Legal fictions: a one-way street

The deck is stacked, the house always wins, etc., etc., etc. Phrases routinely used to indicate that the playing field is not level and is biased for one side against the other. I’ll give you another: consciousness of guilt. A legal fiction of the worst kind, to be sure. Consciousness of guilt is a neat little tactic employed by prosecutors and condoned by courts that seeks to cast every action taken by a defendant post-offense in a light most indicative of guilt.

Did the defendant realize that the justice system is a mess and he was going to get convicted no matter how innocent he was, so he took off? Consciousness of guilt. Did he lie to officers because he mistrusts them? Consciousness of guilt? Did he decline to make a decision about whether to submit to  breathalyzer until his spoke to his lawyer? Consciousness of guilt.

As you’re well aware by now, there is no presumption of innocence, just a presumption of guilt. And how does the court system solidify that presumption? By pairing it with the “guilty conscience”.

Juries routinely get instructed on “consciousness of guilt”. They are told to *wink wink* draw whatever inferences they may from the defendant’s post-offense or post-arrest conduct. But what if the tables are turned? What if there is some post-offense or post-arrest conduct that shows a defendant is not acting like a guilty person (whatever that may mean)? Of course not. Don’t be silly, this is the justice system we’re talking about. There is no such thing as “consciousness of innocence”, because innocent people don’t get arrested.

So if a defendant wants the jury to draw a favorable inference from the fact that he offered to take a polygraph, but the police refused to administer it, he’s out of luck. Or if the defendants wants to tell the jury to consider the fact that he voluntarily turned himself in (which, per the English language, is the opposite of fleeing), he can’t. If he wants the jury to draw whatever inferences they may from the fact that he asked to be submitted to a breathalyzer, he can’t, because dammit these are the rules we made and that’s that.

So Mr. Seekins’ jury gets to draw an inference from the fact that he said he wouldn’t decide whether to take a breathalyzer until he spoke to his attorney (note that he didn’t actually refuse the breathalyzer), but they can’t draw any inference from the fact that he then subsequently asked the police to administer that breathalyzer and they refused:

One man’s regret is another man’s disparity

Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.

Justice Powell, writing for the majority in McCleskey v. Kemp.

["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.

Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.

Gun-waving cop has right to privacy

is that a gun in your hand or are you just happy to see me?

This incident occurred back in April, but is back in the news with an ACLU press release. The ACLU is representing Anthony Graber…well, you know what? Just watch:

That’s Graber, on the motorbike, and that’s Joseph David Uhler, gun-waving, taking-too-long-to-identify-himself, plain-clothed, unmarked-car-driving, off-duty, state police officer.

Graber got a ticket for speeding, which he gladly accepted, but was then subject to some Apple Gestapo tactics, with police getting a warrant to search his home and seize his computers.

He’s charged with illegally recording the conversation he had with the officer in public and thus violating the officer’s right to have a private conversation while waving a gun at a suspect and yelling at him on the offramp of an exit off the major interstate in the country, which is nonsense code for cops are above the law. Plus the fact that there’s a damn video camera stuck to the guy’s helmet.

Popehat (and the multitude of comments) covered this back in April, with an in-depth analysis. I won’t repeat it here, but I’ll give you this extract:

Allegedly, Graber is being charged with “interception of an oral communication” under Maryland’s “wiretap” law, Md. Cts. & Jud. Proc. §10-402. The law makes it a felony to “intercept” with an “electronic device,” in this case the microphone attached to Graber’s prominent helmet camera, an oral communication in private conversation.

But that isn’t what Graber’s really being prosecuted for.  He’s being prosecuted for contempt of cop.  For embarrassing a cop.  A cop, and a department, that richly deserve the embarrassment they’ve gotten, and the embarrassment they’re going to receive.

Because the charge against Graber is utterly unfounded.  The definition of “oral communication” under Maryland’s wiretap law requires that the conversation be “private,” which is to say that it must be one in which the party being recorded has a reasonable expectation of privacy.  Fearnow v. C & P Telephone Co., 104 Md. App. 1, 33, 655 A.2d 1 (1995), aff’d, 342 Md. 363, 676 A.2d 65 (1996).  According to the Maryland Attorney General’s office, it is not a crime to record a very public conversation, such as a political party meeting, even in secret.

It seems that Graber is not alone in this. Here‘s another recent arrest for the same charge, also in Maryland. Of course, law enforcement types are always good for some lulz:

Remarkably, the state Attorney General has already opined that when police record in public, that is not a private conversation subject to the same laws. In other words, in any public interaction between a police officer and a member of the public in Maryland, it is private for one of them but not the other.

