What Makes a Good Drug Court?

Drug courts are all the rage in the current era. The legalize everything crowd loves them because we don't punish people for being addicts.  The fiscally minded love them because they cost a lot less than incarceration.  The defendants love them because they don't have to go to jail.  This is not to say that there aren't those who disagree with these programs. Generally, these people believe that wrongdoing should be punished - not coddled.


So, what do I think of all this? I think drug courts can be good programs.  "Can be" is the pertinent phrase in that statement. I've seen a few drug courts in operation and some are serious efforts to heal a person in need. Others are just there as a way to avoid sending people to jail. You can usually tell the difference by looking at how many people are in the program, how well the program is staffed, how many people fail out, and what the recidivism rate is. If there are 100 people in the drug court, 6 people staffing it, no one has been removed for the last 2 years, and half the graduates are back in court within two years, it's just an excuse not to pay to house individuals at the local jail.


What do I think makes a successful drug court? Glad you asked.


1) To begin with, if the program is actually holding its participants to a standard, a substantial percentage of them will not graduate. Let's be clear here. Drug court is a behavioral retraining program. It is openly manipulative and meddles in the lives of the individuals within it. A good program will use both carrots and sticks to train individuals in proper societal behavior. It will continue this retraining for a long enough period of time (at least a year) for it to supplant previously learned and chosen behavior.  


The people who come into the program will be naturally resistant to all of this. To begin with, we as Americans practically have it coded into our DNA that my business ain't your business; we don't cotton to people messing in our lives.  Additionally, drug users are usually steeped in trained lying behavior and can be very manipulative. A lot of times these people have been through short term "drug treatment" programs and been able to maneuver and lie their way through them without any real change in their lives. All of this combines to often make the first couple months in drug court not a pleasant experience for either the participant or the staff. 

This early part of drug court is where most of the failures are likely to occur. Anyone who has been to a few drug court meetings has witnessed an early participant stand up and swear she is 100% clean, hasn't used in months and she doesn't have a clue how she turned up hot for benzos and oxys on three separate drug tests last week.  The lie doesn't help her (usually it gets her a longer jail sanction), but she will not admit. This battle can take some time, but usually after about two months in the program (not counting jail sanctions) there comes a time to fish or cut bait.  At that point if, despite sanctions and explanations, the participant isn't making an effort to be clean, complaint, and honest - or at the very least two of the three (many will never admit their early failings) - the program needs to let her go and try the next candidate.


2 )  Size.  It's hard to say that there is an absolute optimal size for a drug court, but smaller is more likely to be better.  The larger the drug court is the easier it is for people to slide through and the harder it is to discuss everyone at staffing meetings. If there are 100 people in the drug court there's only going to be time to discuss the screwups. A vital part of drug court is rewarding good behavior and if all the court's allotted time is spent dealing with the participants who stumbled there won't be time to praise and reward those who deserve it.  This is a subtle but harmful failing. It changes the message from doing right is a good thing (have a reward) and doing wrong is a bad thing (here is your punishment) to simply doing wrong is a bad thing (here's your punishment). They already knew this message coming into drug court and it didn't stop them. A large part of the court's purpose is to try to train the participants to want to do good things in order to have them purposefully move in a direction away from the bad. If that's not happening the court is limping along.


The difficulty with drug court size is that no matter what size you limit it to there will always be other people who appear to be good candidates. That person's attorney will, with justification, ask why his client can't get in when John Smith got in just last week. It's not a satisfying answer to say "Because we only have 15 slots and they are all filled." Still, you must hold the line in order to keep your program effective.


3) Sanctions / Rewards.  There must be rewards for good behavior. However, you can't go overboard on these. If you could do it, the best way to handle this would be to give those participants who have done well a reward every week: a couple movie tickets, tickets to a local single A baseball game, a coupon for a free meal, &cetera.  Small rewards, given as often as possible, aid in behavioral retraining without raising the level of expectation too high. The goal is to cause the participant to associate good behavior with good things, but not great things, so that once she gets into the world on her own she can achieve good things and not be disappointed when great things don't continually fall into her lap.


The problem here will be fiscal. Unless a drug court is in a rich county, money for rewards will be scarce. Staffers will scrap and beg to get gift certificates and tickets. How successful they are at this endeavor will determine how often rewards can be given out.


On the other hand, sanctions have to be tiered. This needs to happen in two ways. There must be sanctions for failures to complete program requirements outside of turning up hot for drugs.  At  lower levels this will start with community service hours. However, continued non-compliance can rise to a level where the participant must be sanctioned with jail or even expulsion from the program.  The most creative punishment I saw in regards to this was a city which had a mounted patrol and sent those who were not compliant to muck stalls. You could see the look of horror on the faces of people who had lived in the city their entire lives when the judge sentenced them to clean horse stalls. 


The other set of tiered sanctions is for drug use. As a recovery program, use, especially in the early stages, is to be expected.  Sanctions for this should almost always be jail time, starting with two days and working its way up. Of course, expulsion is the ultimate sanction, but only as the last resort.  One thing to be considered in determining this sanction should be truthfulness. If the participant refuses to acknowledge the sanction should be increased. If the participant is evasive the sanction should be increased. If the participant is honest the sanction should be the minimum. The participant should be told very clearly why he is getting the sanction he is. If the participant is lying or being evasive he should be told "You were going to get 5 days, but because you lied you are getting 15." Likewise, if the participant is truthful he should be told something like "If you lied today you would have gotten 15 days, but because you were truthful you are only getting 5." Things like this must be made very clear to the participant and all the other participants observing.


