31 May 2009

Things Learned Doing Ride Alongs

As a prosecutor, every so often I go along with a law enforcement officer on a "ride along." It's an interesting experience and I suggest it to anyone who has the opportunity because it gives you a look at what things are really like before they become sanitized in the courtroom. There are a few things that I've noticed on these rides:

1. People do not react well when a police car is coming down the road at high speed with lights flashing and sirens blaring. Some people just don't seem to feel they need to get out of the way. BTW, even if there are two lanes, and the passing lane is empty, pull over. A car traveling at a high rate of speed has a good chance of coming partially into your lane on that curve ahead. Worse is when people turn on their left turn signals and then pull off to the right. I've seen this twice, both times on two lane highways with little room for the officer react.

2. People drive poorly - even without alcohol. Cell phones, arguing with others in the car, eating that burger, &cetera all seem to be more important to people than staying in their lane and not swerving over into oncoming traffic.

3. Every time I've done a ride along there's been at least one mental or physical health call. Most of the time the mental health call involves keeping a scene as calm as possible until the ambulance arrives and is able to take the distressed person to the hospital. The physical health calls are usually things like someone slumped over the wheel of car by the side of the road. Not much can be done but to get there and get the lady to the hospital. Interestingly, civilians at the scene of mental health problems usually seem calmer than people at the scene of physical health problems.

4. No matter how many officers respond to a house/trailer/apartment complex they are almost always outnumbered. I'm not sure how this happens, but it seems that no matter how many officers arrive at the scene more neighbors, kin, or just plain troublemakers will simply appear. Much of the time the officers who respond to these kind of situations are peacemakers, calming everyone down and separating the two sides rather than arresting anyone.

5. The law requiring drivers passing police cars at a stop to pull over to the passing lane or (if unable) to slow down is an extremely good idea. It's amazing that more officers aren't hit as they walk back and forth between their cars and the cars they've pulled over. The side of the highway can be extremely narrow (at least here in mountain country).

6. Eating at a restaurant with a group of officers usually has this part in the conversation (regarding the restaurant's staff): "We've arrested him and him and her and, hmmm, when did Peter get back out of jail?"

7. The officers want to know how to do things right. Almost every time I've done a ride along there's been a discussion of 4th and 5th Amendment requirements brought up by the officer because he's heard that there's been some change (things like Gant and Montejo) or he's seen a defense attorney argue something in court or because he's had some tricky situation come up which he's unsure of.

8. People will admit the most amazing things to officers: "How do you know MaryBeth stole your transistor radio?" "Well, she and I were in my apartment last night doing some shrooms and the radio was there. When I woke up in the morning MaryBeth was gone and so was the radio."

28 May 2009

Montejo: The Defendant Must Assert His Rights Directly to the Officers' Face

Important Cases Involved: Montejo v. Louisiana, Michigan v. Jackson (overruled), Miranda v. Arizona, Edwards v. Arizona

Tuesday the Supreme Court went out of its way to squash the 1986 decision Jackson. In Jackson the Supreme Court had, under the 6th Amendment, expanded the protections against constitutional violations by stating that as soon as an indigent defendant asked for an attorney to be appointed he had asserted his right to have an attorney present at all important parts of a trial, including any subsequent police interviews. Louisiana played games with the Jackson decision. Its supreme court ruled that because a defendant didn't actually request counsel when he went to court and had an attorney appointed, he didn't get the protection of Jackson.

Reviewing this, the US Supreme Court decided that because in some States indigents have attorneys appointed upon a showing of lack of funds rather than a request Jackson had to go. It backed this by stating that the 5th Amendment provided redundant protections, via Miranda and Edwards which are not being removed by the revocation of Jackson. It then sent the case back down to have a 5th Amendment analysis done.

Before I discussed this, I wanted to take an opportunity to review Edwards because the Court seemed to both say that it provided redundant protections to Jackson and less protections (the reason the case was returned to the State courts for another analysis). In Edwards a defendant claimed his right to have an attorney present during questioning. The questioning stopped, but the next day the defendant was read Miranda again, waived his attorney and made incriminating statements. The court held
[W]e now hold that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the police.
Practical Application

As a practical matter, Motejo and Ventris render 6th Amendment protections during an interrogation non-existent. Combined with the basic reality that law enforcement plays by the rules we give them, this fundamentally changes the reality of police interrogation.

