30 January 2009

Various & Sundry CrimLaw Happenings

1) I don't know how serious his plans were to kill the President, but I've been to the Mall of America and I'm pretty sure that nothing short of a tactical nuke would be large enough to take it out.

2) Can an 80 pound 94 year old woman actually commit assault and battery?

3) Remember, the next time you see a rookie officer in Chicago he just might be a 14 year old kid pulling a scam.

4) Don't go buy your booze in the school bus.

5) Do not bring a loaded gun to your daughter's Halloween party.

6) Google and the Swiss art of catching marijuana growers.

7) You're in the middle of your escape. You're handcuffed to the guy escaping with you. There's a light pole ahead. What do you do?

8) Virginia: The General Assembly has found another way to suspend licenses that has nothing to do with driving: school attendance.

9) What happens when you cheat all sorts of people out of a gazillion dollars? They make a doll of you.

10) 20 years later - When the police finally realize you faked your own death - are the drug dealers you were hiding from still out there?

11) She both drove with SIX dogs in the cab of her truck - resulting in a fatal hit and run - and had an illegal tiger cub at home.

12) Infinite Creativity: Smuggling drugs into prison via paintings.

13) It's just plain sad if you can't keep a convicted spy from continuing in his chosen field while he is in federal prison.

23 January 2009

Sincerity, Situational Sincerity, & Exploiting Children

Both Defending People and Simple Justice have knocked around the idea of the callousness of prosecutors when it comes to the children of an offender.

Defending People starts the ball rolling by linking to a site wherein prosecutors were airing their collective irks from defense attorneys.
Prosecutors seem so proud of themselves when they argue, "Don't show me photos of the defendant's kids. He had those kids when he committed the crime and he didn't think about them then."
. . .
Rephrased, the argument is this: the defendant didn't think about his kids when he committed the offense, so I shouldn't have to think about them now.
Simple Justice is ever so slightly more sympathetic to the prosecutor's position
This is the pat response of all prosecutors, everywhere. Ask any criminal defense lawyer and they'll tell you that they have received this reaction, no matter what permutation of words, a thousand times. It's one of the first things a young prosecutor learns when being taught to relinquish his humanity.
. . .
But truth be told, the pat response isn't without some degree of merit, which is why it has such longstanding, albeit superficial, appeal. Like the religious conversions brought about by the slamming of a cell door, it smacks of convenience. The epiphany of concern for one's children far too often comes after the deed, and the facile use of an infant's photograph flies in the face of the selfishness demonstrated by a defendant before the cops slapped the cuffs on.
Go read their posts, then come back here to get my response.

My permutation of this particular phrase goes like this: "Every person about to go to jail suddenly finds God, develops a terrible ailment, just got a job, has a job interview tomorrow, and/or suddenly realizes she has family responsibilities which no one else can fulfill." I've used some version of this statement at least 100 times since I've been a prosecutor. And, yes, the reason I say it is because I am terribly evil.

Oh, wait a sec, no it is not.

The reason I say it is because there is great amount of truth to be found in the statement. It's not the truth as Mark translates it - "the defendant didn't think about his kids when he committed the offense, so I shouldn't have to think about them now." The better rephrase is this: "Your client didn't think about her kids when she committed the offense and I don't believe she is now either." The offender is selling an excuse to avoid the punishment assigned under the law she has broken. The excuses are almost always variations on what I laid out above and most of them are irritating; nevertheless, they are part of the process. However, the suddenly discovered familial allegiance is the most vexing of the excuses.

God can take care of himself; personally, I believe that a lot of the jailhouse conversions are real - I just don't believe they'll stick once the offender is back on the street. The medical and job excuses are mostly limited to the offender herself; they're also pretty easy to prove or disprove. The children excuse is in its own class of despicability.

It's not that I'm upset that the offender wasn't thinking about the kids when she committed the crime. I'm peeved because I don't believe the offender is thinking about the kids now. She has been told by her attorney that she's going to jail for 6 months and she's flailing around for an excuse, any excuse, which will keep that from happening. What's the one thing only the most heartless of prosecutors and judges could possibly ignore? The harm which shall befall the children. She can exploit the children explain how the children need their mother and surely the sentence will change to straight probation or less time or maybe weekend jail time. It's got to help her somehow.

