This week's trial is a nightmare, and I've had trouble sleeping for days.
A couple of years ago, two parents confronted their teenage daughter with the contents of text messages on her cell phone. A peer was writing to the girl in tones too salacious to be repeated even here. He wanted her, in the most carnal of ways.
The fifteen year old girl was outraged. How could the parents so violate her privacy, she demanded, tearfully.
"We just want you to be safe," the mother replied.
"If you want me to be safe, then you should know what Uncle X did to me," the teenager responded. Her mother and father sat dumbfounded as she relayed an account of touching her "privates." In a flash, the salacious messages were forgotten. Law enforcement was contacted, an investigation begun, and my client, Uncle X, was charged with serious felonies. Since that initial claim, the state calls it a "disclosure," the child has now come forward with a new claim. My clients is now also alleged to have engaged in cunnilingus. This late disclosure the state described as consistent with traumatic "incremental disclosure."
There are no other witnesses, and no physical corroboration to any of the teenager's claims. Even so, the state has some two dozen people on its witness list. My client denies any wrongdoing.
How to defend such a case? Attacking a child is never wise. The most difficult thing a criminal defense lawyers ever does is to cross examine children. The worst moment in my professional career was cross examining a nine year old about what her father's most intimate part looked like. The jury acquitted of that count, but I felt so bad for the child I wanted to adopt her and protect her from more nightmares.
In child sex cases, lawmakers have virtually abandoned any concern with statutes of limitations. The theory goes that the trauma of child sexual abuse is so severe that the events are often not disclosed until later in life. To punish and deter these crimes, we create special rules for these special cases. You can be accused of a crime that allegedly took place decades ago. It seems wrong to me to me create special rules that depend almost entirely on the reliability of childhood memory.
Lawmakers rush to pass new laws protecting victims of sexual assault. But do these same lawmakers ever really pause to consider the harm done to those wrongfully accused?
The alleged victim in my case this week will testify about events that she claims occured ten years ago, when she was seven. Just how capable is a seven year old of recalling fact from fancy? And how much of what we call memory even in adults is really a creation of fancy?
I am reminded of the sensation Freud caused a century ago when he published essays of infantile sexuality. Neuroses, he claimed, were almost all a product of inappropriate sexual contact. It seemed child abuse was rampant in the Nineteenth Century. But as his thinking evolved, Freed realized that many of the reports of sexual contact were mere fantasy. Paradoxically, some were mere wishes that were sublimated and transformed into waking thoughts that looked like memories. Psychoanalysts are well aware of the power of unconscious that the force of hidden drives. How many wicked uncles are really just loving men whom a child wishes were his real parents? How often are memories of touches really fantasies too dangerous to own?
We will never know, unfortunately. Indeed, we cannot know in cases brought long after the fact.
Instead of challenging these memories, an entire industry has been created. So-called experts if "forensic child abuse interviewing" take the field to describe how best to create safe environemnts in which children can "disclose" ancient trauma. In no other type of criminal case is the requirement for corroborating physical evidence so easily forgotten. A child abused is a gem to be burnished by patient listening. Enourage the child to disclose what happened, the theory goes. But what if this merely results in a better articulated and supported fantasy? Are we so tone deaf that we read Oedipus Rex as docudrama?
In these week's case, the state has experts on delayed disclosure, incremental disclosure and how sexual predators groom young children (note to all: treat all children as miserable little savages capable of anything or face the consequences; the love, hug and lap you offer today is tomorrow's alleged snare). Photographs will be offered to show that the home in which the alleged fondling took place actually exists, as though this were in doubt. Days will be spent explaining how all this could really be true.
But we will never really know if any of it is true, or whether the expert's opinions bear real weight. The reason for this is we have no evidence that all these theories can be verified. When a child complains a decade after the event there is no way to confirm what is said. And so the nightmare of this week's case. My client faces decades behind bars if the jury believes his accuser.
Why would a child lie about something like this? That's the state's best evidence. Freud know first-hand: Children often wish for things they cannot have. Sometimes it is to be rescued from a home in which the parents are at war. Sometimes they wish an uncle or aunt would save them. But they cannot admit this wish; it is too terrible. So the uncle becomes a demon, and, in time is cloaked in accusations that can destroy.
The state's experts will deny this, of course. Because admitting it will then lead to the question they cannot answer: How can a jury tell the difference between an accusation based on fact and one based on fancy?
Monday, November 30, 2009
Dunn v. The State: A Picayune Ruling
Derrick Todd Dunn can't catch a break, and the good people of Georgia will make sure he never does.
Dunn was convicted of statutory rape in 1996. In other words, he had sexual contact with a person deemed unable to give consent. This can mean any number of things. Did he make love to the girl next door? Or was the act sinister? The reported decision, Dunn v. The State, Georgia, Supreme Court, S09A1369, doesn't say. It simply reports that he is a sex offender, and, in Georgia, that means he might be guilty of no more than a criminal offense with a minor.
Don't be offended when I say "no more than a criminal offense with a minor." I am not in favor of child molestation. But it does pay to recall a little history. Laws currently on the books reflecting the age at which a person can give consent to sexual contact are comparatively recent. It was not until the late 1880s that the Women Christian Temperance Union began to agitate for laws raising the age of consent from 10, which was current in many states, to 18. By 1920, the age of consent was 16 to 18 years old in nearly every state.
We simply do not know why Derrick Todd Dunn is required to register. I am willing to bet that it was due to consensual contact with a woman near the age of consent, however. I say this because he is out of prison now. A truly shocking crime would have carried a far greater penalty.
Mr. Dunn must register as a sex offender wherever he lives in Georgia. If he moves, he must register anew with local law enforcement within 72 hours.
On January 17, 2009, Mr. Dunn lived a certain address and was registered. That very day, he left that residence and went to a hotel, the Calhoun Lodge, where he stayed for fice or six days. He moved to a new permanent address on January 23, 2009. He duly appeared at law enforcement's door on January 26, 2009 to report the new address.
He was met with handcuffs, apparently. You see, he failed to report his temporary address at the Calhoun Lodge. Georgia prosecutors filed a motion to revoke his probation and return him to prison. Mr. Dunn's counsel responded that the law did not require notification of temporary addresses.
The Georgia Supreme Court ruled that the law requires registration of temporary addresses as well. There is no due process violation because the law is not vague; the law's terms are clear enough for any person to understand them. Never mind that the law is unreasonable; it is clear. That is enough.
