The Criminal Lawyer

“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…)

Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t (more…)

Now that we’re all immigration lawyers, we figured we’d better take a gander at the complaint filed yesterday by the feds, seeking to strike down Arizona’s new immigration law.  The feds say Arizona’s law is preempted by federal law and policy, and so must be struck down under the Supremacy Clause of the U.S. Constitution, art. VI, cl. 2.  (You can read the complaint for yourself here.  The text of the law can be found here.) 

After reading the complaint in its entirety, we have to say that it’s mostly stupid. 

The law was hotly criticized by the Obama administration even before it was enacted back in April, so it’s no surprise that this action was filed.  We’re surprised it took this long to do it.  And we’re even more surprised, given how long it took, that the feds did such a shoddy job of it.

In broad strokes, Arizona wants to deter illegal aliens from sticking around in Arizona.  To that end, among other things, the law:

• Tells Arizona police they have to verify someone’s lawful presence if, during an otherwise lawful stop, they have reasonable suspicion that the person might be here unlawfully.  §11-1051(B) [referred to as Section 2 in the complaint]. 
• Amends existing law, permitting police to make a warrantless arrest if the officer has probable cause to believe that a misdemeanor or felony has occurred, to add that the police can make a warrantless arrest on probable cause to believe the suspect committed an offense for which he could be deported.  §11-1051(E) [in Section 2 of the bill, but perplexingly referred to as Section 6 in the complaint]. 
• says Arizona citizens can sue for money damages if any Arizona state or local official or agency “adopts or implements a policy” of not enforcing federal immigration laws to the extent permitted by federal law.  §11-1051(G) [Section 2]. 
• makes it a crime of trespassing to be present in Arizona in violation of federal law.  §13-1509(A) [Section 3]. 
• amends existing state law against smuggling human beings (§13-2319 [Section 4]) to permit the police to stop a car they reasonably suspect to be in violation of both a traffic law and the already-existing law against smuggling.  
• prohibits illegal aliens from seeking work in the state.  §13-2928(C) [Section 5].
• makes it illegal for “a person who is in violation of a criminal offense” to transport or harbor illegal aliens.  §13-2929(A) [Section 5].

The general argument the feds make is deliciously ironic: Requiring compliance with federal law would conflict with federal law.  At first glance, it seems like everyone at the DOJ who approved this complaint skipped Logic 101, and listened instead to John Cleese’s logic monologue on the Holy Grail album.  But this is not really the stupid bit. 

Their argument is more along the lines of (1) the feds get to determine policy of how and when the feds enforce their own laws; (2) Arizona isn’t telling the feds what to do, but it’s going to be enforcing the same laws more thoroughly; so (3) Arizona is messing with the feds’ policy.  This is one of the stupid bits, because nowhere does Arizona tell the feds what to do or how to do it.

The Complaint commits some intellectual dishonesty, however, to make it seem so anyway.  They repeatedly misquote the Arizona law to say a citizen can sue “any” official or agency for failing to enforce the immigration law.  They make it sound like Arizona citizens could sue federal officials for failing to enforce federal law.  But that’s not at all what is said.  The Arizona law only (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…)

“Nathan, when you become mayor, I’m gonna be the first volunteer for your security detail.” 

This was a detective speaking, back when we were an ADA in the Manhattan DA’s office.  My office, as usual, had about five cops in it.  I liked this detective, and asked how come he wanted that job. 

“So I can be first in line to put a bullet in your head.”

He was only half kidding.

The reason is because I’d just proposed, in detail, exactly how I would cut out the NYPD’s systematic corruption that caused — and still causes — a great deal of injustice.

Several years have passed, and nothing has changed.  The NYPD is still set up to fail.  No matter how good its officers may be — and most really are quite good — the NYPD is designed not to serve justice, but to frustrate it.

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There are several areas that need fixing.  But the single fix that would have the greatest effect would be to end the NYPD’s “collars for dollars” mentality. 

The force is structured so that cops wind up getting paid a commission — actually a bounty — for every arrest they make.  There’s a huge financial incentive for a cop to make an arrest, and there is zero downside if the arrest turns out to be bullshit.  Cops can easily game the system to maximize their pay.

