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The Criminal Lawyer Turns 3

Thursday, October 6th, 2011

Huh, we kept it up for another year. Three years of The Criminal Lawyer, happy birthday to us. To be sure, three years is by no means venerable in the blawgosphere, and we’ve only written about 300 posts in that time, but it’s nice to say that it’s made it past the terrible twos.

There were a few small changes this year. A few tweaks to the appearance, some new code to make things run more smoothly. We ran an experiment to see how ads worked with the blog, but decided they weren’t worth the ugliness, so as soon as the experiment was over so were they. We also broke down and got a Wacom tablet, to improve our photoshopping and create the occasional drawing (like the one above). We sometimes spend more time on the image, now, than on the writing (which isn’t saying much).

A bigger change was to free up commenting. We’d made it difficult to comment before this year, but now it’s pretty easy. We’re still fairly heavy-handed with the monitoring, and anything resembling spam goes bye-bye. But the number of meaningful and useful comments has certainly gone up. We’d like to see it continue. (When a post attracts no comments, we attribute it to the fact that what we said was so self-evidently true and complete, that not a word needs to be added to its perfection.)

Despite lobbying from Scott Greenfield, we did not switch from the editorial first-person plural to the more usual first-person singular. Sorry, Scott.

Our readership certainly improved dramatically this year. Individual posts sometimes get more hits in a day than the whole blog used to get in a month. Spikes in readership didn’t really coincide with any particular post, seeming to come out of the blue, but our pieces on law school and entering the legal profession seemed to bring the most immediate (if temporary) spikes.

The bits on law school and the legal profession certainly got more people upset, that’s for sure. It’s a shame when someone gets upset at something we’ve said, but they are always free to cancel their subscription.

The one post with the single greatest number of hits — triple even the most popular law-school post — was the one about prison being a problem rather than a paradox, and is it solvable. But that wasn’t even one of our favorites. We’re more partial to the ones on overcriminalization and legal policy, wonk that we are.

The most common Google searches that brought people here this year were variations on things like “why become a lawyer,” “what to say to a judge at sentencing,” and “can an undercover cop lie about being a cop.” We tried to answer the most common pressing questions here. Another very common question people Googled, which was not addressed there, is whether the LSAT tests you on math. Last time we checked, it did not. Hope this helps.

The most amusing Google searches that brought people here more than once included such things as “adam smith galleon” (79 visits), “show of hands” (55 visits), “lawyers to avoid” (oh, thank you very much — 36 visits), “chutzpah defense” (23 visits), and 88 visits from the oddly specific “how to win friends and influence people in the digital age,” which was the title of a post we wrote back in February, and oddly enough the title of a book that was just published two days ago. (Don’t worry, author of said book, we won’t sue. The substantive stuff we write gets lifted by other blogs and news sites often enough — even our original copyrighted artwork has appeared on reputable websites of well-known news organizations and the like. We’ve decided to take it all as flattery.)

So here’s to another year. We’re going to keep writing this whether anyone else reads it or not. (And if you stop reading it, you’ll be in good company, including such fine people as our wife, who stopped reading it nearly three years ago.) We do it strictly for our own enjoyment, and we very much like doing it. If you like it too, that’s great, and thank you for stopping by. If you don’t happen to like it… well, who can blame you.

Why Should I Have to Pay for a Lawyer When I’m Innocent?

Wednesday, October 5th, 2011

Illustration of the Old Bailey during the Regency period.

In Patrick O’Brian’s The Reverse of the Medal, one of the novels in his brilliant Aubrey-Maturin series set during the Napoleonic wars, one of the main characters winds up being prosecuted for insider trading. Jack Aubrey, a heroic naval captain, is completely innocent — but the evidence against him looks bad, he’s up against a win-at-all-costs prosecutor, and the judge is a mean sonofabitch. His solicitors have just retained a top-notch barrister to represent him. The following exchange between Jack and his friend Stephen Maturin is something one might hear in lawyers’ offices even now:

“It appears that Mr Lawrence is a very clever lawyer indeed, and I suppose I should be glad; but upon my word I cannot see that I want a lawyer at all. […] This affair is nothing like those miserable [civil cases], with innumerable obscure points of disputed contract and liability and interpretation that have to be dealt with by specialists; no, no, this is much more like a naval matter, and what I should like is simply to have my say, like a man called before his captain, and tell the judge and jury just what happened. Everyone agrees that there is nothing fairer than English justice, and if I tell them the plain truth I am sure I shall be believed. I shall say that I never conspired with anyone, and that if I followed Palmer’s tip I did so with a perfectly innocent mind, as one might have followed a tip for the Derby. If that was wrong, I am perfectly willing to cancel all my time-bargains; but I have always understood that guilty intent was the essence of any crime. And if they confront me with any man who says that what I say is not true, why then, the court must decide which of us is to be believed — which is the more trustworthy — and I have not much fear of that. I have every confidence in the justice of my country,” said Jack, smiling at the pompous sound of his words.

