withheld documents simply were not material to any defense based on his mental state.

If Stevens had stopped there, this would have been a unanimous decision.

Instead, however, Stevens screwed up. “While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state,” he wrote, “the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.”

Say what? It clearly wasn’t material to the issue of guilt, but the appellate courts were too hasty in saying it was not material for sentencing? Stevens is basically saying, the files weren’t Brady, because they weren’t material to the issue of his mental state. But on the other hand, they might have been material to the issue of his mental state, so we’re remanding for a do-over.

So, in all these years of considering this very issue on appeal, the Circuit got it right when it decided that the files simply weren’t material. But in all these years of considering this very issue, the Circuit acted too hastily in deciding that the files weren’t material.

That simply doesn’t make sense, and in his dissent (joined by Scalia), Thomas makes that exact point. Alito felt the same way, and dissented to that extent, but concurred with the rest of the decision.

Chief Justice Roberts felt the same way, but wasn’t moved strongly enough to dissent, so he merely wrote a concurring opinion voicing his concerns. Instead, “this is what we are left with,” he wrote: “a fact-specific determination, under the established legal standard, viewing the unique facts in favor of the defendant, that the Brady claim fails with respect to guilt, but might have merit as to sentencing. In light of all this, I see no reason to quarrel with the Court’s ruling on the Brady claim.

That’s just weak. He and the rest of the majority clearly punted the issue. There is no distinguishing difference between the guilt phase or the sentencing phase, when determining whether something was Brady or not. Either it’s material or it isn’t. The issue in both was whether Cone’s mental state was impaired, and the courts seem to agree that the files were immaterial to that issue.

It’s clear what’s really going on, of course: the majority didn’t want to suck it up and just deny the claim. To do so would be to impose a death sentence, and the Stevens majority doesn’t want to do that unless there’s no way out for them. But they found a way out here. Not a particularly meaningful one, but it was all they needed. So they weaseled out of it, and kicked it back to the Sixth Circuit to do their dirty work for them.

We predict that the Circuit will simply make the same finding again on remand, and spill some more ink to spell out that its finding applies to both the sentencing phase as well as the guilt phase. Then today’s majority will be able to feel a little better about themselves when they affirm, and sentence Cone to death.

But delaying this foregone conclusion is unjust. It’s exactly what’s wrong with capital punishment in this country. There is no deterrent effect, because there is no predictability as to whether capital punishment will be carried out, and any such punishment is too far off in the dim and distant future to be meaningful. There is clearly no rehabilitation or attempt to rehabilitate, as the alternative is just life in prison. There is no just retribution, as society does not gain anything from punishment that neither certain nor contemporaneous.

Until the courts can work out a fair way of resolving death-penalty appeals justly and swiftly, the death penalty will continue to be an inhumane sentence in this country. Inhumane not only to defendants, but to the families of their victims, and to the community at large.

We try not to report here on matters that everyone else in the world is already talking about. That’s why we’ve said nowt on Bernie Madoff and other headline-grabbing stories. For the same reason, we decided yesterday not to mention the DOJ’s request to dismiss the charges in its prosecution of former Alaska Sen. Ted Stevens — everyone else was already reporting it. And we’ve already discussed the DOJ’s misconduct at length here and here.

But we wanted to point out a big point that the media seem to be missing. Most reports see this as a vindication of former Sen. Stevens, and a sign that prosecutorial misconduct will not be tolerated by the DOJ. In fact, however, the DOJ’s action means anything but that.

Stevens was convicted last October after a jury trial in D.C., during which the government withheld important Brady material — the judge said the prosecutors did so intentionally, and an FBI agent later confirmed that it was intentional. In addition, the prosecutors had a witness who, when they found out his testimony could clear Stevens of any guilt, they sent home to Alaska to conceal him from the defense. There were also inappropriate dealings between FBI agents and the government’s star witness, including an apparent sexual relationship.

The prosecutors continued to screw up, failing to turn over documents to the defense as ordered by the judge after all this came out. Understandably, the prosecutors were held in contempt, and taken off the case.

The case had gone from a trumpeted victory for the DOJ, to a squalid embarrassment.

