30 November 2004

Read the Text

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The language is so plain as to render legislative history analysis superfluous. This is why I am a "textualist" rather than a believer in "original meaning" analyses.

Around the Web

1) Do federal prosecutors go to trial more often when they are angling for a better job?

2) Are juries entitled to not convict when the facts support a conviction but the jurors would consider it unjust?

3) Great Britain got rid of the right to remain silent in 1994.

4) Are drugs a moral problem?

5) Virginia turns back an attempt to add more mandatory minimums. Now if we could just get rid of the ones we have.

6) Will making people take vitamins reduce the crime rate? Lv UKCrimJust

7) 5k1.1 departures downward from federal sentencing mandates and their disparities by jurisdiction.

8) Okay, I've represented more than six people on dockets in different courtrooms, I've even slept overnight in the office, but my clients are not getting my home telephone number. Serious cases get the cell but nobody gets the home number.

9) And since everybody out there seems to be going nuts with anticipation - here's where the promised "Becker-Posner Blog" (a name I'm sure they sat up all night thinking up) shall make its home. Someday . . . Soon . . . Real soon . . . They promise . . . No, really!!! It'll be up any day now . . . Would you believe week? How about a week and a half? All further discussions on this topic must be done under the Cone of Silence.

29 November 2004

Why Plea Bargain?

A post over at Mister DA got me thinking about the reasons we plea bargain.

Off the top of my head I can think of three reasons: (1) Overcharging, (2) Judicial Efficiency, & (3) Uncertainty.

Overcharging: This happens more than it really should. In Virginia the charges are usually taken out by the officer without a whole lot of input from the prosecutor's office (exceptions to this are probably murder cases and other very serious, very technical cases). At times this is a single charge which is not supported by the facts. For example, in one jurisdiction wherein I practice it seems that almost every time a suspect drives away from an officer standing next to his car he is charged with attempted murder of a law enforcement officer. This charge does not stand up in court and we all know it. This will get pled down to something like an eluding charge.

At other times this comes from stacking charges. There is no prohibition under Virginia law against stacking except for the relatively minor "single larceny doctrine." Thus, instead of only charging Client with robbery the officer swears out warrants for several gun charges, robbery, abduction, eluding, jaywalking, & 7 traffic offenses. Client is guilty of it all but it's clearly overkill (this can be particularly devastating when charges that carry mandatory minimums are stacked). A more common form of this is to charge someone who has passed a check not her own with forgery, uttering, and grand larceny. Drug addicts will pass all sorts of bad checks in order to feed their habit; it's not all that uncommon to get assigned a client with 20+ felony charges (just in one county). The worst I've had so far was 52 felony check charges. The prosecutor agreed to drop all but 6 charges.

Judicial Efficiency: This is legal terminology which means "not bogging the court down so badly that only 5 criminal cases get done in the entire year." Cases like the 52 felony charges case above get plea bargains because the prosecutor knows what will happen if he does not: I'll make him prove all of them rather than recommend my client plead guilty. I'm doubtful he will be able to prove each and every charge. Who knows how many days (weeks?) that case might take? The prosecutor will have to go through the nightmare of rounding up all the clerks and have them testify as to each and every check and have I'd be there catching every error they made (hopefully). Unless the case is a political hot potato or he is angry at the judge the prosecutor will plea bargain in this case.

In more common case the prosecutor will drop or reduce one charge in order to get a guilty plea on the other. If he doesn't, and 20 Defense attorneys on a docket are suddenly trying their cases, a docket scheduled for three hours make take a day or two. In the long run this can be just as devastating as not reaching a plea agreement in the less common 52 charges type case.

Uncertainty: How is the case going to turn out if we try it? Even in fairly predictable jurisdictions with fairly predictable judges there is always that chance things might not go as expected. This is particularly true if the charge is unusual or the legal theory is creative. Will the judge buy the government's argument that a solid suspended in a liquid is a gas when its dispenser sprays it in a mist (for a statute forbidding the release of noxious gases)? The Commonwealth thinks the usual pro-conviction inertia will carry his innovative theory across the finish line. I think the judge will have taken high school chemistry and know the difference between solids, liquids, and gases. Neither knows for certain how the case will turn out. Usually this will result in a plea agreement for a lesser charge.

Conclusion: Seldom does one of these factors stand alone as the reason for a plea agreement. A perfect example of this is the 52 felony charges case discussed above. It was definitely overkill on the number of charges; trying that case would take a looooonngg time; and no one knows for how many of those charges the prosecutor would be able get the witnesses and proof together. Reducing it to 6 felonies gave the prosecutor a significant amount of convictions and gave my client an incentive to plead guilty. We didn't know how many charges the prosecutor could prove but it was very probably more than 6.

Computer's Purpose

I buy a top of the line computer to use at home in order to be able to work there rather than always at my office. However, Buzzer is convinced that its ideal use is as a cat warming device.

The absolute, very last post on Gut Feelings

I had assumed the wrong thing from this language:
Once you do realize the objective facts, lay them out in your report.
I am informed that I am in error:
Sorry, perhaps I wasn't as clear as I should have been. I have not suggested that officers have a gut feeling, make a stop and then sit down to justify it later. That would frankly skate the line. What I have done is encouraged officers to think then and there about what bugs them about the situation and then make the stop and be able to express what that is.
What can I say? I know you all thought I was perfect and I'm so sorry to disappoint ya'll. Mea Culpa. Mea Culpa. I'd offer penance such as we see the Easterners do in all the stereotypical movies except (a) I'm Occidental, and (b) I like having ten fingers.

28 November 2004

Research from Yasmeen Abdullah

A young lady who's a 2L at Richmond Law School who does research for me. The latest thing I had her check into for me is the possible punishments for not coming to court in Virginia.

There are two possible ways to get punished in Virginia if you don't come to court. The judge can issue a capias and punish you for contempt or you can get a new charge of failure to appear (which can be either a felony or misdemeanor). What I had her check into were the failure to appear charges and the various types of capiases (some of which weren't exactly on point).

Perhaps the most impressive part of the paper is the citation of Higginbotham. I think that it's a law that every Commonwealth Attorney and appellate court judge must cite this in a brief or opinion. Finding it before she even gets out of law school gives her a step up on everyone else.

Recognizing that Your Kids are Breaking the Law

This is a hilarious page based on the proposition that your kid has already stolen all the music you could buy her anyway. I particularly like this quote:
"My milkshake brings all the boys to the yard, and they're like, it's better than yours."

You don't know what this means, and you don't know if they know what it means, but you're pretty sure it's dirty (and it is). You're never going to stop your kids from hearing this stuff, but that doesn't mean you have to pay record companies to make more of it.

Even More on Gut Feelings

A regular reader (who asks not to be ID'ed) emails:
Sorry I'm coming in a little late to this torrent of replies to your post but you may be interested in this post about why "gut feeling" by police isn't always a "gut feeling," but may be supported by fact.

The Naked Face: Can you read people's thoughts just by looking at them?

I have guest lectured at the local police academy a few times and a lot of the lecture is focused on Terry stops. After reviewing the language from Terry itself, (not a hunch, objective fact reasonable suspicion, etc), I have emphasized this: trust your gut, because your "hunch" is usually backed by objective facts that are so subtle, you don't realize it. Once you do realize the objective facts, lay them out in your report.

I would agree that "through my training and experience..." is used too much by people. But really experienced officers notice things that the average lay person (myself included) would not notice. Heck, that's what the Cleveland Police detective noticed in Terry, a suspicious guy pacing in front of a closed store.
I've only had time to skim the article but it looks interesting. However, I would advise skepticism. Once upon a time your faithful author was an interrogator in the military and received a good bit of training on this sort of thing. There is a good bit of truth to it. However, those who wedded to the idea of using facial expressions and body language almost always overstate its effectiveness.

Many, if not most, of the indicators they point to are stress indicators - not signs of lying (same problem exists with polygraphs). Many indicators are societal in nature: looking away can be seen as an indication of a lie or it can be an ingrained manner of dealing with those who are more powerful than you. And often the "indicators" which these researchers point to are so fleeting that they can only be seen when viewed in slow motion; however, the eye is assumed to have caught them and processed them (an iffy proposition). Additionally, many people, by training or by experience, easily mask indicators or simulate false indicators; in tests of this the "reader" is more likely to read the answer from the unaware researcher than the person faking it. Moreover, these things are usually fairly subtle; they are the kind of things you probably wouldn't notice if you were making an initial observation but require time and proximity to observe.