I know most law enforcement agencies are opposed to videotaping interrogations, but this is a little ridiculous.

The ideal ideal

A few weeks ago, I had something akin to a job interview. There I sat, on one side of a metal table, in my favorite suit. He sat on the other. The questions came fast and furious: “How many cases have you tried?” I wasn’t expecting that, so I took my time. Too late. “How many have you won?”

“Well, what do you mean by won. That can mean many things” I sputtered the old refrain. “No, no,” he shook his head, “how many clients were found not guilty?” I obfuscated, because I don’t play that game and because I knew exactly what was coming next: “Are you sure you want to do this? Are you sure you can handle this? I mean, this is my life on the line here.”

It’s times like these that I think it would be nice to be able to say that I’ve won every single case I’ve tried. To be able to boast of a perfect win-loss record (which, actually, I jokingly did after I won my first trial ever). But there are only three ways that any lawyer practicing criminal law can even hope to achieve that record: 1) by being a prosecutor, 2) by flat out lying about it and 3) by being a defense lawyer who picks his cases very carefully.

But as a wise man once said, criminal defense isn’t about picking winners. Picking winners is an idealistic business strategy, one that established lawyers may attempt as a product of their long standing reputation and the desire to build upon that reputation and create an aura. But, in the end, it is nothing more than an ego-boosting business plan.

Which has nothing to do with the reality of criminal defense. The two are at odds, for one shouldn’t become a criminal defense lawyer for the sake of their reputation or win-loss record or to pad their coffers (though that is a necessary by-product). There are some that argue otherwise:

‘Everyone is entitled to be represented by an attorney’ is the idealistic chant often recited by defense attorneys as justification for representing even the most vicious criminals in our society. The concept is unassailable, but idealism is rarely what motivates lawyers who represent guilty defendants. They take the work because trying cases is their livelihood, and they are ambitious to advance their careers. These motivations, while not improper, are clearly not idealistic.

True idealism would be involved in a hypothetical situation such as the following. Suppose a family is brutally murdered in a small town, and none of the six lawyers in town is willing to represent the suspect because the enraged citizens are all convinced of the suspect’s guilt and no lawyer wants to be ostracized in the community for attempting to get the suspect off. Finally, one attorney steps forward and says, ‘I don’t care what my friends at the Rotary Club and the First Baptist Church say. This is America, and everyone is entitled under the Sixth Amendment to our Constitution to be represented by an attorney.’

This, as Mark has already pointed out, is nothing more than the worship of a false God. An attempt to fit the nobler attempts of others into their own baser paradigms. As a public defender, I do not have the luxury of choosing the clients I represent, yet I do my job with no ambitious desire to “advance my career”. The only ambition I have is to become a better lawyer and represent my clients – especially the guilty ones – more effectively.

I may be in the minority here, but it is my opinion that it is easier to represent the obviously innocent client. It takes a much stronger constitution to represent those whose guilt has been presumed in they eyes of all others. It takes more than paying lip service to the greatest fear: that we defend the guilty as well as the innocent because we cannot fathom the horror of an innocent man going to jail.

Because the injustices of the system manifest themselves in more ways than the mere conviction of a man against whom there is little or no evidence. There are the guilty-of-something-lesser, the guilty-but-for-good-reason, those that are deserving of more than cursory process. The ideal is to stand side by side with a man who may well have committed terrible crimes and to say to him: I do not care whether you are guilty or innocent and I will fight to the last to ensure that society treats you with the process and respect that you, as an individual, deserve. Maybe I’m an odd duck, but I want this job because the territory mainly encompasses those that are guilty. To me, they are not the afterthought or the unpleasant tax of doing business.

Until you can truly believe that the guilt or innocence of a client makes no difference to the quality of representation that you provide, you are not a criminal defense lawyer. You are a businessman.

Where were you on April 17, 1966?

Ask anyone that question and they’ll look at you like you’re crazy (and you might get some interesting responses from those that weren’t born yet). But try it. If you were alive then, think back. Think back to that April day or any other April day that year or the next year or in fact, any day between 1966 and 1972 and tell me where you were specifically between the general periods of any time of day or night.

You can’t. It’s impossible. 44 years have passed since 1966 and 38 since 1972. Yet, for “G.R.H.” of Louisiana it is this lack of photographic memory and the inability to have the foresight to note and document his whereabouts on all those days in those 6 years decades ago that has landed him in jail for the rest of his life.

In 2006, GRH [opinion here] was accused of sexually assaulting a minor, as you may have guessed, between 1966 and 1972. The complainant, 44 at the time of the accusations, had an alleged clear memory of the assaults perpetrated by the defendant, some 40 years ago.