So now, yesterday, the DOJ filed a motion to have all the charges against Sen. Stevens dismissed. They’re holding it out as a heroic act, that they’re doing the just and proper thing, that AG Holder is sending a message to prosecutors at the DOJ that further misconduct will not be tolerated.

We call shenanigans.

This dismissal of the charges is nothing more than an attempt to sweep the whole nefarious affair under the rug. The case goes away, so the problem goes away. There will be no further need for the scrupulous investigation of what went wrong at Justice. There will be no need to hold costly and embarrassing internal reviews. There will be no need for further media scrutiny.

The DOJ should not be permitted to escape whipping, by its own unilateral decision to drop a case. That’s not good enough.

This prosecution of this case was bizarre from the get-go. It was rushed to indictment hastily, mere days before the primaries in an important election (in violation of DOJ rules prohibiting indictments that could affect the outcome of an election, by the way). The prosecutors intentionally withheld evidence that seems to show the Senator didn’t commit the crime he was accused of. They violated court orders. They tried to hide a key witness from the defense. And ironically, these were prosecutors in the Public Integrity unit, of all things.

Now they want to make it all go away. Here’s hoping that Congress, the courts and the media see through this little ploy, and keep on investigating just what the heck is going on in the DOJ these days.

During a restraining order hearing yesterday, a judge in Fort Lauderdale failed to show restraint himself.

As this courtroom video shows (about 40 seconds in), Judge Ian Richards was informing the defendant that he was going to jail for violating the restraining order, when the defendant John Charles Reasee suddenly attacked the complaining witness. The defendant yanked his ex-girlfriend over to the bench, and landed at least one blow with a closed fist.

Although court officers and a lawyer reacted fast to try to pull Reasee off, the judge joined them in the fray. Judge Richards swiftly clambered over the bench, getting to the defendant at about the same time as the bailiff.

Now, judges certainly are in charge of enforcing courtroom decorum. And he was certainly doing a good deed by rushing without hesitation to the aid of a woman being attacked. But judges aren’t supposed to get personally involved, and his assistance wasn’t really needed. We think it was a significant error of judgment for the judge to jump in, instead of letting the officers do the job they’re trained to do.

Still, the new judge has certainly earned a reputation that we’d expect to last for the rest of his time on the bench.

A panel of three federal judges yesterday essentially ordered the State of California to reduce its prison population by as much as 57,000 people, because crowding is causing violations of prisoner rights. This doesn’t mean that wardens will be releasing thousands of hardened criminals back onto the streets, but it does raise questions of how to do it. In its ruling, the court accepted certain possible solutions, but rejected the one obvious solution of building more prison space.

The panel was made up of U.S. District Court judges Thelton Henderson and Lawrence Karlton, as well as Stephen Reinhardt of the Ninth Circuit. These judges are known for their left-leaning policies, so it’s hardly surprising, perhaps, that they accepted and rejected the solutions that they did. Increasing prisons is not widely regarded as a liberal position.

Although the panel only issued a “tentative ruling” in Coleman v. Schwarzenegger (link from the L.A. Times), this is probably going to be the final ruling, which is why they were confident enough to issue it formally. Unless it’s overturned on appeal, California is going to have to think up and enact some creative methods of carrying out the order, so the judges wanted to give the state time “to allow them to plan accordingly.”

The case, actually two cases, were brought by prisoners who alleged that crowding — not overcrowding, just crowding — was causing violations of their constitutional rights. These aren’t new cases — one has been in the remedy stage since 1995, and the other since 2002.

The dispute now was not over whether crowding exists, or whether care is unconstitutionally inadequate. Gov. Schwarzenegger issued a state of emergency in 2006, still in effect today, because overcrowding was putting prisoners’ and guards’ health and safety at risk. So the fact of crowding couldn’t be in dispute. Also not in dispute is a previous court ruling that the prisons were not providing constitutionally adequate medical and psychological care.

The issue here was whether the crowding was the main reason for the failure to provide adequate medical and psychological care. And if so, then what to do about it.

The court found that there aren’t enough clinical facilities, resources or personnel to accommodate all the inmates who needed them. The risk of the spread of infectious disease is also enhanced by bunking prisoners in gyms and other spaces not intended to be used for housing. Lots of experts testified that crowding was the primary cause of the problems.

