The Criminal Lawyer

We’re taking the week off to go camping with the wife and kids up in Maine.  With any luck, we won’t see a computer till we return. 

We know you wanted to read what we’ll have to say about the Blagojevich verdict when it comes down, or about the latest absurd contretemps in the law.  Sorry, but you’ll have to wait.  To tide you over, we are thrilled that the jury did the right thing, we are appalled that the jury failed in its duty, we think the new law is stupid, we think the new law is just fine no matter what everyone else is saying, we think the court made the right decision must missed the point, we think the court’s decision is at odds with its overall jurisprudence, we think a burrito would taste really good right about now, and we know for a fact that our readers are the best-looking folks in the whole blawgosphere.

See you when we get back!

Over on the Volokh Conspiracy, Prof. Jonathan Adler posted another critique on Sunday of the New York Times’s silly article claiming the Roberts Court to be the “most conservative in living memory.”  Adler makes some of the same points we did last week, finding fault with the Times’s definitions of “conservative” and “activist,” but he goes further to point out that the Roberts Court is actually the “most restrained — or least activist” Court since WWII.  We recommend taking a look.

Dang, the whole week has gone by already? 

It’s been a week of long days and late nights here in the trenches, so please excuse the lack of posting here.  (Our bloodstream must be 70% coffee by now.  As we found ourselves saying out loud on the record yesterday, we’re not jittery… just really really alert.)

Have a happy Independence Day, and we’ll be back after the weekend!

And now for something completely frivolous.

-=-=-=-=-

Galactic Empire Imperial Security Bureau
Office of Legal Counsel

[3/15/03 ABY]

MEMORANDUM TO CENTCOM ISB

Re: Interrogation Branch Treatment of Rebel Combatants

You have commanded this Office to examine the legal standards governing interrogations of terrorist “rebel” combatants in Imperial custody. You have specifically directed that we examine both current Imperial law and former Republic law that might apply.

An earlier draft of this memorandum, recommending the humane treatment of prisoners for the combined purposes of propaganda and more reliable intelligence, was rejected prior to submission. (See incident report, D. Vader, anoxic demise of Cpt. Jorad 2/5/03.)

It is the conclusion of this Office that the Emperor’s protections generously extended to his adoring subjects do not extend to rebel combatants, who have rejected those protections. This may at first seem contrary to the principle of general applicability, that the Emperor’s laws apply to all within the galaxy, whether they consent to such laws or not. However, that would be a misconstruction when applied to the interrogation of enemy combatants during an ongoing armed conflict. Detaining and interrogating enemy combatants is an important element of the Emperor’s authority to defend the Empire, its institutions and its subjects.

The Emperor enjoys complete discretion over the conduct of war, and so no law can infringe on his ultimate authority. We presume that none seek to provoke a confrontation with the Emperor over the scope of this authority. Therefore, the law must be construed in such a way as to avoid any such conflict, by determining a reasonable alternative interpretation consistent with the Emperor’s sole authority in wartime. The Emperor therefore has the authority to adopt the recommendations contained herein, and any others he deems appropriate.

-=-=-=-=-

The situation in which these issues arise is unprecedented in galactic history. Several coordinated terrorist attacks took place in rapid succession three years ago, resulting in the destruction of a critical government edifice known as the Death Star. These attacks were brought about by a small but highly motivated organization of religious fundamentalists, purporting to serve a higher “force.” The attacks caused an unprecedented level of destruction, killing thousands of civilian workers, disrupting political and commercial activity for nearly seven days, and resulting in economic costs still being assessed. These attacks were merely the latest in a violent campaign that had been continuing for several years.

Under all standards of intergalactic law, the Death Star attack triggered the Empire’s right to use force in self defense. (See, e.g., Article 51 of the nonbinding Local Group Charter.) The galaxy is now in a state of war.

Leaders of the Rebellion remain at large, with access to active terrorist cells, suspected former “Jedi Knights,” and other resources. It has been reported that they are regrouping for another coordinated strike against an Imperial (more…)

Holy crap, our last post was more than three weeks ago? We knew we were busy out here in the trenches, but didn’t realize we were that busy!

We don’t mind going a week without posting something. This isn’t the kind of blog where each post is a brief observation with a link, which lends itself to multiple posts per day. We love to read that kind of blog, but we don’t write one. And we sure aren’t doing this in some misguided attempt to attract clients or maximize SEO or generate revenue — we really just write this because we want to — so there’s zero pressure to keep generating content regardless of quality.

But still… three weeks is too long. We’ve got plenty to write about, so we’d better get to it! BRB

We’ve never liked how most lawyers write. They overload their motions with a dozen words where two would do the trick. They use words incorrectly all the time (New York lawyers take note: “wherefore” means “why” — it is not a synonym for “therefore”). They employ all kinds of pointless stylistic tics, for no better reason than “that’s how it’s always been done.” We’re of the opinion that legal writing should be clear, period.

