March 6, 2011

Why Do People Hate Juries?

Jury trials are under attack. Granted, my perspective is idiosyncratic – I tend to notice things only if they affect the kind of law I practice (mainly federal criminal defense and plaintiffs personal injury) or they get so much attention in the mainstream or legal press that they can’t be ignored. But from a lot of fronts, we’re sliding into a civil law/administrative system of justice instead of the one we learn about in school and that’s in the constitution.
 
I’m seeing three reasons to worry – federal judges sentencing criminal defendants on acquitted conduct; caps on damages, and Ken Feinberg.
 
It’s hard to explain to a client that regardless of what a jury says or what he entered a plea to, the Court has the power to sentence him up to the statutory maximum based only on facts that the judge thinks finds to be true by a preponderance of the evidence.  But, hey, that's the law.  Clients reasonably ask what the point of the jury is, if not to find the facts that lead to their sentence (clients, perhaps myopically, tend to focus more on how much time they’ll be away from their family than on the name of their offense of conviction). I don’t know what to tell them.
 
In the federal district court where I practice most, a guy was just given a life sentence. His guidelines were just over fifteen years. The government proved up state crimes that he was acquitted of. Turns out the federal judge doing his sentencing was more sympathetic to the government's evidence than the state jury was; he decided that the defendant was actually guilty of the state offenses and gave him the statutory maximum based on hearsay testimony and a preponderance of the evidence standard. 
 
How much violence does that do to the idea that jury trials matter? 
 
The problem is that federal courts have decided that jury trials only matter to the fact of a conviction – the actual sentence is up to a judge. But, no one but a lawyer cares what the offense of conviction is – people care about how much time in prison they’re going to get. Taking a jury trial away from the thing that really matters – the facts that support a sentence – is a sophistic slight of hand.
 
Caps on damages in civil suits are the same thing – courts or legislatures think that they should be making decisions about damages, rather than the good citizens of our community, should be making decisions about damages.
 
Ken Feinberg has built an empire on the idea that jury trials are to be avoided. And he’s showing no signs of turning into Ozymandias any time soon.
 
I’m not sure if jury determinations about, say, sentencing would always work out well for my clients. Juries can do crazy things – they probably give sentences that are higher than what a judge would give for crimes of violence, but white collar cases may work out better, at least under current federal sentencing guidelines. In civil cases, there are plenty of stories of completely bizarre jury behavior.
 
What bothers me is that the way jury rights are chipped away at is the very worst about lawyers. Consider the Seventh Amendment –
 

            Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

 
“No fact tried by a jury shall be otherwise re-examined in any Court in the United States.” Pretty clear, right? 
 
Good citizens, here’s what your courts allow – a defendant in a civil case can file a motion for judgment on the evidence before the jury gets the case, then, after an adverse jury verdict, the defense lawyer just renews her prior motion. The Court is ruling, not on the jury verdict, but on the motion that happened before the jury verdict. It’s clever, but I don’t mean “clever” in a good way.
 
Is this a problem?  I think so.  If we're going to change the way we decide things in our courts, we should do it after we all get together and decide that's the change we're making.  But that's not what we're doing.  The way we decide important questions about what people should be punished for, or how much a life is worth, is changing.  And it's changing in ways that aren't being discussed.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

February 21, 2011

Office of Inspector General Investigations and You

I have represented a number of people in investigations by an Office of Inspector General (or "OIG").  Many of my clients have been federal employees who were being looked at by the OIG for their agency.  For federal employees in this situation, there really isn't very much information available about the process.

For that reason, I was curious to see online a pamphlet called "OIG Investigations and You."  It's put out by the Office of Inspector General for the Corporation for National and Community Service (did you know there's a Corporation for National and Community Service, and that they have an Office of Inspector General?  Well, now you do.)

I don't agree with everything in this pamphlet.  For example, the pamphlet tells you that you shouldn't talk to others about if you've been interviewed by OIG agents because it might be obstruction of justice.  I suppose that's true in an extreme case, but it seems to me more likely that it's a pain for OIG agents to not control all the information in an investigation and they'd like to scare people out of talking to, say, a lawyer hired to represent a target of an investigation. 