Let's be clear here, the offender in question (at least in Virginia) isn't the first timer who, in a mid-life crisis moment, at the age of 40 decided to see if she could scoot out the door of Mega-Store with the items in her cart. The first time, probably even the second, maybe even the third, that someone commits a minor offense she isn't going to be incarcerated. To become incarcerated she has either established a pattern of law breaking or done something very serious. Most defense attorneys aren't going to come to me in an abduction and aggravated malicious wounding case and try to sell me on the idea that their client shouldn't go to prison for 10 years because she has to take care of her kids. This doesn't mean the offender hasn't tried to get them to sell that; it just means they know it's not going to be a relevant factor after she shot a store clerk 3 times. So, the offender the defense attorney is telling me is such a wonderful and necessary part of her family has been convicted at least 4 or 5 times. It's going to be an extremely hard sell.

Yes, I know from personal experience that a few of these offenders are sincere. Admittedly, I wonder in how many cases that sincerity is retained once the offender gets home; too often, once the crisis is over the passionate concern and desire to do the right thing fades. In any event, it is basically impossible for me to judge who is being sincere, whose sincerity is more than situational, and who is blatantly exploiting the children for her own gain.

Remember, I don't have the access to the offender that her attorney does. Let's assume that 10% of the offenders are sincere and not just trying to exploit their children for personal gain or feeling situational sincerity ( most probably a high estimate). Even if the defense attorney can sort out who is who, he has a duty to try and sell his client's position whether he believes it or not. So, I hear the same pitch 10 times, knowing it is bogus 9 of them and it is very difficult to sort them out. The default is going to be the belief she's trying to exploit her children.

The things the defense attorney will show me are not things which will change my opinion of the offender. Invariably, I will be told of the problems which will occur for the children. Wanna make me not happy? Start telling how your client's act is going to result in the victimization of her own children; then tell me she should catch a break because she is causing the victimization of her own children. Yes, that'll make me really want to give her a break.

There is no real solution here. Scott is correct both when he points out that the children must be considered and when he states it is unfair to punish someone else for not having made the choice to have children. In the end, I have to come down to what I think are my two primary responsibilities: Protect the citizenry from the individual offender and dissuade others from breaking the law. Neither of these are accomplished if I do not put the offender in jail. In jail she cannot steal for 6 months and others who hear that she went will (hopefully) be discouraged from doing the things which she did.

20 January 2009

Self Defense / Render Aid

A while back Simple Justice put up a post giving his answer to whether someone who harms another in self defense has a duty to render aid.

I don't think the answer to this is all that hard. No, you're an idiot if you put yourself within arm's reach of someone who has tried to do you serious bodily harm. The extent of your duty is to call 911 and tell the police where the injured person is.

The right to self defense kicks in when someone is trying to harm or kill you or others. HARM OR KILL. You never place yourself within striking distance of someone who has done this. The fact that she appears injured, even grievously, does not mean that she can no longer harm or kill you. She could be faking; she could be hopped enough on drugs or adrenaline and still be able to harm you; she could have a gun or knife you don't know about. Specifically, if you are defending others you have a duty to remove them from the potential for harm. You cannot guarantee their safety by remaining at the scene.

On the other hand, it is your choice if you want to go above and beyond. You have no duty to render aid (other than calling and reporting), but the choice to remove yourself from potential harm is yours to make. If you choose to go above and beyond and expose yourself to the continuing potential for harm that's not a duty, that's saintly behavior.

CLtoon: Theraputic DUID

CLtoon: Theraputic Treatment

CLtoon: The Explanation

14 January 2009

Explanations - Speech Patterns

At various times in my career I've noticed that I fall into speech patterns. As a defense attorney there were certain explanations that I found to work and continued to use. However, I do wonder if they would work for defendants here in Appalachia as well as they did for the city kids whom I was defending. Anyway, there are two patterns I have fallen into using as a prosecutor, one with victims and the other with defense attorneys.

Victims: Hammer

Victims come in with varying degrees distress and all sorts of expectations, hopes, and demands as to what prosecution should accomplish. Consequently, I've had to come up with a way to describe what I can actually do and the "hammer" explanation seems to work most of the time.

