Think of the children

The classic strawman, the underlying justification for any legislation appearing to be tough on crime, the go-to argument for riling up mobs in your favor is to implore people to, please, think of the children.

The “children” at issue are not just any children: they’re your children and mine, those sweet innocent babes who just want to eat ice cream and roll in the mud and take cute pictures with the family dog. Those naive children whom we must protect at all costs from the dangerous monsters that lurk around the corner and wait in shadows. Unless, of course, these children commit crimes themselves, in which case we do think of them: we think of them as juveniles. One day, they’re the future of the nation, the next they’re shackled in the back of a prison van, drenched in their newly acquired status as irredeemable delinquents, the scourge of society.

Juveniles have long been the forgotten sector of the criminal justice system. Practicing in juvenile court is barely a step above practicing in family court. Representing them is akin to being a social worker and no self-respecting defense lawyer voluntarily wants to go into juvenile court and looks down on those who do. Until now. After the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, the plight of juvenile defendants is finally seeing the light of day and taking center stage in a long-overdue discussion about just what, exactly, we are doing to our children. These two cases are notable not only for their respective holdings, but also for mainstreaming the scientific consensus on the development of the adolescent brain.

They’ve caused us to re-examine our treatment of these damaged, troubled 14, 15, 16 and 17 year olds and have shone a spotlight on the ugly legislation we have in our states that mistreats these children.

5 ways the iPhone 5 will make you a better lawyer

Can you feel the warm glow emanating? CAN YOU?

Apple dropped some much expected news today that it will be releasing its latest version of the GodPhone next week, humbly titled the iPhone 5. If, like me, you’re rushing to buy it and figure out ways it will change your life and your legal practice, let me count them for you:

1. The screen will be larger. In fact, half an inch larger, which, we all know, makes a huge difference. Now you won’t have to squint at the tiny text in a clumsy, awkward way, letting everyone know that you’re looking at your phone while in court. You can do it stealthily while pretending to listen to whatever the judge is droning on about. Clients will be impressed at your attention giving skills.

2. It comes with a new-built in BumpForLawyers App, which allows you to transfer documents, motions and thoughts directly to the judge’s iPhone, minimizing the need to speak or articulate anything.

3. Siri is now schooled in all the evidentiary rules and your state statutes, so you can quickly ask “How should I object to this question?” and she will tell you the appropriate answer. In fact, you should just let Siri object for you; she’s far more sonorous than you ever will be.

4. The iPhone 5 is now equipped with EndlessZoom, a nifty tool that lets you zoom into pictures to infinity and has such useful features as “enpixelate” and “reverse the view” which let you fully and effectively explore a crime scene as if you were there! Discover hidden pieces of evidence, see the real perpetrator’s reflection in a toenail and splice DNA strands on the fly. It also provides you with handy catchphrases to sprinkle throughout your examination. David Caruso glasses are extra. You’re sure to win your trials and maybe get a few phone numbers in the process.

5. It won’t.

[Image shamelessly stolen from the Washington Post website, which I presume took it from Apple or someone covering the event.]

Courtroom reality

Tonight, National Geographic Channel, which, I’m told, has long abandoned any pretense of having to do with geography and has wholeheartedly embraced the quasi-reality of crime and prison shows, is airing a half-hour episode of a new project titled “Criminal Defense: And justice for all” (note that the title makes no pretensions of “equal” justice). There is a second episode set to air tomorrow night, I think. The show is getting a sort of trial and if these episodes garner enough interest, they might order a full run. Whatever.

The show follows public defenders at the World Famous© Brooklyn Legal Aid as they represent clients during the course of their humdrum, everyday routine while doing things like climbing ladders at crime scenes to prove that the cops are lying. We all do that, right? Whether this show accurately captures the life of a public defender and the day-to-day workings remains to be seen.

Real-life crime shows have taken off and captured the public’s “imagination” because they allow us to: 1) not think; 2) pretend we’re better than everyone else; 3) laugh at the misfortune of others and 4) not think. But these prosecution and law-and-order oriented shows are easy to make and easier to market. They’re black and white and, increasingly, the American populace seems to like things to only be black or white. A show from the defense perspective necessarily brings with it nuance and challenges the viewer to be understanding and compassionate, which is why they don’t garner much success despite being fronted by the ridiculously handsome Mark-Paul Gosselaar. And it makes sense, when a pro-prosecution show can generate this:

The new criminal justice experts: the public

The criminal justice system is made up of several, mostly unequal parts. At the top of the food chain sit the prosecutors, lording over all that they survey, with supreme control over the futures of thousands of individuals. Then come the judges, who are increasingly former prosecutors who echo the demands of the current prosecutors. Lagging behind – a long way behind – are criminal defense attorneys, whose roles have been sidelined to bleating and begging for a break here and a break there. We, the CDLs, are fast becoming used car salesmen. The defendant is somewhere there, in the mix, usually an unseen and amorphous blip on the radar on the horizon, hardly ever a thought in the negotiating process.

