a public defender

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The title of this post is somewhat of a response to the question in Dan Solove’s post at Co-Op, which is: Why won’t Judge Wu rule on the motions in the trial of Lori Drew?

Dan asks:

Judge Wu hasn’t ruled on the merits of how the CFAA should be interpreted, whether it is unconstitutionally vague, and now whether or not the prosecution, as a matter of law, has failed to prove the requisite mens rea. Why won’t he rule on any of these issues?

There is only one answer: because he doesn’t want to be the one making this obvious decision.

The testimony at trial was pretty clear:

testimony proved Drew never saw MySpace’s contract, and wasn’t the one who set up the account and accepted the terms.

How, then, can she be convicted of intentionally violating MySpace’s TOS?

Adam Liptak’s latest Sidebar column in the NYT highlights a new study [pdf] conducted by the Chief Supervising Attorney of the Supreme Court of California, Jake Dear, and Edward Jessen, the Reporter of Judicial Decisions in California. The study, published in the UC Davis Law Review, finds that California’s Supreme Court is the most “followed” state court in the country.

Using the Shephard’s signal “followed by”, the study determined that from 1940-2005, state court decisions were “followed” approximately 24, 400 times by courts in other states. California leads the pack with 1260 such decisions. When you narrow the field to decisions followed 3 times and 5 times, California is still number one.

In each category, California beats New York handily, by 160 to 39 for three or more followed cases and by 45 to 6 for five or more. The race has tightened a little, though, in the last 20 years.

Connecticut is in the top half of the list, having its decisions followed at least once 508 times, three or more follows 28 times (putting it 18th on that list) and five or more follows 3 times.

Whoopee.

I understand that Law Reviews have to fill their pages and someone somewhere is curious about almost everything, but does this study actually help? In other words - so what?

In writing an appellate brief (and those that are far more experienced than me, feel free to chime and tell me how wrong I am), you first seek citations from within your own jurisdiction and perhaps include cases on point from other jurisdictions in a string cite. Only when there’s nothing on point in your own state do you need to look to other states (and even then, perhaps you’d look to your federal circuit court first). And even then, you would cite the sister state opinions you want your court to follow, but the number of times that opinion has been followed by other states may or may not be included in your brief. Wouldn’t you instead just cite to the other state decisions? That can easily be found by Shepardizing the opinion you’re relying on.

So I guess what I’m trying to say is that I don’t see the point of this study - other than to say “look at us”. Maybe there is no point other than to satisfy idle curiosity. Is there a point? What am I missing?

Just seems like the equivalent of whipping out the ruler and comparing.

Update: As Scott rightly points out in the comments, why is this even a column worthy of print in the NYT? Isn’t there something else going on in the legal world? Like, I don’t know, Elliot Spitzer’s mess or the absolute quagmire that is Georgia’s indigent defense system? Have we even seen a column from him on that? Or anyone in the NYT?

Also, in hindsight, I think a cleverer title may have been “The long arm of the law”. In fact, I’m going to go change it now.

This week’s edition of “biggest waste of governmental money” is not a video, but a story that stems from a Supreme Court case. SCOTUS granted cert. in Keith Lavon Burgess v. United States. The certified question is can a sentence be enhanced on the basis of a prior felony conviction, so as to require a 20-year mandatory-minimum, if the prior conviction is for a misdemeanor under state law. Apparently, Burgess’ petition was filed with the assistance of a fellow inmate - Michael Ray. Ray used to be (still is?) a paralegal and is serving time for a fraud conviction.

The problem, now, is that the Attorney General for South Carolina is investigating whether Ray has committed a crime by doing so. The crime? The unauthorized practice of law. Oh yeah. Apparently they’ve got nothing better to do in S. Carolina. I mean, one inmate helping another to challenge his conviction is not to be tolerated, especially if that inmate is doing something that only a select few in this country can do. It’s not like there are a bazillion lawyers in America. Ray reportedly made a whopping $145 for filing that petition (I’m just guessing - 50 hours’ work seems reasonable. He makes 29c an hour). That’s half an hour that a partner at a law firm could have worked. How will he shine his shoes now?

Seriously, this is stupid. The AG should do some real work.

H/T: WSJ Law Blog

There’s some nonsense on the interweb about Hillary Clinton when she was appointed by the court to represent an individual accused of assaulting a teen and how she cross-examined the 12-year old complainant and what this means about her as a person or some such thing. Rushing out the door now, but read for yourself here, here and here. Here’s the story in question. I might have more on it later, I might not.