That aside, it's actually a fairly decent starter document about what happens in an OIG investigation and what a federal employee's rights in an OIG investigation are.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

February 19, 2011

Matt Kaiser Teaches Stuff On The Internet

I'm teaching an online CLE for lawyers who practice in state court and want to learn about federal criminal procedure.  It's available at Lawline.  Here's a link to a teaser video (and, yes, that is an odd way to hold my hand).

 

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 5, 2010

Prosecutorial Misconduct Goes Unpunished

Here's a sad, though not surprising, report.  Apparently, in California, prosecutorial misconduct goes unpunished.  According to a blog on the San Francisco Weekly's page, there have only been six cases of California disciplining a prosecutor for misconduct, despite a study identifying prosecutorial misconduct based on appellate decisions in more than 700 cases.

This is troubling for three reasons.  First, most cases plead, and don't result in an appeal.  So, if there are 700 cases where misconduct can be recognized in an appellate court, that radically understates the amount of prosecutorial misconduct out there.

Second, only six prosecutors were disciplined out of the 700 cases; which is incredibly low.

Third, the post only says that they were disciplined.  It doesn't say how they were disciplined.  A discipline can include something like an admonishment; it doesn't necessarily mean that anything actually happened to the prosecutors to prevent them from continuing to engage in misconduct in the future.

This looks a lot like the kind of behavior that one finds in, say, the mortgage industry.  People are put in jobs where misconduct isn't punished, where racking up completed cases (either of mortgages sold or convictions obtained) is rewarded, and where there are few other checks on the actions of the people in the system.  Of course, folks will look into what happens at Enron.  Why won't they investigate prosecutorial misconduct?  Oh, right, because the people who would do that investigation are prosecutors.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

June 22, 2010

Perez Hilton, Miley Cyrus, Child Pornography, and The Kaiser Law Firm PLLC

I was interviewed recently for an article about a Perez Hilton picture of Miley Cyrus.   There's something a little more interesting about this that I alluded to when I was talking to the reporter, but that didn't come out as clearly in the article.  If you're simply looking for Perez Hilton/Miley Cyrus information, feel free to click the article; if you're curious about one interesting legal issue with the situation, read on.

First, a bit of background.  Miley Cyrus is 17, and she appears to be trying to present herself as an adult (in at least two senses of the word).  As a part of this campaign, she apparently emerged from a car in a short skirt without any underwear on.  Perez Hilton snapped a picture up her skirt that revealed what would have been hidden if she'd been wearing underwear.

Here's the interesting point.  Assume the image is pornographic (I haven't seen it, so don't have an opinion).  If Miley Cyrus were, say 19, and this had happened, the interesting question would be whether Perez Hilton's photograph was pornography, and, then, whether there was any redeeming social value to the image.  Because Miley Cyrus has been spending a lot of time in the public eye displaying a more provocative image of herself, Perez Hilton could argue that his photograph was somehow a comment on that, and could probably argue successfully that it was a further conversation about Miley Cyrus and how provocative she is.

Here, though, Miley Cyrus is under 18, and the Supreme Court has held that a pornographic depiction of a minor is per se obscene.  Which means that it doesn't matter if Perez Hilton took the picture in order to comment on a pressing social issue; it can be banned based on the fact that it's pornography and that she's under 18 alone.  Her status as a public figure is completely irrelevant to the analysis.

The interesting question is this - does that comport with our current understanding of how protective we should be of someone like Miley Cyrus?  She's already in the public realm in a pretty explicit way.  At some point, when someone is so close to the age of majority, and is already a public figure, can they lose the protection that the Supreme Court clearly intends?  

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

January 15, 2010

Does Law Enforcement Get Laid Off When the Crime Rate Drops?

In most industries, when there's a drop in activity in that industry, people get laid off. For example, lots of title companies laid people off when the real estate market slowed down and there were fewer closings. When people buy fewer cars, autoworkers get laid off. Sadly, in this economy, one sees quite a few examples of this phenomenon.

Recent reports of a drop in crime got me wondering, what happens to law enforcement if the crime rate drops? If, for example, there were a 50% decrease in people using drugs in the country, would half the DEA agents get fired? What if it were a 10% drop?

Or, instead, would law enforcement just push for prosecution of more marginal cases? Perhaps folks who they would have decided aren't appropriate for prosecution would now be thought of as public enemies.

Law enforcement is a competitive business. Federal agents can reasonably fear losing funding for their jobs if they don't bring in the statistics to justify their positions. Would they push for more marginal prosecutions to keep bread on their table? Would you?