The case saddens. Reading between the lines, Mr. Dunn is still struggling 13 years after his conviction to find solid ground. He is itinerant and struggling. Rather than lend a helping hand, Georgia prosecutors have adopted a zero tolerance policy for what appears to be even technical violations of the sex offender registration laws. Is Mr. Dunn really that bad, or is Georgia simply unreasonable?
Dunn was convicted of statutory rape in 1996. In other words, he had sexual contact with a person deemed unable to give consent. This can mean any number of things. Did he make love to the girl next door? Or was the act sinister? The reported decision, Dunn v. The State, Georgia, Supreme Court, S09A1369, doesn't say. It simply reports that he is a sex offender, and, in Georgia, that means he might be guilty of no more than a criminal offense with a minor.
Don't be offended when I say "no more than a criminal offense with a minor." I am not in favor of child molestation. But it does pay to recall a little history. Laws currently on the books reflecting the age at which a person can give consent to sexual contact are comparatively recent. It was not until the late 1880s that the Women Christian Temperance Union began to agitate for laws raising the age of consent from 10, which was current in many states, to 18. By 1920, the age of consent was 16 to 18 years old in nearly every state.
We simply do not know why Derrick Todd Dunn is required to register. I am willing to bet that it was due to consensual contact with a woman near the age of consent, however. I say this because he is out of prison now. A truly shocking crime would have carried a far greater penalty.
Mr. Dunn must register as a sex offender wherever he lives in Georgia. If he moves, he must register anew with local law enforcement within 72 hours.
On January 17, 2009, Mr. Dunn lived a certain address and was registered. That very day, he left that residence and went to a hotel, the Calhoun Lodge, where he stayed for fice or six days. He moved to a new permanent address on January 23, 2009. He duly appeared at law enforcement's door on January 26, 2009 to report the new address.
He was met with handcuffs, apparently. You see, he failed to report his temporary address at the Calhoun Lodge. Georgia prosecutors filed a motion to revoke his probation and return him to prison. Mr. Dunn's counsel responded that the law did not require notification of temporary addresses.
The Georgia Supreme Court ruled that the law requires registration of temporary addresses as well. There is no due process violation because the law is not vague; the law's terms are clear enough for any person to understand them. Never mind that the law is unreasonable; it is clear. That is enough.
The case saddens. Reading between the lines, Mr. Dunn is still struggling 13 years after his conviction to find solid ground. He is itinerant and struggling. Rather than lend a helping hand, Georgia prosecutors have adopted a zero tolerance policy for what appears to be even technical violations of the sex offender registration laws. Is Mr. Dunn really that bad, or is Georgia simply unreasonable?
Saturday, November 28, 2009
Salahi, Salahi, Oh, Such A Wannabe
Salahi, Salahi, oh, such a wannabe;
Seeking reality here on our own TV.
Like sheep we all gather,
To watch all the blather,
About glitz and fake fame,
Have we lost all true shame?
We've come along way in the past one hundred years. We've gone from confidence to paranoia, and now as we face the enemy within we refuse to accept a truth too terrifying to acknowledge: We will never be safe. We never really were.
Michaele and Tareq Salahi of Virgina waltzed into an invitation-only White House dinner the other night. They were as glitzy and ditzy as everyone else there, so no one raised questions about their presence. They mugged with Vice President Joseph Biden, and President Barack Obama greeted them as though they were long lost friends. And then the Secret Service put it all together: Two members of the great unwashed had stumbled into this status fest. The couple were escorted out of the dinner; no desert for them.
I chuckled when I first learned of the stunt. Good for them, I thought. Beavis and his gal, Breasthead, pimp-walked into 1600 Pennsylvania Avenue. Damn, I thought. This tastes good. Like a cold beer at half-time. The people tail-gating in the corridors of power.
But the more I read about this escapade, the more my heart sinks. The Salahi affair reveals alot about us, and none of it is reassuring.
At the turn of the twentieth century, the White House was still open to the public. Abraham Lincoln would complain about folks turning up seeking jobs. Twenty thousand people turned up at the White House to party with Andrew Jackson when he was sworn in. The doors were open on inauguration day almost until the twentieth century. Today the place is a social Fort Knox; even the street outside the building is closed to traffic?
What happened?
I doubt we are more violent than Americans of years past. The world seems as prone as ever to war and random acts of violence. Lincoln, after all, had open doors at the White House, and was shot dead at the Ford Theater. Few thought to lock the nation down in the wake of that shooting, or to repeal the right to carry firearms. Today, I suspect security sepcialists respond to every hiccup by booting up their computers to share data on every single on of us identified as a threat at one point or another.
We recognized years ago in ways we struggle to accept now that life is, as Theodore Roosevelt once said, strife. Political passions seethed. Speech was robust. Conflict was recognized as an essential part of life. We didn't deny the drives that define us.
Things seem a little too stylized these days. We work so hard to be nice, to find just the right balance of competing passions and interests, that our idols are now mannequins, folks like Michaele Salehi.
The law speaks of reasonable people, and lawyers are taught to bargain in the law's shadow, but life on the street is still raw. Open your office's doors to the ordinary commerce of human affairs and you will at once be struck dumb by the furies. There is still passion in the streets; only at the top of life's pyramid has all grown insipid and stylized. Our modern courtiers live lives of suppressed desperation, and, somehow, we are transfixed by them. We aspire to reality TV.
Are the Salahi's folk heroes? Oh, say not so. They are wannabes, struggling to be beautiful. Their business is in distress, a Virginia winery trapped in a Dickensian horror worthy of Bleak House. So they seek distinction in something other than real success; they want to become stars in reality television. And here is the rub: We sit transfixed watching commentators discuss whetner aspiring reality television stars should have been permitted into the White House and given access to the once-vaunted leader of the free world and his palls. Jerzey Kozinski's Being There no longer looks like satire. Why, we might even prosecute the Salehis for some crime or other.
The Secret Service is mortified. Never again, it promises. Never again will access to the men and women with the most power be permitted without prior approval. We the people are simply too dangerous to be allowed unvetted access to our leaders. Even our proxies, the great pretenders who inspire us with unscripted bits of "reality" as we partake of the national Soma of network television, are too dangerous. There's danger everywhere, you see. We are all suspects. All of us harbor a terror within.
And so we tumble into a new century craving security and willing to pay almost any price to have it. We are willing to trade liberty for safety, but tell me: Who shall deliver us from the enemy within?
