The Criminal Lawyer

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.

“Later, he was to decide that Andrew’s life had been fractally weird. That is, you could take any small piece of it and examine it in detail and it, in and of itself, would turn out to be just as complicated and weird as the whole thing in its entirety.”

- Cryptonomicon, Neal Stephenson

We’ve long been convinced that the law, like Andrew Loeb’s life, is fractally weird. Looked at from a distance, it is elegant and beautiful — the sum of a society’s rules, the thrust vectors of a culture, a work of art consolidating how people really are with how they would like to be, or any other metaphor you care to mix.

But looked at up close, the law can be — and often is — bizarre. We have the occasional rule that seems to have no underlying policy to explain it. We have statutes and regulations that must have seemed like a good idea at the time, but who knows what it was. And we have countless absurd practices, often with no better reason than “that’s how we’ve always done it.”

Like that “ss.” found at the beginning of so many affidavits. It was probably a meaningful symbol in the dim and distant past. People would see it and go “ah yes, the ss., excellent.” But now means absolutely nothing and serves no purpose. Ask three lawyers what it means, and you’ll get five answers, ranging from the obviously wrong “signed and sealed” or “the seal goes here” (not things you’d put at the top of the page) to the obscure “it’s latin for ‘more specifically’ as in ‘State of New York, more specifically County of New York.’” If you know what it really means, feel free to post a comment.

This is a long way of inaugurating the category of Fractal Weirdness in this blog. From time to time, we’ll post tidbits that show just how bizarre the criminal law can be. If you have a suggestion, let us know!