Monthly Archives: December 2009

The absurd hero

Comparisons have been drawn, in recent days, between our condition and that of Milton’s Satan and Abdiel. Meaning has been sought to explain who we are and what makes us do what we do.

It is a curious profession we have chosen; those of us who dedicate our lives to defending the freedom of others. Certainly not I, nor most people I know, sought admittance into this small group with any notions of fame, grandeur and constant success. To the contrary, we were, and are only too aware that most battles we fight will be lost. Yet we carry on, day after day, year after year, pushing the rock up the hill.

To be sure, there are victories – some small and some big – yet the nature of the beast, the fabric of the system is such that we may be able to poke small holes in it only to soon become enveloped in it.

Even though we are not ourselves the object of the fire that spews from this beast’s nostrils, we deliberately place ourselves in that path. To get to my client, this other human being, you have to go through me. A small rebel force for hire, as it were.

But the damage we suffer, the blows we take, are small in comparison to the eventual destruction that is wreaked upon the life of the client. We dust ourselves off, sometimes taking longer than usual, and move on to the next person in need.

It is a sort of self-flagellation, I suppose.

I’ve never really thought about why I chose to subject myself to this. It seemed like a question that did not merit a response. I understand why the function is important: as the Emperor Julian is alleged to have said “if it suffices to accuse, what will become of the innocent?” To put in layman’s terms, the slippery-slope; there but for the grace of God…

But we do not exclusively represent the innocent; hardly ever, in fact. And yet even when a man we suspect to be guilty of the crime is he accused of committing is found to be so by a jury of his peers, the reaction is not of resignation or acceptance or that justice was done. There is always, unhesitatingly, a sense of defeat, failure and loss.

Maybe there’s nothing so profound about it all. Maybe we are just driven by our distrust of the Government and our desire to see that its laws are upheld in a consistent and orderly manner.

Are we Miltonian heroes? I’m not smart enough to answer that question. What I do know is that I have a job to do. A job that I know will most often end in failure and that the task is futile and yet I do it, day after day, year after year, decade after decade.

In that sense, I am Sisyphus. I must be happy.

10 things I learned this decade

Not being one to care about what others think and always wanting moar lists, I’m going to subject y’all to yet another. Here are ten things (in no random order) I learned this past decade. Some are law related, some are not related to anything at all.

  1. The older I get the more incomprehensible law review articles become.
  2. Winning isn’t everything, unless you’re a prosecutor.
  3. That I am horribly addicted to the internet and there’s not a damn thing you can do about it.
  4. Just as I consider everyone who has a  blog and uses the ‘net to spew their opinions to be an idiot, they consider me to be one too. And I’m not happy about it.
  5. DVR is the best invention of any decade.
  6. Somewhere the real Gideon is crying.
  7. That the death penalty experiment has failed and we must stop tinkering with the machinery of death.
  8. That I have some clients who were in jail when this decade began and will still be in jail when I write an end of 2020s post in 20 years. This makes me sad.
  9. Pluto is not a planet.
  10. No one likes lists, unless there’s a badge involved.

If you’re black and you smoke pot, get arrested

I'm not as think as you stoned I am

(Title sung to the tune of “If you’re happy and you know it…” What? It’s 11:00pm. Buzz off.)

While much of the news media and indeed the blawgosphere has been preoccupied with the news that NYC isn’t really a big, bad and dangerous place, curious little attention has been paid to another story out of New York: that under Mayor Bloomberg, drugs arrests have spiked and that blacks are 7 times more likely to be arrested for drug offenses than whites.

Thanks to Matt at (a blog you should be following if you aren’t already), we learn that a new study (and a related NYT article) has been published analyzing the incidence of drug related arrests in the Big Joint:

Is a battle on sex offender registration brewing?

Silly sex offender registration laws have long been a bone that I’ve been itching to pick. If you asked me to list the ten worst decisions by SCOTUS in the last decade, Smith v. Doe and Dept’ of Public Safety v. Doe would make the top 5 of that list.

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.'” Kansas v. Hendricks. The factors are:

Preempting peremptories

As I’ve noted before, there are times when I’m staring at a story, thinking about writing a post, when a few days later I come across something else that ties in nicely with the first. I have now concluded this is because of my unusually high midi-chlorian count and the Force is speaking to me.

Nevertheless, a few days ago, I noticed this news article from Mass that reported that the Mass Bar Ass’n is forming a task force (yeah, one of those) to examine the use and efficacy of peremptory challenges:

Chairing the task force is Richard P. Campbell, a bar association vice president and the founder and chairman of Campbell, Campbell, Edwards & Conroy in Boston.

Campbell, […], said some members of the Trial and Appeals courts and even academics, such as law professors, are questioning the usefulness and relevance of the peremptory challenges.

Right on cue, I stumble across this new academic paper titled “Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts”, which argues essentially that peremptory challenges are useless and states should eliminate them. From the summary:

A vex at your door: revisiting FL’s stand your ground law

Back in 2005, when this blog was in its infancy, I wrote a few posts about a new FL law which removed the duty to retreat before employing deadly force. The law, in essence, expanded the concept of the “castle doctrine” to, well, everywhere:

(3)  A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

I was concerned at the time with the implications of such legislation, both for lawyers and on law and order in general. Two years later, when Texas did away with the duty to retreat, I posted my concerns again and used the phrase “free for all”. I received some criticism at the time and most of the comments echoed one common sentiment: you show up in my house; I kill you.

Being the peace loving, pot smoking, Grateful Dead listening type, this open invitation to engage in needless violence perturbed me, but I was assured by smarter people that it was not a concern. Now, 4 years later, it seems as though I’m not the only one vexed by such legislation. As this article from the Miami Herald illustrates, more than just a naive blogger from CT is vexed by the law and what to do with it.

I think this would be an appropriate time to state that as a criminal defense lawyer, I’d love this law. That a fear of imminent physical danger serve as a bar to prosecution would be a godsend from the purely adversarial scenario. But as a resident in our communities, I’m not sure that this is still a good idea. To remove an incentive to de-escalate conflict and prevent needless violence doesn’t strike me as very smart or desirable.

No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.

Moorer claimed self-defense. Police detectives begged to differ.

But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ‘Stand Your Ground’ self-defense law that broadened a citizen’s ability to use deadly force. “There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,” said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law “cheapens human life.”

I think I would agree with her. None of the people who responded to my posts back in 2005 saw this as encouraging vigilantism or resulting in a large number of acts of violence. But as the cases in Florida demonstrate, there are more than a few:

Shamelessly self-indulgent list

Everyone’s making a list. It’s the year-end list disease. A list for top crime stories, a list for top blog posts, a list for top lists (yes, they’re out there).

So, not wanting to buck convention or anything and feeling the immense peer pressure, I am offering my own list. An utterly useless list of shameless self-promotion. Below you will find the Top 5 most commented posts of the last year, the Top 5 most viewed posts of the year and the 5 posts that I wished people read more.

Then I will open it up to you to nominate your favorite visual accompaniment to a post. If you do not comment, I will kill a bee (and as you all know, since the great bee exodus, they’re an endangered species). So, time for some “me, me and me”.

Most comments:

Most views – two of these posts are recent posts, which is testament to the immense power of getting linked to by Radley Balko. If it weren’t for him, this blog would’ve had 3 hits all year. So thanks Radley!

And finally, because this nonsense has gone on long enough, here are my personal favorites from the last year:

  • Do pedophiles have free will?
  • It’s a game of numbers.
  • This I believe.
  • Crazy? Jail’s the place for you.
  • When is an assault not an assault?

Now, go talk amongst yourselves while I write another post or something.