Life as a Criminal Defense Attorney

A couple weeks back Client surprised me by changing his guilty plea to not guilty and asking for a jury trial. The case got continued and I need to meet with Client - who's already locked up in a prison reception center waiting to be sent to a more permanent DOC facility for a prior conviction (on a different charge).

So, my secretary calls last Wednesday and sets up a meeting for yesterday at 3 p.m. That makes it hard to get there after court but every prison I've been to ends visitation at 4 p.m; I have to go that early or not go at all. I finish my afternoon in court just before 2 p.m. I hustle out to my car and hope that if I'm a little late they'll still allow me to get in to visit Client.

I buzz down the road - scrupulously obeying all the posted speed limits - and, after a long drive down a pretty country highway, I arrive only five minutes late. It's something of a minor miracle and I get out of my car and empty my pockets of everything but my keys, a pen, and my wallet.

As I walk down the path to the gate there are a bunch of guys having their time in the yard. They're dressed in about 5 different color jump suits but they're all intermixed so I don't know what the colors represented. One of the guys yells to another "Hey Bobby, ain't that the SOB attorney who got you put in here?" I look up and, no, I'm not the SOB attorney who got Bobby put in there. The two guys are laughing like they've made the world's funniest joke - I just grin and keep moving.

I get to the gate and a guard walks up to the chain link fence and asks my business. I tell him I am Attorney Lammers here to visit Client Smith. He asks for my ID and when I pull out my wallet tells me that I've got to take that back to my car. I hand him my ID through the fence and walk back to my car to drop off the wallet.

This time as I walk back the guard in the tower is yelling at the inmates that yard time is over and to return to the building. The tower is outside the fence and the guard is sitting looking down at the inmates with a rifle next to her. At first the inmates don't do anything and she has to yell at them a couple more times. A couple of the inmates yell up at her. "Why don't you come down here and escort me to the cell." "I bet a little thing like you can't even pick up that big ole' gun." Still, they all start shuffling back into the buildings.

As I get back to the front gate I hear the guard yelling to a white-shirt over by the front door: "Lieutenant, the guy this lawyer's here to see got moved this morning." I look at the guard and say "You've got to be kidding me?!" The lieutenant quickly comes over and tells the guard to check again. "I already did . . ." "Then check to see where he went to." The guard and lieutenant disappear into the guard shack and a minute later the lieutenant is walking down the path toward me looking unhappy. I think he was anticipating a confrontation with a rabid lawyer. "Sir, Mr. Smith was transferred to BFE correctional facility." He almost winces when he says it because he knows that BFE is at least three hours away.

I want to scream. I want to yell at somebody for allowing an attorney appointment to be set when they probably already knew he was being moved. I want to yell at somebody about how stupid it is to move someone who has a jury trial scheduled in this county to a prison half way across the Commonwealth. I really want to yell at someone for not having the decency to call my office so my secretary could have called me and told me not to drive out there. Still, I can't yell at this lieutenant; he's just the guy in charge of guarding the gate. I mumble something about how fun that's going make Client's jury trial, ask for my ID back, and leave.

So I drive the hour back to my office (which is closer than the courthouse was). I look up exactly where BFE Correctional is and it's 2+ hours south of my office (the place he was at is 1 hour north of my office). Just great. Now I'm going to have to make at least two (probably more) 4+ hour round trips to prep Client for his jury. I can do some of the basic stuff through letters and phone conferences but I'd really like to meet my client face to face to prep for a trial. Now all I have to do is find entire days when I have nothing else to do and can travel down to visit him before the prison shuts down visitation.

And then there's Scalia.

WiFi "Theft"

Over the last week there has been something of a fuss over a guy getting fined for "wardriving." Wardriving is the act of driving around until you find someplace where someone has not secured their WiFi connection and using it to access the internet. Why would someone do this? Well, believe it or not, some geeks do it for fun. Some people do it because they don't have their own access to the net or their access is of limited speed. There is also the potential that people are using it to hide illicit activities such as hacking or downloading porn. However, in the case in Illinois it doesn't appear that anything along those lines was occurring. At least there was no charge for it and I'm pretty sure they took his computer and checked it out.

Why then did the prosecution go forward? "The prosecution appears to have been a largely symbolic one for deterrent effect: the defendant pled guilty and received a $250 fine plus a year of court supervision, and the prosecutors released statements to the press about how this should be a warning to others." More facts of the case can be found at ars technica.

Technically the charge was about the uninvited use of another's network. This has set off a number of derisive comments around the blogs and this humorous conversation on TWIT which, in addition to pointing out how this law is nearly impossible to enforce also points out how hard it might actually be to not break this law unless you disable your computer's reception of WiFi. One blogger compares this conviction to convicting someone for using water from a sprinkler which sprays into a public area. A comment over at Orin's talks about how the law must choose a fence-in or fence-out method.

Why are these laws in place? Well, one reason could be for law enforcement purposes; if you can restrict people to the use of only their own web provider it is much easier to prove who is doing something wrong over the internet. However, I suspect these laws are driven more by business interests than anything else. The internet provider doesn't want people to access free internet; they've been fairly blatant about this in pushing to pre-empt low cost or free internet provided by municipalities (see the Pennsylvania Plan).

