State police want to arrest judge who refused to sign arrest warrant

Unless the victim was also arrested. You can’t make this shit up. And if it were April 1st today, I might laugh it off as a clever joke. But it’s not and apparently neither is this.

Here’s the lowdown, from the two meager paywall inhibited articles that I could find. State Trooper from Salisbury, CT (where watching paint dry is exciting) Mark Lauretano apparently submitted an arrest warrant for a man who got into a bar fight with someone else. The “victim” of the fight (meaning the guy who got beaten up worse), was obviously not arrested, as these things go. Judge Klatt, upon reviewing the information in the warrant declined to sign it, apparently until the “victim” was also arrested.

Judge Klatt, a former prosecutor from Death Valley Waterbury, CT, should have known better. You simply do not refuse the State Police what they want. So instead of, I don’t know, reviewing the information again to see if maybe the Judge had a point, Lauretano does the logical thing and is now seeking an arrest warrant for the Judge herself*.

Because, you know – no, actually I don’t know. He claims that:

Reasonable gibberish

(alternate tagline: because juries never convict anyone anyway)

“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.

Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.

Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:

The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable.  It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt.  It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision.  It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4

Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.  Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6

Deluding yourself is deluding the client

Sometimes I wonder what practicing as a criminal defense lawyer would be like if the State only arrested innocent people; if all my clients were, indeed, not guilty. It would be a burdensome practice, for sure. And exceedingly infuriating. As every criminal defense lawyer will tell you, one inevitably comes to believe in the not-guilt of a client with whom you are preparing to go to trial. Every inconsistency in the State’s case becomes magnified, every weakness exaggerated, every defense rock-solid. There is no way to lose, we say to ourselves.

But the reality is, unless you can pick and choose your clients, you will lose. More often than not. Frequently, even. Which is why the inevitable “how many trials have you won” question from an antagonistic client gets under my skin. None, I often respond. But what I really want to add is “that’s because I haven’t had an innocent client yet”. Recognizing that that is nothing more than a hurt ego lashing out, I resist.

But maybe there is something to be learned. Perspective, after all, matters. As defense attorneys, we regularly complain that the state and the man wearing the robes commence discussions and negotiations with the presumption of guilt. Due process, the burden of proof and all the rest of it are fine concepts, in principle and need to be upheld on a daily basis, for without them we would be left with a terrifying shambles of a system.

The reality, though, is that they’re right, for the most part. The system doesn’t just go about arresting perfectly innocent people willy-nilly. And the blind faith in the innocence of each and every client does them a disservice. Clients come to us – or we are thrust upon them – for our expertise, our knowledge and our advice. It is imperative that we consider every possibility and assess it accurately before suggesting the most prudent course of action.

Our job isn’t to “win” or to put on a great trial or to take on the State. It’s to protect the client’s ass, which, most of the times, they have no interest in doing. We fail miserably at our jobs if we adopt the same reckless abandon that they have to their future. We are in the mitigation business, unfortunately and even more so for others, we are akin to actuaries.

What is the most likely outcome, we are required to advise, and what is the best way to minimize negative consequences? Crunch the numbers and viola, we have a recommendation.

Do not, for a second, mistake this to be a growing disinterest or disillusionment with the role of the defense attorney, but the opposite: an expanding awareness of the pragmatism that is needed – required, even – to perform this job well. In the end, I do not sleep in a jail cell; the client does. And if that outcome is more likely than not, is it not my job to ensure that such an undesirable circumstance occurs for the least amount of time possible? And what, then, is the most certain way to achieve that outcome?

Prepare every case as if it were going to trial, because that meticulous preparation will inevitably lead to better offers from the State. But recognize that the plea deal is more often than not the sounder of the two choices. Because, in the end, experience tells us that the defendant almost always gets screwed. How badly he gets screwed is up to us.

Cf: Why I hate guilty pleas

They may take my freedom, but they will never take my cell phone

The title only really works if you imagine it being uttered by Mel “before he went crazy – or maybe he always was” Gibson essaying the role of William Wallace in that stirring monologue near the end that is actually said to have never happened (There’s some trivia for you).

But it is indisputable that some of the lunacy that has infected the good actor’s mind has seeped into the brains of certain state legislators, for how else would one explain a new proposed bill that would make talking on a cell phone punishable by imprisonment?