“Have you ever been present at a trial?” asked Stephen.

Jack’s is a common misconception, that the criminal justice system is nigh infallible, and that innocence will out. Those who have actually had some experience with the criminal justice system, however, are more inclined to share Stephen’s skepticism. Injustice happens with alarming frequency, in real life. Evidence is falsified, words are twisted, mistakes are made. Juries are unpredictable, hamstrung and sometimes foolish. Lawyers miss issues, miss facts, and miss deadlines. Prosecutors abuse their discretion or fail to use it. Innocents are convicted by reliance on the unreliable. Innocents convict themselves by plea, rather than take the risk of greater penalty should they lose at trial. The criminal justice system is predisposed towards punishment; once caught up in the system, whether innocent or guilty, the chances of being punished are significant.

We’re not all monsters in the system, of course. For the most part, the (more…)

Why Write?

Thursday, May 19th, 2011

We keep being surprised by these folks who insist that lawyers need to blog.  That it’s a great way to generate clients, pumping up the old SEO so potential clients see your website and hire you.  That advice always strikes us as the equivalent of saying you ought to name your law firm with a couple of leading As so it’s on the first page of the yellow pages.  Not that many people call lawyers just because they were listed first in the phone book, nor because they popped up in a Google search.  And the ones who do aren’t necessarily the kind of client you really want.  Scott Greenfield had a cool post on this the other day, using his own (very impressive) blog stats to demonstrate that it just doesn’t convert into clients.

Lawyers absolutely do not need to blog.  Blogging, in and of itself, does not generate clients.  Looking at just the bottom line, most lawyers could spend the time it would take to blog doing more profitable marketing like meeting other lawyers at functions (most good clients still come from referrals from other lawyers, after all), or just spending the time working and billing some more hours.

We certainly don’t do this to attract clients.  Heck, we hardly ever write about our own practice here, much less tout our abilities, experience, or any of the kinds of things a potential client might want to know.  Back in college, we sold encyclopedias door to door, so we know a thing or two about getting the old foot in the door and making a sale.  We don’t do any of that here.

So why do we write?

Because we enjoy it.  No other reason.


We write for an audience of one: Nathan Burney.  We’re genuinely surprised every time someone else tells us they read something here.  We’re like, “really? You saw that? That’s weird.”  Our own wife doesn’t even bother to look at it.  We’re not sure if our parents have ever read anything here.

That’s really freeing, because that lets us write about whatever we feel like writing about.  We don’t have to worry about how it might affect our page rank on Google.  We don’t have to worry about turning off some potential client.  We don’t have to worry about offending anyone.  So we write about what we like.  And as it happens, we really get a kick out of the law.  Yeah, that’s not something many people would admit to, but who asked you?  And wait, are you really reading this? Weird.

One of the big things we enjoy about writing this blog is (more…)

Gee, thanks

Saturday, April 16th, 2011

We didn’t post as often as usual during the six-week trial we just wrapped up.  Common wisdom says that can be deadly for a blog’s readership.  So we checked our stats to see what happened (we use Google Analytics, which we’ve found to be the most reliable though not the most flattering source of data).

Amazingly, the Criminal Lawyer’s popularity shot up in our absence.  Well, not so amazingly.  This seems to happen every time we go more than a week without a new post.

We flatter ourselves that this must be like what happens to Hyperbole and a Half, where people check in more and more, the longer she goes without a new post, hoping to catch the latest when it does come down.

In which case, this post must surely be a disappointment.  In consolation, here is a link to a penguin getting tickled.

Watch this space

Thursday, April 7th, 2011

Well, the jury’s finally out on that trial we started a month ago.  Expect regular postings to resume shortly.

Upgrade Achieved

Thursday, March 3rd, 2011

Just upgraded to the newest versions of PHP and WordPress.  We do our own coding, so hopefully everything’s backwards-compatible.  But if you catch any glitches, please let us know.