Where do I stand? Well, I personally believe that if you don't protect your network you are inviting others to use it. How do I come to this conclusion? Well, to begin with protecting a network is very simple and, while the protection may be fairly easy to crack, provides a clear indicator that the person providing the network does not want you to access the bandwdith he is paying for. As well, the person who has set up the network has already paid for every bit of access that runs through it. How he uses it is his business and the internet provider doesn't really have a claim of theft. It may have a claim of contract breach against it's internet customer if the contract specifies no open WiFi network, but it doesn't have a claim against a third party user of the already paid for access.

In my office building I have a WiFi network set up so my secretary can access the internet and I can use my portable computer. There are 5 other networks set up in the same building. One is protected and one is purely computer to computer- 3 are open access. The problem I run into is that the office next door must have some sort of booster or something attached to his broadcaster because it is always as powerful as my signal and sometimes more powerful. About 30% of the time my computers will go to that network instead of mine automatically. I'm sure there's some way to fix this, but it's not really my fault. That office didn't protect its network and it obviously has range to reach my office (and the whole building for that matter). Why should I be responsible for that?

Martyrdom Thy Name is Moussaoui

Moussaoui testified yesterday that he and Reid and others were to take part in a follow-up plane hijacking / attack. The only problem? There's a good probability that he's lying:

But Moussaoui's testimony, which is seriously doubted by intelligence officials, was contradicted by the words of the captured Sept. 11 mastermind, Khalid Shaikh Mohammed, who said in the transcript from an interrogation read aloud in court that Moussaoui was too "problematic" and unreliable to join the 19 hijackers on their suicide missions.

IMO, this guy is trying to make himself into a martyr and would say anything to get himself killed by the US government because he wants the attention and become a "hero" for his cause. If he'd thought it would get him sentenced to death he would have testified that he and the Easter Bunny were going to hijack Santa's sleigh and dive it into the Lincoln Memorial.

New LawCast: Larceny Then & Now

A new LawCast is up explaining larceny, comparing modern larceny statutes to Virginia's larceny statute from 1870, and explaining how various modern statutes add to common law larceny.

[Video should be available after 8:30]

Around the Web

1) Read the comments on this post to see how police hunches are often justified by contradictory indicators.

2) Tom has discovered that pretty women get less punishment than others. Naw, really?

3) Blonde Justice reveals that she's from a Northern State. How do I know? Because, only in a Yankee State could you get 5 days community service for murder.

4) Have 11 people arrested because they went to the courtroom they were told to instead of your courtroom - even after you were told it wasn't their fault - and you'll probably end up in front of your State's judicial review committee.

5) What not to report if you want British police to respond.

6) Leon in application is just plain embarrassing. Even if a "no knock" search warrant is blatantly invalid it's okay because a friendly magistrate signed off on it.

7) The TSA attorney mentioned here has had her subpoena from the defense quashed. Now she's unavailable. Which hearsay exception will the defense assert?

8) Shocked! Shocked, I am! The 4th Circuit has overturned a downward departure from the theoretically non-mandatory federal sentencing guidelines. Here's a clue folks, you can say they're constitutional all you want because they're not mandatory, but if you force trial judges to follow them they're mandatory.

9) A prediction of how sentencing will go in Abramoff's trial.

10) California's instruction for jury note taking.

11) DUI blood experts caught with a script telling them exactly how to testify (no matter what the pesky actual facts might be).

12) Police issuing "snitch-tickets", lying to people about putting a bad mark on their driving records if they don't turn somebody in for running a red light.

13) The feds get a judge removed because he prefers to investigate the government rather than proceed with the case.

14) Need to send a card to that special someone in prison?

Before I kill you, Mr. Bond, let me tell you my plan . . .

From United States v. Martin, ___ F3d ___, No. 04-6428 (6th Cir. 21 Feb 2006).

In fact, at oral argument counsel for the United States was asked if he could explain to the Court what types of offenses or common planning the government would concede to be related for the purposes of sentencing. Counsel had no idea. Instead, counsel spoke of such sophisticated planning that it believes is required under our case law that, in my opinion, only two types of criminals would be able to benefit from it: (1) perhaps a white collar criminal who keeps detailed records of the entire plan or (2) the James Bond movie villain, who prior to carrying out some grand scheme of world domination/annihilation, feels compelled to explain to anyone who will listen and in great detail (with intermittent villainous guffaws), each of the steps necessary to achieve his plan.<sup>1


1</sup> See also Austin Powers: International Man of Mystery (New Line Cinema 1997).

DR. EVIL: Scott, I want you to meet Daddy’s nemesis, Austin Powers.

SCOTT EVIL: Why are you feeding him? Why don’t you just kill him?

DR. EVIL: In due time.

SCOTT EVIL: But what if he escapes? Why don’t you just shoot him? What are you waiting for?

DR. EVIL: I have a better idea. I’m going to put him in an easily-escapable situation involving an overly-elaborate and exotic death.

SCOTT EVIL: Why don’t you just shoot him now? Here, I’ll get a gun. We’ll just shoot him. Bang! Dead. Done.

DR. EVIL: One more peep out of you and you’re grounded. Let’s begin.