Meanwhile, there’s huge political pressure on each command to “make its numbers” each month.  Not quotas, per se, but a sufficient number of arrests to justify the command’s existence to the politicians who (more…)

In the early days of the War on Terrorism, the Bush administration wanted to know what interrogation techniques were legal.  So it asked the DOJ’s Office of Legal Counsel for a memo on what could and could not be done to prisoners.  Staff lawyer John Yoo was tasked with doing the research and writing.  He did his research, wrote his memo, and that was that.

Well, no.  That was not that.  Some people didn’t agree with his legal reasoning.  More people (most of whom never even read the memo) shrilly lambasted it as a “war crime.”  We’re not particular fans of the memo ourselves (see our parody of it here), but we think it’s beyond stupid to call it a war crime, or even the slightest bit of misconduct.  He did what any lawyer in that situation is supposed to do: he analyzed existing law, and gave his opinion of what the law said.  The fact that other people disagree, even disagree strongly, doesn’t mean he did anything wrong.  The fact that his conclusions don’t comport with other people’s policies or principles still doesn’t mean he did anything wrong.  Even if he was wrong, that doesn’t mean he did anything wrong.

But now the 9th Circuit is struggling with the issue of whether Mr. Yoo can actually be sued for having written that memo.  Again, we’re no fans of the memo, but how he could possibly be sued for having given fair legal advice is beyond us.  Allowing this case to go forward, as we’ll discuss in a minute, would have enormously bad consequences for the government and the military.

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The case was brough by Jose Padilla, a.k.a. Abdullah al-Muhajir, who was arrested in 2002 for plotting a radioactive “dirty bomb” attack.  Padilla was in military custody for about four years, during which time he claims to have been subjected to sleep deprivation, stress positions, extended periods of light and dark, and other interrogation techniques.  Padilla filed a lawsuit last year against John Yoo, claiming that Yoo’s memos “set in motion a series of events that resulted in (more…)

It’s hard not to love the recently-retired Justice Souter.  A one-of-a-kind individual who writes, not with a computer or even a typewriter, but with a fountain pen.  Who never uses email, cell phones or answering machines.  Whose home is filled with thousands of books, but no TV.  More than that, he doesn’t fit neatly into any particular camp.  Too liberal for the conservatives, and too old-fashioned for the liberals.  A former farmboy who lived in the same farmhouse all his life (until the weight of his books prompted a move last year), and yet at the same time as ivory-tower as they come.

But we’ve never been particular fans of his jurisprudence.  It seems too far removed from reality — both the realities of modern life, and the realities of law.  And the ironic thing is, it’s precisely because his judicial philosophy strives to reflect these realities as they change over time.  Because, despite being as stuck-in-the-past as can be imagined, he is not an originalist, but one who thinks the meaning of the Constitution must evolve with time.  And, being such an old-fashioned guy, he’s not exactly the most likely to know just how the times be a-changin’.

This was highlighted really well by his speech at Harvard’s commencement ceremonies this year.  (You can, and should, read the full text here.)

Souter used his speech to summarize why he thinks the jurisprudence of originalism is wrong.  Originalism is simply the idea that the meaning and principles of the Constitution do not change over time — and that reading in new meanings is little more than legislating from the bench.  Souter said this is wrongheaded, because the Constitution (more…)

The International Criminal Court came into being almost 8 years ago.  It has jurisdiction to prosecute genocide, crimes against humanity, war crimes, and criminal aggression.  Well, that is, it has jurisdiction to prosecute those crimes once they’ve been defined.  And to date, they haven’t yet come up with a definition for “crimes of aggression.”  Nor have they specified the conditions where the ICC could get involved in such crimes.

But maybe that’s about to change.  Reuters reports that ICC delegates today have been busily “seeking to agree [on] a definition of state aggression, and how ICC investigations into the crime … could be triggered.”  A rule is expected to be announced and adopted tomorrow.

The current draft appears to be a compromise that allows member countries to “opt out” by affirmatively stating that they don’t want the ICC to be able to investigate them for aggression.  The idea is that this will make it harder to opt out, by forcing countries to announce that they don’t want to play by the grown-up, civilized rules.  Any member country that doesn’t opt out, or its leaders, could otherwise get investigated.