That being decided, California wanted a chance to fix the problem without decreasing the prison population. California showed that, under monitoring by a receiver and special master during the past 11 years, the Department of Corrections and Rehabilitation had already made significant improvements in conditions. So they asked for more time to fix these particular problems.

The court said no. They’ve had 11 years, and haven’t fixed the problem yet, so the court didn’t trust the monitors to fix it now. And anyway, “many of their achievements have succumbed to the inexorably rising tide of population.” Furthermore, California has no money to spare for new facilities, resources and personnel. Remedies for these cases have been tried since 1995, for 14 years now, and any future efforts of the receiver and special master could take many more years to have effect. The court felt that any further continuation of the already lengthy deprivation of constitutional rights would be wrong.

The court couldn’t think of any other relief that would work, other than reducing the prison population. Because scores of remedial orders had so far failed, “we are at a loss to imagine what other relief short of a prisoner release order a court could grant.”

So back to the question of how to do it. The court suggested various methods, such as “parole reform,” which we guess would mean changing parole rules, so that violators don’t necessarily go back to prison. Or “good time credits,” which could include both granting greater time off for good behavior, and letting more bad behavior count as good behavior. Or “evidence-based programming intended to reduce recidivism,” which simply means implementing services that are scientifically proven to actually reduce subsequent criminal behavior, as opposed to trying things that just sound good.

The court felt that building more prison space, the one obvious solution, was not something the court could order California to do, because it “may not be within the court’s general powers under the PLRA.” The PLRA, 18 U.S.C. §3626(g)(4) defines a “prisoner release order” as anything that has the effect of reducing or limiting the prison population. So the examples above would work. But one that merely reduces crowding — the problem to be solved here — doesn’t count, because it doesn’t reduce the number of prisoners.

We think that’s probably wrong. Building more prison space would solve the problem complained of. It may not be within the scope of the PLRA, but that’s not the sole authority that the court has. It has equitable power to order the state to do whatever works to stop the constitutional violations.

The court went on to say that California’s inmate population was about 200% of intended capacity, but reducing that population to about 120% to 145% would be sufficient. The court felt that this was the proper balance between concerns of public safety and prisoner rights.

The state immediately announced that it will appeal, of course. This will be one to watch, as pretty much every state is operating prisons beyond their design capacity, and fixes need to start happening soon. What happens here will influence how other states deal with the problem.

Gang crime is on the rise, the FBI reports. The politicians and prosecutors, however, are focusing on white-collar crime these days. Here’s a look at why this is happening.

Gang crime seems to have increased, ironically, as a result of improved anti-gang law enforcement in the big cities.

According to the 2009 National Gang Threat Assessment, street gangs have started expanding more rapidly from urban centers into suburban and rural areas. This has spurred new membership, as fresh populations are opened to gang recruitment. By the end of last year, about a million people were estimated to belong to gangs within the U.S.

One might think that the burbs lack the same social pressures that drive gang membership. Gangs are products of the inner cities, after all, where kids lack fathers to lead them, involved communities to belong to, competent schools to teach them, and opportunities for money and glory. We expect gangs to arise in the inner cities of single moms, apathetic neighbors, dysfunctional schools, government welfare and hopelessness. Suburbia’s not like that, right?

Well, according to the NGTA, drugs drove the expansion. During the 1980s, the suburbs began to become a profitable new market for drug dealers who had previously focused on the urban market. During the 1990s, the huge profits from suburban drug sales caused the street gangs to physically expand their territory, often resulting in violence as urban gangs clashed with local toughs and with each other in the race to occupy the burbs.

Meanwhile, law enforcement started cracking down on gang and drug crime in the cities. It was getting dangerous to operate in NYC, LA and Chicago. Suburban cops, however, just weren’t as much of a concern. The burbs were also seen as safe places to hide from unsuspecting law enforcement, unused to dealing with a gang element.

The combination of weaker opposition from law enforcement, and higher profits from suburban drug users paying “white boy prices,” was a clarion call for gang expansion. It was an irony that improved law enforcement actually resulted in the spread of gang-related crime.