That is all.

(Oh yeah, today’s insider trading webinar went great, thanks to fellow panelists Seth Levine and John Nathanson.  Top-notch guys, really know what they’re talking about.)

Still here

Friday, January 21st, 2011

No, we haven’t posted anything this week.  We got swamped, what can we say?  Busy is good.

Need Some CLE?

Monday, January 10th, 2011


As many of our readers know (because we won’t shut up about it, apparently) we teach a series of CLE lectures for West LegalEdCenter called “Hope for Hopeless Cases.”   Well, this time we’re doing one that’s not part of that series.  We’ve teamed up with Gordon Mehler to teach a course called “Search and Seizure in 60 Minutes.”

Given that we could probably spend a couple of hours talking about any given micro-topic in Fourth Amendment law, one can gather that this is going to be a fairly general introduction, primarily to the various exceptions to the warrant requirement.

Anyway, if you’re looking for CLE credits (I think we’re accredited in pretty much every state that requires it), feel free to check it out.

Oh, Scalia

Tuesday, January 4th, 2011


If you’ve been reading this blog for any length of time, you’ll know that we really like Scalia.  We really do.  We like the way he thinks, we like the way he writes, and we like that he’s not a phony.  His law clerks may moan and groan that he’s hard on them, but they’ve actually got it pretty easy, because he knows what he thinks and (more importantly) he knows why he thinks it.  He doesn’t need them to do the heavy lifting for him.

At the same time, we’ve had to take issue with some pretty boneheaded things he’s written or said.  In his attempts to discern what the authors of a given law were talking about, he often misses the underlying policy.  The job of a top jurist or legal scholar is to figure out what the underlying principle is that explains, not only the law as written, but also the jurisprudence and related laws that have flowed from it.  Do the deep thinking to figure out what value our society happens to have, which the authors of the laws and court opinions may not have had the insight to notice themselves, but which nevertheless explains why this particular area of law is the way it is.  Once that root principle is known, it is easy not only to understand what the framers were saying, but also what has been said since, and even predict what is going to be said next.

Take, for example, his interview just published in this month’s California Lawyer.  Near the beginning of the interview, he had the following exchange:

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

He’s right about what a Constitution is for.  The Constitution is not there to detail particular laws, but instead to set the philosophical framework under which laws can be made, and to define and limit the roles of government.  (Most other countries in the world don’t seem to get this, and what they call “constitutions” are really nothing more than statutes.  There really is a difference.)

And he’s even right about the role of the courts in deciding things that are properly left to legislatures.  He cites abortion, for example, which — if it had been left up to the legislatures — would probably have been legal in most or all states by the end of the 1970s, and the country would have moved on.  Opponents would have had their say, they’d have been outvoted, and the legitimacy of the process would have given the law legitimacy, and they’d have moved on.  Instead, it was imposed by judicial fiat, in a horribly-reasoned opinion, with the result that it’s become a wedge issue for nearly forty years.  The Court created law — something courts are not supposed to do, something courts never do well, and something that only de-legitimizes the result.

But he’s wrong when he says the Constitution doesn’t prohibit discrimination on the basis of sex.  It does.  It really does.

Nobody thought that’s what the Fourteenth Amendment meant when it was passed.  Granted.  But that only means they didn’t have the insight to recognize the very principle they were upholding.

The relevant portion of (more…)

Excellent Con Law Exam

Monday, December 13th, 2010

A quick link to start your Monday morning.  The exam question is either incredibly trite, or incredibly profound.  Enjoy.

Happy Human Rights Day

Friday, December 10th, 2010

To celebrate, go here.  Read stuff.

In Lieu Of…

Wednesday, November 3rd, 2010

Well we still haven’t had half a moment to compose something worth reading.  So in lieu of an actual post, here’s some more links to stuff.

First, we just went through another election.  We live in Manhattan, which votes overwhelmingly Democrat, so the results were a foregone conclusion no matter which way we voted.  So we voted for candidates from the micro-minority parties: the “Rent is 2 Damn High” party, the “Anti-Prohibition” party, and the ever-adorable little “Republican” party.  Amazingly, none of our candidates won.  But at least they got someone else besides their mothers voting for them.

But outside the Northeastern megalopolis, the San Francisco inkblot, and Los Angeles County, the voters seem to have shoved the Democrats out of their House majority, and left them without a filibuster-proof majority in the Senate, while giving enough state legislatures the requisite Republican majorities to gerrymander in a new direction.