Prior to this exchange and then again following it, Dr. Evil describes in great detail the separate crimes necessary to achieve his plan for world domination. Thus, if our Government ever does find Dr. Evil (or chooses to prosecute him despite his recent decision to be “less evil,” see Austin Powers in Goldmember (New Line Cinema 2002)), he will be one of the few, if any, criminal defendants, able to argue, consistent with this Circuit’s precedent, that all of his various crimes were “related” for purposes of the Guidelines.

It's actually discussed in depth here.

Georgia v. Randolph

Around the Blogs:

1) "Georgia v. Randolph provided an unusually clear demonstration of the competing models. [T]he majority opinion by Justice Souter rejects the property model in favor of the norms model [while] Chief Justice Roberts derides the norms model as 'a hunch,' and instead would follow a privacy model." Orin Kerr

2) "The lesson: Ladies, if you plan on inviting the police over to search for your husband's cocaine stash, make sure you do so while your husband is out drinking with his buddies." Marc's Miscellany

3) "Now this is of course a Fourth Amendment search-and-seizure case, and in some respects it's a limp-wristed decision (the police will now simply manipulate the circumstances whenever possible to get the potential objecting resident 'away from the door')." A Stitch in Haste

4) "Most troubling is Chief Justice Roberts' rambling dissent, arguing that any occupant's consent should overpower the desire of other residents to assert their 4th Amendment rights. In reaching this conclusion, Roberts conjures the plight of abused spouses, arguing that a prohibition against contested third-party consent searches would undermine domestic violence investigations. In his haste, Roberts ignores the numerous exceptions to the warrant clause that will permit searches in such situations. Sadly, evidence of domestic violence tends to be found on the victim, not in a desk drawer. Nice try though, Chief." Flex Your Rights

5) "Three reasons to read the Supreme Court's opinion in Georgia v. Randolph: (1) Chief Justice Roberts' brilliant dissent. (2) Justice Scalia's brilliant dissent. (3) Justice Thomas' dissent." Steve Dillard

6) "[I]t also makes me happy because Breyer did not take Roberts' bait and conclude that the need for entry in cases of domestic violence requires a degradation of personal privacy under the Fourth Amendment." Concurring Opinions

7) "Justice Roberts dishonestly suggested in his first dissent that requiring a warrant when one occupant consents to a search while the other occupant refuses to allow a search will hinder domestic violence investigations. If the victim is in imminent danger, or if the accused is about to destroy evidence the cops can enter the house under the exigent circumstances exception. On the other hand, if there is no danger, and if the evidence is secure, then what hindrance is it to go get a warrant?" Alablawg

8) "In Randolph, the Supreme Court merely refused to expand the Court-codified doctrine of 'warrantless searches of homes.' When a Court refuses to expand a prior activist ruling, the Court is engaging in judicial restraint. Conservatives should applaud." The Radical Moderate

9) Ummm . . . Does anybody out there translate Russian?

----- ----- -----

My Take

Facts: The police asked one person if they could search the house and were told "No." They then asked another person whom they knew to be antagonistic to the first person (estranged wife) and got permission.

Finding: Evidence found in the search must be suppressed.

Widest reading: Police must get permission from all present residents before conducting a constitutionally valid consent search.

Probable reading: If any resident specifically objects to the search the fruits of that search cannot be used against him.

Narrowest reading: Police must adhere to the decision of the first resident whom they ask to permit a search. A subsequent decision by a another resident will not vitiate the first resident's decision.

On the one hand, I must admit that I didn't really expect this opinion to turn out this way. I've read any number of cases stating that if something is in an area where more than one person had access both can give permission for a search.

On the other hand, the equities of this case were not on the government's side. It's a basic rule we all learn when we are young: if you ask Mom for a candybar and she says "no" you don't go ask Dad - or more accurately, if you are anything like the kids in my family, you do (at least once) but you get in serious trouble for it later. So, the government didn't come to this case with the cleanest of hands. You must wonder how this case would have turned out if the wife had initially agreed to allow the search and the husband had then intervened to state that he objected to the search.

Future questions: Let the games begin! Will the first refusal to allow a search stand indefinitely? This would be the simplest rule but I think it unlikely (courts tend toward complexities when simple would lead to a failure to convict). How much time must the police wait after the refusor leaves the residence to ask another resident for the ability to search? Does the intial refusor abandon his rights by walking down to the corner store for ten minutes to buy a Coke and return to his residence? What if he goes to the mall for a couple hours? Does he abandon his rights when he goes to work from 9-5? What if he goes on a week long "CLE" to Europe? Sadly, I think courts will come down closer to finding abandonment in the 10 minute walk to the corner store than the week long vacation (er, I mean legal seminar).

Evidence Missing in 100 Cases

Sometime in late January or early February the police chief in Hopewell, Virginia suspended a number of his officers by letter without telling anyone why. He brought in the State police to patrol his streets and rumors began that something was wrong in the evidence room. One case is dropped because of lost evidence and the Chief absolutely refuses to talk with anyone about what is happening. In mid February the City council calls in the city manager and question him for two hours - apparently getting no answers.