At least one judge is of a like mind. Minnesota federal bankruptcy judge Robert Kressel (shown above) is equally passionate about writing properly. It’s particularly annoying when lawyers submit proposed orders for him to sign, asking him to put his name to their stylistic messes.

So last week Judge Kressel issued some pointed style and grammar rules for proposed orders. You can check them out here. His tone is a little cheeky, perhaps, but his rules are golden.

We encourage all our readers to check them out, and pass them along.

(H/T: WSJ Law Blog)

So the Criminal Lawyer turned 1 year old, and we didn’t even notice. Our first post was on October 6, 2008. We promised…

…to give you thoughtful observations on the jurisprudence of crime. We will cover notable cases and events, offer analysis of deeper trends, and even throw in some juicy gossip from time to time.

We like to think we’ve been keeping our promise. We’ve delved into international criminal law, Supreme Court arguments, what the law is and what it ought to be. We’ve even gossiped about the latest crime show to get greenlighted.

And we have no intention of stopping any time soon. At first, we have to admit, we had some trepidation that we might lose interest, or that there wouldn’t be enough readers to make it worth our time. But we soon found that we love writing this blog. And we continue to be amazed that so many of you actually read this stuff. So we’ll stick around a while yet.

We considered writing a longer piece here about “why we blog.” But there’s really nothing to say, other than that we enjoy it. We love criminal law, we love thinking about the whys and wherefores of it. And we’ve found that the discipline of writing about it forces us to actually think through our own thoughts, which has made us all the better for it. (And we have fun photoshopping all these pictures, too. Yes, we do our own art, coding, web design, all of it.)

We’ve tried to avoid the danger of turning into yet another blawg that talks a lot, but has nothing to say. There are plenty of those out there. So we have made an effort to pick and choose what we write about. You’re not going to get a stream-of-consciousness, what’s-on-our-mind-today sort of blog here. Those are fine, just not us.

And it’s not one of those SEO-maximizing, marketing puff piece things. We’re not doing this to try to attract clients, nor should we. Blawgs that are made to attract clients are so painfully bad. It’s so obvious. It’s like meeting someone at an event who’s not there to have fun, but only wants to network. We don’t want to be that guy, and we’re not that kind of blawg.

We’ve also tried to steer clear of the topics that everyone else is talking about. Why? Because everyone else is already talking about them. We’d rather not be just one more drop in the bucket, thanks.

So we’re going to keep listening for cool and quirky stories that interest us. Stuff that inspires us to examine an underlying philosophy or social policy is going to grab us more than the latest DOJ press release. That means more talk about Supreme Court cases than notable arrests. More talk about the law than the practice thereof. That’s what we like to write about.

So happy belated birthday to us, and thanks for reading!

We apologize for not posting something last week, but an unending stream of urgent matters kept us in court or otherwise engaged the whole time. Clients obviously take priority, you know how it is.

You’ll hear from us more this week, we promise. For those of you who can’t wait, you’re welcome to listen to the third installment in our “Hope for Hopeless Cases” series with West Legal Ed Center this Wednesday. This one’s topic is how to calculate economic loss to advocate for better sentences in white-collar cases. You can check it out here.

Gluttons for punishment can also check out our first two lectures, on defending internet child porn cases and defending wiretap cases.

We’ll catch up with you here in a day or two. There’s got to be something newsworthy in the world of criminal law this week that we could write about…

We were surfing the net just now, and came across an excellent blog by Jonathan Kirshbaum, called “Habeas Corpus Blog: Keeping Track of the Great Writ for New York State Prisoners.” You can check it out here.

What particularly caught our eye was yesterday’s post on Davis, which started off discussing why Scalia’s dissent was probably correct, and then turned into an excellent analysis of the cases touching on actual innocence. It’s recommended reading. Here’s a sample from the second half of the piece:

What is important to keep in mind is that, at the time of Herrera, the concept of actual innocence was more abstract. The decision was rendered before the tidal wave of exonerations based on DNA testing beginning in the early 1990′s. Thus, DNA testing has made actual innocence claims a more certain reality than at the time of Herrera.

It should be noted that in 2004, Congress passed the Innocence Protection Act, which included the Kirk Bloodsworth Post-Conviction DNA Testing Program to help those already convicted obtain DNA testing in their cases. This landmark legislation demonstrates our society’s growing belief in the importance that the wrongfully convicted should obtain justice. In the face of this altered landscape, one would think that the Supreme Court would be compelled to find that a conviction of an actually innocent person does state a constitutional claim.

While Herrera concerned the execution of an innocent person, it would seem that actual innocence claims should apply with equal force in the non-capital context. It clearly is no less tolerable in our society that someone should be incarcerated and further punished based on a conviction for which he is actually innocent.

Once again, this type of actual innocence claim must be distinguished from the so-called “gateway” innocence claim in a habeas petition. In a habeas corpus proceeding, a state procedural default is not a bar to habeas relief where a compelling claim of actual innocence is made. In Schlup, the Supreme Court defined the standard for assessing this type of gateway actual innocence claim. The showing needed to meet this gateway claim would probably be lower than it would be for a hypothetical free-standing actual innocence claim. Schlup, 513 U.S. at 316.

