whaaaa?
You really should object when…
Mar 6th
An avid reader sent me this case that has been making the rounds of a local listserve and I figured it was too good not to share. I’ve tried to think of a reason why one wouldn’t object in the following situation, but I’m coming up empty handed. Candy for anyone who can think of a rational reason. One of the issues raised on appeal in Zabin v. Picciotto, 73 Mass. App. Ct. 141 (Mass: Appeals Court 2008) was:
e. As the trial approached the end of October, the jurors asked the judge if he would allow them to wear costumes on Halloween. After consulting with counsel for all parties and hearing no objection, the judge allowed the request. The defendants contend that the presence of jurors in costumes turned the trial into a circus and denied their rights to due process.[42]
With or without the consent of counsel to the parties, it is regrettable that the trial judge agreed to the jurors’ request. The introduction of Halloween costumes cannot but have detracted from the seriousness and gravity of formal court proceedings. However, as to the defendants’ claim of a due process violation, the judge did not merely accommodate the jurors’ request; he consulted with counsel for all parties before doing so, and all counsel agreed. The issue is waived.
[42] The defendants also assert that some of the plaintiffs’ counsel handed out candy to the jurors. They further claim that, on another occasion, a proposed “cast list” was circulated for a Hollywood movie version of the trial. The record reveals no objection to counsel to any party handing out candy to the jurors or any indication that the “cast list” was circulated to the jury.
Really?
The Barney Fife exception: all in good faith
Aug 15th
The Constitution requires that criminal defendants be provided with a fair trial, not merely a “good faith” try at a fair trial. Respondent here, by what may have been nothing more than police ineptitude, was denied the opportunity to present a full defense. That ineptitude, however, deprived respondent of his guaranteed right to due process of law.
Those, of course, are the (somewhat) famous opening lines to Justice Blackmun‘s dissent in Arizona v. Youngblood, which held that in order to affect due process of law, law enforcement’s actions in destroying potentially exculpatory evidence must be caused by some “bad faith”. The Court, of course, never explains “bad faith”, which results in a race to the bottom to designate all police misconduct as “incompetence” and “inadvertence”, thereby circumventing the Fourteenth Amendment.
Consider, for your entertainment, the very recent case of Martin v. The State of (Where Else?) Texas. In Martin, the defendant was pulled over by Deputy Fife Jennings for failing to signal a left turn. Upon approaching the vehicle, the Deputy smelled “marihuana” and then observed a furtive gesture which led to a patdown, which led to the Deputy feel something like a razor blade (wait for it) which led to the discovery of marihuana methamphetamine (don’t even ask). Martin, within two weeks of his arrest, sent a subpoena to the police department, asking them preserve the video of the dashboard camera. A year later, at the suppression hearing, there obviously was no video, or I wouldn’t be writing this post. Here’s a summary of the police procedure and operation of the dashcam:
The dashcam is automatically activated when an officer turns on his emergency lights. Department policy states that all video must automatically be saved for thirty days. Jennings could not say whether his machine was operating that night, but he would have noted either at the beginning or end of the shift if the device had not been functional. Jennings stated that the only way to know for sure if the video had been taken would have been if he had preserved the video.
And why did no one know if there was video and why did Jennings not preserve it to find out if the incident had been videotaped? I’ll let him tell you:
Conviction by cuteness
Aug 10th
Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).
It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
…
The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.
There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:
His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:
If you read nothing else today
May 13th
Top 10 things you shouldn’t say to your clients
Dec 28th
eh heh, eh heh, yup, uh huh
In the end-of-the-year-lists-that-are-poor-substitutes-for-actual-writing spirit, I present to you the first of many Top 10 lists. Today, we learn about things that you really shouldn’t tell your client (it would really help if you pictured this list being introduced by Letterman portrayed by Peter Griffin).
So, without any more fanfare or irrelevant segues, the Top 10 things you really shouldn’t say to your clients, in no particular order:
10. Now, when did you stop beating your wife?
9. We’re going to go with the “your identical twin brother did it” defense.
8. You’re right, I’m not a real lawyer, but for $500 I’ll play one in real life.
7. And if you plead within the next 30 minutes, I’ll throw in an extra set of kitchen knives, free.
6. Listen, you keep saying you didn’t do it, but I really don’t believe you.
5. Remember, it’s always polite to tip your lawyer.
4. Has anyone ever told you you look like Charles Manson?
3. Maybe spending a few decades in jail will do you some good.
2. Bro, I love you and all, but that teardrop tattoo looks ridiculous.
1. Who cares how much evidence they have against you, God is on our side.
The comments are yours.