"You've got to understand, I can only do certain things. In fact, I can only really do two things. I can send someone to jail or get them put on probation. I can't fix them or condemn their soul. The Commonwealth of Virginia has given me a hammer and it's not the perfect tool for all situations. All I can do is hit them over the head if they do the wrong thing. I can't make things right, all I can do is punish and hope the message gets through so he, or others, don't do it again."

Of course, the explanation varies from person to person, depending on their state of mind and ability to comprehend. I sometimes use a whack-a-mole analogy, but I worry that too many people won't remember what whack-a-mole was. All in all, this seems to be an explanation that works. Everybody knows what a hammer is and that it only really has one use - to hit something.

Defense Attorneys: My Job to be Obstinate

Then there's a phrase that I find myself using with the defense attorneys. Usually, it's during an equity negotiation (facts not in dispute, just trying to figure out proper punishment). There comes that point in the negotiation where we are talking about different people. The defense attorney is talking about the mother of two who needs to keep her job and has a lortab addiction she needs help kicking. I'm talking about the person who has six misdemeanor convictions in the last 3 years and has been caught shoplifting from the Wal*Mart the 4th time.

"Sorry, Bob, but some times it's just my job to be obstinate. This is the best offer I'm going to make."

There are variations on this as well. On Monday, I found myself saying that "sometimes it's my job to be the bad guy" (I blame Edintally for that). It's a polite way to end the conversation and state your final position. Usually it means we part ways amicably, agreeing to disagree, and move on with whatever comes next. I'm sure there are other ways to do the same thing; it's just a pattern I've noticed myself adopting over time.

12 January 2009

Now Starts the 7th Year

6 years of the various incarnations of CrimLaw have gone by. Tried all sorts of other online projects at the same time, but this is the one that has stuck. Why? Not sure, but I think this blogging stuff is more addictive than crack.

I look forward to afflicting another year on those of you masochistic enough to read my rambling. ;-)

The Young Criminal Lawyer: What Path to Take?

Edintally, one of the more interesting recent commenters, dropped me a couple emails asking as to my status (prosecutor or defense attorney?). When I clarified that I'd been a defense attorney and moved over to prosecutor he allowed as how he had never heard of someone doing that before.

And that's a shame. Not his fault, but I think it's symptomatic of a failing we have in our system. For some reason, we seem to think people should choose a side and stay there. That's just wrong. Long term practice on one side only tends to lead to the kind of bunker mentality we see all too often wherein both sides dig in, see everything the other side does as motivated by pure evil, and lob invectives (or worse, dirty tricks) at each other.

So, here's my suggestion to those of you interested in starting a career in criminal law. I know that no one will listen to me, but I think the world would be a better place if they did. Whichever side you feel are "the good guys", start on the other. Practice there not for 6 months - or even 2 years; practice there for at least five years - enough time that it becomes second nature. Then flip sides. Stay there for at least 3 years. Then put some serious thought into where you want to put your efforts.

As you might guess, this somewhat mirrors my journey, except for the fact that not having planned on becoming a criminal lawyer I didn't have strong feelings as to which side I'd start on. I applied for jobs both at Commonwealth Attorney offices and Public Defenders. Then I started my own practice doing court appointed work, built it up and eventually folded it (out of business reasons and wanting to move closer to where I grew up) and joined a prosecutor's office on the far end of the State. I consider my path something of a happy accident. However, that's not why I commend it to you.

Part of what makes anyone a good attorney is understanding the problems, motivations, and mindset of the attorney on the other side. No matter how smart you are, you cannot do this without walking that mile in the other guy's moccasins. I'm sure you think you can. In fact, I'm fairly certain that I'll get comments from people telling me they've observed the other side for years and they don't need to live it to understand it. They're wrong. There will always be issues you'll never know, priorities which you'll never suss out, and problems you'll never even have heard about if you haven't been there yourself.