A lack of action by the City Council prompted an attorney representing one of the officers to send a letter to the local prosecutor and ask him to convene a grand jury to investigate the matter. After seven weeks, a defense attorney filed a motion to compel the chief to testify about chain of custody. Despite being served the subpoena in late February the Chief waited until the day before the hearing to file a motion to quash and even the prosecutor "only received the motion to quash Wednesday morning by mail, despite the fact that Wilmot had filed the motion in the Circuit Court Clerk's Office by hand Tuesday morning." The judge admonished all parties to talk to each other and rescheduled the hearing for yesterday.

In yesterday's hearing the Chief still didn't testify but he answered written questions from the prosecutor's office:

1) "Evidence including drugs and about $10,000 in cash are missing in roughly 100 criminal cases"

2) There is "missing evidence in drug cases dating to 1997. Money is missing from cases that date to 1989"

3) However, "[p]roblems with the evidence room are not related to the two-month-old investigation being conducted by the Virginia State Police and the FBI into personnel matters at the police department."

Wow, the missing drugs and money weren't even important enough to make it onto the Chief's radar. It makes you wonder what the heck is going on in Hopewell.

Is It a Crime?

Here's a question for all ya'll out there who do white collar and work above my pay grade: Lets assume that two companies who dominate an industry (lets say Marvel and DC Comics) decide to collude to trademark a generic term which neither of them created (oh, say like the word "superhero") and which is not specifically brand related to either company (as opposed to Marvel's use of "X Mutants" or DC's use of the term "Metahumans"). Now lets say that the two dominant companies start threatening legal action against smaller companies who dare to use the generic term.

Is this a crime? Keep in mind, trying to make a good faith claim that the generic term "belongs" to the two (supposedly) competing companies doesn't even pass the red-face test. And, if it is a crime, what actions can be taken?

Question inspired by DC and Marvel actually trying to forbid anyone else from using the term superhero.

Can't Search if One Resident Says "No"

Or, more accurately, it appears that you might be able to do the search but any evidence garnered cannot be used against the objecting party.

It Snowed

Yep, it snowed in Virginia on 22 March 2006.

A military panel finds a dog handler guilty of scaring Iraqis with his dog.

"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 federal supreme court has now interpreted this to mean you only need probable cause to believe you will have probable cause at some future time.

The FBI can't afford email.

What do you do when a couple of kids try to break into your house? Jump barefoot into your truck, chase them down, tell them you are an officer, and make one of them call the real police.

Father-son bonding is a good thing. Father-son bonding while stealing a car . . .

A soldier in China steals from Disney and gets a fine. Why is this news? Probably because the usual punishment would be a firing squad.

Prosecutorial Pain: Zacarias Moussaoui

Imagine, you are the prosecutor in a terrorist case which has gained international attention (Germany, Britain, France, India, Middle East) because of its connections to 9/11. Your theory of the case was one which was somewhat shaky but the case is important and you have the entire federal government backing you on this one so you go forward to try this guy and subject him to death by lethal injection. Things in your favor? The guy's a maniac who pulls a surprise guilty plea out of his hat, refuses to cooperate with his attorneys, and is being a true jerk in the courtroom; he may actually be trying to become a martyr. Things against you? The trial judge already threw out the death penalty part of your case once and you had to get the 4th Circuit to overrule her. The defense has already moved for a mistrial because you said something he construed as inferring that the defendant should have spoken to the police after he invoked his right to remain silent. All-in-all, so far the case seems to - at least - be going okay.

Then one of your expert witnesses contacts you. A government attorney has been coaching her and 6 other expert witnesses using trial transcripts and talking points. WHAT???? No, that can't be right. Nobody that you work with would be dumb enough to violate the sequestration order and thru it the defendant's 6th Amendment right to an untainted confrontation with the witnesses; NOBODY would be dumb enough to violate the single, solitary specific sequestration example the judge gave: "[W]itnesses may not attend or otherwise follow trial proceedings (e.g., may not read transcripts) before being called to testify."

You investigate. It wasn't a prosecutor; it was an attorney for the Transportation Safety Administration (TSA). This offers little comfort. It means that nobody in your office is an idiot but you're still responsible for all the acts of all governmental actors. And, boy-howdy, were these some amazing acts.

The tale starts with the civil lawyer for American Airlines getting a copy of transcripts. He forwards a copy to a civil attorney for United Airlines. The United Airlines attorney then forwards the transcript to the government's TSA attorney. The TSA attorney then starts contacting the 7 aviation security experts the prosecution plans to call, sending them the transcript and emails:

"My friends Jeff Ellis and Chris Christenson, NY lawyers rep. UAL and AAL respectively in the 9/11 civil litigation ... all of us aviation lawyers, were stunned by the opening. The opening has created a credibility gap that the defense can drive a truck through. There is no way anyone could say that the carriers could have prevented all short-bladed knives from going through - (Prosecutor) Dave (Novak) MUST elicit that from you and the airline witnesses on direct...."

In follow-up emails the TSA lawyer coaches:

"[S]he urged FAA witnesses scheduled to testify for the government to openly acknowledge that agency X-ray machines could not identify all short-bladed knives like those used by the Sept. 11 hijackers so they would not appear to be concealing the limitation.

She urged Lynne Osmus, assistant FAA administrator for security, to stress that the agency's 'multilayered system of aviation security' would have 'thwarted the attacks.'"