Update: Okay, I’m going to jump in. This whole “story” makes me rather upset. To portray her in a bad light because she did the very thing every competent criminal defense attorney should do just exemplifies the lack of understanding of the functioning and the importance of our adversarial system. So what if the victim was 12 years old? If the defense was that she was lying, then you have to go after her. What if she really was lying? What if she was and Hillary went soft on her? Would we be celebrating Hillary for effectively abandoning Constitution? Have we become that blinded by the media glare on sex crimes that we cannot recognize that every charge must be zealously defended or our rights will be eroded?

Lots of people are chiming in, with various views. Take this, for example:

Indeed, if the young victim were lying, one wonders why Hillary agreed to plead her client to “unlawful fondling of a minor under the age of 14, which carried a five-year sentence.”

And yes, I understand that even a child rapist is entitled to present a defense, but there are other ways to present a defense than by trying to destroy a complaining witness, especially where exoneration is not the goal, but conviction on a lesser charge, as in Hillary’s case. All-out destruction of the “opponent” is not often, if ever, required for effective representation. I’ve seen truly competent attorneys who manage to retain their moral integrity while carrying out their legal duty to their clients.

This monday morning quarterbacking is bullshit and offensive. It’s also disingenuous. At trial, the goal is the best possible outcome, be it a not guilty verdict or a guilty verdict on a lesser included. Why is “all-out” destruction of the opponent’s credibility not required? Why are we encouraging half-hearted lawyering? Different people have different styles and there is absolutely nothing wrong with what she did. Let’s see if you have the same feelings when you’re charged with a crime and your lawyer doesn’t ask the unpopular questions.

Tom, have you never gone to trial on a weak case? Have you never offered a plea bargain to a defendant despite knowing that you’d lose at trial? Then why this bs of “one wonders why Hillary agreed to plead her client”. You know damn well why.

It really is disgraceful that someone who fights to uphold the Constitutional rights of an accused individual is vilified in such a manner.

This has to be filed under the “what the f*ck is wrong with people today” category.

It’s the digital age and more importantly, it is the social networking age. If you don’t have a MySpace or Facebook account, you’re nobody. Especially teens. Everyone has them and then some. So when middle school resource officer John Nohejl in Florida decided to set up a MySpace account so he could communicate with students in ways they do (with the blessing of the school), it seemed like a brilliant idea.

Too bad he didn’t know Julie Amero. Or remember that in the age of Chris Hansen, people are fucking idiots.

In the goofiest waste of law enforcement time we’ve seen in weeks, an on-campus police officer for a Florida middle school is facing a criminal investigation over his MySpace account. Why? It turns out one of the people on his friends list had a link on his or her profile to an internet porn site.

Or, as the St. Peterburg Times puts it, “kids could navigate from Officer John’s page on the social networking site to ‘Amateur Match Free Sex’ in just three clicks.”

You’re reading correctly. Gulf Middle School resource officer John Nohejl didn’t have porn on his MySpace profile, and he didn’t link to porn. But one of the 170-odd people on his friends list, which seems mostly populated by students at his school, had a link to a legal adult site. Now the New Port Richey Police Department and the Florida attorney general’s elite cyber crimes unit are investigating him for making adult content available to underage children.

The AG apparently thinks inadvertently doing something is the same as intentionally doing something:

Cybersafety “is the attorney general’s highest priority,” said Sandy Copes, the attorney general’s spokeswoman. “I am sure the attorney general would be extremely concerned if a member of the trusted law enforcement community was either inadvertently or directly placing students at risk to being exposed to inappropriate content.”

Yep. You’re now responsible for other people. On the interweb.

So all of you reading out there. If I link to say, CollegeHumor, YOU’RE ALL PERVERTS AND PREDATORS AND ARE CORRUPTING TEH MORALS OF A CHILD !1!1one1!11!1!!!

(Seriously, if you’re at work or if kids are around, don’t Google CollegeHumor. You have been warned. It’s not porn, but there’s adult content.)

The kicker? The school’s website itself linked to some clipart websites which linked to g4y pr0n. Thank you, Chris Hansen, for making the world a crazier place.

Strange goings on in the 2nd Circuit these past few days. On Thursday, it posted a decision in Higazy v. Templeton. The case involved an Egyptian Egyptian student detained as a material witness after the Sept. 11 attacks. The student claimed that he had been coerced by an FBI agent to make a false confession. But the court withdrew its opinion several hours later because of concerns that the decision contained information filed under seal. Unfortunately, by that point, some readers had downloaded it and one sent it to Howard Bashman who posted the original decision.