There were other reasons for the spread of gangs into suburban and rural communities, not detailed by the NGTA report. From the author’s own interviews with drug traffickers in the New York area, gangs sometimes followed inner-city populations that had moved out there first. People on government assistance began moving out to places such as Lancaster, Pennsylvania and various towns Upstate along the Hudson River, because a person on welfare could have a nicer quality of life there. Many of them brought with them the quality of life that they were trying to avoid, unfortunately. And those who were drug users brought their demand with them. And so the dealers followed, the gangs followed, and the forces that spurred gang recruitment never went away.

—

Despite the spread of violent crime and drug trafficking, however, the FBI is focusing more on white collar crime. White collar crimes certainly are on the rise lately, especially fraud cases.

“We may not be doing as many drug enterprise operations,” Special Agent in Charge Richard Lambert recently said, “so we can focus more on mortgage fraud and corporate fraud problems.”

In just the past month or so, 3000 new FBI positions have been created to combat white collar crime. On top of those new hires, the Senate Banking Committee is preparing a $110 million fund that would hire 500 new FBI agents, 50 new AUSAs, and 100 new SEC agents.

Bill co-sponsor Chuck Schumer (D-NY) stated in the accompanying press release that “our white collar crime divisions are under-staffed, under-funded, and overwhelmed. When a wave of violent crime sweeps through a city, the immediate response is to beef up the police forces, putting more cops on the beat, extending overtime, and making sure the city returns to safety. Our reaction to the financial crisis and the massive and complex financial fraud investigations that loom should be no different.”

Why the rise in white collar cases? It’s not just the economy, stupid.

Sure, people may be tempted to commit crimes in an economic downturn. But this usually applies to people who are on the bottom rungs of the economy. Wall Street types and CEOs don’t start robbing banks just because their net worth slipped a bit.

Instead, white collar crime goes on all the time. What’s changing now is not the number of crimes being committed, as the number of cases being prosecuted. There’s a difference. As Anne van Heerden, head of forensics at KPMG Switzerland told Swissinfo, “I do not believe that the number of cases is growing, but rather the detection rate is increasing.”

Sophisticated financial crimes have always been sexy for law enforcement. What prosecutor didn’t want to convict the next Ivan Boesky, Andy Fastow or Michael Milken? The problem is, they’re hard to catch. The crimes take place on paper, in back rooms, and on golf courses. Not places frequented by cops or detectives. Evidence is often hard to find, and even harder to comprehend if found.

But the new economic downturn — which many see as the direct result of white collar crime — has led to new political pressure to “do something about it.” (At a function last week, we joked with a prominent judge that our white-collar defense practice was recession-proof, to which the judge responded “yes, but your clients caused the recession.”) Elected officials feel that pressure to “do something,” and they start rewarding successful prosecutions, and funding more of them.

So the word has come down from above that white-collar prosecutions are what the chiefs want. And that’s what they’re getting.

Expect to see more.

In 1963, the first year of comparable recordkeeping, 91% of murders were solved. In 2007, the number was only 61%.

At the same time, the technological ability to solve murders increased dramatically. Scientific crime scene investigation significantly increases the amount of useful evidence that can be found. Digital crime labs and computerized analysis make it easier to interpret that evidence. And of course, modern DNA techniques enable police to make unbelievably accurate identifications from the smallest particle of hair or fluid. Today’s reality would have been a science fiction fantasy twenty years ago.

So what gives?

For one thing, the kinds of murders have changed. In previous generations, murder was almost always a personal matter. The victim and the killer knew each other, had a relationship. Husbands killed wives. Friends killed friends. Rivals killed each other. To begin a successful investigation, a detective would paint a bull’s-eye on the victim. The closer a suspect was to that bull’s-eye, the more likely they were to be the killer. Cases were solved not so much by technology and physical evidence, as by getting people to talk or confess. Acquaintance homicides were, and still are, often solved because the killer contacted the police or surrendered himself.

But now, a significant number of murders are committed by gang members. Gang members and drug dealers get killed by their own groups, who aren’t likely to talk lest they be killed themselves. They get killed by members of rival gangs, and may not even know their killers. Killers may even kill completely unrelated, innocent people, through mistaken identity or reckless “drive-by” shootings. Witnesses are intimidated by the threat of being killed themselves if they come forward. So relying on people to talk or confess is not as likely to solve these crimes.

For another thing, technology only gets you so far. DNA only identifies someone if you have a sample of their DNA to compare. Gunshot residue only helps if you have the suspect’s fingers in the first place. Fingerprints are harder to find than people think, and even then can only be compared to known fingerprints. In other words, technology helps you confirm that you have the right suspect, but first you have to get that suspect. And getting the suspect in the first place often means an old-fashioned investment of shoe leather — hitting the streets, talking to possible witnesses, and conducting skilled interrogations.

Because of the advances in technology, acquaintance homicides are truly being solved at a greater rate than they were in previous decades. The suspects are known, or easily found, so the DNA and other scientific tests make identifying the killer much more certain. The scientific identification also helps get confessions.

But stranger-to-stranger homicides have increased dramatically. And despite the technological advances, these continue to have a high probability of never being solved. Motive is hard to figure out. The killings are often part of a planned crime, so that less evidence will be left behind for law enforcement to find. And any connection between killer and victim is going to be hard or impossible to identify.

-=-=-

So what can be done?

Studies find no correlation between the number of available police officers, or the amount of their budget, and the ability to clear homicide cases. So shoving more officers on the street, or shoveling more money at the problem, is not a solution.

Studies do show, however, that cases get cleared when detectives are ambitious and they are held accountable for the success or failure of their investigations. Cases get cleared more often when the detectives have the necessary time to devote to the investigation, and when they are part of a specialized unit where everybody is focusing on the same kind of crime.

How do you get ambitious detectives? Study after study shows this to be a huge factor. Media attention can help, when there is a lot of pressure to solve a high-profile case. But in urban areas the media is often antagonistic, media praise of police rare, and so is an underdeveloped tool. Better P.R. by the police could improve ambition. Increased internal attention, status and reward for greater clearance rates would help, as well.

Solving stranger or gang-related murders requires witnesses to come forward. They fear retribution, or being punished themselves for their own crimes. Most murders, even stranger murders, are witnessed. So a critical need is to overcome witness fears.

Studies have found that most witnesses were actually involved with the crime. They either took part in some way, they brought the killer and victim together, or they tried to stop the murder from taking place. “Innocent bystanders” only make up 9% of witnesses.

Civic pride is not likely to cause the majority of witnesses to come forward. Gang culture, and the culture of the communities where such gangs flourish, teaches witnesses to do the opposite. Cash rewards sometimes help, but the amounts commonly offered are simply too small to justify the risks a witness would run if he came forward.

Ensured anonymity is a must. But in a judicial system that properly allows the accused to see and confront his accusers, anonymity cannot be ensures. Witnesses know this. Only a real and system-wide practice of concealing the appearance and identity of witnesses to violent crimes is likely to inspire the necessary confidence. And in our legal culture, we as Americans simply value the confrontation rights of the accused more than we value the evidence we might gain by limiting those rights. That’s just the way it is.

-=-=-

Reducing gangs themselves, and changing the culture in which they flourish, is the long-term solution.

Gangs arise within subcultures where there is little other societal bonding and community for young males, where those young males lack (or do not see) the ability to gain status and women otherwise, and where there is a general lack of control over one’s life. Entertainment media have a huge impact on perceptions of the world. These factors create perverse incentives, so that gang membership and codes of behavior can seem to be the right choice to make.

Common factors of such communities are a lack of value placed on education, a reliance on government or others, a lack of ownership, and a xenophobic relationship with the larger community. Undervalued education minimizes earnings and options in adulthood, as the lack of parental involvement kills schools and a thou-shalt-not-do-better-than-us attitude among peers kills student ambition. Reliance on welfare, the police, programs and others to take care of life’s needs leads to an endemic lack of personal responsibility, which kills family ties and any bond to a larger civic society. Illiteracy, immersion in the skewed reality of television and musical entertainments, and a perception that the rest of society is foreign and irrelevant, further impact perceptions of how the world works.

These problems have often been many generations in the making, and are not susceptible to overnight changes. Policy changes would be required that strengthen the family bond, rather than giving incentives to father children from multiple mothers without requiring any long-term ties and responsibilities. Policy changes would be required that lead community members to see themselves as part of the larger society, and not separate from it, subject to separate rules. Policy changes would be required that create incentives for parental involvement in schools, and pave the way for cultural views of education as the means to success.