And frankly, the only reason I wrote this damn post is so I could use that picture. Don’t judge me, you’re no better.
Because every day needs to be Caturday
Sep 12th
If you don’t enjoy this, goddammit, you have no heart. Monster.
H/T Colin Samuels
Stop! In the name of the law!
Aug 3rd
I am J. Clarence Gideon. That’s Special Agent Gideon to you. Because you’re so stupid, according to the FBI, that you can’t tell that what I’m displaying is a blog post and not a damn FBI badge. It’s not like psychic paper, you know. All your base are belong to us.
Not fooled? Confused? See here for the story and then go to your blog and show some solidarity.
Happy Independunce Day
Jul 5th
From the “you have the right to be stupid” clause of the Constitution:
A Fairfield man was arrested Thursday morning after buying a high powered rifle to stop an alien invasion, police said.
Fairfield Police Sgt. James Perez said Dane Eisenman, 57, responded to a classified advertisement for a .30-06 rifle about a month ago. While filing out the paper for the rifle, police said, he mentioned to the seller what he would be using the weapon for.
“He said he was going to use the weapon to kill aliens,” Perez said.
Like the seller of the gun, I, too, was unsure upon reading the headline whether Eisenman was referring to little green men from Mars or real humans from another country, trying to illegally enter these United States. The answer is neither:
Sgt. Perez said Eisenman told the seller of the rifle every 36,000 years, aliens who live under the sun come to Earth to kill humans, and he needed to be prepared because “They’re going to be coming soon.”
Ah. The feared race of Suntarans.
What I want to know is, why did the seller sell this guy the gun and then call the cops?
Every day is Caturday
Apr 29th
Cats are popular. They’re even more popular on the internet, which was, as we all know, invented just for cats. Every day is Caturday [here's the ED version of Caturday, which means it's totally NSFW. I mean it, really. Not. Safe. For. Work].
Sometimes, though, the internet bleeds into real life (shocking, I know). And such has been the case the past week, with three stories – two local – involving cats and crime.
First, this tragi-comic tale of Gregory Lesco, who killed the family cat after it ate his pet bird (no, I”m not making that up):
Police say Lesco told them he was doing dishes when the bird flew from his cage to join him and the cat, named Pepper, jumped up and grabbed it. He said he hit the cat in the head with a baseball bat and then suffocated it with a rug.
He says he struck the cat to try to get it to drop the bird, and then suffocated it because he couldn’t afford to take it to a vet to treat its injuries.
Mr. Lesco, not to be confused with the equally bizarre Matthew Lesko, is charged with one count of Animal Cruelty, which happens to be a class D felony, punishable by 5 years in jail.
Then yesterday, I saw this post by Rick Horowitz about a Michigan law that makes it a crime for cats to fight. Since there’s no room in cat jails, they stick the owners in human jails instead:
The City of Kalamazoo, Michigan, apparently has some fairly weird laws on the books regarding animals. For example, it is apparently a misdemeanor — not an infraction, but a misdemeanor with a real criminal record and a real jail sentence as a potential punishment — not that a simple thing like a criminal record could ever impact anyone’s ability to get a job or a professional license — a misdemeanor to own a cat that fights with other cats. In addition to making it apparently illegal to have a cat that fights with other cats, Kalamazoo also charges owning a dog that barks as a misdemeanor.
I don’t know if that last bit is true, but the charges will be dropped if the cat behaves herself. The cat’s plan is working. Next step: world domination.
And finally, this morning, we get news of a honest-to-goodness cat burglar. No, I mean that literally. A woman who burgles cats (and there’s another awesome cat picture after the jump so don’t you dare not click through):
All drivers are dangerous and the police are the Borg
Apr 26th
Consider the facts:
On April 1, 2006, Officers Craig Miller, David Rivera and Charles Gargano of the New Haven police department were patrolling the Fair Haven neighborhood as part of their duties with that city’s drug interdiction unit. The neighborhood was known for frequent drug trafficking activity. The officers were in an unmarked patrol car, operated by Rivera. At approximately 5:15 p.m., the officers observed a Chevrolet Impala turn right from Ferry Street onto Grand Street without signaling. The officers followed the Impala around the block, during which time they also observed that the defendant, who was operating the car, was not wearing a seat belt. Pursuant to police department policy, the officers called dispatch to request a marked cruiser in order to effectuate a motor vehicle violation stop.