Ancient societies worshipped gods and goddesses who lived lives as untidy as the people who prayed to them. We say we are more sophisticated now. But the same unruly desires run amok, and we need to control them. Gone are the shrines. A culture without belief in anything but power and status now projects its fears onto new gods and goddesses. Begone, Zeus and Athena; welcome Michaele and the new political class. Are we free today? I doubt it. Everywhere there is terror and the threat of terror. But who shall protect us from ourselves?
The reaction of the gate-crashing at the White House by two aspiring reality television personalities reminds us that in the hurly burly of our days we are all potential terrorists to those in power. Who shall protect them from such scum as we?
Seeking reality here on our own TV.
Like sheep we all gather,
To watch all the blather,
About glitz and fake fame,
Have we lost all true shame?
We've come along way in the past one hundred years. We've gone from confidence to paranoia, and now as we face the enemy within we refuse to accept a truth too terrifying to acknowledge: We will never be safe. We never really were.
Michaele and Tareq Salahi of Virgina waltzed into an invitation-only White House dinner the other night. They were as glitzy and ditzy as everyone else there, so no one raised questions about their presence. They mugged with Vice President Joseph Biden, and President Barack Obama greeted them as though they were long lost friends. And then the Secret Service put it all together: Two members of the great unwashed had stumbled into this status fest. The couple were escorted out of the dinner; no desert for them.
I chuckled when I first learned of the stunt. Good for them, I thought. Beavis and his gal, Breasthead, pimp-walked into 1600 Pennsylvania Avenue. Damn, I thought. This tastes good. Like a cold beer at half-time. The people tail-gating in the corridors of power.
But the more I read about this escapade, the more my heart sinks. The Salahi affair reveals alot about us, and none of it is reassuring.
At the turn of the twentieth century, the White House was still open to the public. Abraham Lincoln would complain about folks turning up seeking jobs. Twenty thousand people turned up at the White House to party with Andrew Jackson when he was sworn in. The doors were open on inauguration day almost until the twentieth century. Today the place is a social Fort Knox; even the street outside the building is closed to traffic?
What happened?
I doubt we are more violent than Americans of years past. The world seems as prone as ever to war and random acts of violence. Lincoln, after all, had open doors at the White House, and was shot dead at the Ford Theater. Few thought to lock the nation down in the wake of that shooting, or to repeal the right to carry firearms. Today, I suspect security sepcialists respond to every hiccup by booting up their computers to share data on every single on of us identified as a threat at one point or another.
We recognized years ago in ways we struggle to accept now that life is, as Theodore Roosevelt once said, strife. Political passions seethed. Speech was robust. Conflict was recognized as an essential part of life. We didn't deny the drives that define us.
Things seem a little too stylized these days. We work so hard to be nice, to find just the right balance of competing passions and interests, that our idols are now mannequins, folks like Michaele Salehi.
The law speaks of reasonable people, and lawyers are taught to bargain in the law's shadow, but life on the street is still raw. Open your office's doors to the ordinary commerce of human affairs and you will at once be struck dumb by the furies. There is still passion in the streets; only at the top of life's pyramid has all grown insipid and stylized. Our modern courtiers live lives of suppressed desperation, and, somehow, we are transfixed by them. We aspire to reality TV.
Are the Salahi's folk heroes? Oh, say not so. They are wannabes, struggling to be beautiful. Their business is in distress, a Virginia winery trapped in a Dickensian horror worthy of Bleak House. So they seek distinction in something other than real success; they want to become stars in reality television. And here is the rub: We sit transfixed watching commentators discuss whetner aspiring reality television stars should have been permitted into the White House and given access to the once-vaunted leader of the free world and his palls. Jerzey Kozinski's Being There no longer looks like satire. Why, we might even prosecute the Salehis for some crime or other.
The Secret Service is mortified. Never again, it promises. Never again will access to the men and women with the most power be permitted without prior approval. We the people are simply too dangerous to be allowed unvetted access to our leaders. Even our proxies, the great pretenders who inspire us with unscripted bits of "reality" as we partake of the national Soma of network television, are too dangerous. There's danger everywhere, you see. We are all suspects. All of us harbor a terror within.
And so we tumble into a new century craving security and willing to pay almost any price to have it. We are willing to trade liberty for safety, but tell me: Who shall deliver us from the enemy within?
Ancient societies worshipped gods and goddesses who lived lives as untidy as the people who prayed to them. We say we are more sophisticated now. But the same unruly desires run amok, and we need to control them. Gone are the shrines. A culture without belief in anything but power and status now projects its fears onto new gods and goddesses. Begone, Zeus and Athena; welcome Michaele and the new political class. Are we free today? I doubt it. Everywhere there is terror and the threat of terror. But who shall protect us from ourselves?
The reaction of the gate-crashing at the White House by two aspiring reality television personalities reminds us that in the hurly burly of our days we are all potential terrorists to those in power. Who shall protect them from such scum as we?
Friday, November 27, 2009
Sexual Extortion in New Haven
Today's New Haven Register reports the case of a young woman sent to prison for extortion. It turns out the she and several others were shaking down a lawyer for cash. Several years ago, the lawyer asked someone to find him some companionship. Two young women appeared at the lawyer's office, and he was given what prosecutors described as a "full body massage," paying the women $40 a piece.
That was the down payment.
One of the women had a cell phone with a camera and was quick with the click. A naughty picture was sent to the lawyer soon thereafter, and he paid $5,000 to keep things quiet. This followed additional requests for cash. And then threats, visits to his office, even a menacing visit to his home. The lawyer paid more than $200,000 before turning to police.
The paper refused to name the lawyer. Although comments to the on-line version of the paper this morning named one suspect, and gave enough information to make it sound credible. Those comments have since been removed from the paper's Internet edition. No point in attracting a libel suit, I suppose. Or was it really libelous at all?
The Rules of Professional Conduct were recently amended to prohibit what it should have taken no rule to make off limits: sex with clients. Sex and power are related. Taking advantage of one to get the other really is a boundary violation.
Reading the Register's story, it appears that the mark of this extortion plot relied upon a former client to set up assignations with a few working girls. That may be just this side of the line insofar as sexual misconduct with a client goes, but it is still tawdry and shameful.
I cannot understand those who turn to their clients for sexual release. The relationship between lawyer and client is not mutual. Clients place their trust in us. We are sought in hope; taking advantage of all that hope entails is wrong.