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The ICC is a creature of treaty, so it only affects countries that (more…)

Extortion is a kind of threat.  A threat that’s so bad, it’s criminal.  For a threat to be criminal extortion, it needs to be of a kind to make someone do something against his will, that’s adverse to his own interests.

Threatening to kill a child if the parents don’t give you money, for example, would be extortion.  So too would be a civil lawyer’s threat to file criminal charges — even if such charges are warranted — if the other side doesn’t pony up with a settlement.  Another example is when a government official threatens to use his position to do something he’s perfectly entitled to do in the first place, unless the victim does him a favor first.

There are lots of examples of extortionate behavior.  But these last two examples demonstrate that the threatened action doesn’t itself have to be against the law.  The civil lawyer could go ahead and press criminal charges, but threatening to do so is against the law.  Ditto for the government official whose threat to merely do his job is a crime.  The point isn’t whether the threatened action is itself criminal, but whether the threat causes such fear as to override someone’s free will.

This is basic stuff.  Not exactly cutting-edge law here.

So how come nobody seems to have litigated the Queens (New York) District Attorney’s practice of extorting speedy trial waivers from defendants?

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In New York, there are a few different kinds of (more…)

There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all (more…)

So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you).  Merely remaining silent isn’t the same as invoking the right.

This, of course, got all kinds of clever responses in the media, along the lines of “to invoke your right to remain silent, speak up!”  Very witty, we agree.

But we have to say, this decision is not that big a deal.

Our immediate reaction on reading the slip opinion, right when it came out, was “yeah, that sounds about right.”

We headed over to court for a case later that morning, and while we were sitting in chambers with some other defense lawyers and prosecutors, we summed up the Court’s decision.  The immediate reaction of literally everyone in the room was “yeah, that sounds about right.”  The judge’s law secretary added “isn’t that already how we do it here in New York?”

Later in the day, we discussed the case with some defense types who are fairly well-known for their pit-bull approach to the law.  Their immediate reaction was “yeah, that sounds about right.”

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Here’s how we see it, in a nutshell: (more…)

Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.

The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.

Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”

But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.

Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.

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“Unnecessary cruelty”

For as long as we’ve been practicing law, everyone has been complaining bitterly about (more…)

The Supreme Court today decided Graham v. Florida (opinion here), ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).

(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)

The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.

Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.

Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.

(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)

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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional (more…)

Last night, we attended a domestic violence forum sponsored by the Children’s Aid Society here in Manhattan. We’ve been involved with the CAS for many years, and they do some pretty awesome things for kids in intense situations. And domestic violence is a deep and complex social issue we come across plenty. So we figured it might be worth checking out, and maybe come away with some new insights.

It was, and we did, but not in the way we’d expected. There was very little discussion of the causes of domestic violence, the various patterns of behavior of abusers and victims, what actions work to stop it and what doesn’t work, and challenges to be overcome in reducing the incidence of domestic violence. Those are sort of the kinds of topics we expected a domestic violence forum to get into, but unfortunately the talks were pretty much surface discussions of what the speakers do in their jobs, and the kinds of things they deal with.

That’s okay, we guess. The speakers were social workers, and most of the audience seemed to be social workers. So it’s probably nice that they got to hear what others in their field are seeing. But for anyone with a passing familiarity with domestic violence issues, there wasn’t much we’d consider enlightening.

Except for one thing. (more…)

The Monitor reports that a 17-year-old Texas boy is now facing child porn charges, after getting a 16-year-old friend to send him a topless photo of herself from her cell phone.

Child porn is a very VERY serious charge. Even those who themselves would never commit a sex act against an actual child still go to prison for a long time just for downloading pictures that may be more than a decade old. You don’t ever want to get charged with it. We defend people charged with it, we know of what we speak. (Heck, we wrote the book on it.)

So when this whole “sexting” thing hit the news in ’09, we posted a warning that teens might unwittingly be exposing themselves [Ed.- Was that necessary?] to criminal charges that are in many ways life-ending.

Fortunately, there are prosecutors and judges out there with good judgment, who won’t go after teens for stupid teenage indiscretion with other teens. But there are also school administrators who can get themselves in trouble for possessing the photos during their own investigations.

Will this kid wind up getting prosecuted? Who can say. It’s up to that local DA’s office. The feds probably won’t touch it, but state prosecutors typically only go after (more…)