You also find out that when the TSA lawyer told you that the expert witnesses didn't want to talk to the defense attorneys she "had never told the witnesses that Moussaoui's attorneys wanted to speak to them, and that they had the option to talk to the defense." OMG! You have no choice with such an egregiouss breach - you must turn it over. So, you give one email to the defense and the rest to the judge urg[ing] the judge to review [the] e-mails privately before deciding 'whether they must be produced to defense counsel.'"

Needless to say, this does not make the judge a happy lady: "In all the years I've been on the bench, I've never seen such an egregious violation of the court's rules on witnesses." "This is the second significant error of the Government affecting the constitutional rights of this defendant. More importantly, it affects the integrity of the criminal justice system in the United States." "I don't think in the annals of criminal law there has ever been a case with this many significant problems." Despite the testimony of the experts that they were unaffected by the transcript and emails the judge excludes them all from the trial: "Whether the witnesses have actually been tainted or not is almost impossible to tell. There are a number of errors so serious that that portion of the government's case has been seriously eroded." She also excludes all aviation security experts.

You go back and plead your case to the judge. Your theory is that if the terrorist had told what he knew before 9/11 the attack would have been stopped. Without airport security experts you can't pursue that line of reasoning. You make it pretty clear to the judge that you will appeal (again) if you cannot get new experts: "We don't know whether it's worth us proceeding at all, candidly, under the ruling you made. Without some relief, frankly, I think that there's no point for us to go forward."

Finally, the judge comes around. Your original experts are still excluded but you can call different ones as long as you give the defense 3 days notice and they are "untainted."

So your case continues. You have two major problems to work around, but the case goes on. First, where do you find an expert who isn't already tainted by the proceedings? Under the sequestration order you cannot call any witnesses who have been following the trial. Even if there were security experts who stuck their collective heads in the sand for the majority of the trial when their fellows were involved in a scandal with the TSA and it was splashed everywhere even the most blind surely paid attention. The second is the massive gift the TSA lawyer et al. have just handed the defense for impeachment. Lawyers who deal with this sort of airport security for a living don't believe your case can stand and apparently the experts which you had previously lined up were at least partially in agreement.

This case has gotten very interesting . . .

Is "Broken Windows" Broken?

No.

Now, I don't believe that "Broken Window Policing" stops major crime. I've seen reports claiming that crime dropped everywhere at the same rate as it did in cities where broken windows was touted.

The problem is that broken windows isn't something that would show short term gains. It's a long term - and only partial - solution. When I say long term I mean couple of generations not 10 years; unfortunately, I think this is too long for the program to keep any kind of political support. Pushback and the constant need to have a new politically exploitable program which each politician can claim as his own at the very least changes programs (i.e. Project Exile became Project Safe Neighborhoods).

These sorts of "simple" programs are not immediate impact programs. Instead, they are long term subtle impact programs. Their impact would be impossible to measure in a 10 year window. Crime rates in that period could be reflections of all sorts of societal matters ranging from the improbable - abortion brought down the crime rate - to the possible - a different demographic group among the lower classes has brought a different set of mores precluding a high crime rate. I'm not sure how you would measure it but if you were to measure the effect it would have to be over at least 2-3 generations of constant enforcement. If someone grows up and sees that no one care about his neighborhood or about the people in it that must have an impact. Broken windows, addicts panhandling or passed out in a doorway, people dealing on the corner, hookers walking the street, etc., none of these are things which produce a fruitful environment.

What happens when the police clamp down on these things? At first you get some superficial changes. Citations get the windows fixed. A young kid who "tags" the local market cleans the entire building as part of community service; an older kid who put him up to it gets detention or house arrest. The addicts and hookers and dealers move to alleyways or somewhere inside (BTW, this only works if "broken windows" is wide spread so that the whole show doesn't just move two blocks down). The people in the neighborhood are probably not all that happy because (1) no matter how many times people say they want law & order they are not all that happy when they are made to obey the rules (who wants his kid sent to detention for breaking a window? After all, boys will be boys), and (2) because they won't believe it; they've seen to many sweeps and crack downs where the police were there for a week or a month or maybe even a year or two, but the police always leave because something always ends up getting a higher priority - the trouble always comes back when they leave. People outside the neighborhood will be upset because (1) How dare they do this thing? They're arresting people for all sorts of garbage charges because they are [fill in your social group of choice]. Nobody in the affluent area of town gets arrested because he litters. and (2) because a lot of people outside the neighborhood own those crummy buildings which the locals rent for extremely low amounts. If they have to start fixing the buildings then they can't profit.

But what if the police continued to do broken windows policing and it became a matter of course? Everyone knows that a broken window is a citation offense if the owner doesn't fix it and the kid who did it will get punished if caught. Buildings and streets stay in better shape. The fact that the pushers, dopers, and hookers have been pushed off of and kept off of the streets may not actually stop crime, but it does emphasize that it is wrong and that police are looking for it.

Now imagine a third generation male growing up in a neighborhood under constant broken windows policing. His is still not a perfect life. He probably knows where the drug houses are and where he can go to find a prostitute. However, he doesn't have to run a gauntlet as he goes in and out of his apartment and walks to and from school. There's probably still a draw from the quick money in drugs. But the openness of the drug culture isn't nearly as prevalent. His expectations are different; he expects a clean street and to have to go looking if he really wants trouble (though maybe not as hard as others). His chances of improving himself or of just living a good, solid working man's life in a decent neighborhood have increased markedly.