Do I think that officers notice things I don't? I surely hope they do. The officer should know that three kids in his area wearing "Michael Vick" jerseys belong to the same set and be able to name it. He should know what certain tattoos mean. He should know that a bulge under the arm or at the hip probably means a gun. He should notice broken windows on cars. He should see the two guys walking a third into an alley as he drives past. &cetera, &cetera, &cetera.

I've no problem with the officer noticing people; I have no problems with the officer keeping an eye on someone because he is suspicious; in general I have no problem with a consensual walk up, "Hey guys, what are ya'll up to tonight?" (although this can become problematic quickly). I even agree with the email's assertion that officers should "trust their guts." All of us do this every day.

However, I cannot agree with action based on gut feeling with an eye toward figuring out the whys of the feeling afterward. Short of an instant action situation (a man running out a bank while the alarm is blaring) the officer must develop his individualized reasonable articulable suspicion of a criminal act prior to reacting. To tell an officer to figure it out later is to encourage the officer to use 20/20 hindsight (or worse): i.e. "I'm sure I saw that bulge under his arm where he had the pistol."

27 November 2004

Sure, I get my name in the paper and it's not about a case I won or a hard fought jury trial . . .

26 November 2004

More & More on Gut Feelings

Yeeesh. Okay, I think I replied to everyone on the "gut feeling" thing. I think ya'll have burned me out.

I don't plan on blogging tomorrow because I will be a) helping a friend move to his new law office, or b) catching up on the pile of paperwork which is sitting on my desk, or c) making the several hour trip to the regional jail to visit clients (it's either tomorrow or Sunday 'cuz court's Monday).

Sunday will be an entry about what the consequences of failing to come to court are written by a young lady who has been doing some research for me. It'll be pertinent for those of you who practice in Virginia and probably a little bit of a curiosity for those of you who do not.

Monday I plan to do a "Week in the Life" covering the seven days before Thanksgiving.

See ya'll soon.

Carpundit on Gut Feelings

Carpundit (echoed by daleynews) disagrees with my gut feeling post as to the "every day" version I blogged about. He begins by laying out the path to an arrest as he sees it:
      Reasonable Suspicion
         Probable Cause
It's a fairly accurate layout of what is supposed to happen. While he says gut feeling is somewhere between Observation and Suspicion I'd put gut feeling right there with Suspicion (but that's a quibble not worthy of actual argument).

He's correct in that an officer should not be able to do much of anything with a mere gut feeling. Unfortunately, that's often not the way it works in the real world.

In my primary jurisdiction here is a fairly typical "gut feeling" stop. The police are in a pack - an unmarked car, a marked car, and the car with the dog. A young male drives down Jeff Davis Highway (the local red light district) and the marked car pulls out behind him. The uniformed officer looks for a reason (3 mph over the limit, 10 mph under the limit, air freshener on the rear view mirror, tinting on windows, cracks in the windshield, lights that are burnt out, a crack on a turnsignal cover, weaving 2 time within the lines of the lane, &cetera) and since everyone is breaking the law in some manner at all times has little trouble finding a reason to stop the car. The uniformed officer takes the license and registration and runs a check. Often the young man is pulled out of his car and patted down for officer safety purposes - this always happens if there are two or more in the car. The plain clothes guys watch the young man while the uniformed officer runs his papers. By this time the dog shows up and walks around the car performing a magical non-search to find out if anything is in the car. And just to be on the safe side they'll run the dog past the young man too. Then they arrest him or send him on his way "with a warning." I have no idea how often they do that and come up snake-eyes. I do know the above stop happens to a lot of my clients (each stop with its own variation of course).

This stop is sanctioned by the Supreme Court under Whren. Carpundit characterizes Whren: "where the lawful motor vehicle stop is pretextual, it is not pretext for an arrest, but pretext for the opportunity to develop such further specific and articulable facts as the officer may." This is true as far as it goes. However, the pretext is for something wider than just an ability to potentially develop evidence. It is a pretext for a clearly unconstitutional seizure in violation of the 4th Amendment. Without the Supreme Court's sanction of this sort of thinly veiled constitutional violation the officer would generally not be able to develop anything above generalized suspicion (a technical term meaning gut feeling). Nobody believes the fictional reason given for the stop but the courts pretend that the reason given was the actual reason for the seizure.
"[W]hat would we do with Whren? Would we say an officer cannot stop a motor vehicle law violator unless that is the only reason for the stop? That is, a motor vehicle stop may only be made if the officer has no reason to think anything criminal is afoot beyond the broken taillight lens?
As a Defense Attorney who sees violation after violation of the Constitution swept under the rug - all in the name of Whren - I could tell you what I'd like to see done with it: 8th Circle - Hypocrites. However, as a mere mortal I must settle for less. I'd take what the Court should have said the first time:
"An officer may not exceed the parameters of the stop. No proactive steps may be taken to expand the scope of the stop beyond the original purpose. Therefore, no dog or physical tool may be used to scan the car for things not plainly noticeable. No questions may be asked which would further investigation of a potential crime for which the officer has not developed reasonable articulable suspicion.

Of course, an officer cannot be expected to ignore that which his senses tell him is present. If he sees an illicit item in plain view or smells something which indicates illicit activity he may and must act. However, at trial the judge must find, to a prepoderance standard, that the stop was not a pretext to enable the officer to unconstitutionally seize the suspect in order to develop evidence outside of the parameters of the stop."
And I offer that quote free of charge for whichever Supreme Court Justice is brave enough to write that opinion (the footnote would probably guarantee me business for life).

I'm not even going to start on the Terry abuses today. They're as bad as Whren, if not worse (especially the "pat downs"). I've been here writing far too long already today and Terry would take several more hours.

I don't have a problem with "gut feelings" per se. As I pointed out in my first post, they are unavoidable and often based on experiential biases which have come into place for logical reasons. Still if an officer cannot articulate individualized reasonable suspicion he should not be saved by a technicality when he acts in a manner which clearly violates the prohibition against unreasonable searches and seizures.

ThoughtsOnline further on gut feelings

steve adds more to his prior comments, including a list of his points:
Three, police instinct ought to be one of the criteria that police use to investigate crimes and determine their course of investigation. Four, it is a waste of limited resources to require the police, once they have developed a case against an individual (sufficient to meet the standards of the prosecuting attorney), to continue to investigate others on the chance that somebody else might be the actual perpetrator.
As to part three, I don't have problems with an officer having a gut feeling. I just want the officer to have some sort of rational evidence of the crime he thinks has been committed (or will be in a Terry situation) before he can roust a citizen. In a street situation the officer often does not and therefore relies on tricks and technicalities which have been sanctioned by the courts (Whren &cetera).

In more serious cases the detective will often develop enough for a rational suspicion but if he relies on gut instinct may zero in on one of 4 people for whom he has rational bases for suspicion without evidence which would support an increased interest in that person. Ignoring potential evidence about the other suspects is called willful blindness. Willful blindness is usually found in the legal system when someone is asked to drive a car from point A to point B and given $500 to do so. In so doing he assumes liability for that of which he purposefully has no knowledge (usually drugs hidden somewhere in the car). Detectives are just as liable when they walk away from potential suspects because they choose not to pursue further evidence against them.

Still, a honest look at police activities would probably require some sort of sliding scale here. The wasted resources argument makes more sense for lower ranked felonies where we are only talking about probation or 6 months in jail (particularly in States where conviction does not result in the permanent loss of civil rights and where later proof of innocence can have a conviction removed). But as the felony charged becomes more serious this argument runs out of steam. I've discussed this in a somewhat different context here (the finality discussion). When the offense is larceny of a dog (a felony in Virginia) the detective is only going to devote so many resources to that case. When the accused is facing a potential life sentence or the death penalty "wasted resources" cannot be a valid excuse for willful blindness.

steve adds a further comment on people's awareness of what actually happens in the criminal justice system:
"[E]ven if more people were aware of just how sausage was made, they'd pretty much leave the process alone, warts and all.'
The cheap shot here is to point to the "The Jungle" and how people cared deeply when they found out. But that really doesn't address his point.