We like this state of affairs.  As a defense attorney, anything that prevents legislators from enacting new crimes, or pushing new idiotic policies whose only visible effect is to put the wrong people in jail for far too long… well, that’s a good thing.  And divided government is just the thing.

When the President and the Congress are of the same party — regardless of the party — they tend to “accomplish” things.  And that usually means loads of legislation and regulations.  From an economic standpoint, such “accomplishments” are usually counterproductive.  They create false incentives, or artificially shift demand/supply curves to create market inefficiencies and more stupid incentives.  Apart from damaging the economy and needlessly upsetting the citizenry, such “accomplishments” also tend to include more and more crimes and penalties.

A divided government, on the other hand, is less likely to get anything done.  Which means more breathing room for the economy to get back on track.  And at least a slowing of the rate at which criminal penalties are expanding.

Which leads us to the link.  Something we posted over on Urban Elephants a little while ago, predicting that a Republican victory would actually be good for the Democrats, and would probably guarantee an Obama re-election in 2012, despite his disappointing performance thus far.  Click here if you’re interested in reading it.  [UPDATE: Their site seems to be down.  Here’s the Google cache.]


Meanwhile, the good citizens of Oklahoma voted to forbid judges from applying Sharia (Islamic) law when deciding cases.


Was this a big problem in Oklahoma?


Finally, Prof. Volokh reports that the Supreme Court has issued a “Call for Response” from the state of Oregon, in reply to his petition for cert on the issue of Oregon allowing non-unanimous criminal verdicts.  While not a guarantee, it’s a darn good indicator that cert may actually be granted here.

He notes:

Note that the call for a response opens up another window for the filing of amicus briefs on our side; such briefs can be filed until Dec. 2. Let me know, please, if you know of some person or group who might be interested in participating.

Go to the Volokh Conspiracy to contact him, if you can help.

Reading list

Monday, November 1st, 2010

No time to post something original today, but wanted to link to some other stuff you might not have seen yet:

First, there was an article in this morning’s WSJ by Law Blog author Ashby Jones, with Joann Lublin, called “Critics Blow Whistle on Law.”  For those who liked our criticism of the FCPA last week, in particular the Dodd-Frank whistleblower provisions, Ashby’s article raises many similar issues with respect to securities-fraud cases in general.

The sweeping Dodd-Frank financial reform law passed in July will apply similar types of financial rewards to a much larger universe of wrongdoing, including many types of securities or accounting fraud or bribery allegations, not covered by prior whistleblowing laws.

The “bounty” provision “runs in direct opposition” to internal fraud-detection efforts put in place or beefed up under the Sarbanes-Oxley law that passed after a wave of accounting scandals, says Richard Crist, chief ethics and compliance officer at Allstate Insurance Co. “It undermines a lot of work that a lot of us have done.”

In the past, companies typically attempted to address certain fraud allegations internally by setting up confidential hotlines through which employees report alleged ethical misdeeds and illegal behavior. But the Dodd-Frank provision offers a financial incentive to ignore a company’s own process and run straight to the government, management lawyers say.

Corporate whistleblowers who take original evidence of financial fraud under the Dodd-Frank law directly to the U.S. Securities and Exchange Commission or the Commodity Futures Trading Commission stand to get between 10% and 30% of a penalty that is over $1 million.

Meanwhile, plaintiffs lawyers eager to handle complaints on behalf of whistleblowers are getting the word out, issuing press releases and publishing articles about the new law and in some instances, running ads soliciting work.

It’s a good article, well worth a read.


You might also have missed Scott Greenfield’s post on Saturday, “In for a Dollar.”  He’s a prolific writer, so if you waited until Monday to review your blawgs, this one was already below the fold.  But it’s worth scrolling down to find it.

Writing about the literally millions of stop-and-frisks conducted by the NYPD on perfectly innocent people, Scott proposes that the police have something at risk, to give them a personal incentive to think about maybe honoring our civil rights:

Struggling with this question, however, I’ve come up with a solution.  Every time a cop frisks someone and comes up empty, he should have to pay the person $10.  Not so much as to strike fear in the wallet of a police officer, but enough to make a cop think twice before hassling someone for nothing.  After, ten dollars here and ten dollars there, and pretty soon you’re talking about a day without donuts.

Okay, it’s not a foolproof plan.  It’s got some flaws, like the cop who refuses to pay over the $10 and leaves the friskee without recourse.  Or the addicts begging for a frisk so they can get their next fix.