Personally, my hope is that working both sides will lead a person to have more loyalty to the system than a side. That's not to say I don't expect people to play their part in the system to the fullest extent of their ability. The system doesn't work if they don't. Still, all this silliness about being at "war" with the other side tends to come from "True Believers" and True Believers tend to come from people who have never seen and don't understand the other side. It's not a war, it's a test. Those who have worked on both sides usually understand this and the prejudices, priorities, and anxieties of the other side. I'd go so far as to say, if you couldn't do either job in a manner meant to lead to justice you should seriously consider doing neither.

11 January 2009

Comment Cavalcade (3):
Denying the Immorality of Pleading Not Guilty to an Offense Committed

More Commentary:
It is not possible to plead not guilty when one is guilty because one is not guilty until the government lawyers have proved it beyond a reasonable doubt.

It is the right of every American to force the prosecution to prove guilt beyond a reasonable doubt, no matter what the particular circumstances might be.
Yes, that would be the correct if my discussion was about civil rights and criminal procedure, instead of personal moral responsibility. As I stated in the initial post, the system doesn't care about the defendant's personal moral responsibility as it relates to his plea and the guilt/innocence part of the trial. Nevertheless, the fact that we have chosen as a society to implement a criminal justice system based upon the idea that "it is better that 10 (Blackstone) or 100 (Franklin) guilty go free rather than one innocent be jailed" does not speak to the personal morality of the defendant's plea. A system based upon the principle above and having infinite resources and time would ideally forgo a plea and try each defendant to force the prosecution to prove his case. Of course, the system does not have infinite resources and time.
If one person pleads guilty, he permits the government to throw more resources at its other cases. The government prosecutes factually guilty people and factually innocent people. It can’t tell the difference. The more resources the government throws at a case, the more likely it is to convict that accused. So by pleading guilty the factually guilty accused makes it more likely that a factually innocent person will be convicted. That sounds immoral to me.
I'm pretty sure that Mark's tweaking me with this one because I just can't see him advising his client "Yeah, Bob, I know they're offering you 5 years on a murder charge despite having video tape of you doing it and your admission of the crime to 17 people before the police even arrested you. However, you need to think about how many resources the State will have to waste on you instead of on other people charged with crimes. The State might not have enough resources to convict an innocent man if you plead not guilty and make them waste those resources. It's the right thing to do." I'm sure he'd love for all you other defense attorneys to do that so there are less resources to be used against his clients, but I don't see him doing that to his. Nevertheless, let's assume his client came to that thought all by himself. Would he be correct? Would it be moral to plead not guilty because it would make it harder to convict an innocent person?

No. Well, it would be if that was as far as it goes. However, there's a pretty obvious flaw not addressed in the model set out by Mark. By pleading not guilty a defendant takes away resources from cases in which the defendant did it. No matter how you look at the criminal justice system there are far more people in the system who did what they are accused of than didn't. So, if a plea of not guilty by a murderer makes it 5% less likely that the prosecution is able to convict the next 10 murderers and 9 of them are factually guilty then the initial defendant has done more harm than good. So, instead of being just individually morally wrong the defendant is also wrong for the extenuated damage he has done to society.

10 January 2009

Comment Cavalcade (2): On Laws

Riffing off of more comments:
"Speeding" is immoral?

Is setting the speed limit unreasonably low so that all traffic is "speeding" in order to write more tickets immoral? After installing a red-light camera at an intersection the politicians and bureaucrats have been known to shorten the yellow cycle in order to raise more revenue from "violators" even though the shorter yellow cycle increases accidents. Is that moral?

What is immoral is creating a dangerous situation for others. If politicians and bureaucrats had a sense of shame it might be immoral to speed because the speed limit would be set and enforced solely for safety reasons. But that is not the case and it never will be.
I just can't agree that all laws deserve our deference. At least not at all times.
Of course, in the end, our legal system breaks down to "might makes right." So ignoring a law which should not exist can bring consequences.

That still doesn't make the law right. And, for some people, it still doesn't justify giving it deference.
Yes, speeding is immoral, it and all other laws are due deference, and we all give them deference (if for no other reason then we have to). The deference is, at its base, because we are the ones responsible for our laws. We vote our lawmakers into office. We either vote into office the judges who are the gatekeepers or we vote into office the people who choose the judges. Laws cannot be without, at the very least, the acquiescence of the majority of us. And, while the majority of a town may approve their council passing laws to create speed traps the town council can't do so unless allowed to do so by the county, the State, and the federal government (in other words, the rest of us voting citizens).