4) Length of Time.  I've never seen a drug court that lasted less than a year and I do not believe that one of less time would be be successful. Anyone who has been in criminal court for any period of time has to develop a hefty dollop of skepticism when it comes to "drug treatment programs." Most are worthless. They may dry a person out, but most of them fail utterly beyond that.  I've never seen a program that lasted less than six months which I thought did anything other than give an excuse not to send a person to jail.  Six months seems to be about where the old patterns of behavior are left behind (this will vary significantly from person to person). The remaining six months are needed to build positive behavior, such as employment or familial skills, and to provide monitored reinforcement against backsliding. Anyone who has seen an addict come out of a program dried out only to watch her slowly fall back into her old ways understands that the second six months is every bit as important as the first six.


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These are the important big factors in a successful drug court. Beyond these there are many smaller factors which are too numerous to list and may vary from locality to locality. However, the four listed above are those which stand at the core of a good program.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : D. Understand Defense Attorneys

D.  Understand the Defense Attorney's Job

Remember, the defense attorney's job is to best represent her client.  This might well involve things which you do not appreciate. Not telling you that the defendant has an identical twin before he shows up as a defense witness is good trial strategy (at least in places like Virginia where there is no witness list requirement), especially after you played hard ball and said the defendant could plead straight guilty and get sentenced by Judge Dredd or take a trial.  Making a legal argument, that you had no warning of, on the day of trial, after jeopardy has attached, is good trial strategy.  Interviewing prosecution witnesses, including the victim, is allowed and a competent defense attorney will try to do it (you can tell the witnesses they can refuse to talk to defense counsel, or refuse to talk with her unless you are present; you cannot tell them they should or must do these things). The defense attorney does not have to tell you that she knows the primary witness in your case, whom you are desperately seeking, has moved to Alabama; in fact, she has an obligation to keep her mouth shut as long as she does not know of any illegal activity involved in the witness' change of address. These are only a few of the defense techniques, stratagems, and obligations which you and your fellow prosecutors will get very mad about.

Be careful about confusing negotiation behavior and trial behavior. A lot of prosecutors have a hard time with this because the vast majority of cases are settled through negotiation which is a semi-cooperative process. It is in the interest of a negotiating defense attorney to point out the weaknesses in your case in order to get a little better deal for his client. This openness comes from an understanding on the defense attorney's part that she is negotiating from a very weak position and needs to try to chip away with any tool she has. However, the second that the decision is made to go to trial - whether that is before the attorney ever spoke to you or after months of negotiation - the incentives are entirely reversed. Defense counsel preparing for trial has exactly zero reasons to tell you her strategy or the weaknesses in your case. She is setting out to beat you and telling you these things would allow you to prepare and possibly to counteract the advantages she has found. Since even a defense attorney preparing for trial is usually defending from a weaker position, she will not give you anything unless required to by law.

So, John Smith, who was in your fraternity in college and graduated from the same law school you did and is someone you consider a friend, pulls a trick out of his hat in the middle of a jury trial and catches you flat-footed. It's entirely legal, but he never gave you clue one that it was coming. How do you deal with it after the trial is over (obviously you fight and scream and argue during the trial)?  Well, if you win you suck it up and drive on. You've got a great war story to tell for years and you can tweak John about thinking he could actually pull that off.  If you lose allow yourself a three day Mad On.  We attorneys are competitive by nature and when we lose we can be quite irrational about it.  Avoid John for the three days, whine to your fellow prosecutors, spend time combing through the code and case law "proving" beyond any shadow of a doubt that Judge Greene should never have allowed that evidence in, drink a few beers, and generally allow your maditude to run its course. At the end of three days get over it, suck it up, and drive on.  John did his job; you did yours. This time he won. He won't the next four times.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : C. Trusting Wrongly

C.  Do not trust wrongly

This is the hardest single lesson to teach prosecutors, young and old. The defense attorney has an ethical duty to disclose everything about the case to his client. EVERYTHING.  If you disclose to the defense attorney the entire setup the local vice cops have in your county and it has something to do with his case the attorney must tell his client. If you tell the defense attorney the name of the confidential informant the attorney must tell his client.  If you tell the defense attorney that the primary witness has moved to Saskatchewan and won't be available for trial the attorney must tell his client. 

Do not put the defense attorney in the position having to choose between his relationship with you, as a prosecutor he will have to deal with many times, and his client, for whom he is an agent. If you are about to (or should) start a statement with, "Look, don't tell your client but . . ." then you need to just keep your mouth shut.  Once you've done that to a defense attorney he has two choices. He can betray his client and keep your confidence or he can hurt his relationship with you and do his legal and ethical duty. The better defense attorneys will live up to their obligation to their clients. And you will get angry at them for your failure.

On the other hand, when a defense attorney tries to get you to tell him something you shouldn't, don't let yourself get get sucked in. When you hear the words, "If you tell me I won't tell my client" you have either been lied to or the defense attorney is offering to act unethically. Obviously, if the defense attorney is lying to you you should not reveal the sought information.  As well, you should neither be participating in nor encouraging unethical behavior. I see this most often in a couple circumstances.