So the clerk called Bashman and asked him to take it down. He refused. He explains why. Patterico compares the two versions:

First, let’s look at the passage as it reads in the Second Circuit’s amended opinion:

[Plaintiff] Higazy alleges that during the polygraph, [FBI Agent] Templeton told him that he should cooperate . . . .

This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.

Higazy then gave Templeton a series of explanations as to how he obtained the radio.

Here is the full passage, including the redacted information. As you read it, ask yourself why it was submitted under seal:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.” Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Worthy of redaction?

S.Cotus is all over this and wonders why Volokh hasn’t jumped in.

When the alleged victim is a hooker, according to a magistrate judge in Philly. Initially charged with sexual assault, the judge dismissed those charges, but left standing “theft of service” charges against the defendant.

“She consented and she didn’t get paid . . . I thought it was a robbery.”

Now this is particularly curious, given that she ended up having sex with four men [one of whom paid] (a fifth noticed her crying and helped her leave), reportedly at gunpoint.

The judge, it seems, exhibited some contempt for prostitution:

“Did she tell you she had another client before she went to report it?” Deni asked [the writer of the news story] yesterday when [they] met at a coffee shop.

“I thought rape was a terrible trauma.”

A case like this, she said - to [the writer's] astonishment - “minimizes true rape cases and demeans women who are really raped.”

This is the sort of argument that, when proposed in a “brainstorming” session, results in raised eyebrows and a few uncomfortable laughs and perhaps a “nice try, old chum” or two.

Whatever her stance on prostitution, I think the judge might have picked the wrong case to state it.

More here.

One of the things I consistently see in stories about the Jena Six is this quote:

After being represented by a public defender who did not call witnesses in Bell’s defense, an all-white jury convicted him

Over time, details of the incidents have emerged, but none of the trial itself. The most fleshed out paragraph about the trial and representation by counsel is this:

Despite this, when Mychal Bell, the first youth to go to trial, refused to take a deal in exchange for testifying against his friends, he was quickly convicted by an all-white jury. Bell’s public defender Blane Williams, visibly angry at Bell and his parents because the youth did not take the deal, called no witnesses and gave no meaningful defense.

So we know that the jury was all white and the defense called no witnesses. What is only now being revealed is that the jury pool was all white. Which included a friend of the victim’s father.

But let us turn to the matter of this attorney. I find it extremely difficult to believe that his attorney would not call any witnesses because he was angry. For one, if there were witnesses whom the defense could have called independently and the attorney made it clear that he wasn’t going to call them, my experience tells me that the defendant would have said something (maybe not, but so little is known at this point…). Surely there’s a transcript out there somewhere.

But a defendant doesn’t always have to call witnesses. The State bears the burden of proof and the defendant can choose to leave the State to its burden. This is a frequent jury instruction and almost always a question during voir dire in a criminal case.

It is counter-intuitive, for sure. You have been accused of doing something, you tell your side of the story. If you have a defense, an alibi, you will present it. Prospective jurors, upon question, usually state that they understand why the defendant can choose not to present a defense. But do they believe it? I think the Jena Six coverage has a hint of that. He didn’t call any witnesses!?! is the incredulous tone.

Now, it’s possible that Bell’s attorney should have called witnesses - I don’t know what the evidence presented was - but it disturbs me a little that people automatically look at it unfavorably. It is a dilution of the burden of proof and we must believe that.

The second thing I wanted to say (I guess as a response to this question by Prof. Berman) is that we should study this case for the racial disparity in the charging process, keeping in mind that this is not a one-off thing. Racial disparities in charging and sentencing are wide spread and are being documented more and more. As this CSM piece points out:

Nationally, black youths are significantly more likely to be tried as adults than are white youths, according to a January report from the National Council on Crime and Delinquency. The same report states that while black youths make up 16 percent of the general adolescent population, they make up 38 percent of the approximately 100,000 youths being held in local and state detention facilities.

The irony, some say, is that mass outpouring of support in cases like the Jena 6 may, in fact, obscure the real issues, where many criminal-defense lawyers can point to examples of prosecutorial zeal when dealing with black defendants.

“The public at large basically thinks that these cases are aberrations, and that’s one reason why so much attention is paid to them,” says Professor Nunn. “It’s the idea that it’s the redneck sheriff doing this and not the way we sort of stack the odds against black criminal defendants. We can point to a few bad apples, say, ‘See, it’s them,’ and the rest of us feel great because we’re demonstrating how we disagree with racism.”

Wow. This post has reached Greenfield-esque proportions, so I’ll stop now.

A groundbreaking study was released today, examining the impact of AEDPA on Federal Habeas Corpus petitions. The executive summary is here and the full report is here [both are .pdf files]. From the press release:

Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or “AEDPA,” federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.