This is, perhaps, a little fanciful, but I wonder, is there a single example of a prosecutor's office or law enforcement department losing staff because of a drop in the crime rate? If not, why not?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

January 5, 2010

The Kaiser Law Firm on the Radio

I was interviewed today on The LaVar Arrington show with Chad Dukes on 106.7 FM here in Washington DC about Gilbert Arenas and his legal troubles.

Click here if you'd like to here the interview.

My basic point was that Mr. Arenas is likely going to be able to work out a plea to a no-jail misdemeanor when you look at how he's handled this and who his lawyer is. But, hey, I could be wrong.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

December 10, 2009

Round Up The Usual Suspects!

The National Law Journal reports that senators have been questioning Lanny Breuer about why there haven't been more fraud prosecutions. Apparently, the Senate wants the Department of Justice "to do more about those who might have contributed to the credit crisis and the recession."

Why does there have to be a criminal enforcement response to every macroeconomic change that negatively effects people? Are there any serious economists who think that recessions are caused by white collar crime?

More plausible, is that members of the Senate stand a better chance of being reelected if they badger DOJ into trying to put people in prison.

That's change we can believe in.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

December 8, 2009

Feeling Your Client's Pain

I recently read a very successful personal injury lawyer's advice to a lawyer who was starting a personal injury practice. His advice was "make your client's pain your own and everything else will take care of itself."

I suspect that's excellent advice, and not just for a personal injury practice.

It presents unique challenges for a criminal practice though. On one hand, I know that the best results I've achieved for clients have come when I take their case completely to heart. Cases tend to go better than I think they will when I wake up at 3 a.m. thinking about what I'll say at a hearing, or I find myself thinking of an argument to make to a prosecutor when I should be listening to one of my kids tell me about his day. Clients deserve to have a lawyer who is thinking about their cases obsessively. I know if I, or a member of my family, need a lawyer, I'd want that lawyer to be thinking about the case often.

On the other hand, criminal defense lawyers, particularly in the federal system, lose. And when you lose and you've taken your client's pain to heart, it becomes your pain. There's a tremendous amount of burnout among criminal defense lawyers; worse, too often defense lawyers prevent themselves from burning out by just not caring about their clients in the first place. The lawyer who yells at his client at the initial consultation, or doesn't explain to his client what will happen if he pleads or goes to trial, or browbeats his client into a quick plea, is the worst of our profession, and may just be keeping himself from feeling how desparate his client's situation is.

Which is not to say that this is excusable. There's an important difference between a defense and an argument you make at sentencing.

The hard part, I find, is striking a balance between being too close and too distant to how my clients. Too close and you lose perspective and can't function. And, while it hurts to see a guy who has robbed a bank go to prison, you're not going to be able to prevent that from happening in most cases. Whether or not you feel the guy's pain, he's likely going to BOP. But if you don't feel what he's going through at all, I don't know why you'd bother to do this work.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

November 5, 2009

Federal Government Contractors - Watch Out For Fraud Prosecutions

For many federal contractors, TARP and the American Recovery and Reinvestment Act are a godsend. The economy isn't great overall, but the federal government is still spending. This is good for the economy around Washington, D.C., and it's good for those who sell services and products to the federal government.

The government, though, has a concern about fraud in government contracting. Some of this is generic. Every agent with an Office of Inspector General can tell you that his or her job is to combat waste, fraud, and abuse. Even in normal times, Inspector General offices spend a lot of time investigating whether federal contractors have engaged in fraud. As a result, even in normal times, government contractors need to take reasonable steps to prepare themselves in case an OIG agent comes calling.

But these are not normal times. The federal government is spending an astounding amount of money, and it's worried that this spending is ripe for fraud. The Department of Justice's Criminal Division is gearing up to investigate and prosecute those who receive government funds and who they suspect of fraud. The White House has unveiled a web page where anyone can track the spending from the Recovery Act and it's express purpose is to prevent fraud.

Perhaps this will mean only that those who engage in shady activity have a higher likelihood of being prosecuted. What I worry will happen, though, is that the government will prosecute where it could better regulate, and that good, but perhaps sloppy, federal contractors, and their employees, will be caught up in politically created prosecutions and investigations.

Of course, time will tell.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

November 4, 2009

Why Does White Collar Crime Happen?