There was no corroboration, no contemporaneous disclosure, no other instances of sexual abuse by this defendant, nothing. Just the say-so of a 44 year old woman, almost an entire lifetime after it allegedly occurred.1

Imagine, as Justice Douglas did, dissenting in United States v. Marion, that the 44 year delay occurred after GRH was arrested and not before. Certainly, none would argue that his right to a speedy trial was not violated. And the concerns with such a delay are certainly mitigated after the institution of a criminal prosecution: you know there is an action pending, so you hire an investigator, document your memories, speak to witnesses and firm up their recollections. When someone is not prosecuted and doesn’t sense one coming (having done nothing wrong), there is no reason why anyone would keep track of whatever alibis they might have had or whatever witnesses may have had to offer.

Justice Douglas, quoting Baron Alderson in 1844:

The freakin’ FCC: obscenely indecent

Two days ago, the Second Circuit on remand from the Supreme Court, struck down the FCC’s policy on “fleeting expletives” (don’t you love how bureaucrats can make anything sound clinical and boring?) as being unconstitutionally vague. Incomprehensible is also a good word to use here. Here’s a choice paragraph. Don’t worry kids, since you’re on a 7-second time lapse, you’ll only see **** where the expletives are:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. . . . The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.

From the WSJ:

The decision doesn’t mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission’s campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.

Interestingly, the indecent policy doesn’t apply from 10p.m. to 6a.m. and only covers the networks anyway, but when’s the last time you heard someone say fuck on cable television even at midnight?

For some dense it-could-only-come-from-a-law-prof legal analysis of the decision and its implications, click here. For the second grade reading level analysis, read this. As you can tell, I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.

The most interesting article produced as a result of the FCC ruling is this one from Reason, asking the important question: “if indecency is unconstitutionally vague, why isn’t obscenity”? Everyone who’s been within 1500 feet of a law school knows the old “you’ll know obscenity when you see it” line. Sort of like how my contracts professor explained consideration to us: “It’s like chicken sexing. You’ll know it when you see it.”


What I find obscene may not be obscene to you, or, more likely, what you find obscene will not be obscene to me. Take this, for instance. It’s both obscene and indecent. Yet there are no fines.

So, ponders Sullum:

What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of “contemporary community standards,” whatever those are, and a judgment about what is “patently offensive.” In practice, this means broadcasters are at the mercy of bureaucrats’ capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in’s video “Obscenity vs. Freedom of Speech,” the films that triggered Stagliano’s indictment are “in many respects typical of what’s available today”—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.

[This Stagliano trial is highly amusing for several reasons. One is that the prosecution couldn't get the damn video to play; the same video it says is obscene. Today, the judge precluded the State from entering that video into evidence.]

Will the Supreme Court agree to review the Second Circuit’s decision? Will they hold that the FCC’s policy is indeed unconstitutional? Will people start saying “fuck” on national TV during primetime? Stay tuned.

But you didn’t come here and read this post for First Amendment analysis. You came for the video. And let’s be real, this entire post is a big fat excuse for two things: 1. For me to say fuck as many times as I can. Fuck.

2. This:

Did I say fuck yet? Fuck.

Deterrent? Not Actually

all your DNA are belong to us

The story of the role of DNA in the criminal justice system is quite interesting. Heralded as the ultimate in crime solving, DNA has slowly infiltrated the collective consciousness of the entire nation and infected our lawyers, judges and jurors. It’s a double-edged sword, to be sure: DNA can accurately (or maybe not) identify an individual who leaves behind some trace materials at or in a crime scene, thereby implicating or exculpating a suspect. Fueled by DNA based shows like CSI, jurors became more demanding and mistakenly over reliant on the science, producing the “CSI effect”, DNA, on the other hand, has drawbacks that defense lawyers try to highlight – which I’m not sure have sunk in yet – like the fact that you it can’t tell you when it was deposited. DNA is most famous for high-profile exonerations of people already convicted of crimes and serving lengthy prison sentences.

But DNA is much more than that. As the science grows, the uses and implications of the genetic markers grows by leaps and bounds (see here and for the future, see here).

Which is why DNA, and the collection of DNA, is so attractive to law enforcement agencies. Unfortunately, as is often the case, the evolution of science and technology and the desired application of these new uses conflicts to some degree with the core protections of the Constitution.

Just yesterday, a 3 judge panel of the 9th Circuit heard an appeal in a lawsuit filed by the ACLU challenging the legality of California’s DNA-collection-upon-arrest law. That’s essentially all there is to the law: collect the DNA of everyone ever arrested. (Connecticut tried to pass a similar bill two years ago and it was ultimately rejected.) Under some circumstances, the DNA may never be deleted from their database: