A Cronic problem

too soon?

Lawyers, despite what some would have you believe, are people too. We eat, we breathe, we cry, we laugh and we sleep. And there’s nothing wrong with that and there shouldn’t be. Except that last one – sleep – specifically if a lawyer decides that the cross-examination of his client, in front of a jury, is the perfect opportunity to catch a few winks.

Sleeping lawyers have been mentioned on this space before [and elsewhere], so I would be remiss in not pointing out the latest escapade of one who allegedly decided to shut his eyes for a few minutes during that oh-so-unimportant part of a criminal trial. This one comes courtesy of the 6th Circuit (and via Volokh) in Muniz v. Smith [PDF], in which Muniz alleged through the sworn affidavit of a juror that his attorney was, in fact, asleep.

I won’t bother with the facts of the case or the outcome, because both are quite obvious: there is no presumed prejudice under Cronic because there is no record that the lawyer was asleep for a substantial portion of the trial and there is no Strickland violation because goshdarnit Muniz was overwhelmingly guilty.

But the Court’s perfunctory analysis of the issues raises a greater problem: what is it that we expect of lawyers in our criminal justice system? Why is it acceptable for a lawyer to be asleep for even as little as a minute during a criminal trial?

In Cronic, SCOTUS said:

I know it when I see it

obscene

Finally, my favorite subject: pornography. Everyone has to have heard of Justice Potter Stewart’s words which form the title of this post, written in a concurrence in Jacobellis v. Ohio, on the issue of “obscene” videos. And almost no one knows what it means. After a flurry of decisions in the 1960s and 70s (Stanley v. GA, Smith v. CA, Miller v. CA, Jenkins v. GA) attempting to define exactly what is obscene and what is protected and just who can be prosecuted with and ending up with a mess of a Constitutional doctrine, the Supreme Court – and the general American public – seem to have given up on pornography altogether. No one really cares anymore and there’s hardly ever a prosecution for the production, sale and possession of adult pornography.

Unless you’re a sex offender on probation, of course. Enter Robert Stephens. Stephens was convicted of possession of child pornography and as part of his sentence, was placed on probation. Some of his conditions were as follows:

One of the seven special conditions was that the defendant’s access to any computer must be approved by the office of adult probation. Among the special  sex offender conditions were that the defendant (1) not possess, or subscribe to, any sexually stimulating material deemed inappropriate by a probation  officer, (2) not possess a camera, DVD player, camcorder, videocassette recorder or other similar equipment without the approval of a probation officer, and  (3) submit to an examination and search of his computer or other similar equipment to verify that it was not being utilized in violation of his probation or  treatment.

Note that the condition isn’t “obscene” material, but rather “sexually stimulating material deemed inappropriate by a probation officer”. More on that later.

As is the natural course of events for sex offenders, he was found in violation of his probation for having a few nude photographs of his ex girlfriend and duly sentenced to 42 months in prison. He appealed, claiming that the condition:

The responsibility of choice

Discretion is such an ugly word. It sounds officious, vague and un-engaging. I prefer to call it choice. Because that’s what prosecutors have: the power to choose whether to prosecute someone or not. It is that power to choose that is a manifestation of the great power that prosecutors wield: the power to deprive someone of their life, their liberty, their reputation.

This inherent ability has been discussed elsewhere lately, in Scott’s post where he gives two examples of poor choices made by prosecutors and in this NPR interview with former state judiciary committee co-chair Mike Lawlor and today, in this piece in the NJ Star Ledger.

The Star-Ledger piece talks about prosecutorial discretion choice in the context of three recent high-profile criminal justice stories: Dominique Strauss-Kahn, Casey Anthony and The Rocket and how all these cases seem to indicate the quest for justice has buckled under the pressure of the 24-hour sensationalist news cycle and the pressure to convict – when that same news media all but assumes that with every accusation comes a conviction – has subverted the true function of the prosecutor. I’ve written plenty about the impact and responsibility of the media in sensationalizing the criminal justice system, so I won’t go there in this post. This post is, I think, about the role of the prosecutor and the power of choice that they possess.

In penning this lament in the Star-Ledger, John Farmer, dean of Rutgers Law School (and a former prosecutor) relies heavily on the words of former Attorney General (and later Supreme Court justice) Robert Jackson uttered at a meeting of prosecutors, some of which I reproduce here:

“The prosecutor,” he reminded them, “has more control over life, liberty and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations.”