I'm not foolish enough to think that broken windows is a panacea. It's not. It's a long term system which, if kept in place, increases the possibility that more people can live a better life. It would need to be augmented by many things like educational opportunities and jobs, but I suspect these are things more likely after a broken windows policy has been successfully in place for several years (or at the very least would be a significant boost to them).

Of course, as I stated above, I am also pessimistic that the very necessity of such a program being long term is the reason that it will fail - we just don't seem to have the political attention span (or will) needed for such a thing.

An Alaska blogger moves on. Good Luck.

OrinKerr.com

As many of you probably already know, Orin has struck out on his own. Orin has always been one of the more interesting reads over at the Conspiracy (although I may be biased because I like the fact he talks about criminal law more than the other Conspirators).

Stay tuned folks, it should be a worthy read.

Why is it that every time I think I'm going to get some time to catch up I end up getting some disease or other? I have three whole cases this week but a bunch of stuff I planned to catch up on.

Saturday I woke up with my nose totally clogged and some sort of massive respiratory infection. Most of the day was spent in bed. Sunday I dragged myself into work but basically just sat there in misery not getting anything productive done and eventually went home and back to bed. Monday I got up and went to juvenile domestic court for the ten minutes it took the prosecutor to dismiss. I thought about going back home but pushed my luck and went down to the regional jail for a quick visit. By the time I got there I wasn't feeling so hot, but I stayed because the meeting should only take 10 minutes. By the time the meeting ended I was sweating like a stuck pig and the drive home was an adventure. I take a file in with me and set my alarm to wake me at 3:45. I wake up just long enough to call one of my client's mother and let her know what is happening in his case; as soon as that's over I crash until my dogs get desperate enough to wake me for a walk (sometime after midnight) and then sleep thru to the next day. I stayed home Tuesday although by that time I'd slept so much that I just spent most of the day staring at the TV. Of course, I had a couple calls from clients and their family members via cell phone so I wasn't entirely off the clock. Today I'm back at the office. Of course, now all the stuff I had planned to do Monday and Tuesday to catch me up has piled up and I'm behind. Just wonderful.

Germs and viruses must have some sort of radar which lets them know when I'm going to vacation or have a light week. It's either that or some weird psychosomatic stress thing. Either way, I now know that I can never retire. If I get ill when I have a light week I can just imagine what would happen the day after I retired: "Um, Mr. Lammers, I'm Doctor Eagrman. They just flew me in from New York because I specialize in unusual diseases. Do you have any idea how you came down with a form of plague which has only been found in Zambia and hasn't been seen since 1436?" "Sure Doc. You see, I retired yesterday . . ."

Anyway, that's the reason posting has been light lately. Hopefully I'll get something up later today or tomorrow which actually pertains to criminal law.

Material Witness

I understand the potential need for a capias (or bench warrant for those of youse in States where they no longer use Latin) for a witness who will not come to court after he has shown a willingness to skip the court date; I might even agree with the use pretrial if there is an extreme case and the use is very tightly controlled and monitored. However, if you want the proof of how dangerous "material witness" laws are you need look no further than the people who have been arrested under these laws because the police think they might possibly have been maybe involved in something criminal.

It's hard to find an exact figure of how many people have been "detained" as material witnesses in what is a thin cover for an unconstitutional arrest. This 2002 article describes how the federal statute has been used:

The Department of Justice has not released an exact tally of persons detained as material witnesses, but it appears that the bulk of detainees who were first detained were brought in as material witnesses. As the investigation continued, many of the "material witnesses" were released or charged with crimes. For example, Osama Awadallah, a student from San Diego, had originally been detained as a material witness after investigators found his name and phone number on a piece of paper in the glove compartment of a hijacker's car. Awadallah told the grand jury that he did not know any of the hijackers, but changed his testimony once he was confronted with evidence that he did know a few of them. Awadallah was charged with perjury and is now being held as a criminal detainee rather than as a material witness. At the time of this report, it appears that only a small portion of the remaining detainees are being held as material witnesses.

BTW: I think the Awadallah case is still ongoing. The district court threw out his statements to the grand jury as product of an unconstitutional detention but the 2d Circuit reversed. The latest volley in this battle seems to have been the feds trying to get grand juror's testimony in as to their impression of Mr. Awadallah as he testified (rejected by both the trial and appellate court: sorry can't get a good link but the 2d Cir No. is 05-2566-cr).

How to Get A Judge Mad

So, I'm coming out of the lockup area where I've just finished explaining to a client what the judge has done in her show cause hearing. Her hearing went pretty well and the conversation was fairly painless. I overhear this conversation:

Judge: We're here to consider whether I should put you in jail because you didn't go to your court ordered alcohol treatment program and when we tested you this morning you have a blood alcohol content of .12. You're only 19; you shouldn't be drinking at all.

Defendant: I only had a couple of beers.

Judge: 2 beers? Two Beers? WHEN DID YOU DRINK THEM? 5 MINUTES BEFORE YOU WALKED INTO COURT?

I had to go to another courtroom and thus missed the end of that conversation. However, I suspect things probably went downhill from there.