The Register's decision to keep the lawyer's name out of print is troubling to me. Newspapers typically elect to keep the names of sexual assault victims out of the paper. This man is no victim of a sex crime. He was the victim of extortion, and, should be treated no differently that the victim of any economic crime.
I wonder why the Register walked away from the truth in this case.
Read it and weep: http://www.nhregister.com/articles/2009/11/27/news/new_haven/a1-extort.txt
That was the down payment.
One of the women had a cell phone with a camera and was quick with the click. A naughty picture was sent to the lawyer soon thereafter, and he paid $5,000 to keep things quiet. This followed additional requests for cash. And then threats, visits to his office, even a menacing visit to his home. The lawyer paid more than $200,000 before turning to police.
The paper refused to name the lawyer. Although comments to the on-line version of the paper this morning named one suspect, and gave enough information to make it sound credible. Those comments have since been removed from the paper's Internet edition. No point in attracting a libel suit, I suppose. Or was it really libelous at all?
The Rules of Professional Conduct were recently amended to prohibit what it should have taken no rule to make off limits: sex with clients. Sex and power are related. Taking advantage of one to get the other really is a boundary violation.
Reading the Register's story, it appears that the mark of this extortion plot relied upon a former client to set up assignations with a few working girls. That may be just this side of the line insofar as sexual misconduct with a client goes, but it is still tawdry and shameful.
I cannot understand those who turn to their clients for sexual release. The relationship between lawyer and client is not mutual. Clients place their trust in us. We are sought in hope; taking advantage of all that hope entails is wrong.
The Register's decision to keep the lawyer's name out of print is troubling to me. Newspapers typically elect to keep the names of sexual assault victims out of the paper. This man is no victim of a sex crime. He was the victim of extortion, and, should be treated no differently that the victim of any economic crime.
I wonder why the Register walked away from the truth in this case.
Read it and weep: http://www.nhregister.com/articles/2009/11/27/news/new_haven/a1-extort.txt
Thursday, November 26, 2009
Rob Sanders: Sexophrenic Tool?
When common sense fails, claim some variant of exceptionalism. That's what Kenton Commonwealth’s Attorney Rob Sanders in Ohio has done. You see, he wanted to convict Nicole Howell, a teacher in her mid-twenties, of first degree sexual assault. He wanted her in prison. He wanted her registered for life as a sex offender. He wanted to destroy her because he believed she had consensual sex with a sixteen-year-old student at Dayton High School.
It took a jury little more than an hour to acquit Ms. Howell. And now the former teacher has sued Sanders. Sanders' defense?
"Sex crimes are not like bank robberies. They typically do not take place on security cameras in front of a room full of witnesses. Ifg prosecutors ignored cases like this, few, if any sex crimes would ever get prosecuted."
Maybe that's what the jury was trying to tell the the Ohio prosecutor: Too many cases like this are being prosecuted, and for no good end.
I don't know whether the jury nullified the law in the Howell case. The defense was not not consent but denial. Apparently, prosecutors ignored exculpatory evidence, including a polygraph exam than Ms. Howell had passed. The state ignored the fact that it was Howell who reported rumors of the contact to school officials. The state ignored the fact that the so-called victim at first denied the rumors. Ther state ignored the fact that the alleged victim could not identify prominent features of Ms. Howell's, features any but a blind lover would recognized.
The prosecution ignored all that it did not want to see and focused on what it wanted: Ms. Howell's hide. And it did so because sex crimes are "oh-so different." This swill is unworthy of a serious professional.
Ms. Howell has filed suit against the state's attorney, claiming damages for her ruined career and reputation. She is unlikely to enjoy relief. Prosecutorial immunity is virtually impenetrable. And Rob Sanders, the prosecutor, is far from chastened by this defeat; he is defiant, and is taunting Ms. Howell's lawyer, baiting him as a showboat in the press.
Prosecutors make great show at closing argument of holding accused person's accountable for their alleged crimes. But when a prosecutor errs, he hides behind immunity. And then, as does Mr. Sanders, he tells the world he'd do the same thing all over again. These cases are special, you see. There is often but a single witness, and why would that witness lie? We need to protect the world against sexual predators.
Ms. Howell was no predator. The predator in this instance was the state. It stalked this woman and sought her destruction. And when it failed and someone tries to hold it accountable, it claims immunity from accountability.
Penetrating prosecutorial immunity is hard. I try it once every couple of years. But the law is harsh. A prsoecutor performing as an advocate can do almost anything so long as what he does is consonant with his function as an advocate. I wonder why ministers of justice get carte blanche to destroy lives, however?
There simply needs to be some corroboration requirement in single witnesses cases. Under Mosaic law, prosecution for murder was only possible on the testimony of two witnesses. This rule bled into the common law, and was eventually swallowed whole. One witness is enough for most crimes these days.
One witness was almost too much for Ms. Howell. How many other defendants have sat in courtrooms, sometimes many years after the events complained of, and been unable to mount a defense to ancient allegations because, quite frankly, the allegations weren't true, and so much time had passed that there was no reasonable possibility of recalling an alibi?
We'll never know. What we do know is that prosecutors regard these cases as special. We permit them to do so because hysterical governs our response to allegations of sexual misconduct. We're sexophrenic, all right. Sex sells by mesmerizing a consumer; and when it doesn't sell, it terrifies. We become strangers to ourselves and to the truth and few seem to care.
It took a jury little more than an hour to acquit Ms. Howell. And now the former teacher has sued Sanders. Sanders' defense?
"Sex crimes are not like bank robberies. They typically do not take place on security cameras in front of a room full of witnesses. Ifg prosecutors ignored cases like this, few, if any sex crimes would ever get prosecuted."
Maybe that's what the jury was trying to tell the the Ohio prosecutor: Too many cases like this are being prosecuted, and for no good end.
I don't know whether the jury nullified the law in the Howell case. The defense was not not consent but denial. Apparently, prosecutors ignored exculpatory evidence, including a polygraph exam than Ms. Howell had passed. The state ignored the fact that it was Howell who reported rumors of the contact to school officials. The state ignored the fact that the so-called victim at first denied the rumors. Ther state ignored the fact that the alleged victim could not identify prominent features of Ms. Howell's, features any but a blind lover would recognized.