Example 1:  In the middle of discussing the facts of the case the defense attorney says something like, "The CI's not his mother, is it? Client thinks its his mother. I think it's the neighbor. Which is it? Don't worry, I won't tell Client." If alarm bells aren't screaming in your head at this point, you are entirely too trusting and should look into becoming a lawyer who writes wills for a living.  

Example 2:  You're talking to a defense attorney who has approached you about his client testifying against his co-defendants. You say you'd be happy to have his testimony, but you won't promise anything in result for it. The defense attorney pushes you. "You can tell me what the deal will be and I won't tell him. It will give me an idea of whether I should recommend this course of action or not." The unspoken idea here is that his client will be able to go to the stand and testify that he doesn't know what will happen to him after he testifies.  Don't do it.  To begin with, it is not ethical for the defense attorney to refuse to disclose that information to his client (who will inevitably ask). Even if the defendant agrees not to know, you benefit naught from this. Because the defense attorney has an ethical duty to disclose that information to his client, you have to act as though it has occurred and have a constitutional (Brady, Giglio) duty to disclose it to any attorney for any defendant who will be cross examining the cooperating defendant.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : B. Verify

B.  Set a level beyond which you verify anything no matter how much you trust the attorney

Trust but verify. I know it's a hackneyed phrase, but it does represent a certain reality. You must set a level below which you will not apply trust to anyone, even the defense attorneys whom you most trust.

Why?

Well, for a variety of reasons. Foremost among those is that even the most forthright defense attorney is often operating with limited knowledge - usually what her client has told her. 

Example 1: Defense attorney wants a three month continuance of the trial date because her client is going to have surgery next week and will need time to recover. Get proof from the doctor, hospital, etc.  Often, that impending, life necessary surgery the defendant has told his attorney about will turn out to be an appointment to explore the possibility of elective surgery. The defense attorney only knows what her client has told her.   

A good way to handle this situation is to require the defense attorney to get a letter from the doctor's office - which has never been touched by the defendant or his people -confirming the nature and necessity of the doctor's appointment. Without such a letter you will vigourously oppose any continuance on the basis of lack of proof. The reason you put this back on the defense attorney is that she can get a waiver from her client that will allow the doctor to disclose. If the defense attorney can't get her client to sign such a waiver it speaks volumes and leaves the motion without basis. Once the attorney has gotten the letter you can sit down with her and decide what the appropriate course of action will be.

Example 2: Defense attorney approaches you with defendant's grandpa and informs you that he wants to drop the theft charges against the defendant.  This is a situation that you will run into in check and credit card cases more often than you'd care to. Grandson stole Grandpa's checks and wrote over $5,000 around the county until he drained the account and Grandpa figured it out.  Grandpa then goes to the bank and explains to the manager that he didn't write those checks and could he please have his money back. The bank manager tells him that he can't get the money back unless he fills out a police report against Grandson. Grandpa then goes down to the police station and files a report; he then takes the report to the bank and gets money put back in his account. Thus, when the defense attorney is telling you Grandpa is satisfied she is absolutely correct. Grandpa has transferred the theft to the bank and gotten his money back; now he doesn't want to cause family discord by being the reason the Grandson goes to jail.

Defense attorney doesn't know all that background. She just knows that her client introduced her to Grandpa, who now wants to drop the charges. No matter who the defense attorney is in this situation you cannot take it at face value.  However, this time its on you to check into the situation.

Another important reason for trust but verify is quite simply to CYA. If you trust without verification 20% of the defense attorneys word will get around the courthouse that you play favorites. If you trust without verification 80% of the defense attorneys the next thing you know one of the untrustworthy ones will be complaining about you to the judge or your boss. Usually, the judge and your boss know this guy's reputation as well as you do, but it's always possible that your judge played rugby with John Smith on the Clydesdale Steeds and thinks he's a swell guy. Set a standard level and make everyone live with it.

How to Prosecute: (2) Learn to Deal with Defense Attorneys : A. Trust

One of the most important skills a new prosecutor has to learn is how to deal with defense attorneys. It's confusing to most new prosecutors - made especially so because most of them have not done defense work and do not understand what defense attorneys are doing. Consequently, many who have never been on the other side retreat behind the us versus them mentality where everything is black and white, all defense attorneys are evil incarnate, and the defense attorney probably deserves imprisonment as much as his client (same thing happens on the other side, but that's not today's topic). Personally, I find this an unhelpful attitude. However, if you are not going to retreat into such a childish worldview you have to establish certain guidelines for dealing with defense attorneys.

A. Rate defense attorneys on how much you can trust them, not how much you like them.

If you don't learn this lesson very quickly you will get burnt. Then you've learned the lesson whether you chose to or not. Just because the defense attorney has a likable personality and is someone you'd like to swap stories with over a couple beers does not make him trustworthy. Good attorneys are actors; they can smile at your face while telling you that lie which is going to get you fired if you believe it. Likewise, the fact that he's one of 'us' doesn't mean he's trustworthy either; the fact that he's a member at The Traditionary Club, that he's a Grand Presidentiary in the Order of the Golden Silence, or that he is the right prop on the Clydesdale Steeds Rugby Club may mean he's one of 'us', but so was Kim Philby. And, most definitely, the fact that someone is smoking hot and flirts with you does not mean she's trustworthy. Get a clue.