There is no doubt that the majority of people in the system are guilty. More time is spent in courtrooms dealing with guilty pleas than anything else. If the system is seen in an overview it works properly the majority of the time. How much of a majority is impossible to know - Attorney General Ashcroft would probably say 99%; I would say maybe as high as 80%. And while perhaps 20% of my clients plead for reasons that are not related to guilt or innocence (usually to ensure their quick release from jail), most plea because the officer involved has done his job and gathered evidence such that my client is compelled to plead and accept responsibility.

However, that's not where our system ought to be measured. Our system must be measured by those cases which fall into the gray areas - those Defendants who ought to go to trial. By the time they reach the trial the momentum is just about to steamroll my client and the momentum begins when the detective goes to the magistrate and files the charge. If we do not, as a society and legal system, hold that detective to a requirement of investigating all viable suspects we countenance his abuse of the system because his personal prejudices.

The assumption that the system works, except for a few warts, and is the worst except for all others is extremely dangerous. In general, I agree that the adversarial system is better than the other , more common choice. However, that's not a reason to fail to hold our system accountable. There are very, very serious flaws in both the criminal justice systems I deal with (federal sentencing problems; Virginia jury problems). How do these flaws make it into the system? Because people don't pay attention and cave to the fear which is whipped up constantly over this evil or that (Anarchists, Communists, drug dealers, terrorists). Unless it applies to them most people do not favor Blackstone's ratio of 10 guilty freed rather than 1 innocent be convicted and would probably heap scorn on Ben Franklin's ratio of 100 guilty freed rather than 1 innocent be convicted. Thus our right to a fair criminal justice system which protects our rights has slowly faded and continues to do so.

Alaska on Gut Feelings

Alaskablawg weighs in on gut feelings:
I agree that there are a lot of people that get convicted on conjecture or gut suspicion. While the law says that everyone is innocent until proven guilty, that's just a legal theory. . . . I have heard jurors say after a verdict, "Well, there were several possibilities to explain what happen, and he [my client] did not disprove the state, so he must be guilty."
. . . .
Most citizens do not really want to examine what happens in the criminal justice system. That is a shame. We have watched over 100 people walk off death row, Death Row!!!, in the last 10 years or so for being innocent. Yet there has been no systematic investigation into how so many people could be convicted when they are innocent.
Go read the entire post here.

More on Gut Feelings

C&F is either bucking for a job as a prosecutor, an appellate court judge, or just maybe he is speaking with tongue firmly planted in cheek.

25 November 2004

Troops: Police Activity in the Star Wars Era

Watch it once for the laughs.

Then watch it again and think real hard about Episode IV.

Washington Baseball

This post is about a wasted opportunity: the poor choice of name for the D.C. baseball team.

Seriously. I know I joked about this before but Nationals is a terrible choice for a name. There's a reason people called them the Senators long before that became the official name of the DC team. No one has any kind of attachment to that name; it sucks. The worst thing about it all is that there were two, count 'em 2, far better options for the name.

Personally, I favor the Grays. I had come to this conclusion all by my lonesome and even thought it an original idea. Then I discovered that the Mayor of DC had pushed for that name. It's a great idea to bring back one of the famous Negro League names and among those that easily come to mind (Monarchs, Barons, Giants, Grays) it is the best fit for DC. The Grays also played games in DC and drew crowds which were larger than those the "Nationals" drew. It is sad that we are missing the opportunity to honor an important team from an important part of baseball history.

Then there was the traditional name for the DC team: the Senators. I don't care if the actual name was the Nationals (a fact I'm sure few of us knew until recently) the DC team was the Senators. If you are going to bring back a historical team why walk away from the name which everyone knows it by just to embrace a name obscured in baseball trivia? It makes no sense and is just another one of the myriad bad decisions baseball keeps making year after year.

It may not be too late. Maybe when they find someone to buy the team the new owners will see the light. We can only hope.

24 November 2004

Happy Thanksgiving

May God bless you and yours.

Around the Web

1) Todd Chatman discusses the law and facts behind the removal of the jurors in the Scott Peterson trial.

2) And Peterson's attempt to get the sentencing phase heard by another jury has been turned back.

3) "I was then further surprised, when I read out the verdict in front of the court. The DA seemed like he was going to come over the rail at me, he was so mad! I would have thought this was a crapshoot at best on his part." Read the rest here.

4) Respecting the right not to be seized.

5) Sadly, I doubt many Defense attorneys are shocked that prosecutors will run NCIC records to get rid of jurors they don't like.

6) DNA dandruff.

7) Is there federal jurisdiction when a legal intrastate act effects illegal interstate commerce?

8) If you advertise nationally that you don't pay taxes you may have your tires flattened by the feds. Lv OK@VC.

9) Craig, Scalia, & Crawford.

10) A little off point from Blonde Justice's vent: I must admit that I have had 2 clients admit to me that they got arrested to spend the winter in jail. I have had others where I suspected it when they told me point blank they didn't want a bond hearing.

11) The lesson here? Never, never, ever talk to anyone involved in federal law enforcement about anything. Oh, and don't taint your witness by sleeping with her.

12) Someone out there agrees with my opinion of Wordperfect v. Word.

TalkLeft Jerry Falwell Loves You

"I thank God for the Internet bloggers."

Do you think Mr. Falwell would be shocked to find out that there are probably as many left leaning blogs (or more) than there are right leaning blogs?


NACDL Opening Advertised by the Federalist Society

The National Association of Criminal Defense Lawyers seeks a director for its new white-collar crime initiative focusing on over-criminalization, over-federalization, the gradual disappearance of mens rea as an element of a crime, and the application of criminal sanctions in enforcing economic regulations.

Qualified candidates will have a J.D and at least 3 years of relevant professional experience and also:

* Excellent writing skills;
* Solid research skills, including LEXIS-NEXIS, Westlaw, and the Internet;
* Good public-speaking skills;
* An ability to design creative projects for public education;
* An ability to build and work collaboratively with diverse coalitions;
* Knowledge of federal criminal justice issues, with a special emphasis on white-collar offenses; and * Proven skills in public policy issues, grassroots organizing, public relations, and legislative work a plus

Ideal candidates will also have fundraising experience, including writing grant proposals. Some travel required. Competitive salary; excellent benefits and downtown DC location. Email resume, cover letter, and writing sample to kyle@nacdl.org

DUI Video

Okay, I'm pretty sure this is from Reno 911. Still, it's fun.

Law Notes: Analyzing Roe et al

Over at Law Notes Mark has been blogging about his life as a law student. Now he's decided to take his first crack at doing legal analysis: Roe v Casey and the Future of Roe.

Yes, I know it's not criminal law and I neither endorse or oppose any position taken in the post. In fact, I'm putting it up here without having read it first. Mark's sent me a number of interesting comments since he discovered this site so I wanted to direct some of ya'll over there to see what he's up to. I didn't want my views on the matter to cloud my decision as to whether I'd direct ya'll to his blog.

Now I'm going to actually go read the post. Hopefully I haven't just sent everyone to a site which says that O'Connor's decision in Casey was a Masonic plot or a product of alien mind control. ;-)

23 November 2004

J' Accuse!!

Orin Kerr was kind enough to recommend the post which immediately precedes this one and send lots of traffic my way. Alaska Blog was also kind enough to point to this post. Skelly posits that it might not be all that long before officers will be able to tell juries about their gut feelings. I think he's overstating the situation for effect (I hope).

In the comments Bruce Hayden asks if I "underestimate how often cops "cheat" just a little bit when they know someone is a perp." In reply I must say that I have had plenty of clients tell me stories which have made me suspicious. More than once I have had people pulled over by a group of officers tell me that one officer told them they were stopped because they had an air freshener and another officer tell them they were pulled over because the light on the license plate was out (the two most popular reasons hereabouts). Does this make me very suspicious that the officers pulled the Defendant over first and came up with a reason later? Sure it does. Can I prove that in court? Not unless an officer says something really dumb on the stand. Since most officers are pretty much professional testifiers that is not likely to happen.