Raised Bill 6366 would make the penalty for a second violation of the no-talking-on-cell-phones-while-driving law up to three months in jail:

(h) Any person who violates subsection (b), (c) or (d) of this section shall, for a first violation, be fined one hundred dollars, and, for a second or subsequent violation, be fined not more than five hundred dollars or imprisoned not more than three months, or both.

It would also give the police the immediate authority to suspend a driver’s license for a period of 24 hours, without a hearing, or due process, which up until now were within the exclusive kangaroo jurisdiction of courts and the Department of Motor Vehicles.

I’ll get back to the “3 months in jail” provision in a bit, because there are other problems with the bill as drafted that also merit attention. For example, the bill makes it illegal to talk on the phone or send text messages, but does not make it illegal to hold “a hand-held mobile telephone to activate, deactivate or initiate a function of such telephone”.

There is an exception for a “hands-free” device which:

means a hand-held mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of such hand-held mobile telephone, by which a user engages in a call without the use of either hand, whether or not the use of either hand is necessary to activate, deactivate or initiate a function of such telephone.

So, it would seem, I can answer a call, put the phone on speaker and talk away to my heart’s content. Or can I? It is also illegal to have “engage in a call” in one’s “immediate proximity”:

(7) “Immediate proximity” means the distance that permits the operator of a hand-held mobile telephone to hear telecommunications transmitted over such hand-held mobile telephone, but does not require physical contact with such operator’s ear.

Whaaa? So can I use the speaker function, or can’t I? The bill also makes it a rebuttable presumption that anyone who holds a phone to, or in the “immediate proximity” of his ear is engaged in a call. The presumption can be rebutted by one proving that there was indeed no call taking place.

And of course, the bill also makes it clear that getting pulled over for this violation does not give police the authority to seize or forfeit the phone.

Nifty little trick there. It places the burden of proof – of innocence – on the accused and then forces that accused to give up his fourth amendment right to be free from illegal search and seizure in order to prove that innocence.

The only way that someone can prove that they were not engaged in a call is to take out the phone and show the officer that they were not, indeed, making a call. But courts have held recently that there is some grounds for a right to privacy in one’s telephone, thus triggering the Fourth.

[Although, this particular “problem” is taken care of by Raised Bill 961, another bill on talking-while-driving, which directs the police to seize the cell phone for a period of 48 hours. I suggest that each one of you create a password on your cellphones and calmly remind the officer that he is violating your fourth amendment rights and that he obtain a warrant prior to seizing the cell phone.]

Of course, the biggest problem with this bill is that it creates criminal liability for acts that are so poorly defined and that really should not be the subject of criminalization.

Making one of the potential penalties 3 months’ imprisonment brings with it the attendant rights of anyone who is exposed to a deprivation of liberty. Which means due process, the right to counsel, etc. And that means greater resources and more time wasted on something that really even the police themselves can’t be bothered to police. In other words, I smell pretext.

H/T: Capitol Watch

The Limp Writ Redux

Because the State of Connecticut has nothing else to worry about *cough3billiondollardeficitcough*, it’s time for the legislature to entertain bills on all sorts of nonsensical subjects, including one that’s every “dumb on crime” legislator’s favorite whipping boy: Habeas Corpus reform. The bill is exactly the same as the one proposed last year (no, I haven’t done an actual word-by-word comparison, but it looks pretty damn identical to me), so instead of wasting my time crafting an entirely new response, I’m going to follow the learned legislators’ lead and copy and paste my detailed response from last year. But don’t be fooled into skipping past it. It’s awesome and I’m pretty sure I put a lot of hard work into writing it a year ago. That this bill has once again been presented to the legislature is not any indication of the need for habeas reform; rather it is a testament to the improbably short-sighted and bull-headed nature of our elected representatives for whom it is more important to appear as if they’re doing something worthwhile than to actually do it.

Since the time of the Magna Carta, prisoners have been able to challenge the legality of their incarceration by petitioning for a writ of habeas corpus, long known as the Great Writ. We inherited “this powerful tool for . . . protect[ing] . . . individuals’ constitutional and statutory rights . . . from Great Britain,” which formalized it in the Habeas Corpus Act of 1679. In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.”

The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights. The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which if withdrawn, “risk[s] injury to an important interest in human liberty.” Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty”.

And all of that would mean absolutely nothing if a bill currently in the state legislature were to pass. A bill, that in my view, comes dangerously close to an actual suspension of the writ in certain circumstances.