That does not mean that breaking a law is not justified if there is a superior moral claim. This can be a claim that the law is immoral, such as suffrage laws denying people the vote, or an individualized claim, such as speeding to get a dying person to the hospital. Laws can and should be challenged when perceived to be in error. However, if we choose not to give deference to the law at all, then there is no reason to follow it, except for the claim of enforcement by force.

Of course, there is always some level of force to law enforcement. A minority of people will violate the law of the majority whether it has a justifiable reason or not. Saying "Pretty-please with sugar on top, don't drive 65 mph in front of the elementary school while kids are there" isn't going to stop such people. The threat and actuality of enforcement will decrease the number of people violating a law. The question is whether enforcement and/or resistence to it is just/moral.

I don't think we can limit the morality of the law to approve only laws which "creat[e] a dangerous situation for others" unless we widen our definition of "dangerous situation." If we are limiting it to a proximate cause /immediately dangerous situation that ignores long-term needs and effects. Sometimes, other necessities mandate an enforceable law. For instance, were OPEC to embargo the US the speed limit might be lowered because of the necessity of reducing the demand for gasoline. There's no immediate danger to individuals. Nevertheless, there is a danger for great, long-term damage to society as a whole. That law is, IMO, just.

So then, where exactly are the lines for just/unjust laws and just/unjust violations? I'm not sure exactly. Some day I may sit down and write my magnum opus, The Unified CrimLaw Just Law Theory. It'll be one of those 200 page books which law profs praise, people put on their shelves to show their sophistication, and nobody reads. Until then we are all just going to have to muddle through. :-)

Reaction to Mugging

Comment Cavalcade (1)

When I get a chance to today and Sunday, I'm going to highlight and answer some of the more interesting comments both from here and abroad that I haven't had the chance to answer yet:
You need a new dictionary. Malum in se is Latin for "evil in itself", not "wrong in itself" HUGE difference.
I was pretty sure malus means "bad", but it's been 25 years since I studied Latin so I looked it up:
malus (1) -a -um: comp. peior -us; superl. pessimus -a -um [bad , evil (physically or morally); unfavorable, unsuccessful, ugly]. N. as subst. malum -i, [an evil; harm, disaster; punishment]; as a term of abuse, [scoundrel].
So, yes it does appear that malum/mala is not intended as a part of malus and therefore means evil rather than bad. However, saying that malum defined as evil does not equal wrong is a distinction without a difference (gotta luv that phrase - never heard anyone but lawyers use it). Look in the thesaurus under "wrong" and you get this:
1 that which is morally unacceptable — see EVIL
They're synonyms.
Are you really positing that "..[an] angry woman who broke the public peace by habitually arguing and quarreling with her neighbors." is inherently evil? Really?
No, I'm saying it doesn't actually fit under either definition, but that the characteristics of the law fit more closely to the characteristics of laws we are taught to group under malum in se. It comes from the common law, has an ancient heritage, and was not enacted by statute.

"punishable by dunking: being placed in a chair and submerged in a river or pond."

this is not immoral behavior of the State? Really? Seriously?
In way back times punishment for every felony was death and other wonderful things like trial by combat, trial by ordeal, and branding existed. At that time the punishment you object to was probably considered a measured punishment. However, please note that by the time it was eliminated in the US, by State v. Palendrano, it was a simple misdemeanor like any other. It was banished from US law not because the conduct was deemed proper or the punishment onerous, but because it could only be applied to members of one sex.

08 January 2009

Malum Prohibitum - The Law School Hangover

For those of you who don't know, way back in law school most lawyers are taught a way to divide the law. The all-powerful professor looks down on his students and tells them that there is a line in the sand. On one side of the line are laws which are malum in se, on the other are laws which are malum prohibitum. All the law students look up confused;, the law is divided on the basis of whether an apple (malum) is "in its self" or "prohibited?" No, the kindly law professor explains, the other kind of malus - "bad." Ahhh. All the law students nod their collective heads, grateful for the enlightenment flowing from their beneficent law professor. And thus, one of the most contrived and useless legal divisions passes on to another generation of lawyers.

