The Criminal Lawyer

Odds are, if you’re reading this, you’ve lived an admirable life.  You applied yourself in school, got a good job, and worked hard to be a valuable member of your community.  Through your own efforts, you’ve probably earned a position of respect and responsibility.  Maybe you run your own shop, or you’re a partner in a firm, or you’re a military officer.  Your ethics are beyond reproach.  You’re raising your kids to be loyal, kind and brave.  You, dear reader, are doing everything right.

And you, dear reader, can very easily find yourself in the defendant’s seat.  In the crosshairs of a federal or state prosecution.  Facing serious prison time.

For what?  For nothing, that’s what.  You yourself may have done nothing wrong, but our criminal law has devolved so far, so fast, that you can find yourself being prosecuted anyway.

The worst effects can be seen in federal law.  As the regulatory state has expanded, as the “nanny state” has expanded, as the role of the federal government has expanded, the nature of federal criminal law has changed dramatically.  Stuff that nobody in their right mind would consider “criminal” has nevertheless been made into a federal crime, not just by congressional statute, but by regulatory fiat.

Regulatory crimes are the worst, because agency regulations are never (more…)

As we were coming out of court the other afternoon, we got a call from one of the nice folks over at the WSJ, asking us what we thought about the Manhattan DA’s new Public Integrity unit.  We didn’t even know it had been formed — though we had heard Vance talk about the idea on the campaign trail.  The soon-to-be new DA had talked of ideas for a variety of new units, some of which we thought were good ideas (like the Wrongful Convictions unit, which would create office-wide policies while also investigating innocence claims), and some of which we thought were more public-relations than practical (like the Public Integrity unit).

As proposed by Vance, we said to the reporter, the Public Integrity unit didn’t really seem necessary.  It was to be a sub-unit of the Rackets Bureau, which has already been investigating and prosecuting public corruption cases with a fair amount of success for many years.  Carving out a specialty unit isn’t going to increase the number of cases they get, or improve their success rate, or have any extra effect on corruption beyond the usual.  It’s not like this is an area of crime that was being ignored.  Far from it.

It’s not going to increase the number of cases coming in, because that has nothing to do with whether there’s a special unit or not.  Public corruption cases are hard to come by, because usually the only people who know about the bribery are the ones benefiting from it.  And they’re not likely to self-report.  The DOI does what it can with the resources it’s got to ferret out a case here and there, but the reality is that (for the most part) law enforcement sort of lucks into these cases.

If you want to have an effect on public corruption, the trick is to either get magical surveillance powers to spot all the bribes going on, or else (more…)

When the police ask if they can come in, SAY NO.  It doesn’t always end as badly as this, but it almost always ends badly.

When the police (or investigators from a regulatory agency, or any enforcement types) ask you questions, SAY NOTHING.  You don’t have to talk to them, and it can end badly.

If the cops are getting physical, DON’T FIGHT THEM.  You will always lose, and it’s just something else to charge you with.

Not blaming the victim here, but don’t let it happen to you.

For more useful advice — for law-abiding citizens just as much if not more than others — see this fine video called 10 Rules for Dealing with Police:

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Credit goes to the partner, btw, who’s probably looking at a helluva lot of harassment for breaking the wall of silence.  Breaking the golden rule that Thou Shalt Not Speak Ill Of Another Cop is not a career-advancing move.

Another good post by Mark Bennett today over at his blog “Defending People,” entitled “Today Only?”  He recounts the plea-bargaining tactic some prosecutors use, attempting to force a plea by saying the offer is only good that one day, and won’t be offered again.

Did the words mean what they purported to, or was this just part of the ritual?  Put in practical terms, what does the criminal defense lawyer tell his client when the client asks if he can have some time to think about the plea offer?

Chances are good that the same factors that led the prosecutor to make the offer today will still exist when the case comes back to court….  There might be a reason that making the same offer at the next setting would interfere with these goals (chief isn’t here today, will be then and will nix the deal; case at a point where ADA has to get it pled or do some actual work).  If so, the prosecutor will generally identify the reason; the defense lawyer then has to decide whether the prosecutor’s assessment is correct, or whether the plea offer is likely to remain the same (or, as usually happens, get better).  Without a plausible reason for the offer to get worse, though, “today only” in the courtroom means what it means in the bazaar: it’s part of the ritual.

Over at Simple Justice, Scott Greenfield added that

Negotiating pleas isn’t for the squeamish, and if someone can bulldoze you into a plea by using the “today only” ploy, chances are you don’t have the guts for this work.  On the other hand, know your adversary, including the judge.  With some people, “today only” means exactly that, and they will cut off their nose to spite their face just to keep their word.