Now, if you're a sane person, how much you like a person probably has something to do with that person's trustworthiness. However, the converse does not necessarily follow. There will be all sorts of defense attorneys whom you will find trustworthy and not be good buddies with because they are much older or much younger than you, have different interests, or you just aren't similar types . Remember that the fact you aren't buddies with someone does not establish that person as untrustworthy.

How then do you determine trustworthiness? Well, one of the advantages of criminal law is that we tend to deal with the same attorneys over and over. It is truly a local enterprise. The people in your office will be able to give you a heads up on pretty much everyone who walks into the courthouse. This is how you will sort out the most untrustworthy. When everybody in the office starts regaling you with stories of how John Smith and Pete Greene have messed people over time and time again you'll know not to trust those individuals. After that it gets more difficult. Most of the time there's no easily discernible line in the sand. After you get past the defense attorneys who are absolutely untrustworthy you will find others who will be untrustworthy as to certain matters. A strange phenomenom which you'll run into every once in a while is the lawyer who will be straight as an arrow in everything else, but will lie like a dog in order to get a continuance. Usually, you'll get tipped about this lawyer by people in your office. Beyond that you are going to have to start making calls on your own. Start out being somewhat conservative and loosen up some over time. Eventually, no matter what you do, you will get burnt by some defense attorney whom you trusted too much while you were in a hurry or not paying enough attention. Don't let that sour your relations with other defense attorneys. Adjust your behavior toward that attorney accordingly and let others know about it.

Finally, the guy to least trust in the courtroom is the one who gets you aside and starts lecturing you. "Let me tell you how things are done in Pitcairn County." Everything out his mouth after that point is either meant to get you to do things he wants or is so blindingly obvious that you would know it after 3 days of practicing in any courtroom. And, he will expect you to give him credit on top of that for having explained the facts of life to you. Put a HUGE black checkmark next to that person's name and do what you think is the correct thing to do anyway. Be prepared if this guy starts telling the judge that he tried to explain the way things work to you. Generally, the answer should be something like, "Well, your Honor, I know Mr. Jones thinks he runs the courtroom, but personally, I like to let the guy in the black robe feel like he might overrule Mr. Jones." Adjust the tone and language to adapt to your particular judge.

The Signing of the Declaration

How to Prosecute: (1) Try to Be Consistent; Realize You Cannot

Guideline Number One: Be consistent as possible, but recognize you'll never be consistent.

You'll hear a lot of defense attorneys telling you that your job is to seek justice. This is absolutely correct. However, while I agree with the concept of seeking justice, I suspect that we will disagree as to the meaning of that phrase. When a defense attorney says it to you it generally translates as "let my guy go" or "give my guy a better deal." When I say it, I mean be as consistent as possible in your application of the law (particularly in sentencing).

You will exist in an atmosphere where all sorts of things will limit the range within which you can operate. Among these will be sentencing guidelines, office policies, and the proclivities of your judges. Nevertheless, there will be always be decisions that you have to make on your own. Even if you are just the new guy trying traffic offenses there will be some things that you will be making the call on. Set guidelines for yourself.

Notice that I said guidelines not commandments. These are not carved in stone edicts from God. You will vary from these guidelines. How often you vary will depend on your personal sense of equity, but if you never vary from them you have either set them too loose or you are simply not ever considering mitigating facts. Say you are the traffic prosecutor for your county and the highway through the county has a speed limit of 55 mph. Reckless driving by speed (class one misdemeanor up to 12 months in jail and/or $2,500 fine) is 20 mph over the speed limit. You set your guidelines at 75-80 mph and no previous speeding related offenses within 10 years gets driving school and reduction to simple speeding (fine only); 75-90 mph gets a $500 fine and suspended jail time; 91-100 mph gets 1 day in jail for every mph over 90 and a $750 fine; and 101 and above gets 30 days in jail and a $1,000 fine. Most of the time you will ignore whatever excuse (he had to get to a restroom, her speedometer was broken, he accidentally engaged the nitro, &cetera) and simply follow your guidelines. However, there will be times you vary from the guidelines either way. Defendant was driving 96 mph trying to get his wife to the hospital for the birth of their child and Officer Newbie pulls them over and gives them a reckless driving summons; you should probably not throw that Defendant in jail. On the other hand, if Mary is in court for her 4th reckless driving summons in six months (each time at 85 mph and because she was late for work) you should probably give her at least a weekend in jail.

Applying the same guidelines to the vast majority of situations means that people who do similar things will be treated in a similar ways and this is important to justice. People should be treated the same if they did the same thing. The guidelines you set also have the advantage of predictability. Defense attorneys will approach you as a known quantity and be able to advise their clients appropriately. "You locked your dog in your house four hours earlier and you were trying to get home before she messed on your brand new carpet? I'm sorry, but Prosecutor Smith isn't going to drop your reckless driving at 92 miles per hour because of that. The punishment for driving that fast is . . ."