Moreover, for the purposes of the post I assumed officers who were playing the game the way the courts and legislatures allow them to; I was not attempting to address those officers who cross the line. In general my beef is not with the officers. As I've said many a time before, if officers do a pretext stop it's not their fault that this procedure has been sanctioned by the Supreme Court. If the Court had limited officers to the reason for the stop and ruled that any further proactive step violated the 4th Amendment (ie: no dogs or requests to search) the officers would follow that rule. If the State courts stepped up or the Congress or State legislatures stepped in to add protections officers would follow the rules they spelled out. The fact that officers are allowed to use technicalities to violate the constitution is not something I lay at the feet of the officers.

Finally, Steve at ThoughtsOnline replied with a post of his own. It's an interesting read because I suspect that prior to practicing criminal defense I probably would have had thoughts along the same line. However, working in the system has changed my point of view.

To begin, I must correct the impression with which I apparently left Steve. I did not mean that police should be required to run down every single person who could possibly have had something to with a crime. I agree this is not possible. Similar to his O.J. example, I am clearly close enough to the area of the D.C. sniper shootings and have military weapons training - it could have been me. However, the police did not (to my knowledge) waste resources checking me out. The concern is that doors which should have been opened are passed by because of the detective's clarity of vision and certainty of purpose (even though he's wrong).
As for the poor sap who finds himself mistakenly targeted by the officer who 'just knows who is guilty', getting him off is the job of his defense attorney. I'm not an attorney, nor do I play one on TV, but I find it hard to imagine that defendants are convicted on nothing more than "height, weight, (and) weapons training in the Marines".
I hadn't meant for that list to be exhaustive merely illustrative. Still, it probably wouldn't take much more; it definitely wouldn't take a lot more. An angry ex-girlfriend calls crime stoppers and tells them he looks like the guy in the video on the 5 p.m. news. He stopped and tried to cash a check at that bank the day before but couldn't because it wasn't his bank and got angry at the teller. He called in sick to work the day of the robbery (at the bakery on the same street as the bank) but was caught on video tape at a jewelry store 2 blocks away 10 minutes before the robbery. Weak? Sure it is but that doesn't mean I can't see it carried forth to a conviction. I suspect most people who work in the courts have seen cases this weak and weaker yield convictions.

Innuendo carries a lot of weight in the criminal justice system. The most powerful moment in the criminal prosecution is often solely in the hands of the detective: the accusation. It is hard to overestimate the power of accusation which lays in the hands of the officer. From that point onward there is an assumption of guilt which follows the Defendant. Most assuredly, we repeat all the right platitudes about "proof beyond a reasonable doubt" and "innocent until proven guilty." Nevertheless, the reality is that the accusation shrouds the innocence of a Defendant. Why would the charge have been brought if the Defendant didn't do it?

Yes, it is the Defense attorney's job to defend the client. However, you must realize how uneven this contest is. Assume, as in most serious cases, the Defendant is appointed an attorney. If we use the robbery example from the prior post, this means (in Virginia) that the attorney will be paid a maximum of $1,096. After taking a substantial portion of that to pay office rent, utilities, secretary wages, etc. there isn't going to be much to put into the case. And, unless the Defense attorney is independently wealthy he cannot pony up the money for investigators, experts, etc. (I know I cannot). These are at the discretion of the judge and he's not going to hand them out easily. Never mind the fact that the prosecution has an investigator who has been working this case for 3 months (the detective) the Defense is not going to get one unless it can spell out a specific reason (which, if you had it you probably wouldn't need the investigator).

Assume the Defense gets the investigator and he's suspicious that suspect 3 had buried the money in his garden. How does he get it? One of the most powerful tools at the detective's disposal is the search warrant; neither the lawyer nor the investigator have that tool. Unless the investigator breaks the law (trespassing, vandalism, possibly B&E) the Defense gets no closer to proving the truth than it was before (of course all of this assumes 3 is bright enough to not spend the money in the short term or talk to the investigator).

Then comes the day the Defendant has his trial. He walks in and everyone knows he's guilty (guilt by accusation); it's just a matter of whether the prosecutor can prove it. Is that a cynical view of the courtroom? Sure it is. However, it's based upon a reality. All the actors in the courtroom have seen thousands of people flowing through the courtrooms who are guilty, who have been accused properly. While some judges are better at resisting this influence than others it would be asking them to be superhuman if we expected them not to be effected at all. The protection which is supposed to be built into the system for this potential bias is the jury. Jurors will have some bias against the accused, particularly in the more conservative jurisdictions wherein I practice; however, it is not as ingrained and reinforced as it is for those who are in court every day. Unfortunately, because of the probable oversentencing if Client is found guilty, recommending a jury for serious trials in Virginia might be tantamount to malpractice. In any case, no matter what is said in the courtroom, the Defendant is fighting against the assumption of guilt which proceeds from the accusation.


I am somewhat saddened by what I recognize as an accurate description of the way the public views the criminal justice system found in steve's last paragraph. It's a good description of the "them" phenomenon I've blogged about previously. As long as it is happening to "them" most people don't care about the fact that Whren gives cover to unconstitutional seizures or that Hiibell is a high tech way of making us give our papers to an officer (in the modern era name and date of birth puts all your information at the officer's fingertips). I know that one of the first things I had to get over when I began to practice criminal law was the notion that as US citizens we have this large panoply of rights; we don't. Sad to say, most people don't care.

22 November 2004

An Officer's Gut Feeling

Sure, gut instinct is right at times. However, there are great problems with it.

Let's make the assumption that many a court makes: Officer Smith has been on the street for years and will notice any number of factors at an instinctual level which will alert her to nefarious individuals. Okay, we all do that at some level. If you are working at a music store and a group of young males with skateboards, baggy clothes, and off-skew hats walk in you're probably going to assume that you should try to keep an eye on them. The problem here becomes obvious. You know that people with these characteristics are more likely to shoplift. Lets say that normally 5% of customers shoplift but that 20% of young males of the type above shoplift. It becomes rational for these characteristics to raise your level of suspicion. Nevertheless, 80% of those with these characteristics are not shoplifting.

Officers are subject to the same sort of process. If they know from experience that they are arresting white males in late model cars on 5th Street (for solicitation and drug purchases) after 8 p.m. it will raise their attention when white males drive on 5th Street after 8 p.m.

Let's say that officer Smith stops a white guy because she has a gut feeling about what he just did down at the end of 5th Street. She finds the typical couple corners of crack. Is the stop good? Well, it shouldn't be. How do we know the number of times she has known "in her gut" that the car driving down the street has drugs in it, stopped the car, and come up empty? Has Officer Smith stopped 22 cars for the 1 time she found something? To be honest, most of the people whom she has stopped are not going to complain to anyone. A 15 minute stop and search is just not all that uncommon among a certain class of our society. There is just no way of knowing. The violations of the rights of several citizens based upon "gut feelings" lead to the arrest of one.

However, if the officer is fairly competent the gut feeling will never be an issue in court. The Supreme Court has ruled that there need almost never be a technical violation of the rights of citizens. Under the Whren, stop 'em for going 36 in a 35 mph zone, doctrine any competent officer can find some amazingly miniscule violation of the law to stay technically within the bounds of the constitution. Of course, they are miles outside of the meaning of the constitution but they are the good guys so we'll let them get away with technicalities. So we're not dealing with Smith's DWW; we're dealing with the "fact" that client had an air freshener on his rear view mirror and the "furtive movement" of the client (you know, reaching into his back pocket for his license as the officer walked up) which leads to the Terry pat down, etc, etc, etc.

That is the level of "gut feelings" which is dealt with most every day by those in the court system. However, there is a level at which it becomes much more disturbing: when officers focus in on your client because they are convinced he has committed a serious crime.

Let's assume that there is a bank robbery and 4 possible suspects. The Detective looks at Jones and knows it's him. The Detective zeroes in on Jones to the exclusion of the other three. He develops every bit of circumstantial evidence he can: height, weight, weapons training in the Marines, etc. Knowing in his heart who did this thing, he does not develop leads which could point to the other suspects. Why look when you know they're not guilty? Or, if he's a more cynical, manipulative type, why develop evidence which a Defense attorney can use to obfuscate the truth?