Malum in se laws are those which illegalize those acts which violate "the natural, moral or public principles of a civilized society." These are laws which have supposedly been around since time immemorial. The primary way we are told these are distinguished is that they were illegal under the common law.

Malum prohibitum laws are those which illegalize acts which would not, in and of themselves, be illegal. Generally, these are laws of societal organization and they were created by statutes.

It's a terrible way to think about the law, so anyone defining the two will stick to the most extreme examples. Premeditated murder is malum in se while jaywalking is malum prohibitum. Of course, any closer examination shows this attempt at organization to be badly flawed. For instance, Being a Common Scold would never fit under malum prohibitum. It's closer to malum in se, yet we have rejected this ancient common law as not comporting with modern sensibilities. It was malum in se common law from ancient times until the late 1960's - early 1970's. See State v. Palendrano 1972, 120 N.J. Super. 336. Malum in se is not the unbreakable granitic we have all been taught it is; it is just another construct for the organization of society. It is just malum prohibitum writ large. A better way of defining this breakdown would be pessimum prohibitum and malum prohibitum - a continuum from worst to least.

Why is this important? Because, the the impression our law professors leave us with from law school is that malum prohibitum laws are inferior. There's nothing actually wrong with breaking a malum prohibitum law since it is an illusory construct created out of thin air and the violation does no actual harm. This is absolutely incorrect.

The Legal Continuum: Pessimum to Malum

Every violation of a just law, whether it be murder or speeding, is an immoral act. Of course, the weight of the immorality of the two acts is not the same and that is reflected primarily in the punishment possible and the procedure used (no jury constitutionally required if potential sentence is less than 6 months). If an act does, in and of itself, major harm to a person or society it is highly immoral. If an act does lesser harm individual immorality is less. Each of these laws is immoral because it violates and disrupts societal order and organization.

It seems obvious, but let us examine why we don't assign equal weight to the morality of the two acts and therefore equal punishments. Murder ends lives. So does speeding. In 1996 there were over 19,000 murders in the U.S. In the same year about 13,000 people died because of speeding. This means that deaths because of speeding were 68% of deaths by murder. Yet, if a murderer gets 40 years a speeder doesn't get 27 years. Why not? Because immorality of murder is not distributed among as many people. The acts which result in murder involves few people and these few share responsibility for the murder. Let's assume 5 people committed one act of murder; each carries 20% of the responsibility for that murder. What about speeding? In 1996 there were 263,000 people in the U.S. and 67.7% of them were licensed drivers. That's 178,000 people driving legally. Assume 90% of them speed 2 times a week. That's 660,000 speeding events. Each person who commits a speeding event takes a share of responsibility for the 13,000 deaths for each speeding event. Each speeding event is 2% responsible for a death. Thus, if responsibility for a murder carries a 40 year maximum penalty we arrive at a .8 year maximum penalty for speeding.

Yes, I realize the model offered above is simplistic, makes assumptions, has all sorts of errors, and is wrong in all sorts of ways. Nevertheless, it makes the point. The greater the individual involvement in the damage caused other people and society the greater the moral culpability of that individual. For lack of a better term the minor offenses are "death by a thousand cuts" offenses. A singular violation does very little damage. A dozen violations probably doesn't result in much societal difficulty. A thousand may start to cause problems. If all 300+ million of us violate these laws there are serious effects.

Are There Laws Which It's Moral to Violate?

Unlike Tom, I do not believe that the institution of a law, either by a legislature (statute) or a judge (common law), carries an innate moral legitimacy. Laws can be, and have been, unjust - wherever they came from. However, laws are the rules of societal organization and therefore must be given some deference. They must be demonstrably immoral (slavery) or, if not facially immoral, lead to a demonstrably immoral result (segregation) before there is a right and duty to resist them. However, I do not believe that a mere disagreement with a law is enough to make violation a moral act. In order to justify violation of a law organizing society there must be a moral imperative.

And what would be a moral imperative? That's a discussion for another day (gotta get to work).