That such a bill is being considered by lawmakers is a monumental slap in the face to the very principles upon which the justice system in this country was built. The bill is born of a misbegotten belief that the courts in Connecticut are “overwhelmed” with “needless” and “repetitive” habeas petitions, whereby inmates [read: criminals/scum of the earth/them, not us] “abuse” the system. Putting aside the fact that the current pending habeas petitions represent a mere 10% or so of the incarcerated population [and an even smaller percentage of total convictions in the state], the idea that a State would be willing to eviscerate so fundamental a protection without the slightest trepidation is repugnant.

Making this proposal even more jarring is the granting of The Great Writ yesterday in a case where the two petitioners were found by the court to be actually innocent after 16 years in jail [make sure you read the decision by Judge Fuger]. If this bill were to pass, it would convert the sharp scythe that the Great Writ is meant to be into a limp sword of cardboard used in middle school productions.

Let us count the ways in which this bill sticks a big middle finger right through The Great Writ and the ways in which this will only generate more litigation and require more expenditure:

Looney times are here again

It’s February after an election year, which can mean only two things: pitchers and catchers report soon and there’s an influx of bills in a new legislative session that make you go “stfu!”. Don’t ask me what stfu stands for. Seriously, it’s 2011.

So in a year where the only focus should be the economy, stupid, there already is no dearth of head scratch inducing bills that have been or are about to be proposed in the State legislature. I bring you these only as I can – with heaping amounts of derision.

So let’s get started:

Proposed S.B. 104: An act concerning the penalty for the sexual assault of a minor. Don’t bother reading it, it’s a proposed bill so there’s nothing more than a statement of purpose. I’ll tell you what the proposal is: one strike. Yes. One strike for people convicted of sexual assault of a minor under “certain circumstances”. That means, under “certain circumstances” you sexually assault a minor, the penalty is life.

I’ll tell you why such boneheaded bills get proposed: publicity and feeding into hysteria. Senator Witkos, who must know that there’s no chance in frozen Connecticut that his bill will pass, has introduced it only so he can look “tough on crime” (which we all know is on the way out and there’s no chance in frozen Connecticut Witkos will ever look ‘smart’ on crime). The implications of a bill such as this are frightening nonetheless. Apart from the severity of the penalty, there will almost certainly be no more plea bargaining for this sort of offense. What’s the incentive? None. Go to trial. Watch the system crumble. Watch children further traumatized. Good times, Witkos.

Proposed S.B. 87: An act concerning the prevention of convicted felons from receiving state social service benefits. If you thought 104 above was the extent of Witkos’ bright ideas, let me disabuse you of that notion. Here is another of his bright ideas. The statement of purpose is laughably uppity: To require that persons receiving state aid are law abiding citizens.

I hope, dear reader, that you have no need for me to list the various ways that this bill is a bad idea and insidious at worst. Whether the chicken came before the egg, the impact of this bill will squarely fall on the minority communities of Connecticut, whom some might argue have the greatest need for social services.

Proposed S.B. 395: An act concerning drug testing for recipients of cash assistance benefits. It seems that Sen. Kane is drinking whatever Witkos is. This bill would require periodic drug testing (yes, let out that sigh right about now) of people on state welfare. Hey, at least it’s no “one strike” bill. A first offense requires an evaluation. A second requires mandatory (!) drug abuse treatment and only a third will strip away benefits. Because there’s nothing like making poor people poorer to get them to stop using drugs.

Proposed S.B. 142: The “DNA upon arrest” bill. The problems with this type of DNA collection are well documented as are my objections to it. (More on this bill here.)

Proposed S.B. 695: The “gun offender registry” bill. Proposed by longtime Senator Looney (now you get it), the bill would create a registry, similar to the sex offender registry, of people convicted of using guns during specified crimes. It helps keep track of gun users or something, apparently.

But I can’t hate on Looney too much, because for every crappy bill like the above, he proposes several good ones. For example, the bill legalizing less than an ounce of marijuana, the bill reducing the “drug free zones” to only 200 feet as opposed to 1500 feet and only during school hours, the bill to videotape interrogations, the bill to automatically make provisional pardons final after 5 years of crime free life (beautifully titled “To allow former offenders a better way to become productive members of society”), the bill making it illegal to detain in pre-trial status people charged with misdemeanors for longer than the maximum punishment (aka the bill “To create a more rational criminal justice system”);

and finally S.B. 788 which would give citizens the right to sue police departments who interfere with a citizen’s right to photograph or videotape events as long as they are not interfering with the police’s ability to perform their duty. Perhaps because of this or this?