OJ Simpson was sentenced today in Clark County District Court, after previously being found guilty of multiple crimes arising out of an armed break-in and theft at a Las Vegas hotel. The details can be found in any news outlet you fancy. But what sentence did he get? The headlines are all over the place.

Some sources say he got 12 years. Many say 15 years. Some say 33 years. Some say 9 years. What gives?

The reason for the confusion is the fact that OJ was sentenced on 10 counts, with many of the sentences running concurrent, and some running consecutive.

Concurrent sentences are served at the same time. So if you get sentenced on two counts, one for 5 years and the other for 6 years, to run concurrent, then you only face 6 years. But if they were to run consecutively, then you’d be serving 11 years.

So how does OJ’s sentence break down?

First, the concurrent sentences:

Count 1: Conspiracy to Commit a Crime: 1 year
Count 2: Conspiracy to Commit Kidnapping: 1 to 4 years (eligible for parole after 1 year, max of 4)
Count 3: Conspiracy to Commit Robbery: 1 to 4 years
Count 4: Burglary While in Possession of a Deadly Weapon: 2yrs 2 mos to 10 years
Count 5: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 6: First Degree Kidnapping with Use of a Deadly Weapon: 5 to 15 years
Count 7: Robbery with Use of a Deadly Weapon: 5 to 15 years
Count 8: Robbery with Use of a Deadly Weapon: 5 to 15 years

So the concurrent sentences have a max of 15 years, with eligibility for parole after 5 years.

Next, the consecutive sentences:

Counts 5 to 8 add 1 to 6 years to run concurrently with each other, but consecutive to the rest
Count 9: 1.5 to 6 years consecutive to Count 8
Count 10: 1.5 to 6 years consecutive to Count 9

So add 1 + 1.5 + 1.5 = 4 years to the parole eligibility, for a total of 9
Then add 6 + 6 + 6 = 18 years to the max number, for a total of 33

So OJ is eligible for parole in 9 years, and could conceivably serve a maximum of 33 years.

Hope that clears things up.

The respected journal Science will publish tomorrow a research study that suggests that the threat of punishment can keep people from getting in trouble. Stop the presses!

You’d think that this might have been studied before. But previous studies (focusing on freeloading vs. pro-social behavior) only focused on short-term outcomes. This new study, on the other hand, found in the long term the threat of punishment becomes deeply embedded in people’s subconscious, so that they come to fear getting in trouble.

You’d think this might have been too obvious to require study. But as Karl Sigmund of the University of Vienna explained to LiveScience.com, “the experimental work is extremely important and timely, as many researchers had voices concern whether punishment is not too costly a tool to promote cooperation.”

Clearly punishment isn’t the only tool out there to affect people’s behavior. Socialization, community involvement, and positive inducements are all strong factors. But we’re going to go out on a limb and say that, until something else comes along that satisfies society’s need for deterrence, removal (and, sadly, retribution), punishment’s going to remain part of our toolbox for a long long time.

[The research was performed by a team led by Simon Gächter at the University of Nottingham.]

The New York Times reports on a trend of public defenders refusing to take on new cases, on the grounds that their workload is so high that they cannot effectively defend their clients. With budget cuts coming at the same time as caseloads are rising, government-appointed lawyers claim to be reaching “the breaking point.”

Right now, a lot of public defenders are starting to stand up and say, “No more: We can’t ethically handle this many cases,’ ” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

Similarly, many capable attorneys decline to volunteer for indigent-defense panels (representing those for whom the public defender’s office might have a conflict of interest), because the government-funded compensation is too low — in New York only a quarter or less of typical private rates. Fewer volunteers means more work for each.

There may be something to the argument that much of this work is routine, and not particularly time-consuming. But there are only so many hours in the day, and once you get past a certain volume of cases, things are going to have to slide.

For these public defenders, time is a valuable commodity. Most of it goes to priorities like trials, hearings and court appearances, which are huge time sinks. What is left mostly goes to cranking out canned suppression motions and picking up new cases. There isn’t much time for original research, much less a thorough investigation of any given case. Potential witnesses go unidentified, or uninterviewed. Evidence goes undiscovered or unexamined.