Fatal Hit & Run Suspect Killed Girl, 13, in Tennessee

A woman arrested for a fatal hit-and-run in South Richmond (VA) spent several years in a Tennessee prison for killing a 13-year-old girl during a hit & run in 2001. The picture to the left is her actual booking photo/mug-shot.

UPDATE: Murder charge to be sought in hit-and-run case-
Prosecutors to request indictment; suspect asks for treatment program

This is a Commonwealth . . .

I'm explaining to Client's dad the plea agreement reached in court yesterday:

Me: "The three felonies got reduced to two misdemeanors, but he got 12 months on one misdemeanor and 11 on the other. Because it's misdemeanor time he'll only serve half of that and he'll be out in about 11 1/2 months."

"If we hadn't agreed to the plea deal they could have easily convicted him on the first felony charge (third offense petit larceny elevated to a felony) and, because of his NY robbery conviction and 11 prior petit larcenies, he would have - at the very least - gotten a year and six months felony time and served 85%."

Dad: "I told him not to come down here to Virginia or Connecticut. This place is a Commonwealth and you don't wanna be in no Commonwealth. This place is even worse than Connecticut . . ."

EUREKA! I now know what we should put on the signs which tell people they're entering the Commonwealth of Virginia.

Welcome to Virginia
This Place is Even Worse than Connecticut

What Just Happened?

I'm in court on an interesting day. The general district court judge has had all sorts of interesting cases before him. There's the pro se Greco-New Yorker arguing that the police officer is lying about the drunk in public charge - claiming that he was perfectly sober, never took a swing at the officer, and that he always looks like he's drunk ("Look! My eyes are bloodshot right now your Honor! I guarantee it!"). Later there's the lesbian lovers breakup / B&E case. In between I have a client who is coming to court for what I thought was an extremely minor trespassing case. Apparently, I was wrong.

We come to the bench and I waive the reading of the charges and plead Client guilty. Judge Smith asks the prosecutor to summarize the evidence but the officer whispers in his ear and the prosecutor calls Witness - a lady who lives in the apartment complex.

Witness testifies that she heard some people being loud and looked out her window. She sees Client and another guy talking and walking away from the apartments. Later, Witness goes to Owner and tells him Client was on the property "because I hadn't seen him there for a long time." On cross I ask her if she saw him doing anything but walking away and she says "no."

Judge finds Client guilty. Prior to sentencing, Prosecutor calls Owner to testify. Owner testified that in 2003 Client was banned. In 2004 Client was convicted of trespassing on the property "and now we're in court again!" I don't cross (as a much better attorney than I am once told me, if all the water in the well is poison there ain't no reason to prime the pump).

Then I call Client. Client testifies that he dropped a fellow worker off at the apartment complex and walked over to say "hi" to Joe because he hadn't seen him in a while. Then he left.

Then comes argument:

Prosecutor: "Your Honor, I ask for jail time. He needs to know he can't go back to that property."

Me: "Judge, it's a very minor infraction. Witness told you that she hadn't seen him there for a long time. It's been two years since the last time . . .

Owner: "YOUR HONOR! Can I say something?"

Judge: "No. Go ahead Mr. Lammers."

Me: "It's been over two years. He wasn't doing any damage or causing any mischief. At worst, he might have been a little noisy. I realize you're probably going to require some punishment and I'd ask for community service."

I'm figuring the judge will either bite on the community service or give Client a weekend or two in jail. So much for my precognitive powers:

Judge: "Mr. Client, Mr. Lammers has done an admirable job in representing you. (Aw crud) He's pointed out some of the better options available for you. However, considering the aggravating circumstances . . ."

At this point I star thinking aggravating circumstances? What aggravating circumstances?

Judge: ". . . considering the aggravating circumstances I'm not going to take your attorney's suggestion. I'm sentencing you to 12 months with 6 months suspended."

Holy Crud! Where'd that come from?

I ask the judge to let Client's bond carry over for an appeal to circuit court and the judge agrees to it. Client then gets to spend a hour in lockup waiting for the paperwork on his appeal to be done so that he can get back out and come back for his trial de novo in the circuit court a couple months down the line.¹

All I can figure is that the judge saw the acrimony in Owner and gave him the pound of flesh, knowing full well that I would appeal anything that drastic. My only proof of that is the disproportionate sentence and the fact that the judge didn't even bat an eye when I asked that the bond carry over for the appeal.

Of course, there was one other possibility: the prosecutor might have had some embarrassing photos of the judge from some bar function or prosecutor get together (yep, yet another judge who used to be a prosecutor). The only problem with that theory is that the prosecutor was surprised by the sentence just as much as I was and the judge is just too much of a straight shooter to have ever done anything incriminating.

Oh well, the next go around hopefully those "aggravating circumstances" won't reappear and I'll be able to get my client the community service he should have gotten.



¹ The inferior trial court in Virginia is constitutionally infirm so everyone (no matter how he pled in the inferior trial court) has a right of appeal to the superior trial court where there are trials of record, juries, etc.

Suing Crime Stoppers because it won't pay.

Crime problems at Fort University of Cincinnati.

Terrorists arrested while planning to end terrorism.

Teenage boys catch an internet perv.