It’s not a job for the gutless, but better to know up front whether the person making the pitch is going to live with the consequences.  If you don’t know, it will be your client living with the consequences, whether they want to or not.

In my* experience, a “today only” ultimatum is a sign of either resignation or desperation.  It’s made in the hope that it will be taken, and the case will go away.  Maybe the prosecutor is just sick of it and doesn’t want to spend more time on it, or maybe the prosecutor is afraid of having to go to trial on it.  It’s rarely made out of sheer altruism.

The kind of prosecutor who would make a “today only” offer is usually the kind who will drop down from the offer again later on.  Backsliding is a real possibility next time, the time after that, and on the eve of (more…)

You’ve probably all seen the video by now of the motorcyclist recording himself speeding down a Maryland road, only to get pulled over by a plainclothes cop who leaps out brandishing a gun and otherwise behaving inappropriately.  And you’ve probably heard how the motorcyclist is now facing trial on charges of illegal wiretapping, for the recording of the officer.

The case has become the most visible in a rising tide of police backlash against citizens videotaping them while they abuse their authority.  We wrote on this (and the reasons why the police are losing respect) here.

Well now Judge Emory Pitt has thrown out the charges against the motorcyclist, ruling that police and others who exercise their authority in public “should not expect our actions to be shielded from public observation.”  You can read the Baltimore Sun article here.

Although this isn’t controlling precedent for any other courthouse, the ruling makes perfect sense. A police officer — or anyone else, for that matter, who is doing something in the open in as public a place as a freeway — would be an idiot not to expect that others are going to see what he’s doing. If it’s freely observable by the general public, then what possible expectation can there be that it’s private?

The same goes for cops who get taped beating people in a plaza, tasing people in an auditorium, or even just being dicks at a demonstration. The public is watching. So there’s no reason why the rest of the public shouldn’t be allowed to see it as well.

As Balthasar Gracián wrote in 1647, “always behave as though others were watching.” Good advice. Perhaps soon the police will begin taking it to heart.

When we left the Manhattan DA’s office some years ago, we firmly believed that prosecutorial misconduct was as rare as it was despicable.  We can’t think of a single one of our colleagues for whom it would have even occurred to cut corners, and it certainly would not have been tolerated by the bosses.  Everyone was just… decent.  The culture wasn’t so much a dogfight as a collegial, practically patrician, management of cases.  Admittedly, we didn’t have much contact with prosecutors from other offices, but surely they couldn’t have been that different.  We all had the same job, to seek justice rather than mere convictions.  And as for federal prosecutors… well, they were just like us, right?  If anything, their culture was even more collegial, and even less likely to result in (ick) prosecutorial misconduct.

As any reader of this blog can tell, we’ve been disillusioned by the reality that prosecutorial misconduct is not only more common than we would have believed, but that it is committed with disturbing frequency by federal prosecutors.  A couple of years ago, we were disquieted by what was going on in the Ted Stevens fiasco.  A year and a half ago, we saw that Judge Posner had to direct an acquittal in a case where the feds made fraudulent misrepresentations, and we wrote that we hoped this wasn’t becoming a trend.  A couple more instances later, we were asking what the heck was going on.  The pattern has only continued since then.  (Here’s a roundup link to our posts tagged for “prosecutorial misconduct.”)

So this morning we were sadly not surprised to read (in USA Today, of all places) a lengthy discussion of the growing problem of prosecutorial misconduct by federal prosecutors.  You can read the whole thing here.

What’s going on?  The article posits that (more…)

It should come as no surprise to anyone with any experience in criminal law that perfectly innocent people will sometimes confess to crimes they did not commit.  Perhaps they were in a suggestible state, and the police led them to believe they’d done it.  Maybe they were broken by the interrogation and said whatever the cops wanted to hear, just to end it.  Maybe they didn’t really confess, but had their words taken out of context (or invented) by the cops.  (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)

In recent years, there has been growing attention to the phenomenon of false confessions, and folks have begun investigating the reasons why an innocent person will not only confess to a crime he didn’t commit, but will often do so with such detail that it seems impossible for them not to have committed it.  The New York Times had a decent article yesterday on this very phenomenon.  The article reports on a study by UVA (wahoowa!) law professor Brandon Garrett, into reasons why an innocent person may sometimes confess with extraordinary detail.