And you know what? The Detective is probably right in most cases. He's been around doing this long enough that he knows the type of person usually involved in the crime at hand. But if it's that one case where Jones wasn't the guilty party and the officer didn't strongly pursue the report that suspect 3 was doing an unusual amount of gardening the week after the robbery (burying the money in tin cans in his back yard while planting tulips) what is likely to happen is a conviction. Assuming the court appointed attorney is very sharp, finds this particular incongruity, and realizes it is the key to what actually happened, he can ask for an investigator (denied), try to talk to suspect 3 (won't talk to him), ask the officer on the stand why he didn't investigate ("because what's gardening got to do with a bank robbery?") and point out to the jury that suspicious "gardening" took place that week and he thinks 3 might have been hiding something. The prosecutor will stand there and point to Jones' height, weight, training on M-16's (an AR-15 having been used); he will say something about the Defense using smoke and mirrors or grasping at straws. How do you think that case will turn out?

Around the Web

1) Skelly gets asked to autograph one of his posts after his blog is discovered.

2) What does a breathalyzer measure? Hint: it ain't alcohol.

3) We're not worthy!! We're not worthy!!

On the Edge of Blogger

The last few days I have been trying a couple of Blogger's more exotic options: PCS video posts, voice blogging, on page comments, and expanding posts. I think I've used them enough to make some comments.

PCS video posts: This function is only available to those of us with a Sprint camera phone. Of course, the picture quality is limited by the camera in the phone. Mine is an adequate but not good camera (as you've all seen).

You can send text and voice with the picture. Text worked each time I tried it. Nevertheless, typing on the phone pad does become tiresome. I tried the voice add-on feature and the length is short but adequate. However, I could never get the voice to work. It would record but just didn't travel with the picture.

The reliability of sending the pictures back seemed to vary. Everything which I've sent in the Richmond area has worked but about 1/3 of the time I have had to send it more than once. In Cincinnatti it worked from my hotel but while I was at Paul Brown Stadium I tried to send a picture every time there was a score but only one made it (the one when the Steelers took the final lead).

Voice Blogging: This function works well but it's a little limited. You call a number Blogger presets, sign in, and you can leave a message. It's like leaving voice mail for someone. The post appears on the blog fairly quickly.

The limitations come in two forms. The first is that the number from Blogger is not toll free. It's not the biggest issue in the world if you've got lots of free minutes on your cell phone but, of course, that makes everything sound like it came from a cell phone. The second limitation is that the entry has nothing to identify its content. You cannot text message with it; all that appears is “Play this audio post.” I would really like some way to let people have an inkling of the content.

On Page Comments: As anyone who has looked at a comment lately on this page knows, you can make the comments appear on (and disappear from) the actual blog page rather than redirecting to a page specific to that post. It's a far better way to set up comments, especially if the comments might be directed to two or three interconnected posts on the page. However, even if you choose this function you cannot reset your link format to “anchor” rather than “separate page.” As I'm not a big fan of the “separate page” link format I was hopeful I'd be able to move away from it.

Expanding Posts: I really like this concept. I often have large posts interspersed with shorter ones and think that I should shorten the larger ones.

However, the way Blogger has set this up in order to use the expanding post function you must use it with every post. That just doesn't work well since I often have posts which are too short for this function. If you do not add the language which would cause an expanded post Blogger will add it at the end of the post. It will prompt the reader to read the non-existent remainder of the post. It's annoying and messy (thus you see it not on this site).

And those are the things I've messed with on this site. I don't know that I'll use features 1 & 2 very often and I've already foresworn 4 unless I can figure out how it can be done only on those posts I choose. If I find other cool and interesting things which I test out on the Blog I'll let ya'll know how they work out.

19 November 2004

The Riot Act of 1715

Dave, over at The Policeman's Blog, longs to actually be able to read people the Riot Act:
Our Sovereign Lord the King chargeth and commandeth all persons being assembled immediately to disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the act made in the first year of King George for preventing tumultuous and riotous assemblies. God save the King.
Yep, for those of ya'll (like me) who have used the expression for years, there really was / is a "Riot Act." It doesn't just mean your Mom yelling at you and your kid brother for spilling ink on the new couch.

It was put into law under King George in 1715 to quell riots. And for those of us in the U.S. - no this was not the King George we read about in our version of history ("of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States"); that's George III.

Dave laments the fact that the Riot Act is no longer the law of the land in Britain and he wouldn't be able to read it anyway because isn't a magistrate. Well, I've got the perfect solution. It just involves a little bit of a relocation.

If not a republican, a move to Canada would provide for continuing loyalty to the Crown:
67. A person who is

(a) a justice, mayor or sheriff, or the lawful deputy of a mayor or sheriff,
. . .
who receives notice that, at any place within the jurisdiction of the person, twelve or more persons are unlawfully and riotously assembled together shall go to that place and, after approaching as near as is safe, if the person is satisfied that a riot is in progress, shall command silence and thereupon make or cause to be made in a loud voice a proclamation in the following words or to the like effect:

Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN.
Of course, there is the option of moving to Rhode Island here in the good old US of A:
§ 11-38-1 Proclamation commanding dispersal. – (a) If any persons numbering twelve (12) or more, being armed with clubs or other weapons, or if any number of persons consisting of thirty (30) or more shall be unlawfully, routously, riotously, or tumultuously assembled, any justice of the supreme or superior court or of a district court, justice of the peace, sheriff, mayor, deputy sheriff, town sergeant, or constable shall, among the rioters or as near to them as he or she can safely come, command silence while proclamation he or she is making and shall openly make proclamation in substance as follows:

"By virtue of the laws of this state in relation to routs, riots, and tumultuous assemblies, I charge and command all persons here assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business, upon the penalties inflicted by law: God save the state."
Unfortunately, in Virginia we've lost our sense of history:
§ 18.2-407. Remaining at place of riot or unlawful assembly after warning to disperse..

Every person, except the owner or lessee of the premises, his family and nonrioting guests, and public officers and persons assisting them, who remains at the place of any riot or unlawful assembly after having been lawfully warned to disperse, shall be guilty of a Class 3 misdemeanor.
In other words, here in Virginia all that has to happen is an officer walk up and say, "You kids git!" Kinda kills the historical romanticism.

[addendum] I checked my copy of the 1874 statutes as well and the Riot Act wasn't part of Virginia law then either.

18 November 2004

What Name for the Washington Baseball Team?

They still haven't settled on a name for the Expos once they have been relocated to D.C:
Baseball officials plan to announce by Friday when the franchise will be renamed. Selig favors calling the team by its old name, the Washington Senators, but the Washington Nationals is the leading contender.
What boring names. We are missing a great opportunity here. In one fell swoop we could solve the years long dispute over the Washington Football Redskins' name by calling the baseball team "the Fightin' Whiteys" or even better "the Washington Rednecks."

I can see it now: The mascot could be a guy who hasn't shaved in a couple days, wearing a well-worn number 3 cap, with a battle flag t-shirt, standing next to a beat up orange pickup truck. As you came in the main entrance of the stadium you would look up and see the team motto: "You can have my gun, When you pry it from my cold, dead hands!"

I'm tellin' ya, it's a great idea. Start calling your Senators and Congressmen today. Do it now - before it's too late.

Around the Web

1) It takes a day to try this case in Idaho? Heck, that's a half day trial here in the beautiful Commonwealth of Virginia.

2) Join the military or go to jail. This is an option which several of my clients have taken over the years. The trick is that the military won't take those with any kind of suspended time so you have to get the prosecutor to move nolle prosequi and then get the kid in. Usually the prosecutor and the recruiter have an agreement that if Defendant has not entered the military by a date certain the prosecutor will reinstate the charges.

3) It may be too late to be worrying about this. Every one of us who has a cell phone or who uses electronic toll-passes is tracked by the government every day.

4) Scott Peterson wants the people who hear that he did it all because [fill in the blank] to be different than the people who heard him say he didn't do it.

5) Please people don't be dumb enough to fill out forms sent to you via e-mail no matter how real they seem. If you need further convincing read the article linked by Orin to see what will happen to you.

6) Ouch! More on the evils of juvenile prosecutors.

7) SL&P gives the highlights of the USSC meeting as to the future of guidelines and White Collar Crime PB talks about DOJ's full court press for the pro-prosecution Bowman "reforms."