Recently, in House v. Bell, the Supreme Court found that the petitioner had met the standard for a gateway actual innocence claim. House, 126 S. Ct. at 2078-86. The Court acknowledged that it remained an open question as to whether a free-standing actual innocence claim is possible under the U.S. Constitution. Id. at 2086-87. The Court refused to answer this question, stating that whatever burden a hypothetical free-standing actual innocence claim would require, the petitioner had not met it. Id. at 2087.

Thus, there have been strong indications that the Court will find that the claim exists. But it really is not clear under what constitutional right it would fall. But I guess that doesn’t matter so long as it exists somewhere in the Constitution. As I stated in my earlier post, the conundrum is that this right is not clearly established, so getting habeas relief on the claim will require jumping over some major hurdles. That’s why allowing Davis to present his claims to a court is based more on doing what’s right, than doing what’s possible at this point legally.

Good stuff. We’re adding him to our daily list of “must-reads”

It seems like not a day has gone by since last October that we haven’t read of some firm laying off associates and the occasional partner, delaying new hires, and otherwise suffering through the dearth of corporate work that is biglaw’s bread and butter. This has affected the rest of the legal job market as well. It’s hard to get a decent job as a lawyer these days. We admit to being — not exactly smug, but definitely well pleased — with the fact that we were running our own firm. Can’t beat that for job security. And being a white-collar defense attorney in this day and age is pretty much a recession-proof gig.

So imagine our surprise at being recruited out of the blue. We weren’t looking, but of course that’s always when the best opportunities come a-knocking. A firm of former prosecutors asked us to come on board and keep doing exactly what we’ve been doing, only more of it, without having to bother with the administrative crap of running the business as well. It was hard to say no, so we didn’t.

We started our new gig this week. Of course, the past few weeks have been pretty busy, what with winding down one firm and transitioning to the new one. That explains why we haven’t been posting as often lately.

Now we’re up and running again. Those of you who have been pestering us to resume your daily fix of snark can finally relax. (Those of you who were enjoying the respite… well, sorry.)

No time to post on this yesterday or today, but it’s pretty clear we were 100% wrong with our prediction for the Osborne case. It wasn’t unanimous or a big majority — it was 5-4. It wasn’t in favor of the defense — got that wrong, too. And the Supremes didn’t touch the issue of whether there is a right to make a freestanding claim of innocence. We got it entirely wrong.

Good opinion though, worthy of substantive comment. More to come.

At least we called Yeager… mostly. Surprised a little that Scalia dissented, but it’s a good dissent. More on that to come as well.

Happy Friday!

First, we got sick (a lovely birthday present from the wife and kids). Then we got busy (unexpected new work is always nice, even if it does eat into our “free time” for blogging). And now we’re going camping. The Criminal Lawyer will return on Tuesday.

There’s probably some really juicy legal stories out there today, but we haven’t bothered to look yet. Instead, we’re spending our free time preparing for our upcoming CLE webcast at 11 a.m. Eastern this Friday at West LegalEd Center.

This will be the second in our “Hope for Hopeless Cases” series. We’ll be talking about ways to defend cases where your client’s on tape. Title III stuff, body wires and consent recordings. We’ll discuss weaknesses to look for and exploit in litigation, and give you some tools for cross examination and argument at trial. 1.5 hours, accredited in most states.

Your humble author has a new title in print. Strategies for Defending Internet Pornography Cases: Leading Lawyers on Analyzing Electronic Documents, Utilizing Expert Witnesses and Explaining Technological Evidence can be purchased for the modest sum of $90.00 at Amazon.com.

This title is sure to be snapped up by insomniacs everywhere, so get your copy while you can. Here is the publisher’s description:

Strategies for Defending Internet Pornography Cases is an authoritative, insider’s perspective on mounting a defense against charges of possession of Internet pornography. Featuring defense attorneys from across the country, these experts guide the reader through the key considerations necessary when investigating accusations of Internet crimes and examine the complex technology issues at work. Discussing the challenges of defending these technology-driven cases, the authors explain the concepts of shareware, unintentional downloading, digitally altered images, and temporary Internet file folders as they relate to false claims of Internet pornography possession and offer advice on selecting an appropriate defense strategy. From overcoming the public perception of pornography through your defense to utilizing computer and psychological experts, these top lawyers walk the reader through the steps of a case from initially meeting with a client and developing a trusting relationship to reviewing settlement and appeal options. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today, as these experienced lawyers offer up their thoughts around the keys to navigating this sensitive area of law made more complex in the digital age.

Hello, and welcome to The Criminal Lawyer.

Our mission is to give you thoughtful observations on the jurisprudence of crime. We will cover notable cases and events, offer analysis of deeper trends, and even throw in some juicy gossip from time to time.

We’ll link to compelling articles by lawyers and scholars around the Web, provide our own insights, and look to you for contributions. Your comments are eagerly invited.