Articles Posted in Criminal Justice System

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Judge Gauvey, a magistrate judge on the United States District Court for the District of Maryland has issued a lengthy, thorough, and important decision on the use of cell phone data by law enforcement just to arrest someone. The opinion is available here (thank you Volokh conspirators for the link).

Here’s the juicy bit:

the government asks to use location data in a new way — not to collect evidence of a crime, but solely to locate a charged defendant. To some, this use would appear reasonable, even commendable and efficient. To others, this use of location data by law enforcement would appear chillingly invasive and unnecessary in the apprehension of defendants. In any event, there is no precedent for use of location data solely to apprehend a defendant in the absence of evidence of flight to avoid prosecution. The government did not submit, and the court did not find, any sufficient authority for this use of location technology. In light of legitimate privacy concerns and the absence of any emergency or extraordinary considerations here, the Court concludes that approval of use of location data for this purpose is best considered deliberately in the legislature, or in the appellate courts.

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In my experience, many federal prosecutors play fair. They want to get their conviction, to be sure. The law gives them many advantages, and they’re happy to avail themselves of what the law gives them. But I don’t know of many federal prosecutors who go out of their way to take away a defendant’s lawyer.

Then again, I don’t practice in Georgia.

The Eleventh Circuit, today, reversed and remanded a case where a criminal defendant went to trial without a lawyer, because the government opposed him receiving appointed counsel. The case is United States v. Ly. Apparently, in some U.S. Attorney’s Offices, they read Gideon narrowly.

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There has been a lot of debate in the media in the past year, or so, about American Exceptionalism.  Put simply, American Exceptionalism is the idea that the United States of America is fundamentally different than other nations.  The idea was popular during the midterm elections as a way for Republicans to try to show that they love America more than the President.  It’s perhaps more interesting to argue about that than the details of health insurance regulation.

I recently took my son to Philadelphia, to the National Constitution Center.  The museum starts with a seventeen minute live action play about our Constitution.  It’s hard not to buy into the idea and ideal of American Exceptionalism in Philadelphia.  If there’s a reason to think we’re different, and better, surely it has it’s roots in what happened in that city. (That said, a bit of distance to reflect on the idea of [insert nation here] exceptionalism may simply reveal that it isn’t meaningfully different than patriotism).

I do think America is qualitatively different than other countries.  I agree with a form of American Exceptionalism in three ways.  First, I think this country, unique among others, celebrates and encourages people to carve their own path in life.  Americans innovate and rally and strive.  In a deeply unquantitative and unscientific way, I think Americans do that more than other people.  That’s to be applauded.

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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.
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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.

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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.

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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.

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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.

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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.

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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.

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