“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.

The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study’s end, one of every eight death sentences was invalidated.

Congress hoped to speed up federal habeas review when it amended the habeas law in 1996, but this new research found that habeas cases now take longer to finish. King said one of every four cases filed by death row inmates between 2000 and 2002 had not been resolved by the end of November 2006.

The Seattle Post-Intelligencer is in the midst of a special report on preferential treatment given to cops who were arrested for driving under the influence. Some were never prosecuted, some received significantly lighter punishments and quite a few asked for this “special treatment”.

This is making Robert Guest miss his badge.

Montana legislators (there goes my theory) are considering legislation that would make it a felony to not report a sex offender who has not registered.

Rep. Edward Buchanan, R-Torrington, is chairman of the House Judiciary Committee. He said the bill would make it a felony for a person who knows that a convicted sex offender has failed to register with the state to withhold that information and fail to notify law enforcement.

The judiciary committee determined that a person shouldn’t have to commit an affirmative act to be convicted of this crime. Then the legislators delved into a discussion of the right to remain silent:

Rep. Floyd Esquibel, D-Cheyenne, asked whether people have the right to remain silent if a police officer asks them questions.

Buchanan
responded that people have the right to remain silent if they’re in
police custody, "and you’re already being interrogated." He said he
didn’t believe the right against self-incrimination was applicable to
the proposed legislation.

Rep. Colin Simpson, R-Cody, responded
that people have the right to remain silent so they don’t incriminate
themselves. He said this bill would make it a crime for people not to
talk and incriminate themselves.

"I just have the feeling that
we’re criminalizing victims or family members of offenders, because
they have knowledge of offenders," Simpson said.

What will this mean for lawyers? Each state’s ethics codes vary, but the ABA Model Rules of Professional Conduct Rule 1.6 states the following:

(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or
fraud that is reasonably certain to result in substantial injury to the
financial interests or property of another and in furtherance of which
the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial
injury to the financial interests or property of another that is
reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the client has
used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense on behalf of the
lawyer in a controversy between the lawyer and the client, to establish
a defense to a criminal charge or civil claim against the lawyer based
upon conduct in which the client was involved, or to respond to
allegations in any proceeding concerning the lawyer’s representation of
the client; or

(6) to comply with other law or a court order.

Reporting that a client has not complied with registration requirements doesn’t fit within any of the above categories. Yet, it seems that under the broad language of the legislation, an attorney would be guilty of a felony for failing to report that a client has not registered as a sex offender. Any thoughts on this?

Plenty has been said in the blogosphere about shaming punishments, but this story makes me wonder: what took so long?

A judge in Delaware has ordered a sex offender to wear a t-shirt stating - you guessed it - "I am a registered sex offender."

Superior Court Judge Jan Jurden also sentenced Russell Teeter, 69, to
two months in jail Friday for repeatedly exposing himself at his
business to a 10-year-old girl. Jurden handed down the unusual
sentence at the suggestion of deputy attorney general Donald Roberts,
who noted that Teeter has more than 10 convictions dating to 1976 and
has been treated for being a compulsive exhibitionist.

Defense attorney Arlen Mekler opposed the sentence, describing the
T-shirt as "a modern-day scarlet letter," referring to the humiliating
punishment given an adulterous woman in Nathaniel Hawthorne’s novel
about puritan New England.    Drewry Fennell, executive director of the Delaware American Civil Liberties Union, shared Mekler’s concern.
"There is no evidence that public shaming is effective in public
safety," she said. "And there are serious dangers posed to the person
wearing the shirt, exposing them to possible violence."

The prosecutor believes that the t-shirt fits within the community notification requirement. I think this could open up a scary door and then there is always the problem of vigilante justice.

But…what took so long?

Update: Canada doesn’t want our sex offenders. Who can blame them? We don’t either!

Ontario is not a “dumping ground” for American sex offenders, Premier
Dalton McGuinty said Tuesday as he urged Ottawa to fight a U.S. judge’s
decision to allow an American teacher who sexually abused a student to
serve his probation time in Canada.

McGuinty urged the federal government to step in after a New York
state court agreed to allow Malcolm Watson, convicted of sexually
abusing a 15-year-old student, to return to St. Catharines, Ont., where
he lives with his wife and three children.

“It’s obviously not the precedent that we want to allow the
Americans to establish, (and) it’s not the kind of thing that we’re
prepared to accept,” McGuinty said.

“We will certainly work with the federal government — and I
hope we’ll be of one mind in this regard — to ensure that we don’t
become some kind of dumping ground for convicted offenders (from) south
of the border.”