Like most people who practice criminal law, I go back and forth between thinking that the explanations for some kinds of behavior are basically unknowable, and a healthy dose of armchair psychology to figure out why people do things that they know are not in their self-interest. When I'm writing a sentencing memo, I tend to try to answer for the court why my client is before the judge. I find that studies about the causes of crime almost never fail to get my attention.

Which is why I was very excited to see this article, Researchers Expose a Pattern for White Collar Crime. The article reports on a study that found a pattern for what allows white collar crime to happen at a company or other institution. Basically, like the stages of grief, the researchers believe that every big white collar case works through the following 12 steps:

  1. Perpetrator is hired into a position of power
  2. Perpetrator develops a sense of superiority and engages in illegal activity
  3. Co-workers recognize perpetrator's misconduct and become passive participants
  4. Passive participants recognize opportunity
  5. Passive participants reluctantly follow the perpetrator
  6. Perpetrator distrusts followers and feels the need for control
  7. Perpetrator senses his power over followers and is emboldened
  8. Perpetrator bullies followers and relishes his hold on them
  9. Perpetrator intensifies white-collar crimes as followers feel increasingly trapped
  10. Followers struggle with the conflict between their values and actions
  11. Perpetrator loses control as a whistle-blower steps forward
  12. Perpetrator denies or admits to wrongdoing and shows lack of remorse

I'm not sure what I think of this. On one hand, it looks like it may be a relatively useful way of explaining how people at institutions respond to the one bad actor at the top. I could see this being used as a meaningful argument for mitigation of a lower-level employee.

On the other hand, this study kind of looks like it might be junk (as a guy whose only read an article about it, not the actual study). Who counts as a perpetrator? Take Enron for example, is Ken Lay the perpetrator? Skilling? Fastow? It seems like the model would be slightly different (or squishy enough to be vacuous) depending on which of these players you choose as the "perpetrator."

Moreover, look at step two. Isn't that kind of quick? Perpetrator develops a sense of superiority and engages in illegal activity? That's it? That's the explanation for why there's crime? No look into what else was going on in the lives of the "perpetrators?" No look at whether the "perpetrator" even thought his conduct was criminal to begin with, particularly in this age of regulation of business through the Bureau of Prisons.

White collar crime happens because of a sense of superiority. Huh. I guess that's good to know.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 30, 2009

Criminal Charges and Depression

I was in court the other day waiting for a hearing, and I saw a heart breaking scene. A woman who looked to be in her late twenties was the defendant in a criminal case and she had brought her daughter to court with her. I would bet her daughter was about four.

She didn't have anyone with her to watch her daughter, so she brought her up to counsel table for her hearing. When she got to counsel's table, the judge asked her where her lawyer was. She said she didn't have one. As it turned out, she had already plead guilty to felony theft. She was coming back for her sentencing hearing.

The judge asked her why she didn't have a lawyer. From looking at the docket for her case and his notes, he told her that he could see that they had continued the trial date twice for her. Each time the judge inquired about her eligibility for a public defender, and concluded that she was eligible. Each time he told her to go to the public defender's office. He also told her to go get a public defender after her plea hearing.

The judge was clearly frustrated. The woman rambled a little bit about how she didn't commit the crime (!), then told the judge that she didn't know, but she thought she might be depressed, and that she knew she was supposed to go to the public defender but she just couldn't make herself do it.

It was an incredibly sad, and all too familiar, moment. I find that too many of my clients are overwhelmed by the charges pending against them and can't really function to work on their case. It's hard to watch that happen, both as a person and as a lawyer. I've seen it hurt people badly. The criminal justice system is not forgiving of people who don't act in their own defense.

I find that when my rapport with my client is strong I can get through some of that depression to help the client focus on the case a little. When the rapport isn't strong, well, it's just a lot harder. I'd be very eager to hear from any readers about how they handle depression in their clients; it's a problem that I don't think gets enough attention in the criminal defense bar.

Perhaps the only solution is the one that came to the woman I saw in court that day. A lawyer in the courtroom, moved by the scene that she was watching, stood up and asked the judge if she could talk to the woman for a minute in the hallway. She didn't know if she would get paid (she may, in fact, have known that she wouldn't), but she was willing to help.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 29, 2009

Is there any incentive for prosecutors to do the right thing?

Over at Sentencing Law and Policy, Doug Berman reports on a recent article wondering why prosecutors are rarely punished when they do illegal things.