Law enforcement officers can interview the defendant at any point up to the time of his actual trial and are only required to stop if he unambiguously asserts his 5th Amendment rights. LEO's are not required to inform the defendant's attorney of this or have her present during the interrogation. Furthermore, non-coercive subterfuge tactics, such as placing an informant in the cell with the defendant, even after an assertion that the defendant wants his attorney present during interviews, would only be barred under the 6th Amendment from use in the prosecutor's case in chief, but could still be used in rebuttal.

26 May 2009

Croson, Diversity, & the Virginia State Bar

"Diversity" has a long history of being used to mask lowered standards and quotas for subsets of the human race. In US history this can be traced back to when Harvard's president was unable to use quotas to limit the admission of Jewish students (who scored well on the competitive entry exam), but the use of "diversity" reduced Jewish admissions to the desired 15% anyway.

In the modern era, the goal of "diversity" is something which we all should look at with suspicion. In particular, as lawyers we should look very closely at any such claim. A requirement that all people, regardless of ethnicity, gender, or creed, shall be equal under the law and that equals receive the same opportunities is laudable. However, the second "diversity" steps an inch over into the zone of set asides it becomes not just morally wrong, it becomes unconstitutional.

Anyone who has gone to law school post 1989 should know this. In 1989 City of Richmond v. Croson struck down governmental set asides for anyone in a specific zone unless in remedy of a specific past discrimination in that field and the set aside was the most narrow method of curing the discrimination. "Reverse discrimination" is just as much discrimination as any other under the constitution.

Of course, since Croson those who want set asides have learned not to say so out loud. "Diversity" has become the flag behind which they now gather. Those of us who would be excluded have become wary of this.

Comes now the Virginia State Bar, an administrative agency of the Virginia Supreme Court created by the General Assembly, and decides that it no longer needs to be the organization which patrols the activities of lawyers. It needs to be an organization engaged in social engineering. Through the last president and the current occupant of that office, we are having set asides pressed upon the Bar. The president wants to change the mission of the Bar, create a Diversity Conference, and create a seat on the VSB Council and Bar Executive Council for the Chair of that conference. Mind you, this is creating a seat based not upon expertise in any area of the law or judicial circuit representation or acclaim and recognition by the Bar in general, it's a seat solely because the person occupying it is "diverse."

With this in mind, it becomes extremely important to know what the president means by "diverse." However, the president of the Bar, being a lawyer, knows better than to do that because it would make his initiative unconstitutional on its face.
IT HAS BEEN SAID that we need to precisely define diversity to create such a structure. I disagree.While diversity by necessity must not neglect consideration of race, heritage, and gender, for example, I believe that the term must be allowed to evolve.
I'm surprised he actually went so far as to admit race, heritage, and gender must be considered (be the admission ever so backhanded). Nevertheless, without defining it he has declared it extremely important in the pursuit of the law.

Via the Virgina Lawyer (our Bar magazine), members have raised strong, well-reasoned objections to this as outside the scope of the Bar's function, a controversial social issue which the Bar should not get involved in, and an obvious beard for quotas. "'Diversity' Ends in a Racial Headcount", "Disband Task Force,Withdraw Proposal", "Rule of Law Not Linked to Diversity", "Focus on Individuals, Not Groups", "Disband Diversity Task Force".

Will these letters stop the Bar president? Probably not. Let's be honest, most lawyers couldn't give a hoot as to what the Bar is doing (right or wrong) unless it impacts their life or they need its protection. No one I've talked to even knew this initiative is pending. It'll get through without the notice of the vast majority of the Bar.

Next comes the possibility of legal challenge. After all, the Bar is created by one branch of Virginia's government and serves another; it's a government agent. Can it create these set asides? In particular, can it set aside a position on the VSB Council and VSB Executive Council based upon "diversity?" It's a question which might require some data before the question can be decided. After all, by opening the diversity committee to individual lawyers the Bar allows all Bar members to join. In other words, there won't be a sign at the door saying "White Male Christians need not apply." It's theoretically possible that this committee might actually be diverse. If the membership distribution of the conference is roughly equivalent to the membership distribution of the Bar and its leadership reflects such the conference would be constitutional. Want to take bets on whether that will be the case?

20 May 2009

Because Even a Defense Attorney Might Want a Badge



If you're suffering from a serious case of badge envy, you too can pay $120 and get an "Officer of the Court" badge made. It won't give you any real powers, or actually mean anything, but I'm sure it will impress someone.