The prosecution ignored all that it did not want to see and focused on what it wanted: Ms. Howell's hide. And it did so because sex crimes are "oh-so different." This swill is unworthy of a serious professional.
Ms. Howell has filed suit against the state's attorney, claiming damages for her ruined career and reputation. She is unlikely to enjoy relief. Prosecutorial immunity is virtually impenetrable. And Rob Sanders, the prosecutor, is far from chastened by this defeat; he is defiant, and is taunting Ms. Howell's lawyer, baiting him as a showboat in the press.
Prosecutors make great show at closing argument of holding accused person's accountable for their alleged crimes. But when a prosecutor errs, he hides behind immunity. And then, as does Mr. Sanders, he tells the world he'd do the same thing all over again. These cases are special, you see. There is often but a single witness, and why would that witness lie? We need to protect the world against sexual predators.
Ms. Howell was no predator. The predator in this instance was the state. It stalked this woman and sought her destruction. And when it failed and someone tries to hold it accountable, it claims immunity from accountability.
Penetrating prosecutorial immunity is hard. I try it once every couple of years. But the law is harsh. A prsoecutor performing as an advocate can do almost anything so long as what he does is consonant with his function as an advocate. I wonder why ministers of justice get carte blanche to destroy lives, however?
There simply needs to be some corroboration requirement in single witnesses cases. Under Mosaic law, prosecution for murder was only possible on the testimony of two witnesses. This rule bled into the common law, and was eventually swallowed whole. One witness is enough for most crimes these days.
One witness was almost too much for Ms. Howell. How many other defendants have sat in courtrooms, sometimes many years after the events complained of, and been unable to mount a defense to ancient allegations because, quite frankly, the allegations weren't true, and so much time had passed that there was no reasonable possibility of recalling an alibi?
We'll never know. What we do know is that prosecutors regard these cases as special. We permit them to do so because hysterical governs our response to allegations of sexual misconduct. We're sexophrenic, all right. Sex sells by mesmerizing a consumer; and when it doesn't sell, it terrifies. We become strangers to ourselves and to the truth and few seem to care.
Wednesday, November 25, 2009
Warehousing Sex Offenders
Hartford is home to 10 percent of Connecticut's registered sex offenders, and the city doesn't like it one bit. A recent news story reports that 537 sex offenders live within the city's 18 square mile. With all those sex offenders you'd expect a libidinal tidal wave to overtake the city. Here's the story as reported in the New Haven Advocate: http://newhavenadvocate.com/article.cfm?aid=15611.
I am not sure what to make of this reporting, and, am, frankly, disappointed in the Advocate. It simply went surfing on the surface of statistical date without asking what the data meant.
How many of the folks on the list are registered for consensual status offenses such as statutory rape? How many of the folks on the list are present for crimes of violence? The ratio would shed light on whether Hartford residents at risk.
But of course we get no such statistics. A sex offender, is a sex offender, is a sex offender. The same scarlet brush paints them all with the same hysterical exclamation point. And, what's worse, Connecticut just passed a new law requiring enhanced notification of neighbors when an offender takes up residence. Why is it unlawful to cry "fire" in a movie house, but permissible to fan even more dangerous hysteria by screaming "sex offender"?
There are hidden gems in the story. For example, probationers are typically forbidden to live near children. Where, exactly, is such a place to be found in a crowded city? Many sex offenders resort to living in homeless shelters. And if such a shelter cannot be found, or will not take the person in, then the probationer is deemed in violation of the law. I've had clients who slept on factory floors or under a bridge because of their designation as a sex offender. A separate arrest and incarceration follows those with no fixed addresses in some jurisdictions. (I am told, however, that in some states reason prevails: An offender with no place to go can simply list a park bench. I'd like confirmation of this anecdote from someone with specific knowledge.)
The public fears recidivism. Yet we create conditions in which recidivism is encouraged. Studies indicate that the key to avoiding repeat offending is reintegration in the community and elimination of the sort of asocial and anti-social that prompt some folks to deviate from lawful norms.
So what do we do? We crowd sex offenders in what amounts to substandard ghettos, where they huddle with one another, scorned and rejected by a culture whipped into an undiscriminating frenzy. One shelter in Hartford is home to 29 registered offenders. Do you think cramming these poor souls together yields reintegration? Or might it just reinforce deviance?
I am puzzled by the great rush to classify ever more Americans as sex offenders. Until recently, there was no such epidemic of misplaced desire. We are now either criminalizing what has always been present, and creating new outcasts, or there is something astir that yields new levels of deviance as yet unforeseen. Whatever the cause of these new arrests, it is clear that the criminal justice system and social service system is failing.
Several years ago, Connecticut allocated $3 million to create housing for released sex offenders. That money disappeared in a bad economy. But the sex offenders did not. So where are these folks going? Wherever they can.
It's a national disgrace.
I am not sure what to make of this reporting, and, am, frankly, disappointed in the Advocate. It simply went surfing on the surface of statistical date without asking what the data meant.
How many of the folks on the list are registered for consensual status offenses such as statutory rape? How many of the folks on the list are present for crimes of violence? The ratio would shed light on whether Hartford residents at risk.
But of course we get no such statistics. A sex offender, is a sex offender, is a sex offender. The same scarlet brush paints them all with the same hysterical exclamation point. And, what's worse, Connecticut just passed a new law requiring enhanced notification of neighbors when an offender takes up residence. Why is it unlawful to cry "fire" in a movie house, but permissible to fan even more dangerous hysteria by screaming "sex offender"?
There are hidden gems in the story. For example, probationers are typically forbidden to live near children. Where, exactly, is such a place to be found in a crowded city? Many sex offenders resort to living in homeless shelters. And if such a shelter cannot be found, or will not take the person in, then the probationer is deemed in violation of the law. I've had clients who slept on factory floors or under a bridge because of their designation as a sex offender. A separate arrest and incarceration follows those with no fixed addresses in some jurisdictions. (I am told, however, that in some states reason prevails: An offender with no place to go can simply list a park bench. I'd like confirmation of this anecdote from someone with specific knowledge.)
The public fears recidivism. Yet we create conditions in which recidivism is encouraged. Studies indicate that the key to avoiding repeat offending is reintegration in the community and elimination of the sort of asocial and anti-social that prompt some folks to deviate from lawful norms.
So what do we do? We crowd sex offenders in what amounts to substandard ghettos, where they huddle with one another, scorned and rejected by a culture whipped into an undiscriminating frenzy. One shelter in Hartford is home to 29 registered offenders. Do you think cramming these poor souls together yields reintegration? Or might it just reinforce deviance?