New LawCast

There's a new video up. It starts by reviewing Las Vegas Law (from Court TV). Then it moves on to what business factors a law student should consider in deciding where to practice law.

Man faces charges for keeping a lion cub

A Scott County (Virginia) man was charged with two misdemeanors yesterday... after authorities discovered an African lion living on his farm.

A Law of Another Flavor: Godwin's

Godwin's Law has been around for quite some time and used in various online forums where people discuss whatever topics tickle their fancy. The law is basically:

The longer a discussion continues the higher the probability that someone will use an analogy comparing someone or something to Hitler or the Nazis.

That's an interesting idea and it's been borne out over and over again from the old usenet groups all the way through current blogs. So what? Why is it anything more than an interesting (and annoying and sad) observation?

Because rules almost immediately sprang up in reaction to Godwin's Law. Think of Godwin's Law as a physics theory and the subsequent rules as the engineering making the theory into something actually useful. These are the two rules which apply whenever Godwin's Law is proven:

1) The person who invokes the Nazi analogy has lost the argument.

2) The argument ends as soon as the Nazi analogy is invoked.

There are some necessary exceptions:

1) If the topic discussed naturally calls for talking about Nazi's - i.e. WWII or maybe a comparison of what Stalin did compared to what Hitler did.

2) The purposeful invocation of a Nazi analogy in order to shut down a discussion is to be ignored.

There may be some other rules or variants which have appeared elsewhere, but I believe this covers most of the rules developed around Godwin's Law (they are certainly the ones I follow). You will often hear all of this referred to, in a shorthand manner, as Godwin's Law. This almost always leads to someone protesting that the entirety of the law and rules is not Godwin's Law - only the law is. Of course, they are technically correct - and usually they are dodging the point: they have proven Godwin's Law and don't want to be subject to the rules which then come into effect.

Why did these laws come into existence? Well, the problem which they address is that those making internet arguments tend to become emotional. In particular, those losing internet arguments tend to become very emotional (it's easy to remain emotionally detached when you are winning an argument). The loser will often descend into a rant and starting tossing the most hateful terms he can. Hitler and Nazi comparisons carry quite a bit of emotional punch and that punch usually ends up being thrown.

Admittedly, I don't see this as often as I used to. I think this is at least partially because of the identification of Godwin's Law and the development of the rules around it. However, I think that the decline in the emotional, failing-argument use has highlighted a second reason that the Nazi analogies were used: meanness. As the number of emotional proofs of Godwin's Law have declined, because people don't want to be frozen out by it, the use of Nazi analogies as a means of getting in an ugly dig has become more visible. This is not a new phenomenon, it was always around - it just wasn't as noticeable because there were so many people proving Godwin's Law thru emotional outbursts. And it has a key difference. The person proving Godwin's Law in this manner often isn't interested in trying to prove a point - he just wants to get in a dig and Nazi analogies are an easy way to do this because of the emotional baggage they carry.

One can argue - and some do - that this is not what the rules around Godwin's Law are meant to prevent. It doesn't represent an implicit admission that the person arguing has run out of rational arguments and is reaching for an emotional argument to tip the balance back or to strike back at the person who beat her. It's a first strike and can be done coolly and rationally, without the person invoking Nazis being emotional; all this can happen before the merits of the argument have begun to be explored. However, this argument is wrong. The point of the rules surrounding Godwin's Law is to keep the discussion in as rational a mode as possible. There are very few discussions in which the injection of a Nazi analogy does not cause an emotional reaction. It precludes (or at the very least makes difficult) a rational discussion from the point wherein the analogy is made. Thus, it colors the argument and is to be avoided if the discussion is to remain rational.

Around the Web

1) Austria criminalizes stupidity. Via SA

2) Blonde Justice experiments on her clients.

3) I've seen more than one judge keep a woman in jail because she was a drug addict and she was pregnant.

4) Mike is reading help wanted ads.

5) No jail for stripping your employee (at McDonalds).

6) The Evil Empire will be K-mercialized.

7) Y'know, this is just another comment to add to my potential Court of Appeals nightmare, but I can't help myself. Is it just me or does everyone else who looks at the picture think "Monty Python?"

8) Justice Ginsburg fell asleep during oral arguments. Via Q&O.

Supervisor Barber's talk recorded...

[[Note from Ken: Ed Barber is a county supervisor in the county where Tom prosecutes, I have the majority of my practice, and Steve was (prior to law school) a county probation officer]]

Prior to supervisor's arrest, police listened as he spoke on phone with accuser in sex case.
When this case first came to light, the media reported over and over again how "[t]he charges are not the first time Barber has faced accusations of inappropriate contact with juveniles." As those who are local may remember- the previous allegations were that he allowed kindergarten students to massage his shoulders. Police filed no charges in those complaints. Now, the alleged victim is 16 years old.

Prior to going to law school, I was in law enforcement for over 13 years (both city police and county probation). In my experience with child molesters, they generally stick to the same or similar victim profile. That is, if the offender has a preference for little girls, he stays with/preys on little girls. He doesn't "switch" to teenagers or young women.

I don't know what happened or what is happening with this case, but I believe that the press - by trying to tie-in the old allegations to these new ones - are trying to make the case that this guy is a serial sexual predator. He may be, but I'm sure the evidence is there yet.