18 May 2009

"Holier Than Thou" / "There But For the Grace of God"

Sherry Colb has an article about what I think most of us who practice criminal law would recognize as the "those people" attitude. She gives it her own spin, calling it the "holier-than-thou effect." Basically, it is the inability of people see themselves as a person who would fail in situations where they were tempted - through chance, fate, or desperation - to break the societal compact as embodied in the law.

Ms. Colb goes further identifying 4 purposes to criminal law: retribution, deterrence, incapacitating offenders, and rehabilitation. She identifies retribution as the primary focus of the American system based upon the lack of rehabilitation programs in prisons in combination with rapes and gangs. Then she concludes that locking someone away in this situation, away from law-abiding citizens is a bad thing, so that shorter sentences are most likely preferable.
Indeed, the situation-dependent nature of behavior counsels against surrounding a person convicted of wrongdoing with other criminals for long stretches of time, during which he will be almost entirely cut off from what lawful behavior in civilized society looks like. Shorter and less brutal sentences, coupled with humane and educational transition opportunities for former prisoners, could yield better results for everyone.

To take into account the holier-than-thou effect might also facilitate the forgiveness necessary to our ability to think logically about the problem of crime. If we are filled with rage and hatred, it will be more difficult for us to imagine, and thus to allow, that someone who committed a bad act in the past might soon become (or might even have already been) a contributing member of society.
This article struck me as wrong in many ways, but I'm just going to concentrate on one here: Ms. Colb badly overestimates the effect of "holier than thou" on the system. Our system is far more dominated by the "there but for the Grace of God" thought process.

Here's a graphic of how I've observed the punishment of offenders in the time I've been practicing.



I've tried to be a little conservative in my estimates for this chart. In reality I think that the downward slope is more severe. However, I don't have actual figures, so I adjusted by assuming higher numbers of more severe punishments. In any event, it gives a true view of how offenders are actually punished.1

Why is there such a severe downslope? Because the greatest number of offenses are treated with mercy. People just don't get thrown in jail for reckless driving, DUI, writing a bad check, or most misdemeanors the first time they are convicted (without aggravating circumstances). There's a good chance they won't go to jail for a second or even third misdemeanor conviction, particularly if they are different types (driving suspended, bad check, assault and battery). Furthermore, there's a whole slew of felonies wherein the first conviction will only get an offender probation.

Next come the convictions which should lead to incarceration, but do not because they are somehow diverted. Sometimes this is just having a case continued to be dismissed if there are no problems for a year. In other cases there are drug courts, shoplifting classes, anger management programs, and/or community service given in lieu of incarceration.

Then come the minor incarcerations. I don't know how many offenders get a couple days in jail or 10 days or 3 months, but I lay odds that by far the largest number of incarcerations fall within that range. Misdemeanor courts hand out punishments such as this daily and any misdemeanor court which has significant numbers of defendants appearing before it probably hands out several a day. Felony courts hand out incarcerations in the "up to 6 month" range all the time to offenders with prior misdemeanor records or their second or third felony conviction.

Even for those who actually have incarceration imposed there are mitigations against its effect. Most commonly these mitigations include serving time on days off of work (weekend time) and getting work release. However, it can also include things such as delayed reporting to jail, furloughs while in jail, or home incarceration. Even failing all of this, most every incarceration system has some sort of "good time" so that if the offender behaves he is not required to serve a certain amount of his sentence.

In my experience, to get more than a year an offender has to have a prior record, have committed multiple offenses, have committed a violent felony, or violated a particular law (firearm with drugs, 4th DUI, use firearm in felony). To get more than two years incarceration an offender usually has to combine two or more of these elements; 3 to 5 years usually requires even more of a combination of these elements. To get above 5 years the offender usually has to do something significant: armed robbery, rape, murder, etc. It may not be impossible to get above five years without having committed a major violent felony, but it'd be mighty hard (unless in a State with a very strict 3 strikes law). The most I've seen an offender convicted of larceny or the like get in Virginia is 5 years and even then it was a departure above guidelines.

Somewhere between 1 to 3 years of potential actual sentence comes the point at which mercy stops being an option. Even at 3 years a judge in Virginia can order the Department of Corrections to have an offender entered into a specific drug treatment program run in the prison. Still, there must come a point at which the tendency toward mercy must be overcome by obligations to the citizenry at large.