I am puzzled by the great rush to classify ever more Americans as sex offenders. Until recently, there was no such epidemic of misplaced desire. We are now either criminalizing what has always been present, and creating new outcasts, or there is something astir that yields new levels of deviance as yet unforeseen. Whatever the cause of these new arrests, it is clear that the criminal justice system and social service system is failing.
Several years ago, Connecticut allocated $3 million to create housing for released sex offenders. That money disappeared in a bad economy. But the sex offenders did not. So where are these folks going? Wherever they can.
It's a national disgrace.
Tuesday, November 24, 2009
Jury Verdicts And Blindman's Bluff
One day, in some courtroom in the United States, a juror will stand up in the middle of a criminal case and shout: "Liar, liar, robe on fire!" I hope it happens in Connecticut. Here is why.
When we refuse to let juries know the truth about the consequences of a conviction in a criminal case we hamper a jury's ability to check the abuse of power. Juries that are not fully informed can't do their job. Withholding truth from juries is dishonest. We do it every day in Connecticut and call it justice.
We refer to juries as the conscience of the community, but we don't treat jurors with such regard. We treat them as moral idiots unsuited to reckon the consequences of their acts.
We want juries to decide facts and facts alone, leaving to the judge the responsibility to impose such conditions as the law requires. This rigid separation of fact and law results in moral paralysis, however. In what other context do we ask folks to make a decision regardless of the outcome? Recklessness and justice are not twin sisters.
Moral philosophers distinguish so-called deontological theories of ethics from consequentialist theories. Deontological ethics are severe: we do right as an end itself. In this spare universe virtue is not even permitted to be its own reward.
Consequentialism come in many forms. The hard core are act utilitarians. On this view, each act ought to be regarded in terms of its impact. Thus, breaking the law makes sense if it promotes some good. Rule utilitarians take a broader view, claiming that general conduct requires adherence to laws that will yield bad outcomes in particular cases. The law may be but a useful tool, but its use is best serve by general obedience. But even here, a good law can serve bad ends. Justice requires bending a rule when the facts require it.
What's all this high-fallutin' stuff to do with criminal trials?
The law should promote social utility and is all about consequences.
Juries are supposed to stand between the state and an ordinary citizen accused of a crime. We expect some reasoned response from the community. But we refuse to tell jurors the consequence of their decision. We do not even permit jurors to make a recommendation about sentencing. Thus, we play Alice and Wonderland at criminal trial. "Don't think about what happens if you find a verdict of guilty," we say. Leap but never look. I wonder how many jurors are shocked when they read about a sentence imposed in a case on which they sat in judgment.
Hiding the truth from jurors undermines the very reason we have juries. The state and the state alone selects the charges. A judge cannot order than an overcharged case be recast in terms that better serve justice. And, let's face a truth that cannot be repeated often enough: The state does not exist in any meaningful sense. It is a legal fiction. Depriving jurors of a role in gauging the consequences of a conviction empowers individual prosecutors. Did the founders intend prosecutorial tyranny?
The courts encourage blindness. Consider the case of sex offenders or immigrants convicted of a crime. All sorts of consequences flow from a conviction. Yet we are not permitted to tell juries about this. And when lawyers try to challenge these inevitable consequences, we're told they not part of the punishment, they are mere incidents to punishment. Tell it to a homeless sex offender registrant.
I agree that blind juries promote fairness in trial, but that is only if trial is viewed as a game. If I know the rules in advance of the contest, I know how to play. But isn't what goes on in a courtroom so much more than a game? Isn't liberty on the line and the people's right to have a say in weighty decisions that carry enormous consequences? Juries ought to know what they are doing and why. Requiring them to wear blinders yields something other than justice. I am not sure what to call the product.
Reprinted courtesy of the Connecticut Law Tribune.
When we refuse to let juries know the truth about the consequences of a conviction in a criminal case we hamper a jury's ability to check the abuse of power. Juries that are not fully informed can't do their job. Withholding truth from juries is dishonest. We do it every day in Connecticut and call it justice.
We refer to juries as the conscience of the community, but we don't treat jurors with such regard. We treat them as moral idiots unsuited to reckon the consequences of their acts.
We want juries to decide facts and facts alone, leaving to the judge the responsibility to impose such conditions as the law requires. This rigid separation of fact and law results in moral paralysis, however. In what other context do we ask folks to make a decision regardless of the outcome? Recklessness and justice are not twin sisters.
Moral philosophers distinguish so-called deontological theories of ethics from consequentialist theories. Deontological ethics are severe: we do right as an end itself. In this spare universe virtue is not even permitted to be its own reward.
Consequentialism come in many forms. The hard core are act utilitarians. On this view, each act ought to be regarded in terms of its impact. Thus, breaking the law makes sense if it promotes some good. Rule utilitarians take a broader view, claiming that general conduct requires adherence to laws that will yield bad outcomes in particular cases. The law may be but a useful tool, but its use is best serve by general obedience. But even here, a good law can serve bad ends. Justice requires bending a rule when the facts require it.
What's all this high-fallutin' stuff to do with criminal trials?
The law should promote social utility and is all about consequences.
Juries are supposed to stand between the state and an ordinary citizen accused of a crime. We expect some reasoned response from the community. But we refuse to tell jurors the consequence of their decision. We do not even permit jurors to make a recommendation about sentencing. Thus, we play Alice and Wonderland at criminal trial. "Don't think about what happens if you find a verdict of guilty," we say. Leap but never look. I wonder how many jurors are shocked when they read about a sentence imposed in a case on which they sat in judgment.
Hiding the truth from jurors undermines the very reason we have juries. The state and the state alone selects the charges. A judge cannot order than an overcharged case be recast in terms that better serve justice. And, let's face a truth that cannot be repeated often enough: The state does not exist in any meaningful sense. It is a legal fiction. Depriving jurors of a role in gauging the consequences of a conviction empowers individual prosecutors. Did the founders intend prosecutorial tyranny?
The courts encourage blindness. Consider the case of sex offenders or immigrants convicted of a crime. All sorts of consequences flow from a conviction. Yet we are not permitted to tell juries about this. And when lawyers try to challenge these inevitable consequences, we're told they not part of the punishment, they are mere incidents to punishment. Tell it to a homeless sex offender registrant.