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at (more…)

The 9th Circuit judicial conference wrapped up yesterday.  Hundreds of lawyers spent the last several days discussing this and that in Maui, and finished up with a speech and some Q&A from Justice Kennedy.  He had a lot of different things to say, most of which are unremarkable (such as the Court will be “different” somehow with Stevens gone and Kagan there).  But one thing he said made us sit up and pay attention.

At a panel discussion earlier in the week, the conferees had decided that most terrorism cases ought to be tried in civilian courts, and not in military tribunals.  In his speech, Kennedy said he agreed.  He said that the use of military tribunals was an “attack on the rule of law,” and that it has failed.  “Article III courts are quite capable of trying these terrorist cases.”

He completely missed the point.  The courts have nothing to do with most terrorism, acts of warfare launched from abroad.  But Kennedy’s been in the courts for so long, that that’s his whole perspective.  Not only does he think the courts should try individuals suspected of engaging in terrorist acts, and fighting against the U.S. military on behalf of the terrorists, but he thinks the contrary position is an attack on the rule of law.  Law, he fails to realize, doesn’t enter into it. 

Well, no, that’s not entirely correct.  Law enters into it insofar as our rule of law and sense of fair play become weapons used by enemies without such civilized ways.  And he fails to realize that his attitude is precisely that which our enemies rely on.  His comments play right into their hands.

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As we’ve mentioned before, most terrorism is an (more…)

“There has been a spate of particularly brutal and senseless attacks on the police,” according to Eugene O’Donnell, professor of police studies at John Jay College of Criminal Justice, and a former police officer and prosecutor. “It seems to me, [there is] an unprecedented level of disrespect and willingness to challenge police officers all over the place.”

What a telling quote.  (We’d have missed it, too, if Scott Greenfield hadn’t written about it today.  Apparently this was quoted on Fox, and we’ve never gotten around to actually watching or reading Fox News.  We get our news mostly from Fark and the WSJ.)  We have no data with which to verify the claim that police are getting attacked more often.  Nor are we aware of any studies showing an unprecedented level of disrespect for the police.  But like all good anecdotal claims, it seems right because it meshes with our own perception — regardless of whether our perception accurately reflects the truth.

In other words, it’s telling not because it is true, but because it feels true.

Perception is everything.  Reality has a way of catching up.  It’s true of almost every human endeavor except pure math and the most rigorous science.  Perception either is truth, or it becomes truth.

And the perception is that people have “an unprecedented level of disrespect” for the police.  Accurate or not, it’s fast becoming the truth.

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So how come?  That’s easy.  Disrespect must be earned.  People tend not to disrespect others until they’ve been given a reason to.  But once respect is lost, it is practically gone forever.  Reputation works that way.  And when people lose respect for an authority figure, the effect is even worse.  There’s a sense of betrayal.  A violation of trust.  When a trusted authority figure has betrayed that trust, the natural response is not mere disrespect, but hostility.

In recent weeks, there has been talk of more and more people getting arrested for videotaping the police.   It’s nothing new — we’ve been reading such stories for several years now, ever since cell phones started being kitted out with video cameras.  Still, it’s a topic of the day, and we’ve had a few conversations with people on both sides of the issue.  Leaving aside the whole wiretapping issue, however, (a typical explanation for such arrests in states without a one-party-consent rule, though it’s still bogus when the taping is in public and not remotely unlawful eavesdropping), it sure seems like cops are making these arrests because they’re afraid of being made to look bad.  Perception matters.

Are they afraid of misperception?  Sure.  “The camera doesn’t lie,” folks say.  But that’s demonstrably false.  Look at that famous video of Rodney King getting clubbed by a swarm of cops.  It sure looks like he’s getting hit for no good reason, doesn’t it?  But the video doesn’t show King going 80 mph through residential neighborhoods after a 100+ mph freeway chase, it doesn’t show King acting like he was flying on PCP when he got out of the car, it doesn’t show him fighting off multiple officers who tried to handcuff him.  The video actually shows the cops acting by the book, doing exactly what they were supposed to do — get him on the ground and keep him there.  He got hit with batons when he kept trying to get up, and the cops struck him to keep him on the ground.  The jury acquitted the cops, because they did it by the book.  But there was rioting and mayhem as a result, because the perception was different.

The camera does lie, because it doesn’t tell the whole story.  Cops suddenly rushing up on a guy for no apparent reason, frisking him, and arresting him — that looks bad if you didn’t know the guy had sold crack to an undercover a few minutes before.  But the camera didn’t catch that.  But guess what, that’s still the cops’ problem, and rightly so.  Eyewitnesses in the community didn’t see it, either, after all.  Is it any wonder why some communities have a strong perception that the cops keep grabbing people for no good reason?  Because that’s what they see.  Right or wrong, that’s the perception. 