But no class-action decision is going to change anything on the streets, any more than another column by Bob Herbert about a policy that everyone knows stinks, and yet continues unabated, is going to make the police feel really badly about humiliating blacks and Hispanics.

Check it out.


Finally, as Doug Berman over at Sentencing Law and Policy puts it, “The new guidelines are here!  The new guidelines are here!

In other words, the new USSG guidelines — including the new reduction of the crack/powder cocaine disparity — are in effect as of now.  (Our criticism of that particular law is here.)

Doug has a lot of useful links in his post, both to the USSG’s own website and to posts by him and others that make sense of the new rules.  It’s worth taking a moment to review what the rules are, now, so go over there and start clicking if you haven’t already done so.


UPDATE:  Just browsed an excellent thread over on Reddit asking criminal defense attorneys what kinds of cases they find hardest to defend.  One of the responses was by a public defender who didn’t answer the question, really, but whose rant about how the system really works is totally worth linking to here.

Text or Email, Don’t Call

Thursday, October 14th, 2010


The WSJ has an article today called “Y U Luv Texts, H8 Calls: We want to reach others but not to be interrupted.”  The sub-headline says it all, really.  Despite the loss of context and tone that can be conveyed by an oral conversation, people prefer more and more to communicate by email or text message.  “That [our cell phones] are phones is increasingly beside the point.”

No lie.  We dropped our landline years and years ago, because who needs it?  We hate to call others on the phone, because it’s just rude to interrupt someone like that.  We rarely answer the phone when it’s ringing — it’s on silent 99% of the time anyway — because whoever is calling is just rudely interrupting us, especially if we happen to be talking to someone else in person at the time.  If it’s that important, they can leave a message.  And thanks to Visual Voice Mail, we can decide whether to listen to it in the first place.  (Tip: if the message is lengthy, it’s probably going to be ignored until we can get around to it.  Who has time for that? And forget about using old-fashioned voice mail — who has time to listen through three pointless messages from vendors on the off chance that message four is worthwhile?)

Email and texts, on the other hand, are ideal.  You can say what you want, edit it if you want to unsay or revise a thought, without interruption.  And the other person can read it when they get a chance.  Emails come right to your phone, and can be read any time.  The information gets conveyed, everyone’s happy, nobody was rudely interrupted.  There are no missed calls — the words are there to be read whenever you get a chance.  You don’t have to wade through a queue of voice mails to get the nugget of information five messages back (or 70 seconds into that one message).

If, as in most lawyer communications, you’re talking (figuratively) about a document, image, website or whatever, you can’t attach it to a phone call or a voice mail.  Email is the way to go.

(And please, don’t fax anything.  What is this, 1985?  Nobody carries a fax machine around with them.  PDF it, please.)

If you think this attitude is somehow bad for business, then again, this isn’t 1985.  Over the past few years, the number of our potential and actual clients who have preferred the telephone to emails and texts has rapidly approached zero.

Face-to-face is always best.  We’d rather sit side-by-side with a client to go over those documents (or that mass of emails the government is misinterpreting).  So much more information can be conveyed in a 10-minute chat than in a day’s worth of emails.  And sometimes a phone call really is the best option.  But most of the time, if a meeting is impractical (and it usually is), then text or email… don’t call.

TCL Turns 2!

Friday, October 8th, 2010

The Criminal Lawyer celebrated its second birthday this week.  It’s not the biggest milestone in the world — nor is it particularly remarkable — but even so, we’re quietly proud.

We get a kick out of writing this stuff.  Whether it’s something silly like reporting that a new TV series got greenlighted (though we’ve never gotten a chance to watch it), or something wonky like how the ICC ought to define “aggression,” or something practical like how forensic accountants spot crimes, it’s all just fun to write.  If it wasn’t fun, we wouldn’t bother.

It’s pretty cool that you like reading this stuff, too.

One of the best things about doing this is that we feel compelled to read up on current cases and legal news, which we hadn’t followed quite as closely before.  Some legal news remains just as uninteresting as ever, but there’s a bunch of pretty nifty stuff going on out there that we otherwise would have missed.  We also find ourselves reading a lot more legal blogs, which has exposed us to a whole new world of lawyers with ideas.  What a concept, right?  Yet they’re out there, and we never would have discovered them if we hadn’t picked up the blogging habit.

So happy birthday to The Criminal Lawyer.  And now back to work.