8) 700 kilos of coke in a giant frozen squid? Um . . . That's a new one.

9) Holding court in a strip club. 'nuf said.
this is an audio post - click to play

A Picture Share!

A Picture from my PCS Vision Camera
this is an audio post - click to play

A Picture Share!

A Picture from my PCS Vision Camera

Federal judge condemns sentencing laws

I think SL&P may have already blogged on this. Still, it is interesting to hear a judge say he is going to ask the President to commute a sentence he imposed.

17 November 2004

Sorry No Posts Tonight

I've been messing around with some of the various methods that Blogger now has for posting because I am headed out as of Friday (at the latest) on my way to Ohio. A friend and I are going to watch the Bengals play the Steelers on Sunday.

However, I need not abandon all of you. Assuming a connection for my Sprint phone I may be able to send pictures and will definitely be able to send voice entries. Now that I've figured this out you'l never get rid of me.

16 November 2004

Money, Money, Money, *Money*

Of course, nobody would realize that's not legal tender. 'Cuz it's not like it's a million dollar bill or anything.


Around the Web

1) If you work in a place where law firms pay a lot better than the federal government your federal cases will tend to go better. Causative or coincidental correlation?

2) "Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.
. . . . .
Suspect's sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."

Much more of this interesting stuff found here . . .

3) Mr. DA breaks down the "Law Shows." He can still watch them; I cannot. I go nuts every time I watch Law & Order and see ethical violations and outright violations of the law (which seem to occur in every episode - but that's okay because the good guys are doing it).

4) Is it really the proper course of action for a Nanny to get drunk when she gets lost with her charge in tow?

5) Is "white collar crime" a stigmatizing label? I'm pretty sure that a lot of my clients would love to be considered white collar criminals.

6) You'll remember when the 5th Circuit expanded Buie searches so that a house could be searched even without an arrest? (see also here) Well now the 10th Circuit has ruled that police need not be constrained to the house when they do a Buie search.

7) Why not so many death penalty prosecutions? Because they will bankrupt the localities.

8) Credit card companies aren't responsible for infringement on porn distribution rights. [Yeah, I know it's not criminal but I just couldn't pass it up.]

15 November 2004

Dog Searches

As I'm sure everybody out there knows, supreme court decisions have declared that dogs are "sui generis" - this means they are magical entities which do something that if anything else did it would be an unconstitutional search. However, their thaumaturgic abilities allow them to do it constitutionally.

Last week the Supreme Court heard a case where a very, very obvious pretext stop (but of course we won't enquire as to the officer's actual intent) was used to hold a car while a dog was run past it. The dog found drugs which would never have been found otherwise. The question at hand was whether the police must have some sort of reasonable articulable suspicion of the presence of drugs (or whatever else the dog might be trained to find) in order to run the dog past the car.

Of course, "Justice Sandra Day O'Connor insisted that a 'sniff is not a search.' She said that as long as the canine remains outside the vehicle, the officer is not searching the car." [Of course, Ms. O'connor is the Queen of the Pragmatists [see paragraph 4 here] so this is to be expected.]

"Justice Stephen Breyer said that police officers can sniff for contraband during a traffic stop, so why not a dog? It's a fact of life, he said, that 'you might run into people and animals with sharp noses.'" [As sharp as a dog? What, are police forces hiring Animal Man clones now?]

"Justice Antonin Scalia points out dryly that the case law permits the use of indiscriminate dog sniffs at bus depots "and the republic seems to have survived." [Ah, yes. Just like the Republic survived a civil war, slavery, Know Nothings, &cetera. The fact the Republic has survived something isn't exactly a winning argument for its correctness.]

"Justice Anthony Kennedy ask[ed the State Attorney], "Have you any authority for [the proposition that if the search had been more narrow in Kyllo it would have been constitutional], other than Justice Scalia's speculation?" [Hmmm . . . I'm confused. Does this indicate that he disfavors Kyllo or dog searches?]

"Justice Ruth Bader Ginsburg said the very presence of dogs might be considered intimidating. 'Dogs can be frightening, or humiliating," she said. "It seems to me there's some association there with the idea that I have the right to be left alone.'" [The State's attempt to defray this by pointing out that in some cases beagles are used is hilarious. Every time I see a drug dog it's either a german shepherd or a malinois. And goodness knows those dogs are never trained to be aggressive in Schutzhund competitions.]

"We're opening a large vista for dog intrusion," said [Justice] Souter, adding that he was worried about officers canvassing garages and neighborhoods with animals. Police "can take a dog to a front door and ring the bell and see what happens." [Well, they can (and some) already do this without dogs.]

"However, Justice John Paul Stevens said an opening for run-of-the-mill dog searches would also allow the use of mechanical devices to search people." [Again the State attorney sparks hilarity by talking about mechanical dogs being just fine. Not sure how that's supposed to square with Kyllo.]

"As is his custom, Justice Clarence Thomas asked no questions." [However, he did blink three times more than normal; experts are analyzing that to see if they can divine his stance.]

If I had to wager, I'd bet on the Pragmatists winning this one. When the dog is circling your yard, your house, or your car just keep telling yourself, "It's not a search. It's not a search. The Supreme Court says it's not a search . . ."

14 November 2004

Around the Web

1) Considering whether a prosecutor's mis-statement of the law is grounds for reversal.

2) In case you didn't know, your body creates alcohol all by itself. I knew it because it of a class on Alcohol and Society I took once upon a time.

3) Having your property stolen by federal marshals. Greeeeaaat.

4) The federal criminal courts are overworked? The courthouse here in Richmond has the feel of a funeral home it's so dead. I'm not sure it handles as many people in a week as my local Virginia jurisdiction does in a day.

5) The final step in getting a warrant.

6) Looks like Orin is on his way to being unfireable. Congratulations!

7) Watching a client make bad choices: the Defense attorney experience.

8) Worries that placing public records online (thus making them truly public) may lead to an increase in identity theft.

9) Reactions to the Peterson verdict (read the comments).

10) Police work and the joy of anonymous excrement.

11) Violation of the Constitution as a sinful act. Surely mortal rather than venial.

Questions From Abroad

From the other side of the pond Lewis Maskell asks 3 questions:

What is it about the Scott Petersen case? I mean, it doesn't seem particularly special. All of America seems fazed by it. There is just something about all the trial-watching that this Brit just does not get.
Join the club.

There's nothing spectacularly different in this case than any number of others. I'd like to attribute it to 24 hour news networks and Court TV needing something to show but that's only a partial explanation. Court TV has news from all sorts of trials each week and very few take off like this. What I think sparked it all was the time when the victims were "missing." Everything that could be done by a couple upper class families and the police to publicize the search was being done (let's not kid ourselves, if this family didn't have money it probably would have gotten a little local coverage - if that). So we had all sorts of interest built and then all the stuff about Scott Peterson started coming out and everybody was getting sucked in more. Then a couple big name attorneys swept in and the soap opera was on in full force. It just kept feeding upon itself from that point.
Don't you ever get the feeling that a round-up of marijuana seizures (or other drug seizures for that matter) is really just the authorities patting themselves on the back?
It's not quite that simple. The primary purpose of any police force is to keep the peace. It is the force which keeps every other block from being run by whatever gang is prominent. It stops "real" crimes such as murder, rape, or robbery. It deters future crimes by apprehending those who have committed them previously and by "showing the flag." However, this all requires officers to cover a large enough area and respond to emergencies in sufficient numbers. Thus, for a substantial portion of the time the officers are not going to have anything to do.

Thankfully, our legislators are willing, and able, to step into the breach with all sorts of laws establishing less important but far more common violations. Among these are drug laws which guarantee that any enterprising officer who really wants to can fill up his entire day stopping cars which have air fresheners or Saint Christopher medals hanging from the rear view mirror (or some other bogus, minor violation) so that he can check ID, issue a warning, give back the driver's license, and then proceed with the real purpose of the stop:
Officer: "You don't have anything dangerous or illegal in the car like a gun or drugs?"

Driver: "No sir." (What else is he going to say?)