Proposed H.B. 6076: The “residency restrictions” bill. Proposed once again by Rep. Roldan of Hartford, this is a reprise of the bill from last year, creating a 2000 foot buffer zone around schools, bus stops, parks, etc., prohibiting sex offenders from living there. You really want a link to my opposition? Fine. Word on the street is that Roldan himself is pretty sure that the bill won’t pass and yet has to introduce it to…I don’t know…avoid talking about the budget?

The Day of New London has more on other silly bills that shouldn’t have even taken seed in the minds of our esteemed legislators, but yet, here we are.

Oh, there’s a death penalty abolition and eyewitness ID reform bill too, but those deserve their own posts.

Blawg Review #294: MLK, Jr. Day edition

This is certainly an odd week to be hosting the MLK Day edition of Blawg Review and almost all of it has to do with the events in Arizona, late last week. There will be much written tomorrow, juxtaposing the powerful non-violent philosophy employed by Dr. King with the all-too-violent assault on democracy in Tuscon. I will attempt to supplement this post throughout the day tomorrow as posts are written and published. A reminder, as in years past (#91, #143, #247), that it is incredibly difficult to find a unifying theme for a Blawg Review such as this, so the topics and posts below aren’t specifically linked to any neat idea, but merely a clustering to bring a semblance of coherence to my usual ramblings.

Being fully cognizant of Dr. King’s approach to life and his likely frowning upon my taking joy in the misery of others, I’ll give you the first link of this edition of BR before I get to Dr. King and his legacy:

Tom DeLay, welcome to the receiving end of your policies:

The system has eaten one of it’s own. The Hammer got 3 to do, and 5 for 10. The same tuff on crime ethos that Tom championed for years has finally bitten him in the ass. Here’s newly minted felon, Tom DeLay, on crime

Robert Guest, proceeding to list all the “smart on crime” bills and initiatives DeLay voted against. Okay, now that I’ve gotten that out of my system, onto the serious stuff.

From the “We Really Should Pay Attention to Dr. King’s Message Again” category:

Violence as a strategy for social change in America is nonexistent. All the sound and fury seems but the posturing of cowards whose bold talk produces no action and signifies nothing.

Dr. King, writing in 1966. Never have those words seemed more relevant than this week. All of you know the story by now, so I won’t bore you with details, but maybe the close temporal proximity of these two events is just what the country needs to get a grip on its increasingly vitriolic hyperbole in political debate.

But more than mourning the loss of the abstract concept of civil discourse, it would serve us well to mourn the loss of six lives, among them a promising 9 year old and a reputable public servant. Chief Justice John Roberts issued this statement:

Chief Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction, as attorney and judge, for more than 35 years…Chief Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it.

Judge Roll, an advocate for greater resources for the courts, had been the subject of threats in the past, a trend that seems to be rising. Although not a traditional “blawg”, Garrett Epps, writing at the Atlantic, has this terrific post on the Giffords shooting and the impact that SCOTUS’ decisions in Heller and McDonald have had on further enshrining guns and gun culture into our society:

I’m not saying, either, that the Court should “change” the Second Amendment if the Justices think it has bad consequences; I am saying that in every new legal question, every new claim for definition of a constitutional right, there is and must be a heavy dose of practical analysis as well as historical learning and textual parsing. There were no Glocks and no 33-round magazines in 1789; there were few crowded cities, no drug problems, and no massive firearms industry pumping out new weapons. Applying the “right to bear arms” to these new weapons and new situations really does require careful balancing.

This may be wishful thinking. My salient intellectual flaw is optimism; I like to think that judges, even those I disagree with, are in fact judges, who recognize that law must be applied to facts. It may be that this Court includes ideologues who, like the Bourbons of France, have learned nothing and forgotten nothing. But there may not be five of them.

I also like to think that constitutional law can recognize the special place of guns in American history while also making it less likely that judges, legislators, and nine-year-old girls will be gunned down if they go to the supermarket. Every extension of gun rights by the Court–and every thump of the formalist tub about the fundamental right to a Speedloader–convinces people more fully that it’s normal and sustainable to live a society where the strange guy in the taxi is carrying a Glock and 90 bullets.