According to Radley Balko at Reason, one prosecutor in Florida has put four men in prison who were later exonerated. That prosecutor is now on the bench hearing criminal cases.

Balko asks,

[a]s DNA exonerations continue to accumulate across the country, we're left with some tough questions about accountability for the public officials who put innocent people in prison. Certainly in some cases honest mistakes can be forgiven. But what about cases, like that of John Purvis, where a prosecutor illegally withholds evidence of a suspect's innocence? What about prosecutors who participated in multiple wrongful convctions? Is it fair to hold them accountable years or decades later? What of those who went on to become judges, and now preside over murder cases?

Balko isn't just complaining in a vacuum, he notes that the Innocence Project identified prosecutorial misconduct as a significant cause of a false conviction in at least a quarter of its cases. None of those prosecutors have been subject to meaningful discipline.

This is yet another sad part of how the incentives for prosecutors line up in a way that is not consistent with the public interest.

Prosecutors are rewarded by career advancement and, in some cases, cash awards, for getting convictions. Prosecutors are not rewarded for exercising good judgment to decline to prosecute when they ought to, or to seek a lighter sentence when appropriate. Maybe prosecutors really do act in the public's interest most of the time, but I don't think we'd create an incentive structure like that in any other area of public life.

The rejoinder to this is that prosecutors, as public servants, will pull up and exercise their discretion well. Certainly that happens, and when it does it should be celebrated. But the incentives don't line up to suggest that it will happen often. Why should such a prosecutor care that they did the right thing?

Our system relies on prosecutorial discretion, yet there is no meaningful incentive to develop or exercise good judgment as a prosecutor. And Balko argues that there is no reason to fear any meaningful punishment for bad behavior. With no carrot for behaving well, and no stick to punish behaving poorly, what kind of discretion should we expect from our nation's prosecutors?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 23, 2009

Another Thought About Maryland's Error Ridden Sentencing

I realize that maybe not everyone is as scandalized as I am about the errors in Maryland's sentencing calculations. As I blogged about yesterday, Slate reported that Maryland lawyers have been wrong about 10% of the time they do sentencing calculations.

Could unfrozen caveman lawyer do a better job?

Obviously, this is really not great press for Maryland lawyers. But, the more I think about it, I think it exposes a significant problem with how we think about criminal justice.

Our system is the adversary system. The idea is that if you have two sides who both present their version of the truth, the truth will come out. Yet, in the Slate article, we have a nice example of how the adversary system fails.

Whether it fails because lawyers are lazy, or not bright, or not motivated is kind of irrelevant. Lawyers are missing things when it comes to sentencing; what does it say about the error rate for these same lawyers when it comes to what happened in the underlying crimes?

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

October 22, 2009

What's Wrong With Maryland Lawyers?

Slate has reported that, apparently, the error rate for sentencing calculations in Maryland is about ten percent. That's right, ten percent. "A system designed to make justice more predictable was producing errors in one out of every 10 trials."

That's not, actually, the incredibly stunning part. Apparently the cause of the error rate wasn't that people were lazy, or bad at math, or didn't understand the guidelines well enough to do the calculations. No, the error rate is caused by something much more depressing:

With the stakes so high--months and years of freedom gained or lost--how could Maryland's Sentencing Policy Commission have been so sloppy? For academic research--a matter trivial by comparison--it's common to have data entered independently by at least two typists, whose output is then cross-checked for accuracy. Yet it turns out that complacent bureaucrats weren't to blame for the sentencing mistakes. The work sheet had to be filled out by the state attorney prosecuting the case, with the final form signed and approved by the defense attorney (who, if he was doing his job properly, would have done the work sheet calculations independently). The commission had, by design, handed off the task of work sheet completion to parties that it assumed would have every incentive to get the numbers right, but it apparently never accounted for widespread incompetence in Maryland's legal profession.

I'm a Maryland lawyer, and I find this completely depressing. If all the errors resulted in lower sentences, I guess I could see this making sense. Prosecutors, particularly in state courts, can be excused from making a mistake or two if the sentence winds up where their intuition for the right sentence is consistent with the guidelines calculation.

What's scary is that defense lawyers let bad guidelines calculations though. Obviously, everyone has a bad day, but a ten percent error rate is way outside of the range of acceptable errors.

This is just unacceptable.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.