I agree that blind juries promote fairness in trial, but that is only if trial is viewed as a game. If I know the rules in advance of the contest, I know how to play. But isn't what goes on in a courtroom so much more than a game? Isn't liberty on the line and the people's right to have a say in weighty decisions that carry enormous consequences? Juries ought to know what they are doing and why. Requiring them to wear blinders yields something other than justice. I am not sure what to call the product.
Reprinted courtesy of the Connecticut Law Tribune.
Monday, November 23, 2009
New Blog: Defending Sex Crimes
The barriers to entry into the blawgosphere are perishingly low, so forgive me for starting another blog. This one will be devoted to sex offenses and the defense of those accused of them. Here's the link, and the first post: http://defendingsexcrimes.blogspot.com/
A Sexophrenic Culture?
Let's face it, we are a sexophrenic culture. On the one hand, we celebrate and market sexuality: Turn on the television, look at a magazine advertisement, walk down a street: Sex sells everything from toothpaste to automobiles. We manipulate and cultivate desire.
Yet at the same time that we do this we also criminalize desire. We register sex offenders, charge folks with crimes for engaging in sometimes consensual behavior and fail to draw a line between fantasy and reality. Looking at the wrong photographs can land you in prison. Being mistaken about the age of a consenting partner can land you in prison. Engaging in the wrong kind of chat on line can land you in prison.
We're sexophrenic to the core.
A significant portion of my law practice is devoted to the defense of so-called sex crimes. Sometimes it is obvious that the behavior alleged should be a crime. There is nothing about a violent rape that does not offend. But often the conduct is more subtle: A 19 year-old man responds to a fifteen year old girl's overtures. It is a crime likely to land the man in prison.
How did we become sexophrenic? What impulse leads us to punish the very thing we encourage? I don't have many answers, but I have seen many lives undone in ways that defy reason and sound social policy. This page is dedicated to the defense of folks charged with sex crimes; it is not an endorsement of sex crimes.
Last week, I read a new book on sex crimes and offenders, entitled Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? (Praeger, 2009)by Zilney and Zilney. The book confirmed many things I already knew. "Currenbtly," the authors write, "everything is related to sex: advertisers use sex to sell virtually every productm and society is inundated with sexual images and connotations on a daily basis." Lawmakers reacting to this sexual saturation often act in reponse to isolated harms, creating overbroad legislation that reaches far more broadly than the harm inspiring the new law.
Legislative momentum for enhanced sex offender registration. Thus, the 1994 rape and murder Megan Kanka helped inspire sex offender registries. Adam Walsh's murder helped strengthen registration requirements. But is the public protected from harm when folks engaged in consensual activity are required to register? Is public urination a sex offense? The media whips up moral panic when a stranger commits an act of sexual violence, yet most sex offenses are intrafamilial affairs. Does it make sense to criminalize errant desire in every form?
Zilney and Zilney argue persuasively that increased registration and stigmatization of sex offenders may actually frustrate efforts to rehabilitate folks who make mistakes. While recidivism rates for sex offenders are lower than rates for all criminal offenses, there is persuasive evidence that isolating exclusion of sex offenders from normal society and from employment opportunities increases the very stressors that encourage re-offending.
Of course, labeling a person a sex offender is the kiss of death. No one wants to come to the aid of a "pervert." So lawmakers pass ever more inclusive and resitrictive legislation, drawing more and more people in what amounts to virtual planatations. We fail to distinhuish serious crimes from petty crimes. In the rush to create a one-size-fits-all system, we tax overburdened services to the breaking point: is it any wonder that dangerous folks slip through the cracks?
I encourage folks to send me stories and anecdotes about our sexophrenic criminal justice system. Perhaps by focusing on failures in the form of over-reaching we will be able to learn enough to make intelligent requests for reform of the legal system.
A Sexophrenic Culture?
Let's face it, we are a sexophrenic culture. On the one hand, we celebrate and market sexuality: Turn on the television, look at a magazine advertisement, walk down a street: Sex sells everything from toothpaste to automobiles. We manipulate and cultivate desire.
Yet at the same time that we do this we also criminalize desire. We register sex offenders, charge folks with crimes for engaging in sometimes consensual behavior and fail to draw a line between fantasy and reality. Looking at the wrong photographs can land you in prison. Being mistaken about the age of a consenting partner can land you in prison. Engaging in the wrong kind of chat on line can land you in prison.
We're sexophrenic to the core.
A significant portion of my law practice is devoted to the defense of so-called sex crimes. Sometimes it is obvious that the behavior alleged should be a crime. There is nothing about a violent rape that does not offend. But often the conduct is more subtle: A 19 year-old man responds to a fifteen year old girl's overtures. It is a crime likely to land the man in prison.
How did we become sexophrenic? What impulse leads us to punish the very thing we encourage? I don't have many answers, but I have seen many lives undone in ways that defy reason and sound social policy. This page is dedicated to the defense of folks charged with sex crimes; it is not an endorsement of sex crimes.
Last week, I read a new book on sex crimes and offenders, entitled Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? (Praeger, 2009)by Zilney and Zilney. The book confirmed many things I already knew. "Currenbtly," the authors write, "everything is related to sex: advertisers use sex to sell virtually every productm and society is inundated with sexual images and connotations on a daily basis." Lawmakers reacting to this sexual saturation often act in reponse to isolated harms, creating overbroad legislation that reaches far more broadly than the harm inspiring the new law.
Legislative momentum for enhanced sex offender registration. Thus, the 1994 rape and murder Megan Kanka helped inspire sex offender registries. Adam Walsh's murder helped strengthen registration requirements. But is the public protected from harm when folks engaged in consensual activity are required to register? Is public urination a sex offense? The media whips up moral panic when a stranger commits an act of sexual violence, yet most sex offenses are intrafamilial affairs. Does it make sense to criminalize errant desire in every form?
Zilney and Zilney argue persuasively that increased registration and stigmatization of sex offenders may actually frustrate efforts to rehabilitate folks who make mistakes. While recidivism rates for sex offenders are lower than rates for all criminal offenses, there is persuasive evidence that isolating exclusion of sex offenders from normal society and from employment opportunities increases the very stressors that encourage re-offending.
Of course, labeling a person a sex offender is the kiss of death. No one wants to come to the aid of a "pervert." So lawmakers pass ever more inclusive and resitrictive legislation, drawing more and more people in what amounts to virtual planatations. We fail to distinhuish serious crimes from petty crimes. In the rush to create a one-size-fits-all system, we tax overburdened services to the breaking point: is it any wonder that dangerous folks slip through the cracks?