Plea bargains, the usual result for most cases, also suffer. Prosecutors make their offers based on what they think a case is worth, which in turn is based on what the prosecutor knows about the case. Unless a defense attorney can present new evidence, or a new way of looking at the evidence, the defense attorney is going to have a hard time changing the prosecutor’s mind. But without time to develop such evidence or new ways of looking at it, the public defender can be left with few tools beyond whining and begging, which are rarely effective. The upshot is that a defendant must settle for a worse deal, because there wasn’t time to negotiate a better one.

It’s not as though prosecutors don’t share the same high caseload, and suffer the same budgetary constraints. Prosecutors also have much more work to do for a given case, as they must investigate and assess the evidence, prepare and present witnesses to grand juries, and prepare and present witnesses at hearings and trial, in addition to making the necessary court appearances, responding to the motions, etc. If both sides are under similar burdens, perhaps the injustices balance out. Or perhaps the injustices are magnified, as time-starved prosecutors similarly miss out on the chance to develop evidence or insights that would better serve the defendant.

The underlying concern is whether defendants’ interests can be adequately protected by public defenders with barely sufficient resources to go through the motions for most cases. Perhaps, and perhaps not.

It is difficult to see, however, how refusing to represent defendants at all can possibly help them. This ploy seems intended to serve nobody’s interests but those of the public defenders themselves.

The Supreme Court has denied cert. to a Pennsylvania high court ruling that severely limits what counts as probable cause in that state.

The dissent of Chief Justice Roberts succinctly, and creatively, sets forth the relevant facts:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a threedollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up thebuyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

Pennsylvania v. Dunlap, No. 07-1486 (Oct. 14, 2008)(Roberts, C.J., dissenting).

The Pennsylvania Supreme Court held that Devlin lacked probable cause, because what he saw was a single transaction, he didn’t actually see the drugs, there was no tip from an informant, and the defendant did not try to flee. Therefore, there might have been an innocent explanation. Because there might have been an innocent explanation, there was no probable cause.

This is one for our Fractal Weirdness files. The defendant’s transaction may have several explanations, but the most likely one under the circumstances is that it was a drug sale. As Roberts said in his dissent yesterday, “that is by far the most reasonable conclusion, even though our cases only require it to be a reasonable conclusion.” (Italics in original.) Yet the Pennsylvania court has ruled, essentially, that it must be the only possible conclusion.

One might expect a spike in successful Fourth Amendment challenges in Pennsylvania now, and a decrease in street-level drug arrests, as the common sense of ordinary law enforcement is trumped by mere speculation into whether an observed transaction might possibly have been innocent. Officers are going to be compelled to ask themselves “but what if?” when seeing an act that screams probable cause to trained eyes. And if they can conceive of an innocent explanation, they’re going to be less likely to make an arrest.

This rule may even cause officers to decide not to arrest people when even this rule would have permitted it. The rule thereby defeats the purpose of the general Exclusionary Rule, by causing law enforcement to shy away from arrests and searches that the law actually allows.

The purpose of the Exclusionary Rule is to prevent the government from using evidence it should not have had, without preventing it from gathering all the evidence it is allowed to. That is why we do not penalize individual officers when they conduct an improper search — if there was a threat of personal penalty, then far from crossing the line most officers wouldn’t go anywhere near it, and evidence that they would have been perfectly entitled to gather would be lost. Society doesn’t want law enforcement to shy away from evidence it ought to have. Likewise, that is why the Exclusionary Rule does not exclude all evidence in a case, but only the evidence that is solely attributable to crossing the line. Society wants law enforcement to be able to go right up to the line, and even dance on the line.

This holding, however, is an incentive to law enforcement to shy away from the line. There is no guidance for what sort of speculation falls within the realm of possibility. There is a huge gray area of speculative plausibility that officers must now consider. The new law compels law enforcement to err on the side of not making an arrest based on speculative possibilities, even if far less likely than trained common-sense conclusions, and perhaps even less likely than what the court would have considered plausible. Arrests and seizures that would have been appropriate are going to be avoided, lower courts may over-apply this new rule, and Pennsylvania will then suffer less law enforcement than its judges probably intended to allow.