The evidence is pretty clear that it is not.

It seems that the shooting has also spurred an interesting debate on the role of the First Amendment and there, it seems, has been some talk on how to curb vitriolic speech. Eoin O’Dell has a collection of the coverage and offers his own thoughts. Interestingly enough, during that bizarre show on the floor of the house where the Constitution was read – for hours – it was Rep. Giffords who read out portions of the First Amendment (and do you know how much restraint it took not to make a Sad Boehner joke?):

On a similar note, Rick Horowitz writes today about freedom and why that’s not what’s killing people. Speaking of freedom, John Green, father of slain 9-year old Christina Green, has this exceptional quote, via Popehat who recognizes the strength of character of Mr. Green:

This shouldn’t happen in this country, or anywhere else, but in a free society, we’re going to be subject to people like this. I prefer this to the alternative.

It seems, though, that while Mr. Green and many others get the concept of freedom in order to maintain a strong society, the government does not. Remember the Patriot Act? It’s still out there, steelin yor liberteez, and it has come time for yet another perfunctory extension without any debate, national or otherwise.

Of course, since this is a blog about criminal law, I would be remiss to not end this section with a note about Loughner’s lawyer, Judy Clarke. Eric Turkewitz mentioned her in his post on the heroes of the Arizona massacre, reminding us to celebrate the defense lawyer:

Why celebrate the defense lawyer? Because here is a person that will:
* Represent a hated individual;
* Receive death threats from other wackos out there;
* Be outgunned by the Department of Justice;
* And move from a private practice in Southern California to Arizona in order to do it, and do it for public dollars as opposed to more lucrative private ones.

Here’s a detailed bio of Judy Clarke and here’s another. Jon Katz writes about Judy Clarke and calls her his “personal hero”.

And while we’re on the broad subject of a free and open society, let us not forget Julian Assange and the ongoing Wikileaks saga. Earlier this week, a Wikileaks volunteer was detained at an American airport, attempting to re-enter the country after a vacation. He tweeted his experience, and this one in particular made me smirk:

probably because they've never seen one before

Twitter, incidentally, had been the recipient of subpoenas ordering the release of information related to the accounts of Wikileaks supporters and Julian Assange. As this Wired piece cleverly states, Twitter beta-tested a new feature without telling anyone: a spine. That’s because the subpoena was accompanied by an apparently standard gag order, preventing Twitter from revealing the fact of the subpoena even to those who account information was sought:

To Twitter’s credit, the company didn’t just open up its database, find the information the feds were seeking (such as the IP and e-mail addresses used by the targets) and quietly continue on with building new features. Instead the company successfully challenged the gag order in court, and then told the targets their data was being requested, giving them time to try and quash the order themselves.

Scott Greenfield took note, writing favorably about the actions of Twitter’s legal counsel, Alexander Macgillivray:

There isn’t a criminal law specialist at major law firm in this country who would have advised this fledgling behemoth to fight the government.  There isn’t a former associate fed into the corporate counsel system who would have stood tall.  Despite the inability to offer straight advice at almost any other juncture, on their they would universally agree:  Don’t piss off the government to save someone else’s butt.  Not one.  Well, maybe one.

Alexander Macgillivray must not have gotten the memo.  Instead of stepping onto the slippery slope of government obsequiousness and risk aversion,   What was he thinking?  Princeton and Harvard Law educated, with some Silicon Valley law firm time behind him before he jumped to Google, then Twitter, one might expect him to toe the line, know his place, advise his enterprise to not make waves.

Instead, he took a stand and protected the privacy of twitter users.

Glenn Greenwald has more, including a copy of the order. Finally, Antonin Pribetic wrote an excellent post on the thorny issue of just who has personal jurisdiction over Julian Assange and also in the same post has a great roundup of the latest legal angles in the Assange saga.

From the “I don’t think you understand who Dr. King was” category: this week Jeh C. Johnson, the Defense Department’s general counsel had this to say:

I believe that if Dr. King were alive today, he would recognize that we live in a complicated world, and that our nation’s military should not and cannot lay down its arms and leave the American people vulnerable to terrorist attack.