“With the law books filled with a great assortment of crimes,” the attorney general said, “a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. … It is in this realm … that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group … or being personally obnoxious to or in the way of the prosecutor himself.”

How to write a successful blog post

try to be punny

Paragraph 1: Pithy comment about incendiary topic, helpful if it involves babies, monkeys, or the unholy amalgam of both: politicians. Throw in a source link if you feel like it, or if you really want to be a dick, wait till Paragraph 3. If you really want to be successful, don’t bother with a link at all. You readers don’t need it, they’ve got you.

Paragraph 2: Mocking baiting of those that support whatever idiotic idea it is that you’re writing about. If you can find a way to work in “that’s not even wrong”, it guarantees 5 extra comments.

Paragraph 3: Massive blockquote to eat up space and make the post look longer than it is.

Paragraph 4: Restate whatever you said in Paragraph 1 and 2, but this time in reference to the blockquote. Snark factor must go up by 100. Include phrases like “I’m worried about the State of the country” or “lamestream media” or “I’m moving to Canada”.

Paragraph 5: Invoke Godwin’s law.

Paragraph 6: Another blockquote, but this time don’t even bother with commentary. It’s obvious.

Paragraph 7: ???

Paragraph 8: Conclude with yet another pithy, sarcastic statement, belittling those that see things differently. Success guaranteed if you end with “bunch of idiots”. Don’t solicit comments. Reverse psychology works like a charm.

Add mildly on-topic video/music that shows how smart you are and how stupid everyone else is because you made the connection and they would’ve never thought of it.

QED. You’ll thank me later, you bunch of idiots.

Public defenders vs. assigned counsel vs. private attys: Round I lost count

As I sit here in the dark, lamenting the death (and dearth) of blogging public defenders, I’ll leave you to read this latest study that seeks to compare the effectiveness of public defenders, assigned counsel and private attorneys. This isn’t the first study that’s been done, nor should it be the last, but the results aren’t Earth-shattering by any means.

The study, published by a statistician at the U.S. Bureau of Justice Statistics, focuses on:

What types of defense counsel (e.g., public defenders, privately retained attorneys, or assigned counsel) represent defendants in criminal cases and how do  these defense counsel types perform in terms of securing favorable outcomes for their clients? These and other issues are addressed in this article analyzing  felony case processing data from the Bureau of Justice Statistics (BJS). Specifically, this paper examines whether there are differences between defense counsel type and the adjudication and sentencing phases of criminal case processing.

By way of preliminary information, the public defenders are full-time attorneys employed by a governmental organization who exclusively represented indigent defendants, while assigned counsel are private attorneys appointed on an as-needed basis by the courts. You know who private attorneys are.

The findings of the study really aren’t surprising at all. There’s almost no difference to speak of between the three, except that private attorneys’ clients are more likely to get some form of probation and assigned counsel clients are more likely to end up incarcerated.

Aaron Swartz is the new Lori Drew: The TOS misadventures

If the Federal government were on Twitter or Facebook (or even that shiny new toy Google+), they’d be the confused old grandfather who’s elated that he’s won the Australian lottery even though his clearly smarter – and younger – wife quizzically asks him if he’s every been to Australia.

The Feds continued their misadventures in Terms of Service land with an indictment handed down today against Aaron Swartz, disputed co-founder of Reddit, the less well known bastard child of Digg.

His crime – described by his acts, not the silly US Code that they’re charging him with (PDF) – is essentially downloading staggering amounts of documents from JSTOR, the online repository of the ivory tower’s pontifications and musings on the life of the bourgeoisie. Seriously. Have you ever tried download anything from JSTOR? Apart from being so damn counter-intuitive, that shit is expensive. So expensive that some universities are charged $50,000 a year for access to the hallowed writings scanned and uploaded to JSTOR.

Swartz, someone whom the Feds have had their eye on for a while, basically used spoofed MAC addresses, guest accounts and the like to get behind their paywall and just download all their files. What was he going to do with it? Who the hell knows. But he did it because he hates paywalls and believes in freedom of information and free dissemination of that information. Or something. Watch out, NYT, you’re next.