Watson is now back in Canada, said his lawyer, Oscar Smukler. Now isn’t that some name? Oscar Smukler. You have to love it! So now, this plea is in question. Will anyone step in?

Thanks to Prof. Berman, we learn of this alternative sentencing:

After a judge convicted him of sexually abusing a 15-year-old
student, teacher Malcolm Watson was offered two punishment options: an
American jail cell or exile to Canada.

Mr. Watson chose Canada.

The unusual sentence, which has immigration lawyers questioning its
legality, means that Mr. Watson, 35, must stay out of the United States
for the next three years. A U.S. citizen who taught at the elite
Buffalo Seminary girls’ school, he has a Canadian wife and family.

Mr. Watson’s Canadian exile, which begins today, has the legal community scratching its head.

While there will doubtless be much analysis of whether the banishment itself is illegal (and I’d be happy to discuss that), I want to know what will happen if Canada decides it doesn’t want this individual. Can Canada deport this man? If Canada does so, where does that leave Mr. Watson? Is he in violation of his sentence?

This clearly won’t be the end of this drama:

Erie County district attorney Frank Clark called the plea deal "a
little dicey" but said the family of the 15-year-old victim was happy.
So were some U.S. law-enforcement officials: "He’s Canada’s problem,
not ours," said one, speaking on condition of anonymity.

Mr. Watson’s odd sentence has attracted the attention of Canadian Citizenship and Immigration Minister Monte Solberg.

"If non-citizens pose a threat to Canada, we will do everything in
our power to have that person removed as quickly as possible," he said.

Also, as some of the comments point out on Prof. Berman’s blog, what if the roles were reversed and Canada was banishing its "criminals" to the US?

Sure is interesting. Thoughts?

I’m not one to comment on convictions in other states (at least not on a regular basis), but this story caught my eye. Martin Heigden was tried and convicted of Murder 2 for driving his car while intoxicated. He was on the wrong side of the highway and crashed into a limousine, killing a 7-year old girl. The DA opted to go for broke and charged him with murder, instead of the more routine manslaughter. I’m sure everyone can discern the petrinet legal issues on appeal, so I won’t dwell on that. What interested me more was this paragraph:

After the verdict, jurors said they thought Heidgen must have known
what he was doing as he headed in the wrong direction on the parkway
for more than two miles. But they said there were two jurors who did
not agree at first, and tempers on both sides flared.

Ultimately, though, they said they knew what they had to do.

"Once we finally put it on paper, guilty, guilty, it just became so
emotional in that moment," said a juror named Michelle, 38, of
Roosevelt, who would not give her last name. "Once it was sealed, ready
to go downstairs, it was like a big weight off our shoulders, it just
became very emotional for everybody."

Emphasis mine.

    So despite the fact that they were hung on intent, "they knew what they had to do". Mind-boggling. What does that mean, except that they knew they had to return a verdict of guilty on the murder charge? Does that mean that the two dissenting jurors were badgered into changing their vote? Will they come forward?

Am I the only one feeling discomfort from that quote?

Further update: Via Scotusblog, the majority opinion is here [.pdf], Justice Scalia’s dissent is here [.pdf] and Justice Thomas’ dissent is here [.pdf].

As per this WaPo report, SCOTUS has upheld Oregon’s Death With Dignity Act in a 6-3 ruling.

The Supreme Court, with Chief Justice John Roberts dissenting,
upheld Oregon’s one-of-a-kind physician-assisted suicide law Tuesday,
rejecting a Bush administration attempt to punish doctors who help
terminally ill patients die.

Justices, on a 6-3 vote, said the
1997 Oregon law used to end the lives of more than 200 seriously ill
people trumped federal authority to regulate doctors.

More as the decision becomes available.

Update: Scotusblog has more:

In a bow to states’ rights, the majority commented: "The background
principles ofour federal system…beliethe notion that Congress would
use such an obscure grant of authority to regulate areas traditionally
supervised by the states’ police power." Thus, the Court said, it was
unnecessary to determine whether Congress had made a clear statement of
intent to interfere with state authority over medical practice, or
whether Congress had intended to preempt that state authority.

The federal Controlled Substances Act "and our case law," the Court
said, "amply support the conclusion that Congress regulates medical
practice insofar as it bars doctors from using their
prescription-writing powers as a means to engage in illicit drug
dealing and trafficking as conventionally understood. Beyond this,
however, the statute manifests no intent to regulate the practice of
medicine generally….Tbe structure and operation of the CSA presume
and rely upon a functioning medical profession regulated under the
State’s police powers."