Yep, that’s exactly what he said in this speech:

If we assume that life is worth living and that man has a right to survive, then we must find an alternative to war. In a day when vehicles hurtle through outer space and guided ballistic missiles carve highways of death through the stratosphere, no nation can claim victory in war. A so-called limited war will leave little more than a calamitous legacy of human suffering, political turmoil, and spiritual disillusionment. A world war – God forbid! – will leave only smoldering ashes as a mute testimony of a human race whose folly led inexorably to ultimate death.

Yes. One is just like the other. And because no post here at “APD” would be complete without many, many videos, here’s the powerful voice of Dr. King:

From the “These Were Your Rights; Remember Them Well” category: Radley Balko has this write up on oral argument [Orin Kerr provides his thoughts here] before SCOTUS in Kentucky v. King, a case that will further erode decide the scope of the “exigent circumstances” exception to the Fourth Amendment. CrimLaw has this listing of all the pending criminal justice related cases in the Supreme Court and boy are there a lot of rights hanging in the balance.

David “Hollywood” Feige linked to this NYT story about the tortured (and profitable) bail process in New York, which often leads to the exact opposite of what bail is supposed to do: disenfranchising the poor further and leading them to be locked up, rather than free:

Vague laws and insufficient oversight have allowed some bondsmen in New York to return defendants to jail for questionable or unspecified reasons, and then withhold thousands of dollars to which they may not be entitled, according to lawyers, judges, state regulators and even some bondsmen.

Those cases turn the system on its head: Those who are supposed to give poor defendants a shot at freedom while their cases are pending are instead the ones locking them up and disenfranchising them further.

The Agitator, again, writing about the story of a botched DEA raid in the Hudson Valley, where the federal agents broke into and terrorized the occupants of the wrong home. This wasn’t a “may we enter your home and poke around?” raid. This was a “we’re going to make your 8th grade daughter vomit and faint” raid:

The officers were screaming for someone named Michael, McKay said. When he tried to explain that no one named Michael lived at the house, McKay said the police pulled him outside his home in his underwear in the freezing cold.

McKay said officers yanked his eighth-grade daughter out of her bed at gunpoint. The girl later vomited, fainted and had an asthma attack.

Don’t you feel safe now?

Scott Greenfield writes about a decision by the Texas Court of Criminal Appeals that effectively ends litigation on the constitutionality of the death penalty:

In the case of John Edward Green, in whose name all of this is happening for the benefit of the rest of us as well as him, a trial will be had.  During the trial, issues may be raised about the quality and validity of the evidence being used to convict him.  Those issues will be constrained by the concepts of materiality and relevance.  That’s how evidence works.

Should Green be convicted of murder, the death penalty will be the focus of punishment.  By then, however, the questions of whether a person can be constitutionally put to death based on crap evidence will be moot because he’s already been convicted of the crime.

The Texas Court of Appeals says that the issues that were being raised and presented to Judge Fine could be resolved at “the appropriate time.”  They say this knowing that there will never be an appropriate time.  Case closed.

This is not Mark Bennett. Neither is this MLK, Jr.

From the “While We’re on Texas” category: the big story setting the blawgosphere ablaze this week was started by Mark “Texas Tornado” Bennett, writing about a change proposed by the Texas Bar that would make flat fees refundable to clients:

The State Bar’s position—or, more accurately (as I shall discuss tomorrow) the position of some nonpracticing ethics experts, which they haven’t yet managed to get any court to sign off on—is that a) until representation is complete, a fee may be refundable; b) if a fee may be refundable, it is unearned; and c) if a fee is unearned or may be refundable, it belongs to the client.

In order for the State Bar to be right about generations of Texas criminal-defense lawyers acting unethically, they must be right on all three propositions. If any of the three is untrue, the State Bar’s position fails. They are wrong on all three propositions.

He concludes with these chilling words:

Society needs criminal-defense lawyers. Forbidding flat fees in Texas criminal cases will be the beginning of the end of the criminal-defense bar: when the private criminal-defense bar is eviscerated, the existence of any criminal-defense bar will “depend on the largesse of the government. The day they cut off the fee spigot, there will be no more criminal defense lawyers.“

That quote is from this post written by Greenfield:

No decent criminal defense lawyer can live with himself if he’s not doing right by his client.  We fight because it’s a fight that needs to be made.  We compromise because it’s in the client’s best interest.  We can do this because money isn’t in issue; we are not in a conflict with our client.  This will change.