And it’s the cops’ job to manage that perception.  Nobody else’s.

But the cops have to be afraid of legitimate perceptions, too.  The camera does happen to catch a whole lot of real police misconduct.  Cops abuse their power all the time.  They do lock people up without good reason.  They do hit, shoot, tase people without good reason.

This misconduct is nothing knew.  There have always been (more…)

We’re one of the few Republican defense lawyers out here — and perhaps the only one living in Manhattan, so it’s odd that we’re so intrigued by the race for the Democratic nomination for the Florida Attorney General race.

Well, maybe not so odd.  The issue of character has come up, and that always gets our interest.

We’ve been pretty outspoken about the role of prosecutors.  Judgment and strength of character are the key prerequisites for those who would exercise the awesome discretion we give them.  We may have been spoiled by our formative experiences in the SDNY and Morgenthau’s Manhattan DA’s office, but we’re frequently appalled by the very lack of judgment and character we find among prosecutors in some other offices.  (And with respect to Florida, we often tell the story of how we got up and walked out of an interview with the Dade County DA’s office back when we were in law school.  It had come out that their office philosophy was to zealously try to convict anyone the cops arrested, regardless of the justice or the rightness of doing so.  We’d thought they were just testing us, but when it turned out that the interviewers were deadly serious we politely informed them that we couldn’t work for them.)

A state attorney general is a prosecutor. An AG’s role is a combination of consumer protection and crime-fighting.  As head of the office, an AG sets the tone for everyone working there.  Every assistant AG investigating an insurance scam is going to be influenced by the culture of the office, which comes straight from the top.  There’s a reason why the Manhattan DA’s office is so vastly superior to nearby Nassau County’s office, and it has everything to do with who’s running the show.  So even though the elected official never handles a case him- or herself, the character of that official is of the highest importance to the citizens of the state.  (We remember a few years back, after Andrew Cuomo took over as New York’s AG, there seemed to be a general exodus from that office of our former Manhattan colleagues who had gone there.  Character at the top seemed to us to be the primary reason for their leaving.)

And that brings us to the Democrat nomination for the Florida AG, and why we’re taking the time to write about it.  The candidates for the nomination (more…)

“Hate” is not an element of New York’s “hate crime” law.  You don’t have to hate to commit a hate crime.  Instead, the law merely requires that you have “a belief or perception” regarding a person’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation.  (The legislature could have saved a lot of bother by simply saying “a characteristic of a person over which that person has no control.”  That’s the policy they’re pursuing, even if they don’t realize it.)

There’s a list of eligible crimes at PL §485.05(3).  If you commit one of those crimes, and if you either chose your victim or committed the crime because of such “a belief or perception,” then you are guilty of a hate crime in New York, and now face harsher punishment.

This is a pretty vague statute.  You don’t need to have any specific belief or perception about someone, just “a” belief or perception.

The Queens DA’s office — already known more for its zeal than for its sense of justice — has now taken that vagueness to its logical extreme.  They’ve taken the reductio ad absurdum and made it office policy.

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The New York Times reports today that the Queens DA has been going after people who defraud old people, not because of any animus towards old people, but because of a belief about old people.  Namely, that old people are easy to defraud. 

Ordinarily, such frauds do not carry any mandatory jail time.  But if charged as a hate crime, they carry mandatory upstate prison time.  Can it be that the legislature really intended this outcome?

By the Queens DA’s logic, every scam targeted at the elderly is a hate crime, because the scam rests on a belief that old folks are easy to scam. 

By this same logic, any (more…)

For as long as we can remember, the word on the street has always been that cops cannot lie.  So if you’re doing a drug deal with an undercover cop, and you ask him point blank if he’s a police officer, then he has to tell you the truth.  He might try to technically get out of it by saying yes in a sarcastic tone of voice, but he has to be able to testify later on that he did say he was a cop.

And for as long as we can remember, we thought that was dumber than dirt.  The first time we heard this, back in our dim and distant teens, we imagined something like this:

It just made no sense.  And, of course, it’s simply not true.  No undercover cop is ever going to jeopardize his investigation or his safety by admitting to the fact that he (or she) is a cop.  And there is no rule anywhere that says they have to.

But even so, this myth has persisted.  We can’t count how many cases we’ve dealt with where (more…)