Understand, you will never be entirely consistent. There are too many variations in circumstances of arrest. You will also make mistakes. Defense attorneys will constantly push you. The clever ones will try to use your guidelines against you once they've figured them out. "You never send anyone to jail who hasn't gone over 90 mph; it isn't fair to send my lady to jail at 86 mph." The really clever ones will remember instances in which you varied from your guidelines and try to use those as wedges to get their clients better deals. "Last month you didn't send that Smith guy to jail and he was driving 107 mph. My client is a college student just like he was and should not go to jail either." Of course, the attorney won't mention the facts which made the Smith case unique and different from his client. And it is unlikely that you will remember the facts of the Smith case. Stick by your guidelines unless your examination of this particular case tells you that you should deviate.

Cracks in the Mosaic Theory: Why it doesn't work

I don't know who first thought this idea up, but Orin Kerr seems to name it in this law review article.  He describes it as law enforcement doing every search or seizure step constitutionally and the result as a whole still being unconstitutional. This would be a departure from the normal mode of search and seizure analysis because in the normal mode if every search or seizure step is constitutional the result as a whole is constitutional.  It is worth noting that the mosaic theory is not a theory which has roots in a controlling Supreme Court decision.

The best way that I have come up with to describe the current method of constitutional analysis is a simple mathematical equation. Every search or seizure in the entire equation is assigned a "1" if constitutional or a "0" if unconstitutional. The equation proceeds as follows.

1 X 1 X 1 X 1 X 1 X 1 X 1 = 1       (Constitutional)

1 X 1 X 0 X 1 X 1 X 1 X 1 = 0       (Unconstitutional)

If every one of the searches and seizures is constitutional, then the entirety is constitutional. If any one of the searches or seizures is unconstitutional, then the entirety is unconstitutional.  It is a straight forward, rational way to approach constitutionality. Obviously, the proposed "mosaic theory", as presented, fails to model in this manner because it would look like this.

1 X 1 X 1 X 1 X 1 X 1 X 1 = 0      (Constitutional = Unconstitutional) 

The mosaic theory is really nothing new. It's aggregation as constitutional violation. As such, it is a subset of an individual constitutional test. Anyone who has argued the constitutionality of a traffic stop has dealt with this. A traffic stop which is constitutionally valid can be made unconstitutional if it is extended beyond a reasonable time to accomplish its initial purpose. This is an aggregation of time and it is similar to the aggregation of time which is pointed to in the Jones concurrences and is cited as a basis for the mosaic theory.  In that case, the concurrence would have allowed initial placement of the gps tracker but ruled it unconstitutional after a certain amount of time had aggregated.

What both the traffic stop and the Jones concurrences point to is the fact that there are a number of factors in each of the search and seizure events which comprise the entirety. In other words, the model is actually something like this:

(1 X 1 X 1) X (1 X 1 X 1 X 1) X (1 X 1 X 1) = 1

(1 X 1 X 0) X (1 X 1 X 1 X 1) X (1 X 1 X 1) = 0

       (A)      X         (B)          X       (C)       = ENTIRETY

Applying this to a traffic stop, we'll say A is the seizure of the vehicle and its passengers, B is the search of the vehicle, and C is the search of the driver's person. Since everything in B and C is fine we'll concentrate on A.  Let's say the sub-elements in A are (1) reason for stop, (2) behavior during the stop, and (3) length of the stop. The reason for the stop is valid (speeding).  The officer's behavior during the stop is polite and concentrates on the ticket. In the first model the officer releases the car and driver after a 15 minute stop. In the second model the officer sits in his car with the driver's license for 55 minutes until a drug dog shows up and is run past the vehicle (40 minutes longer than the ticketing process takes).  This aggregation of time is unconstitutional and therefore the seizure of the vehicle and passengers is unconstitutional and therefore the ENTIRETY is unconstitutional.

To be clear, aggregation does not have to be about time. In U.S. v. Edwards the 4th Circuit ruled a search unconstitutional not because the search was without constitutional basis, but because of the aggregated factors of the locale where the search was done and the manner in which it was carried out.

The mosaic theorists claim the aggregation as the entirety and in one sense they are right. It is the entirety in that if it fails the entirety fails too. However, this is true of every constitutionally significant issue and sub-element of that issue. Stating that one sub-element is the whole is nonsensical. To consider it in reverse, if the traffic stop does not aggregate to the point that the seizure of the vehicle and passengers is unconstitutional and therefore A=1, this does not mean that B=1 or C=1.

The mosaic theory is badly flawed. However, aggregation analysis will become more and more important in the modern world.  To base 4th Amendment analysis on whether something can be viewed by the world at large is becoming an increasingly poor way to frame things in a world where the phone in your pocket identifies where you are 24 hours a day, your ISP can track your internet activity, and you are required by law to hand over information about yourself to the government and private industry. Unless courts are going to find that the putative "reasonable person" is a guy living in a cabin in the Rockies hand typing his libertarian manifesto, in short order any "reasonable person" will be observable for the vast majority of his life. We must adjust; we just need a better model than the mosaic theory.

The Science of a Traffic Stop

Heisenberg and Schrodinger are driving down the highway at a prodigious rate of speed.  As they pass mile marker 34, a state trooper hits them with a radar, chases them down, and pulls them over.

The trooper walks up to the driver's side window and finds Heisenberg behind the wheel.

Trooper: "Sir, do you know how fast you were going when you passed that mile marker?"

Heisenberg: "Well, I can't because I now know where I was."