Just at the moment in their life when they need us most, legal fees will prove an impenetrable divide between lawyer and client.  They owe it and they don’t have it.  We are forced to choose whether to work for free or hurt a client.  This is an untenable situation.  This situation cannot happen without undermining our purpose for being lawyers.  Worse still, they don’t necessarily mean to stiff us on the fee, yet you can’t get blood from a rock.  The lawyer gets screwed and has to eat the loss.

With that as a future, who would want to practice criminal defense?

Paul Kennedy, also a Texas criminal law practitioner, joins Bennett in lamenting this proposed rule change:

We don’t bill by the hour. We bill for our service. A prospective client either agrees to pay our fee or they find someone else who will charge less. I charge a flat fee for DWI defense. While I have a good idea of what needs to be done on the case, I don’t know going in how much time I’m going to have to spend working on it. How much discovery is there going to be? Witness interviews? Pretrial motions? It’s not practical on a criminal case to call your client up and tell them they need to bring in more money because the case has gotten more complicated than you first estimated. Most of our clients don’t have the money.

We are also bound by our ethical obligations to provide a vigorous defense. But what if a client can’t ante up halfway through a case? It would put both the attorney and the client in untenable positions.The basis of a criminal representation is the relationship between the attorney and the client — let financial issues get in the middle of that relationship and something’s got to break.

Brian Tannebaum, writing from the cozy confines of Florida, reminds us that we all need to be paying attention:

I am a Bar-type. I mill around those Bar committees in my khakis and blue shirts (no-tie) while the masses of civil lawyers in suits with briefcases tagged with their initials in gold who “tolerate” us, cast us off as part of the problem in the profession – disregarding that their precious billable hour is the definition of fraud. I am a Bar-type, I pay my own way to meeting after meeting, speaking up when I hear our criminal defense bar maligned, and constantly trying to convince my colleagues there is a good answer to “why do you go to all these meetings?” They all think I’m doing it for my resume, or some judicial aspiration, and are still wondering why after 16 years, neither has been true.

Until the criminal defense bar infiltrates state bars, gets on every committee, and participates at the same table as the manicured civil bar, we will continue to beg for our constitutionally mandated existence.

apparently this is real

From the “While We’re On Lawyers” category: Lawyers, law schools and the legal profession have been much in the news in the past week, starting with the sad-yet-comical story in the NYT about the grads who have $250,000 in debt and are unable to get a job at the local McDonald’s. Jamison Koehler writes this magnum opus on the subject, which I can best classify as tl;dr. This was quickly followed by the news that the ABA is considering making the LSAT optional. Writes The Legal Satyricon:

Ultimately, the LSAT will still be the best predictor of law school aptitude, even if an objectively bad one, but allow schools to admit more subjectively interesting candidates without this admissions priority being reflected in its LSAT or GPA reporting.  The same kind of Worldcom-style accounting that controls employment reporting for law schools will come to its admissions statistics as well.  Beyond defeating the utility of sites like, this decision would make admissions a black box process at schools that choose to go along with it.

By obfuscating student quality, the employment prospects all but 5-10 elite schools would suffer, as employers would not be sure just what quality of students they were getting.  While a law school has time to pay its recent graduates $8/hour to sift through applicants who couldn’t be bothered to take the LSAT and find the touchiest, feeliest application of them all, a law firm does not have that luxury.  Nor does it want to.  The best thing a lawyer can have is information, and for law schools to deprive employers of that vital resource is a disservice to its students.  Nobody, rationally, would buy something of unknown contents or quality.

The Legal Ethics Forum has more, as does the Law Librarian Blog.

okay, I couldn't resist

From the “These Didn’t Fit Within My Loosely Defined Categories” category:

  • Ohio man charged with having sex with a corpse that he didn’t realize was actually a corpse.
  • The Amy Chua brouhaha.
  • SCOTUS “punts” on issue of unanimous juries.
  • Paul B. Kennedy writes about putting an end to criminalizing school discipline.
  • Gamso weaves together disparate threads to write about the Constitution, race and Huckleberry Finn.
  • Mirriam “the best criminal law blogger in the country” Seddiq writes about a VA Supreme Court decision effectively invalidating Padilla v. Kentucky.
  • Of particular interest to criminal defense practitioners should be the cert grants in these two ineffective assistance of counsel cases.

From the “Because Everyone Should See This Once” category:

From the “Because We Can’t End On Such Silliness” category:

MLK, Jr. day posts from around the ‘sphere:

  • I’ll add them as and when you write them.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.