04 January 2009

Morality and Immorality of "Not Guilty"

Jeremy Richey has a couple posts (1 & 2) as to whether it is "wrong for a guilty person to plead not guilty in court." He concludes that under our judicial system it is not. This blawger disagrees in part, agrees in part, and remands the morality of this matter for further consideration, should Jeremy be so advised.

Let me start by setting out some ground rules. (1) I'm not discussing "legal ethics." (2) I'm not referring to a pro forma "not guilty" at an initial arraignment. (3) The moral responsibility of the defendant is different than the moral responsibility of defense counsel and today's discussion is about the defendant.

Moral Responsibility of the Defendant

Once a defendant has broken the law, the personal moral responsibility for the act lies at her feet. As such, she acts immorally if she denies that responsibility. A plea of not guilty is an attempt to deny responsibility. Therefore, a plea of not guilty is an immoral act.

Competing Moral Obligations: The Excuses

It's an easy syllogism, but it's subject to a million modifications imposed upon it by the real world. Competing moral obligations are often put forth by defendants that have nothing to do guilt or innocence. Responsibility to family is probably the one dealt with the most often; the defendant will usually proclaim a duty to care for a child, spouse, or parent. Responsibility to society is another claim; a common form of this is a defendant's assertion that if he goes to jail he won't be able to keep his job and therefore won't be able to pay on his fines or back child support owed to the Division of Child Support.

Sometimes, perhaps often, perhaps quite often, these proclaimed responsibilities are excuses given to dodge the taking of personal moral responsibility for the illegal act. The defendant didn't care about these other responsibilities when she got caught shoplifting the third time in two years (that's third time caught, not committed). If she gets released she won't think about these responsibilities when she heads back to the mall to shoplift again. Please note, I am not saying these arguments are not valid in a sentencing hearing. I do not believe in their validity in the decision as to whether to plead not guilty to an illegal act the defendant has committed.

Competing Moral Obligations: The Few Pursuing the Perfect

So, then the question becomes, is there a time when it is morally correct for a guilty person to plead not guilty? I'd put the situation through a basic two-part test.
1) (a)Is the law morally reprehensible, or
(b) Will obedience to the law lead to a morally reprehensible result?
2) Can a not guilty plea actually accomplish anything?
Both 1)(a) and (b) are justifications. 1)(a) raises the question of at what point a particular aspect of the majority's societal compact (personified in a statute) becomes so immoral that an individual is obligated to resist? It would not merely be a law which personifies a societal decision the defendant doesn't like (i.e. making marijuana illegal). It would have to be a statute which so damages the moral health of society that it is impossible to ignore (slavery, suffrage, etc.). Of course, these are things which are much easier seen with 20/20 hindsight. We praise those who had the foresight and fortitude to stand against the majority in the name of these causes. We forget those who had the the fortitude to stand for moral principles which we now view as failed, wrong or irrelevant.

1)(b) is the necessity justification. It is what allows self defense or trespassing "safe harbor" exceptions. It is generally pretty straight forward, usually involving threat to life or limb.

2) is about practicality and it's going to be the hangup for most defendants. If a normal, non-famous, 22 year old defendant pleads not guilty to a charge, purely on moral grounds, in a mostly empty courtroom and it does nothing to expose or change an immoral law - only having the effect of getting the defendant an extra year in jail - that is probably a person we should admire. We should try to talk her out of it, but we should admire the impulse. Assuming she will continue to act in pursuit of the moral ideal we have a duty to discourage her from an impractical absolutism which would deny further work on that ideal for longer than necessary. The good should not be ignored by blinders keeping one focused solely on the perfect.

Let's be clear here. The combination of 1)(a) & 2) will be rare. These are people such as Susan B. Anthony and Martin Luther King who are fighting for greater moral goods. They are not the usual people we see in court. 1)(b) & 2) will be more common, but still not applicable in the majority of cases. After all, there will seldom be a justification defense for things like shoplifting, embezzlement, or robbery.

Affect of the Immoral Not Guilty Plea on Lawyers and Court

Not much. Sure, a guilty person might be found not guilty because of the immoral refusal to accept responsibility. However, the defense counsel, prosecutor, and trial court are not responsible for the defendant's moral decision as to whether to take responsibility for the act. Quite simply, the trial system doesn't care. It is set up to test the government's ability to prove guilt - not to judge the defendant's morality. The stains on the souls of those in the dock are between them and God, not them and the court.