The trooper detains them and does a consent search of the car. In the trunk he finds a dead cat.  He goes back to his car where the two arrestees are sitting in the back seat.

Trooper:  "Did you know there is a dead cat in the trunk of your car?"

Schrodinger:  "Well, now I do."

If Every Attorney's Incompetent . . .

In Virginia, as part of a plea agreement, the ability to appeal a decision can be waived.  However, the right to habeas the defense attorney for ineffective assistance of counsel cannot be waived. Consequently, a prosecutor added language to her plea agreement waiving appeals, but not wanting to make the plea agreement overly broad (and therefore potentially voidable) used language something like this: "Defendant waives all possible appeals except petition for a writ of habeas corpus for ineffective assistance of counsel."

Defense counsel looked at this plea agreement with a bit of incredulity.  The question asked over and over again was "Why are you trying to get my client to file a habeas against me?"

When a few of them griped to me about it, I created the following paragraph and offered to include it in any plea agreement if they wanted it:

I hereby recognize that ALL defense attorneys are incompetent and provide ineffective assistance prior to, during, and after trial. They are biased, provide improper advice, do not know the law, and do not have my best interest in mind when they recommend that I plead guilty, no contest or that I should go to trial.  Despite all this, every bit of which I agree that I knew before this plea agreement was entered, I plead guilty by my own decision, agree to this plea agreement without paying any attention to any advice from my attorney, waive all direct appeals, and waive any habeas corpus actions based upon any grounds and specifically upon the grounds of ineffective assistance of counsel, because I have chosen to entirely ignore any advice counsel has given me.

Surprisingly, no one has asked for it to be inserted in any of their plea agreements yet.

Overheard in Courtroom: Maturity Thy Name Be Not Orange

A male and female are sitting in the courtroom waiting for court to start in their orange jump suits:

Female:  How old are you?

Male:  30.

Female:  There have been a lot of 30 year olds flirting with me lately.

Male:  Something wrong with that?

Female:  No. I like older guys. They're more mature. . . Except maybe you, since you're in jail and all.

Male:  So what are you a Tennessee fan?

Female:  No, I'm more of a Kentucky fan, but I do like watching Tennessee during football season.

Books Which Will Be Useless in Virginia as of July 01

The Rules Of Evidence are Coming!

And Chaos follows Behind.

News Around the Web

1)  Al-Jazeera is doing an expose about how much the Obama administration is prosecuting whistleblowers.

2)  An explanation of how the Vatican Court system works and where the defendants serve their time.

3) An argument as to why a Sudanese woman shouldn't be stoned  for adultry.

4)  The BBC investigates Mexican trade in women.

5)  Someone is stealing corn cobs in Japan.

New Format - Same as Ye Olde Format

I put this format back up finally.

I had gone with a format I found online which rotates stories I preferred at the top. It wasn't perfect, but it worked okay. Then it started to act a little strange and some of the graphics would not come up anymore. So, I tried a couple other formats which I had found online and apparently, Blogger has changed itself so these would not work now (they worked back when I tested them against the one I ended up using).

The formats Blogger offered did not work too ell and often appeared differently depending upon which browser I checked them with. The very fancy newest formats which Blogger is offering worked wonderfully but did not seem to leave any room for links.

So, it's back to this basic format that I wrote myself way back when I was still trying to write webpages.

VINDICATION: The 1st Amendment Trumps the Virginia Bar

You'll recall a while back that I discussed the Virginia State Bar's belief that it could violate the federal constitution's guarantee of freedom of speech by requiring bloggers to not blog about anything which happened in open court which involved their clients.

Once it got in front of a panel of judges that got shot down unanimously.

It's good to know that some people understand that becoming a member of the Bar isn't an unconstitutional pact of silence.


Viva Circuit Court Judge Kenneth R. Melvin, Circuit Court Judge Alfred D. Swersky and Circuit Court Judge Von L. Piersall Jr. They got it exactly right.

Statutory Language: Must We Do Shall?

I've been going through the new statutes which have been passed by the General Assembly so that I can brief our local law enforcement on them and present them at at local CLE (when you are in deepest darkest Far Southwest Virginia you do your own CLE's or you drive 6-10 hours east to get your hours). I've noticed some stylistic trends which which the General Assembly has become obsessed with. In particular, every time the General Assembly amends or alters a statute whatever gnomes are in charge of typing the new statute up are going through the statutes and changing any place a number is written out to plain numbers (ie. 35 instead of thirty five).   Apparently the accepted wisdom has changed from a written number being preferable to the numerical symbol being preferable.  Who knows why the accepted wisdom changed? I figure that some senior statute writing gnome has a reason, but the reality is that someone probably preferred numbers and came up with an excuse. It doesn't matter to me either way; both work and if it makes life more satisfying to the statute writing gnomes the General Assembly keeps working in the dungeons of the capital building, more power to them. In fact, I've been impressed by the patience which has been shown. They've not attempted to change all the statutes at once, they've been satisfied with making the stylistic changes as the opportunity presented itself.

Of course, there's always the exception which proves the rule . . .