In these more serious offenses retribution, deterrence, and incapacitation are all tied together. A robber whom a jury sentences to 10 years in retribution is incapacitated for those 10 years and serves as a deterrence for those who consider following in his footsteps. However, when we consider the system as a whole, we must conclude that the system serves more of the purpose of deterrence and incapacitation. After all, no one really gets recompense (outside of restitution) in a criminal case. Retribution is at heart a distributive justice theory and no victim can have that which is taken in a rape or shooting actually returned by putting the other person in prison. At best, if one thinks that recompense can be made by putting someone in prison, the only person(s) brought back to equilibrium is the victim. For the rest of us it matters not whether the victim is made whole. For the vast majority of people the only effects are the protection of society through the incapacitation and deterrence.


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1 Please note that most of this is modeled on Virginia's judicial system and the sentencing guidelines in place in Virginia.

17 May 2009

11 May 2009

More on Flores-Figueroa

I got a couple interesting comments on my last post. Donald first raised the Rule of Lenity because the statute is poorly written. I couldn't quite get there, but it did start me thinking. What if you ignored the way the Court did its analysis and looked at the statute as a whole, considering "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" as a verbal phrase, thus rendering "transfers, possesses, or uses, without lawful authority, a means of identification of another person" into a multi-part verb all of which is modified by knowingly. However, while the thought was still nascent in the slow-grinding gears in my head, Neal Goldfarb stepped up and pointed to a blog post and his amicus brief. Both put forth strong arguments for that position. Both are better than the Supreme Court's "'cuz it looks right" explanation.

However, as textual interpretation is not strictly the same as grammar, I must say that I am not entirely persuaded by their arguments. The language of the statute is sloppy, but it does leave 2 separate occurrences which the defendant could have knowledge of: (1) the transfer, possession, or use & (2) the actual state of the identification. Knowing of a transfer does not require knowledge of the state of the identification. Knowing the state of an identification does not require knowledge of its transfer.

Still, the verbal phrase argument carries enough weight to make the phrase ambiguous and thus brings the Rule of Ambiguity into play. This then requires that a knowledge requirement be added to a means of identification of another person, because ambiguous statutes are to be interpreted in favor of the defendant.

Disclosure: I think the above to be a correct reading of the statute in its entirety. However, as I have previously stated on this blawg, I find strict liability in criminal statutes to be an anathema. I may be straining to get away from a reading which requires a strict liability if the identification happens to be that of another person, whether the defendant knows it to be or not.

05 May 2009

Flores-Figueroa: Forgiving Sloppy Statutese

[1] The USSC decided a case yesterday contrary to the actual language of the statute - using the language of statutory interpretation. In Flores-Figueroa, the Court had to decides "knowingly" is not an adverb but a substitute for the phrase "knowing it to be." The Court is interpreting this statute:
[2] knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. 18 U. S. C. §1028A(a)(1)
[3] However, when the Court is finished with it, the statute ends up being this:
[4] transfers, possesses, or uses, without lawful authority, a means of identification knowing it to be of another person.
[5] The Court's rationale is that
As a matter of ordinary English grammar, it seems natural to read the statute’s word "knowingly" as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word "knowingly" applies only to the statutes first four words, or even its first seven.
[6] Poppycock. Balderdash. Fiddlesticks.

[7] "Knowingly" does not equal "knowing it to be." To be certain, the statute is poorly written and would make much more sense if it were written in the manner which the Court decided to rewrite it. However, as we all learned somewhen about the 3d grade, "ly" is a suffix indicating an adverb. This confines it to the verbs, "transfers, possesses, or uses." Thus, the government is quite correct in claiming that "knowingly" applies only to those four words. The Court is correct in stating that "without lawful authority" (the next three words-making "its first seven") isn't modified by "knowingly" because they also modify the verbs.

[8] Before anyone argues that certain adjectives can also end in "ly", I concede the point. Words such as "lovely" are clearly adjectives: "the lovely dress." Still, the general rule isn't violated in this case.

[9] In any event, I invite you to diagram that statute. Go on, it's a skill we all learned in seventh grade English class. Okay, now look at that line which separates the verbs from the object. Which side is "knowingly" on? The verbal side. Or, if you don't have the rudimentary English skills to do that, just take "knowingly" and try to fit it anywhere into "a means of identification of another person" without changing the form of "knowingly." It doesn't work.

[10] Justify your decision another way. Tell me that the Constitution, via the common law, requires a defendant to intend every element of a crime. Tell me there's a rule of statutory interpretation requiring intent for every element of a crime. Heck, tell me there's a scriviner's error. Just don't tell me you've reached this conclusion "as a matter of ordinary English grammar."