But there are two others who, from behind the scenes, feed into and subconsciously manipulate a once well-regarded (even if only by those who were a part of and beholden to it) justice system: the ill-informed general public and the media who control their puppet strings by refusing to provide any measure of nuance and education in their sensationalist stories about every case that happens to cross the docket (my previous media diatribe here).

(Former) Judge Nancy Gertner, writing for WBUR, makes a compelling argument that the media irresponsibility is much to blame for the current state of affairs in the justice system:

A decade later came the shock jocks and 24/7 pundits. What the public thinks about the crime, and thus what the criminal “deserves,” came to be shaped — indeed inflamed — by the press.

Meanwhile, criminal justice experts were sidelined. As Duke University law professor Sara Sun Beale argued in the aptly titled 1997 article “What’s Law Got to Do With It?” — criminal justice policy is largely driven by the media. The good news of falling crime rates over the past two decades was rarely reported; the nightly news famously reflected the principle, “if it bleeds, it leads.” The result? Popular punitiveness trumped everything, whether or not it bore any relationship to good public policy.

We’ve all seen it: there is almost a formulaic nature to the reporting of criminal cases in the “news”: a massive headline when someone is arrested for a crime with information taken mainly from the arrest warrants, with little to no mention of the range of sentences or a critical view of the facts as presented by police.

[This, on the other hand, sets up an interesting conflict: people seem increasingly suspicious of police activity as a whole and are cognizant of the creeping police state in general, yet blindly buy and accept whatever accusations are reported in individual, specific cases. I’m sure there’s a term for it, I just can’t seem to remember it.]

Monday Morning Jumpstart

Stuff for you to read while you “work” on a Monday morning:

  1. A comparison of the Democrats’ platform on civil liberties between 2008 and 2012. Spoiler: they’ve joined the GOP in not giving a shit about it.
  2. The FBI is launching a $1 billion facial recognition program. See 1. above.
  3. A new paper on the mandatory meaning of Miller.
  4. Gamso has an expert takedown.
  5. Ken at Popehat is back in action with an excellent post challenging this Gawker piece on pedophilia as a brain abnormality and the reactions to it.
  6. A terrifying story on the disciplining of school children.
  7. The Juvenile Justice Information Exchange has this post on the slowly widening social gap in our society and the impact it has on our ability to understand and care for those who have less.
  8. Should states help death row inmates donate their organs? Gamso (again) has more.

Should get you through the morning coffee break. Then you’re on your own.

Should dead women tell some tales?

Having had my egg for lunch, I spent the better part of the day attempting to untangle the evidentiary web that seems to have ensnared many following and participating in the Drew Peterson saga. Drew Peterson, for those of you who don’t know, was a sort of Black Widower: a man who left a trail of dead wives. A jury just found him guilty of murdering his third (?) ex-wife, while wearing matching outfits. The jurors were wearing matching outfits, not Peterson and his wife. Lacking physical evidence, the prosecution relied on statements made by both his third ex-wife (the decedent in the trial) and his fourth (who is also missing) to friends, family and clerics.

And this is where, as they say, the plot thickens. With help from these two fantastic posts at EvidenceProf and this equally detailed post by anonymous public defender “S”, the issue has become somewhat clear less murky.

So, let’s start at the very beginning:

The statements in question do not implicate the Confrontation Clause of the United States Constitution. As stated in Crawford, the Confrontation Clause is concerned only with out of court testimonial statements. The out of court statements relied upon to convict Peterson were made to friends and family and thus not testimonial. So forget Crawford. What that leaves us with is whether the statements are admissible under any exceptions to the rule against hearsay.

Things to read

On a Thursday evening:

  1. Another man who spent time on death row (this time in Ohio) was exonerated after a judge found that prosecutors withheld evidence from his attorneys that could have exonerated him.
  2. TL;DR: Lawyer submits a graphic novel amicus brief [PDF] after the judge gives him only 5 pages (via the new and local Federal Prisons Blog authored by friend-of-this-blog-although-he-doesn’t-know-it Todd Bussert). The ABA has more here.
  3. The Oregon Federal Defenders office has released its latest edition of ‘Developments in Federal Search and Seizure Law‘ [PDF], which is a must read primer or refresher for us practitioners.
  4. The Supreme Court’s new agent is helping the Court get better, higher profile cases.
  5. A wonderful opinion piece in the NYT titled ‘The Living Death of Solitary Confinement’.
  6. Chandra Bozelko, an inmate at CT’s prison for women, has this lengthy piece at the New Haven Independent on life and love on the inside.
  7. Did you know that there’s a statute that allows school bus drivers to write down your license plate number and then the cops can send you a summons? Neither did I.
  8. Yes, Dorothy, these are the idiots who will decide whether you spend the rest of your life behind bars.
  9. 8 judicial opinions citing to Star Trek.

The more you know…