02 January 2009

The Second Lawyer:
The View From the Other Side

Brian Tannebaum, over at Criminal Defense, lays out his reasons for not becoming the "second lawyer." In other words, he tells us why he won't take a case if another attorney is already doing the work. This set me to thinking about what the entry of an attorney looks like and means from my side of the bench.

You know when I see 90% of "second attorneys?" After I tender a plea offer. And I almost never see a change in attorney if I offer probation or a misdemeanor instead of a felony. If someone is in jail and the offer is a year or less it usually doesn't happen. Of course, the more time offered, the more likely a new attorney will pop up. What does that mean? Usually one of three things. 1) The Great Stall is on (most likely). 2) The Great Bluster is on. 3) The Wheeler-Dealer has arrived (least likely).

The Great Stall - There are a couple different ways this plays out. However, it always starts when the trial date is imminent and it usually involves an offender who has no real defense. The offender hires a new attorney anywhen from 2 days before to the morning of trial. Of course, the attorney asks for a continuance because there is no way he can be ready in time for trial. Now, if the offender has been smart about it he's hired an extremely busy attorney who won't be able to set a date for a couple months and will probably end up continuing the case several times because he's in federal court or has a murder trial in another jurisdiction or . . .
If the offender isn't all that smart he will try to play rotating attorneys, "firing" each attorney just before trial and asking for a new attorney. This isn't the smartest way to stall; it can backfire because even the most obtuse judges usually catch on and put the defendant in jail pending trial after a couple attorney firings.

The Great Bluster - This guy got hired because all the local frequent flyers think he's a great lawyer. He huffs and he puffs and he puts on a great show. All the local ne'er-do-wells know "He will fight for you!" (tm) This is the type of person who walks in and tells you your case is the worst he's seen prosecuted in his 20 years of practice (each and every time) and even if you win he's going to fight it "all the way to the Supreme Court." Sometimes these guys are really quite good; think about it, if you are going to make it your business plan to anger everyone from appellate judges down to the lowliest rookie officer you aren't going to get any wiggle room - you have to be sharp and right. On the other hand, there are a lot of guys who act this way who are just terrible in court. They make impassioned arguments about statutes and constitutional law which anybody who's practiced for a couple months or done 5 minutes of research knows are bogus. They move for a mistrial every 5 minutes and object every time the prosecutor opens his mouth. Their clients love them all the way through the conviction.

Let's Make a Deal - This guy knows everybody. He goes out of his way to stay on good terms with the police and the prosecution and the judges. Something about him makes him very likeable or very respected or very tied in (usually a mix of the 3). The facts don't matter so much to this guy. He rarely goes to trial, but he works every possible angle behind the scenes to get a better deal for his client. Suddenly, you're getting a call from a 15 year, grizzled vet of the force who is saying, "I talked to Greg and he says Miss Smith has a drug problem and I don't care if she gets a drug program rather than the 3 years the guidelines call for." Of the three, this is the one least likely to be hired in late because the frequent flyers don't see how effective he is as most of his work is done on the down-low, behind the scenes. Usually, he's hired when someone with money and/or influence suddenly realizes his kid is in real trouble.

In reality, my offer doesn't usually change when a new attorney comes on. Often the appearance of the new attorney, especially a Blusterer, means that the chances of there actually being a trial go up, but I've never really minded going to trial so that doesn't change my offer. By the time the second attorney comes in I've already assessed the case and made my offer. In fact, one of the most annoying things is when I have to change the offer and feed the impression that the "real attorney" has forced me to do something the court appointed attorney couldn't. Sometimes the new attorney has come up with something which changes my evaluation. Usually, the change is because of something entirely outside the control of the defense attorney like a witness moving to Utah or a piece of evidence popping up out of left field.

01 January 2009

Cool New Commonwealth Attorney Site

Our office has put up a new website which is, in my ubiased opinion, one of the better ones in the Commonwealth.

Before the site was put together others were looked at. I preffered the one in the middle; my boss preffered
the one on the top. The one at the bottom seems to have popped up in the meantime.