§ 54.1-4005. Sale of goods pawned.\
No pawnbroker shall sell any pawn or pledge item until (i) it has been in his possession for the minimum term set forth in the memorandum, but not less than thirty 30 days, plus a grace period of fifteen 15 days and (ii) a statement of ownership is obtained from the pawner. If a motor vehicle is pawned, the owner of the motor vehicle shall comply with the requirements of § 46.2-637. In the event of default by the pawner, the pawnbroker must shall comply with the requirements of § 46.2-633. Otherwise, the pawnbroker must shall comply with the requirements of § 46.2-636 et seq. All sales of items pursuant to this section may be made by the pawnbroker in the ordinary course of his business.

I read that over three times, sure that there had to be a meaningful change in the statute somewhere. Nope. It's purely stylistic preference. I assumed the number change was just because the opportunity presented itself. This left the must / shall change. My definition of both is "non-discretionary requirement to do."  To be sure, I checked and Merriam Webster online listed each as a synonym of the other.

I can see someone looking at this and thinking "Must seems more passive mandate. Let's use an active mandate like shall."  That might even be a good idea EXCEPT that the Virginia appellate courts have quite often interpreted "shall" as "should."  I don't think that line of reasoning should apply here, but the fact that it exists at all makes the decision to change "must" into "shall" less of a good choice than it might have seemed.

They Sacrifice, We Benefit.

Never Forget.

Centre: The College, The Study, The Legend

Yes, yes, I'm sure I've already told you that Centre is better than whatever school you went to. Founded in 1819, eldest college west of the Appalachian Mountains, academically stringent, academically stringent, academically stringent. How academically stringent? Well, the Washington Post just listed Centre as the school in the United States where freshman spend the most time studying. And, I must say, the number of hours that the Post states seems far, far, far lower than the number I remember doing and observing from other students.

I chose Centre because it used "real" grades (no grade inflation), no one had graduated with a 4.0 in decades, about 25% of the incoming class did not graduate (at that time), and the studies were rigorous. In other words, when I worked my rear off and graduated with majors in Religion and International Studies and had a gpa slightly north of 3.0, I knew I had earned those grades and that diploma. I didn't get a pass through because I scored high on my SAT or ACT, played sports, or had the right parents or connections. Too many "elite" schools are like that now. This was driven home to me when I went off to law school at another "elite" school, where students had high SAT's and came from the right people, and was talking to some undergrads and they bragged about the quarterback having a 4.33 gpa.

The implication in the article that the studying is because Centre is isolated is kind of weird. Centre's 30 minutes out of Lexington where there are plenty of restaurants, bars, places to shop, etc. As well, there are parties on campus every weekend. There was no lack of distractions if you really wanted them. That's not the reason people study at Centre - at least not while I was there. We studied because it was a hardwired tradition at Centre; getting a superior education was why you were there. It's so much a part of the culture that the fraternities seriously competed for the "Yerkes Cup", which has been awarded forever to the fraternity with the highest gpa. Furthermore, the classes were hard, the grades were real, and you could fail.

Look going to a lesser school doesn't necessarily mean you are inferior and I have been consistently impressed by graduates of two schools whom I have met: Morehouse & Harvard. I've just never met a graduate of Morehouse who didn't come across well and who did not seem to have received some of that from Morehouse. Mind you, the number I've met is less than 20; still, I would have expected to run into a couple bad apples by then from any school and I have not. As for Harvard, I've probably run into between 30-50 of them in my life (most of them in group settings without long personal conversations). All were extremely intelligent and talented, if tending toward condescending (not all though; went to law school with a good guy from there). The problem is, I never know if they really gained anything from the school other than connections and the school name. I think most would have been just as well educated in many other schools and been just as smart whether they went to Harvard or not. The primary thing I've learned about dealing with Harvard alums is how to deal with the false modesty displayed when they won't say what school they went to. When asked, they will say "I went to school in Boston." The implication is clear; after all, there is only one school of note in Boston. The appropriate answer is to look the person right in the eye and say, "So, how did you like Boston College?"

And, with that last little bit of meandering, I'm off to court.

Interesting Things You Find When reading the New Laws

So, I'm trying to work my way through the new laws which have been passed by our General Assembly and signed by the Governor. These are always interesting because you get to see what has caught the attention of the law makers and you learn about things you didn't even know were in the law. So far, there does not seem to be anything too incredibly groundbreaking this year.

Probably, the biggest change I've run across is the fact that Virginia is going to have Rules of Evidence promulgated by the Virginia Supreme Court as of 01 July 2012 (HB-101). The claim is that these are merely codifying existing common law rules, but I've glanced over them and there appear to be changes to long held Virginia common law rules.

There are, of course, other important changes in the law. For instance, the County Treasurer is now allowed to carry a firearm into the courthouse (HB-288) and dogs can now be trained to hunt bear from 4 a.m. to 10 p.m. during bear hound training season - as long as no bear is captured or killed (HB-95). Because that was a law which desperately needed passing.

When I finish all my summaries of all the new laws I'll be sure to post them.

Good Cop

For those of you who believed that YouTube exists only to show officers behaving badly, here are three proving it's not (entirely) so.

1. The Maine State Trooper: This one's been around the web for years. This Trooper endures all sorts of abuse from the driver and his reaction? He just slowly, but surely tells the man everything he's supposed to. Slowly.

2. Chat 'em Up: There's nothing too spectacular about this one. Two protesters were pretty much being ignored until this state police officer came out to check on someone wearing an orange jump suit. The protesters seem impressed.