Three marked patrol cars responded to the dispatch call, and stopped the Impala at the corner of Ferry Street and Grand Street. The unmarked patrol car stopped approximately one half of a car length behind the Impala. While still in their unmarked patrol car, Rivera, Miller and Gargano observed the defendant make a movement toward his right side, which led them to believe that the defendant might be concealing a weapon. The three officers then approached the Impala. As they were approaching, Miller observed the defendant close the center console in the front seat.
Rivera removed the defendant from the vehicle, handcuffed him, and frisked him for weapons. While frisking the defendant for weapons, Rivera discovered $1369 in cash and several cell phones on his person. At the same time, Miller and Gargano, as well as several officers from the other patrol cars, removed the two passengers from the vehicle, handcuffed them, and frisked them for weapons. Miller then returned to the car and observed some plastic protruding from the center console. He opened the console and removed plastic bags that he believed to contain crack cocaine. The officers also determined that the Impala was owned by a rental car company. Subsequent testing revealed that the bags discovered in the console contained approximately 21.5 grams of freebase cocaine, commonly referred to as crack cocaine.
So, let’s recap, in normalspeak: officers were in a “minority high crime neighborhood”, looking for an excuse to pull someone over. They saw the defendant commit a motor vehicle violation. They pulled the car over and saw the defendant “make a movement toward his right side” (whatever the hell that means) and decide not only that he was armed, but because he was in a “MHCN”, he was dangerous and probably selling drugs. They handcuffed everybody and searched them and the car with impunity. We now contort ourselves to affirm this stream of clearly illegal activity by the police.
The defendant filed a motion to suppress relying on Arizona v. Gant, which holds that once you have arrested the occupants of the vehicle, there is no more legitimate “officer safety concern”, so a warrant must be obtained.
The Court rejects (emphatically!) the defendants contention that Gant applies since the defendant wasn’t technically arrested until after the drugs were discovered and instead agrees with the State that the “protective search” rubric of Michigan v. Long must control. In Long, the Supreme Court said that the:
purpose of protective searches to be the concern that if the suspect is not placed under arrest, he will be permitted to . . . [go free], and he will then have access to any weapons
and thus, when analyzing a warrantless search under Long:
our focus is on whether the officers had a reasonable and articulable suspicion to believe that the defendant posed a danger and might access the vehicle to gain control of a weapon.
Well, clearly, since the defendant wasn’t actually arrested and merely in a state of “custodial arrest (maybe)”, the question then becomes whether the officers had a reasonable and articulable suspicion that he posed a danger and that there was a weapon in the vehicle.
Remember now, that this was in a “minority high crime neighborhood” and that all three officers saw a “movement to his right side” and one saw him “close the center console”. That same officer then innocently “returned to the car” and saw “some plastic protruding” from that very same center console.
But that’s not enough, is it? Surely even the CT Supreme Court would not hold that that is sufficient to conduct a warrantless search of a motor vehicle? Of course not. Which is why we have the “collective knowledge of law enforcement” exception to the Fourth Amendment.
In conducting this analysis, we are cognizant of ‘‘the well settled principle that, in testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered. See Poulos v. Pfizer, Inc., 244 Conn. 598, 619 (1998) (McDonald, J., concurring) (Fourth amendment law recognizes that the collective knowledge of the police determines probable cause. See Whiteley v. Warden, 401 U.S. 560, 568 [1971]; see 2 W. LaFave, Search and Seizure [3d Ed. 1996] § 3.5 [b], p. 259 n.46.); State v. Acquin, 187 Conn. 647, 657 (1982) (when we test the quantum of [evidence supporting] probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered)’’
Justice Who?
Miller and Rivera saw the defendant “make a movement to his right side”, Miller saw the defendant close the center console, Rivera frisked the defendant and pulled out a gun-like cell phone and cash, and Miller saw the plastic in the console. Of course, they all knew that it was a minority high crime area. And there was testimony that Miller and Rivera shared their observations and findings with one another. Wait, there wasn’t? Oh nevermind. Their knowledge is imputed onto one another.