Officer: "Then you wouldn't mind if I searched your vehicle?"
A couple lucky stops and suddenly you're a big guy on the force. Unlike homicides or robberies (where the police are most often in reactive mode), drug enforcement is where an officer can be proactive and show he's a hard charger. Maybe he can get a promotion or get tagged to work on some task force.

The various task forces are filled with those who have shown the drive and ability to succeed at drug interdiction. These people are then tasked with succeeding at an even greater level. Their careers depend upon it. They don't come in with massive marijuana destructions during harvesting season and everybody knows they have failed. They don't interdict the drugs everyone knows travel down the interstate and it doesn't bode well for their careers. Thus the massive interdictions and crop destructions.

The problem is that it just doesn't work. No matter how many times and how hard these officers work their rears off to plug the dike it does no good. For every hole they plug 3 more open and the water is flowing over the top as well. They really have no chance. Most of these officers are dedicated and work extremely hard (I doubt many are craven enough to merely be ladder climbers); however, they are so badly outnumbered it's hard to see any real difference which comes from their effort.

So, no I don't feel as though it is the police patting themselves on the back. I feel more like it is the police being tasked with an impossible duty and taking some pride on those occasions when they do accomplish enough to be noted.
And was there any particular reason why you switched to wearing the orange top half-way through? I kept wondering if there was some particular point, or whether it was simply because you got cold.

Actually, if I had a little better lighting you'd see that the first section is in a maroon sweater, the next in a jacket over it, and the third in a yellow sweatshirt from my college. This reflects the fact that the first two were filmed on the first day and the last section was done on Thursday when the courts were closed and I could come into my office in comfortable clothes. You'll note I said comfortable, not casual. One of the perks of being your own boss is not having to answer to anyone if I come into the office dressed like a slob.

13 November 2004



While I apreciate the offer, I wish ya'll would stopping spamming me with it (4 times in the last week).

12 November 2004

The latest VideoBlog Entry

Hope you enjoy it.

Technical Matters: My new Sony DVR recorder works wonderfully. Writing to the DVD in VR format and transplanting it to the hard drive worked well. Using the program which came with the camera I was able to convert the file to mpeg2 and the resulting file was beautiful. The only problem was that the conversions were far too big; they took about 40% of the screen. When I tried to use them in Movie Maker they kept causing it to freeze up. However, with persistence I got it put together. Then I tried to finalize the movie and it froze the computer up. I restarted the computer, turned off all the background programs I could, and tried again. It froze again.

So then I had to go and use a conversion program I have to change it to a smaller size. This messed up the syncronization of the picture and sound. However, it did make it small enough that I was able to put it together.

If anyone has a really top of the line conversion program (that won't cost me a month's income) I'm open to suggestions.

Scott Peterson Verdict

After two jurors were thrown off the jury a verdict has been reached in the Scott Peterson trial.

It will be announced at 1 p.m. Pacific (4 p.m. Eastern). I really, really, really want to know the real reason those jurors were removed.

GUILTY 1st Degree - Laci Peterson Homicide

GUILTY 2d Degree - Child

We should all be a little ashamed of how the crowd outside the courthouse acted: mugging for the cameras and celebrating. Two persons are dead and the jury may vote to kill another. No joy should be found in this even if it is a just result.

The removal of two jurors bothers me. Two jurors gone in two days and the ~ !! BINGO !! ~ a guilty verdict. It's just too suspicious.

The appellate brief in this case is going to be thicker than The Decline and Fall of the Roman Empire.

Later Today

Later today I will be uploading the latest video blog entry which will:

Ask very important questions about Harvard.

Talk about the fact that a salesman usually won't trade tires for marijuana.

Go over the latest marijuana seizures.

And . . .

Compare the NAACP and the Federalist Society.

10 November 2004

Always Knew I was on the Side of the Angels

This site is certified 62% GOOD by the Gematriculator

The question is whether that's good enough to get me into Heaven or whether I'll have to spend a few thousand years in Purgatory working off the other 38%.

The Most Important Story of the Day

Sesame Street is 35 years old today.

Of course, when I was watching the Street Mr. Looper was still tending shop and it was in the pre-Evil Elmo days. My favorite characters were/are Grover and Oscar. I liked Big Bird when he was torturing Mr. Hooper but otherwise he was just a little too goody-goody.

LvFark (I can't believe I just did a post about Sesame Street - read it fast, it might be too embarrassing to leave up long)

Around the Web

1) I'd have never thought to call this a litigation strategy but I guess a client might see it that way.

2) Is that sarcasm I hear in Skelly's voice?

3) The theory of alternate punishment drug programs versus the reality.

4) Hey I'm not a jerk. Well, okay, maybe that's not what he meant but that's how I'm interpreting it.

5) No mens rea therefore no violent crime, therefore no deportation for driving drunk and hitting someone. You must at least know that there might be a use of an item to a purposefully violent end. LvCrimApp et SL&P.

6) I'm a PD is finding out that nobody drinks more than two beers before they drive.

7) Mr. DA continues the odyssey toward a warrant. How come I keep wanting to break into "I'm just a Bill . . .?

8) An interesting "evidentiary scale."

9) OMG!! Could you possibly shoot yourself more directly in the foot.

10) Can Catholics accept the Catechism and the death penalty in the United States?

11) Look, I know the judge was way out of bounds but this is not the way to try to get tried by a different federal judge.

Another Peterson Juror Gone

Court TV is reporting that another juror (a lawyer no less) has been removed by the judge.

The new juror has sat on a criminal jury which found a defendant not guilty.

Yeesh! There must be some tuly interesting things going on behind closed doors. If there is a finding of guilt the appeal is going to be 300 pages long. Removing two jurors on subsequent days? If a conviction occurs it will look a lot like a shaped verdict.

On the other hand, everyone on Court TV seems to be of the opinion that the jury now has at least a sizeable minority for acquital.

09 November 2004

Ashcroft resigns.

Attorney General Ashcroft has tendered his resignation.

Peterson Trial Has a New Juror

Juror number 7 has been replaced in the Scott Peterson case.

Court TV is reporting that this is the woman who in voir dire said that she was a "crusader" who would not be moved from a position once she had decided. However, the consensus seems to be that the juror did something improper.

Alternate #1 is thought to be sympathetic to the Defense.

Something's Going on in the Scott Peterson Case

Court TV is reporting that the judge gave everybody two hours to get interested parties to the courtroom. Family members from both side have gathered.

They are speculating that there may have been juror misconduct leading to a mistrial or perhaps a verdict.

I Wanna Go Here

Sure, I get visits to this site from Harvard, U Chicago, BU, etc on a pretty much a daily basis but the one which has caught my eye is Sierra Nevada College. Somebody from that school reads this blog at least once a day and I've got one question: Are they starting a law school and do they need professors? How 'bout an adjunct professor in history? I'm sure you need someone to teach the ever-needed Southern History course. Right? Actually my undergrad degrees were in International Studies and Comparative Religion. I could teach "Comparative Religion: Blue States versus Red - Which Pleases the European Union the Most?" How about it?

SunTrust Scam

I open my email and see this:

Now, being a little technologically competent and a criminal defense attorney I know this is a scam. I click thru and get to this WARNING - DO NOT ENTER ANY INFORMATION INTO THE LINKED PAGE - EXPECT ANY INFORMATION ENTERED TO BE STOLEN AND USED AGAINST YOU!

I'm not dumb enough to put any info in but I realize that in order to target this toward me someone likely has my email address and knows I bank at SunTrust. So I print the email and take down the address of the link. Then I take it across the street to my bank. The bank's reaction? I get told not to enter any information in any emails I get from someone claiming to be a bank. DUH. After I fuss a little the lady grudgingly takes the papers from me and sets them next to her on the desk. I'm pretty sure they hit the trash after I left.


Everything You Always Wanted to know about Drugs

Straight from the DEA.

Federalist Society National Convention

Thursday starts the Federalist Society convention. Sadly, I shan't be in attendence as there are these people (judges) who just have an unreasonable expectation that I will be in court to represent my clients. Not sure why, but they have the power to throw me in jail so I must remain hereabouts.