3. Open Carry: In this case it's fairly obvious that the guy walking around openly carrying a firearm is hoping to provoke something. The officer comes up and starts a typical safety check (you have a right to open carry - conversely, other citizens have a right to be worried when they see a guy walking down the street armed), but he quickly cottons to what's going on and turns it. By the end of the video he turns right into the camera, makes sure he's centered, and announces his name, badge number, and department.

When You Are Going to Rob Someone Keep an Eye on the People Around You

Oops, ummm, Officer I was just, ummm . . .

United Breaks Guitars

What do you do when an airline breaks your expensive guitar and refuses, for over nine months, to make you whole? You do this:

Over 11 million hits and climbing.

via Volokh Conspiracy

The Dead Horse

Attorney: Judge, I don't want to beat a dead horse . . ."

Judge: "Well, somebody has to."

Attorney: "Okay, I guess there are just some horses that need to get beat, even post mortem."

Recreating the American Criminal Legal System: Inquisitorial and Adversarial

Via SL&P, I came across a post by James Dole in which he proposes that prosecutors be split into two groups with different functions.  Basically, he posits one group which negotiates plea agreements and one group which prosecutes those cases which go to trial. Personally, I think he is onto a good idea, but he needs to expand his vision. If we're going to go there we need to do it for the entire system, not just the prosecutors.

To begin with, we should just dump the whole idea that lower level courts are adversarial.  Make the lowest level court an "Investigative Court" which has no jury and handles misdemeanors (maximum punishment 6 months), preliminary hearings, and plea bargains. Let's call the person who presides over this court a "Commissioner." Commissioners participate in the investigation and are the individuals who issue warrants, investigative subpoenas, and perform any other function a judicial officer might perform. However, their function is not to be a neutral arbiter; their job is to guide the search for truth.

Next, let's call the prosecutor in this court an "Inspector." Her job is to determine the appropriate charge(s) and what the government thinks the appropriate disposition of that should be. If the defendant refuses the offer on a misdemeanor the defendant, his counselor, and the accuser go forward in court without the Inspector participating.  If the defendant refuses on a felony the Inspector would lead a preliminary hearing in front of the Commissioner. After the prelim, the Inspector can make another offer. However, if she chooses not to or the defendant refuses the new offer the case would proceed to the trial court.  She also works closely with officers, advising them on legal and constitutional issues.

Finally, the attorney for the defendant would be a "Counselor."  He would not represent the defendant; instead, his job would be to inform the defendant of his rights, explain the charges, and explain the plea offer which the Inspector has offered. In misdemeanor cases the Counselor would not argue the case, but he would stand beside his client and be able to interact with him in order to answer his questions and give advice as to how the defendant should proceed.

The "Trial Court" would be entirely adversarial.  It would handle felonies in which the defendant refused the plea offer and de novo trials of misdemeanors if the defendant chooses not to accept the decision of the Investigative Court.  Since a primary principle of the Investigative Court will be that nothing can be finalized there without the defendant's acquiescence, a conviction on a misdemeanor could be appealed to the Trial Court.  However, in order to avoid abuse, the maximum punishment of a misdemeanor if appealed would become 12 months.

The Judge in the Trial Court would be neutral arbiter. No one who had served as a Commissioner would be eligible to serve as a Judge. Additionally, a Judge would be required to have served at least five years as a Advocate for the Defense and five years as an Advocate for the State before he would be qualified to take his seat. Judges would make rulings on the constitutionality of actions, both those solely performed by officers and those performed by the officers in conjunction with the Investigative Court (dispensing with the pure fiction of Leon that judges' behavior would not be affected if the warrants they sign off on are suppressed).  The Judge would preside over jury trials, bench trials, and guilty pleas (you can't prevent a defendant from pleading guilty).  If a jury trial is taken, the Judge will decide legal issues and give jury instructions which he created.  Jury selection should be simplified, with peremptory strikes eliminated. As well, jurors should be limited to those who are employed, retired because of age, or own their own business. If the defendant is found guilty in a jury trial the jury will decide his sentence.  If a defendant is found guilty via a bench trial or guilty plea the judge must sentence the defendant to the average sentence which juries have sentenced defendant across the State or up to set number of years more than the plea offer, whichever is greater. The set number should vary depending on the severity of punishment offered by the Inspector.  If the offered plea offer was less than five years the Judge could add an extra year; if greater than 5 but less than 15 the Judge could add 3 years; if greater than 15 the Judge could add 10 years.

Attorneys in the Trial Court would be "Advocates." The Defense Advocate would argue constitutional issues, speak for his client at trial, and argue for his client during sentencing hearings. Basically, she'd do what any defense attorney does now except she would not negotiate for a plea agreement. The State Advocate would have the same, although reciprocal, role as the Defense Advocate except that he would be shorn of one additional duty.  He would not advise law enforcement as that is the Inspector's job.

I think this would be pretty close to the perfect criminal justice system. It would be interesting to see how this system would affect the ratio of pled to tried cases.


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Note: No, I did not go with the "solicitor" / "barrister" names. They're quaint and British and anglophiles love them, but I think we should go with names that say what they mean and mean what they say (it's the American way).  Reanimating those titles would just be a way of trying to puff lawyers up.