In fact, applying Whiteley, why stop there? What if Rivera wasn’t on the scene and hadn’t discovered the call signs of drug activity: cell phones and cash? Wherever he was, he must’ve known that those items indicate drug activity. And Officer Krupke, on his beat at the other end of town surely knows that anyone who has cell phones and cash is an armed and dangerous drug dealer! So, of course, the officer at the scene had articulable and reasonable suspicion to search the vehicle. And look, they don’t even have to arrest anyone! Wheee!!!
Because anyone in the police department anywhere is cognizant of the fact that if you’re driving in a minority high crime neighborhood without a seatbelt and you make a movement to your right side and close the center console and happen to have cash and a cell phone, you must be an armed and dangerous drug kingpin. It’s in their – and your – DNA.
Welcome to the 24th Century, where the police are the Borg. The Fourth Amendment will be assimilated. Resistance is futile. Don’t drive.
[A plea: if anyone figures out what "movement to his right side" means, please leave a comment. I have no fucking clue. Kthxbai.]
Right of passage
Mar 11th
I’m channeling my buddy Ryan McKeen here, but, the other day on the local listserve someone mentioned that a client had been given a ticket for “passing on the right“. It’s one of those things that we all do (you can admit it here, we’re all friends), like “following too closely” and don’t ever expect to get ticketed.
But since there are over a thousand crimes on the books, passing on the right being one of them* should come as no surprise. Being the intrepid blogger, it is my duty to inform you of the following:
The driver of a vehicle may overtake and pass upon the right of another vehicle only when conditions permit such movement in safety and under the following conditions: (1) When the vehicle overtaken is making or has signified the intention to make a left turn; (2) when lines of vehicles traveling in the same direction in adjoining traffic lanes have come to a stop or have reduced their speed; (3) upon a one-way street free from obstructions and of sufficient width for two or more lines of moving vehicles; (4) upon a limited access highway or parkway free from obstructions with three or more lanes provided for traffic in one direction. Such movement shall not be made by driving off the pavement or main-traveled portion of the highway except where lane designations, signs, signals or markings provide for such movement. Violation of any provision of this section shall be an infraction.
So, to break this down, you can pass on the right pretty frequently and in most driving conditions. For example, subsection (2) is horribly ambiguous. What does “lines of vehicles” mean? For that matter what does “reduced their speed” mean? If I’m in the left lane of a two-lane highway and the cars ahead of me start to slow down, from say 70 to 50, can I switch to the right lane to overtake? I assume the use of the plural “vehicles” eliminates an argument that the stupid car ahead of me was going 70 in a 65 zone and I’m late to work dammit so get out of the f*cking way you damn red Nissa-oh, hi there.
Subsection (4) is great to know. Most highways in CT have 3 lanes in some stretches; some like interstate 91 have 3 lanes for most of their journey. I shall pass on the right with impunity henceforth.
You can thank me later.
[Apparently, this is quite the hot-button issue that perplexes many. Check out the Google result for the search.]
*yes, I know that an infraction isn’t a “crime”, but stop getting in the way of my flow.
The stupidity epidemic: it’s catching
Dec 20th
Well, folks, now you’ve gone and done it. The stupid has taken over the world. In addition to the “honey I found a shotgun in the yard” crime in Britain, Virginia has now gone and convicted the coffee guy who was walking around his house naked and was spied by some peeping toms.
Add to that this by now well worn video of the DC cop who pulled a gun on snowballers and it might be time to scratch this whole homo sapiens project and start over:
I am now going into isolation to avoid catching the stupid. See you never.
This Seattle DUI lawyer is not a douchebag
Dec 16th
Remember that stupid post I wrote about some article on some site that suggested that defendants were better off with private lawyers (a particular private lawyer, actually) than public defenders because pd’s are overworked-underpaid-useless-etc?
Turns out one of my two readers also writes a blog for the Seattle Weekly and the post was picked up there and the enterprising author sent the law firm in question an e-mail.
It took two days, but we now have some idea of what happened: Lovik & Juhl (the law firm) say they didn’t write the piece, nor did they pay anyone to write it. From the statement they sent to the Seattle Weekly:
I really haven’t a clue who may have written this (we have no staff, just two attorneys, neither of whom publish on any site like the one you have linked to here.) My guess would be that one of the services we use to try and drive traffic to our website has done this to try and make themselves appear more valuable to us. We have recently cut ties with at least one agency that we found were using fake names to give us “client reviews.” I didn’t feel right about that, either.