The one part of the convention that pertains to this blog is on the first day:
Criminal Law: The PATRIOT Act: A Three-Year Retrospective

Hon. Viet D. Dinh, Professor of Law, Georgetown University Law Center and Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
Mr. Timothy Lynch, Director, Project on Criminal Justice, Cato Institute
Prof. Nadine Strossen, President, American Civil Liberties Union and New York Law School
Hon. Christopher A. Wray, Assistant Attorney General, Criminal Division, U.S. Department of Justice
Judge Samuel A. Alito Jr., U.S. Court of Appeals, Third Circuit (Moderator)
If anybody feels like being my roving reporter and send a blow-by-blow I'd really like to cover what is said.

Anyone? Anyone?

Centre is #1

Centre College (my undergrad) is known for its small & close-knit community, difficult classes, real grades, and graduating only 75% of each class. That's why I chose to go there. Unlike many who get into schools which work under the (US News encouraged) principle that if you are good enough to get into [fill in so-called elite institution] you are good enough to graduate, I know I earned my grades and my degree.

Centre has a reputation for alumni loyalty. For years and years it was known for having the #1 percentage of alumni donations. Then a sad day came and we faded into second or third for reasons best left unaired for a few years. Now we're back on top and the alumni relations office is making sure we all know it (look carefully at the yellow). That's pretty cool.

The Attack on Lawyers

This article has a discussion on the modern trend of attacking lawyers. As the article points out by quoting Shakespeare, lawyers have never been a popular profession. However, I can trace it even farther back to the 13th century with a quote about St. Ives: "Sanctus Ivo erat Brito, Advocatus et non latro, Res miranda populo."

The article goes on about how it is a new tactic which "ha[s] not been advanced by the pitchfork crowd, but by highly educated and sophisticated politicos, many of whom are also members of the bar — people who are supposed to know better." Leaving aside the disturbingly elitist tone of that assertion, I do not believe it to be true. My point of view is closer to the local level but I can clearly see the effects that representation has had on attorneys.

I first noticed this when I was clerking for a firm in Kentucky. In Kentucky politics is a full-contact, blood sport. The particular race was for a seat which had been Democratic forever, in a Democratic area and the Democrats could have nominated a drone and he'd have won easily. They didn't. They nominated a guy who everyone thought was gay (although it was never said out loud, in public). Bumperstickers popped up urging people to "Vote Straight Republican." Still the Democratic candidate had a slight lead. Then, two days before the election an ad popped up. The ad laid out in graphic detail a rape which had occurred years before; at my high school no less - which meant there were racial undertones (with about a 50-50 breakdown we grew up with one another and had no racial problems but the rest of the world just didn't seem to get that). Then the ad pointed out that the Democratic candidate had represented the person who was found guilty of doing this in the trial court. Then it pointed out that the Democratic candidate had represented the person found guilty of doing this in the court of appeals. Then it pointed out that the Democratic candidate had represented the man found guilty of doing this in the supreme court. In case you haven't guessed, the Democratic candidate was a public defender assigned to represent this defendant. Still, the ad was devastating and led to a Republican victory. And yes, it was aimed at "pitchfork crowd" but it didn't come from them.

Now that I'm in Virginia I see it at work here. It's more subtle but it's present. Why has the General Assembly (not the "pitchfork crowd") refused to adequately fund indigent defense for many long years? Because we defend "those people." Seen anybody make it into office who has had any kind of recent experience doing criminal defense work? Most importantly, have you seen a lawyer who made his living doing criminal defense make it to a bench in Virginia or the 4th Circuit? Maybe a trial judge every so often but most positions which are taken by those who've practiced criminal law are reserved for prosecutors.

I realize the article is mostly about civil representations and national positions but this is just not a new phenomenon.

Thanks to anonymous who tells me this came from NRO.

08 November 2004

Qualities of a Supreme Court Justice

Southern Appeal has a short post about the possibility of Justice Thomas being elevated to Chief Justice. The short discussion afterward centers on whether Justice Thomas would be willing to go thru all the garbage which would surely be ramped up again for another confirmation hearing. Of course there is also the proclaimed wish of many who would like to see Justice Scalia move to the front of the class. Southern Appeal is better suited to discuss the politics of such an appointment so I will leave it to Feddie et al.

What I'm interested in discussing is the qualities, as a defense attorney, I would prefer to see in a supreme court nominee. To do this I will engage in some enlightened self interest.

Those who work as a criminal defense lawyers usually come to believe that almost every judge is a judicial activist when it comes to upholding the conviction of a "criminal" or defending the processes of the criminal justice system. Perhaps uniquely, in criminal law judges of all persuasions seem willing to bend the rules and stretch the constitution in order to keep convictions from being overturned. Most prominently, this is found in the shambles that is 4th Amendment search and seizure jurisprudence - where it has been found that a search using a dog isn't really a search, and that if you search a car after someone who was shortly thereafter arrested / detained it is constitutional because the arrestee might be able to have a weapon in the car close enough to use or evidence in the car close enough to destroy (as if any competent officer is not going to secure the arrestee first), and that judges aren't capable of seeing the difference between a purposeful violation of rights thru a pretext stop and a real stop (to which I still say: if a judge cannot do it then convene a jury).

"Pragmatists", whether they are from the left (Breyer's absolute devotion to the clearly problematic sentencing guidelines) or the right (Rehnquist ruling that citizens can be forced to identify themselves to an officer), are the bane of those charged with a crime. How many times do we stand outside of a courtroom talking to our clients trying to explain that "Yes, I think the dog walking around your bag is bogus and a clear violation of your right 'to be secure in [your] effects . . . against unreazonable searches and seizuires.' Unfortunately, the federal supreme court has opined in dicta that dogs are these magical creatures who - despite the fact that their use reveals things which would never have been revealed by normal human senses - do not perform a search. Now, I know that's not logical but the supreme court thinks that dogs are beasts with these magical properties and therefore the trial judge and every appellate judge thinks they are enchanted, non-search beasts. So no search took place. Understand?" Pragmatists scare the bejeezuz out of me. Their primary rationale tends to boil down to "If you aren't the person the government is looking for you don't have anything to worry about because this won't effect you." The assumption here is that the government would only go after "actual" criminals; the fact that we are all prety much constantly in violation of some law seems to escape these people (who are too high on the social ladder to be effected by that fact).

(1) So I am coming out in favor of putting another textualist on the court. By this I mean that a new justice should adhere to the idea that a statute or constitutional section means what it says and says what it means. (2) He should understand that stare decisis is important in criminal law because it is an area of the law where the objective is for the law to penetrate the consciousness of the people; changing the law often or complicating it through exception after exception leaves a large portion of the populace without an understanding of the law. Let's face it, most people do not have the tools or time to keep up with the actual status of the law; it sinks in when they hear what happened to Uncle Joe and/or Bob' wife. (3) He should also realize that people tend to think the constitution actually means something and should not be afraid to get rid of bad precedent which clearly contradicts it (dog non-searches, post arrest "possible threat" car searches, the guidelines are constitutional, etc.) (4) He should be dedicated to leaving those decisions in place which enforce the constitution, particularly Miranda and the exclusionary rule. While these are neither demanded nor denied by the constitution they do provide incentives for the government to obey the constitution. Most of the other offered options are jokes although there is one possible option which could work besides exclusion (see last 4 paragraphs here). (5) He must apply the Rule of Leniency. While a universal principle, in Virginia it is explained with this oft quoted, oft ignored proposition: "When there is ambiguity in a statute the statute must be construed strictly against the Commonwealth." Usually this boilerplate is followed with an explanation as to how something found in an obscure passage in the insurance statutes explains what the General Assembly meant to say in this criminal statute (and no explanation as to how the rule was circumvented). This is one of the oldest, most cherished protections of liberty; a justice must be willing to enforce it.

Finally, I would like to see someone who has actual experience in criminal law elevated to the supreme court. And I don't mean as a judge, a member of some task force, a professor of criminal law dabbling a little on the side, or a federal prosecutor. I mean someone who has had extensive experience in the trenches, trying case after case in a State court where there is little insulation from the people effected by the trial (whether complaining witness or defendant). Where crushing caseloads make you realize what is important and what is not so that you can better value a case. The best of the best would probably be a defense attorney who worked in law enforcement prior to joining the bar; this would be a person who actually understands the practical realities of criminal law.

Those are my first thoughts as to the qualities I'd like to see in a supreme court justice. What do ya'll think?