Lovik says the most likely culprit is a guy they hired to redesign their website. But the lawyer says he’s “just a kid.” And doesn’t want to reveal his name nor hurt his reputation based on what he sees as a misguided attempt to help the firm.
I have received e-mails from this young “kid” and I, too, am not going to name him. There’s no point. There was a lesson to be learned here and it seems that everyone has learned it. For Lovik & Juhl: outsourcing marketing = outsourcing ethics and reputation. I, for one, have learned that I really shouldn’t give a crap.
So, here’s what I’ve done: I deleted the content of the previous post and replaced it with a link to this one. If someone with better SEO knowledge tells me that it would be preferential to delete the original post in its entirety, I’m willing to consider it.
In the meantime, I would recommend that Messrs. Lovik and Juhl read Mr. Bennett’s post above and join us in the blawgosphere the right way.
The crumbs are asking me questions
Dec 14th
seriously, i didn't make this up
It’s time, once again, to play that game where I take search terms that led visitors to this blog and make pithy comments about them. I’ve done this before (and again and again) and yes, it is a diversionary tactic which keeps me distracted enough to not write that substantive post that none of you ungrateful readers will ever read or comment on.
Don’t look at me like that.
Let’s get started:
- From August till now, the #1 search on this blog is the term: “facepalm“, which might adequately convey one’s reaction upon reaching this blog.
- Phil Russell also got a lot of hits: by the way, he wants you all to know that he appreciates the support.
- Law: yes, that’s the general idea. Also equally productive searches: science, the and and.
- Raising the Bar Season 3: you have reached the end of the internet.
- Public defender crap: much like regular crap, except free and overworked. Also, not as smart.
- How to beat the law: It’s a futile exercise. There’s only one person in the history of the world to have ever beaten the law and then too only when he was the law. Figure out that flux capacitor.
- How to be a public defender: Depends on who you ask. My clients would say if you have a pulse, you’re in! Because that whole law school thing is totally useless.
- Fail: epic
- Crazy public sex: There’s no such thing.
- Mental health public defender: It’s touch and go, thanks for asking.
- How to hire a public defender: You really need to think about what you type before you type it. All kinds of stupid up in this joint.
- Several people want to know what Alex Kelly is doing now. I. Don’t. Know.
- ooo sex: what happens after an aaa meeting
- ipostnaked dot com: glad to hear it.
- need money: if you find some, let me know. I have a good friend in Nigeria who’d be willing to invest it for you.
- if someone has naked pictures of you: you should probably try and get them back before they end up on Facebook – ah, what the heck, are you hot?
- tomorrow, you will vote the abolition of the death penalty: tomorrow, I will vote the abolition – wha, wait a minute! I see what you did there.
- why the government of usa make such dumb laws: I don’t know, it didn’t say.
- castrate myself: I wouldn’t recommend it, but hey, if that’s what you really want.
- why do we need the 6th amendment?: so you can read posts like these, duh!
- sleeping public defender: and that’s my cue.
I bet you can’t do better.
| RT @ryanbernat:
Why people think criminal defense lawyers are scum (updated x2)
Nov 25th
It seems to me that someone thought they were being artistic. The pictures, to be honest, aren’t half bad. It’s the subject matter of the pictures that is extremely questionable. Here are the worst offenders:
- Family Violence
- Sex Crimes (a tear? really?)
- Rape and Sexual Assault (I mean…I don’t…)
- Child Sexual Assault and Internet Solicitiation (wouldn’t a picture of a cop on a computer have been more appropriate?)
So, after looking at these I bet you’re curious what they have for the rest. The rest are as unimaginative and boring as these are offensive and stupid. Here’s Murder and here‘s [I have to warn you: that image is really, really gross. No nudity or anything, but..just...be careful and do not blame me for clicking on it] what it should have been. Here’s violent crimes, but I think this would fit better with their theme. The only one that I think really works in money laundering (hey! someone’s got a sense of humor!).
Update: An intrepid reader provides a picture of what real money laundered money would look like. I want to swim in it.
Update-Update: The Texas Tornado points out that it’s a findlaw website, but someone still had to approve the damn thing.
Anyway, somebody better take screencaps quick before they change the images.
I have to ask: What is wrong with people?
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