I encourage folks to send me stories and anecdotes about our sexophrenic criminal justice system. Perhaps by focusing on failures in the form of over-reaching we will be able to learn enough to make intelligent requests for reform of the legal system.
Saturday, November 21, 2009
An Archaic Sentence
Matthew Boutilier was sentenced to 27 years in prison last week by a Hartford, Connecticut judge. He was sentenced for shooting a woman in the midst of a domestic dispute. She survived the shooting; he shot another woman in the course of the fracas. She died. A jury could not decide whether the dead woman was shot in self-defense. Hence, there was no verdict as to the murder charge.
That did not stop the judge from opining about the senseless character of the shooting death. Why should it, given the case law in Connecticut? Our courts permit judges to consider even acquitted offense-related conduct. Thus we mock the presumption of innocence, permitting a judge to base his sentencing decision on factors on which a jury could not decide.
The judge could have sentenced Mr. Boutilier to 30 years. He faced twenty years for a charge of assault in the first degree, an additional five years because he had a prior felony and should not, therefore, have been in possession of a firearm. And he was exposed to five more years as a sentencing enhancement because of his record. We were expecting something in the 25 to 30 year range, but it was still hard to listen to.
The sentencing arguments reopened old wounds. The prosecutor stood in the well of the court and called the shooting senseless and Mr. Boutilier "evil." She commented that he showed no remorse, even smirking at her during her cross examination.
Mr. Boutilier was not the only person smirking during the state's cross examination. The performance was, perhaps, the stupidest thing I had ever seen in a courtroom.
The shootings took place as Mr. Boutilier and one of the victims argued in a tiny kitchen. He testified that an enraged woman was advancing on him and forcing him into a corner adjacent to steep steps into a basement. He reached for a gun and shot to end the struggle, killing the woman. The woman, according to the medical examiner, had enough cocaine in her system to kill her. She'd also been drinking and smoking marijuana. His DNA was beneath her fingernails; she had no defensive wounds. (Query: Had the victim not been shot and had she succeeded in pushing my client down the stairs, what would the state have said at her sentencing for assault? Answer: The crime was senseless and evil. Must the state send mannequins to do the people's work?)
"You've played pick up basketball, haven't you?" the prosecutor asked my client.
"Yes." He was puzzled. This was a case about life and death, not a game.
"And you know about how to pick and roll, don't you?'
"Yes."
"And you know how to avoid contact in close quarters, don't you?"
On and on this silliness went for fifteen or so questions, with the prosecutor even trying to mime the moves as she asked. It was like watching a scarecrow trying to break dance. I saw a few jurors smirk, and I knew there was hope. We sat quietly and watched the state throw its case away.
Hope blossomed into something more when the prosecutor argued the shooting was inspired by jealousy. The man did not want his wife to go out with her girlfriends in the dead of night. He was jealous, the argument went. Never mind the testimony that the girls were going out to buy a cigar to stuff with marijuana. This had somehow to become a sex crime. "We girls stick together," the state said at some point. We were not surprised when we heard a lone male cry out during deliberations: "I am not the enemy here." This case was not about the battle of the sexes. Tranforming into one was a classic example of ignoring the evidence and losing a jury.
But never mind. The state can retry the murder case, and has announced it will.
What of the sentencing judge? He bemoaned the archaic sentencing options as his disposal, and wished for a more civilized response to crime than warehousing people. It was sensible rhetoric, but no more. After opining at length about the killing for which my client was not convicted, the judge threw the book at him: Twenty-seven years.
My client's family was devastated. "How could the judge base his decision on factors for which the jury did not find guilt?" "Is there anything we can do?" "Is the state really going to try Matt again?"
And I explained, to yet another group of strangers, the law of the jungle. The state is a surly beast, and once it grabs a man it rarely let's go, Matt's odds are grim. Although the fight continues, but once a man has lost the presumption of innocence hope is hard to find.
The sentence was archaic. The events on the night of the shooting were horrible. And now the aftermath. Darrow was right, of course. There is no justice in or out of court. There is just the drumbeat of the jungle. Sometimes the drummer is a judge.
That did not stop the judge from opining about the senseless character of the shooting death. Why should it, given the case law in Connecticut? Our courts permit judges to consider even acquitted offense-related conduct. Thus we mock the presumption of innocence, permitting a judge to base his sentencing decision on factors on which a jury could not decide.
The judge could have sentenced Mr. Boutilier to 30 years. He faced twenty years for a charge of assault in the first degree, an additional five years because he had a prior felony and should not, therefore, have been in possession of a firearm. And he was exposed to five more years as a sentencing enhancement because of his record. We were expecting something in the 25 to 30 year range, but it was still hard to listen to.
The sentencing arguments reopened old wounds. The prosecutor stood in the well of the court and called the shooting senseless and Mr. Boutilier "evil." She commented that he showed no remorse, even smirking at her during her cross examination.
Mr. Boutilier was not the only person smirking during the state's cross examination. The performance was, perhaps, the stupidest thing I had ever seen in a courtroom.
The shootings took place as Mr. Boutilier and one of the victims argued in a tiny kitchen. He testified that an enraged woman was advancing on him and forcing him into a corner adjacent to steep steps into a basement. He reached for a gun and shot to end the struggle, killing the woman. The woman, according to the medical examiner, had enough cocaine in her system to kill her. She'd also been drinking and smoking marijuana. His DNA was beneath her fingernails; she had no defensive wounds. (Query: Had the victim not been shot and had she succeeded in pushing my client down the stairs, what would the state have said at her sentencing for assault? Answer: The crime was senseless and evil. Must the state send mannequins to do the people's work?)
"You've played pick up basketball, haven't you?" the prosecutor asked my client.
"Yes." He was puzzled. This was a case about life and death, not a game.
"And you know about how to pick and roll, don't you?'
"Yes."
"And you know how to avoid contact in close quarters, don't you?"
On and on this silliness went for fifteen or so questions, with the prosecutor even trying to mime the moves as she asked. It was like watching a scarecrow trying to break dance. I saw a few jurors smirk, and I knew there was hope. We sat quietly and watched the state throw its case away.
Hope blossomed into something more when the prosecutor argued the shooting was inspired by jealousy. The man did not want his wife to go out with her girlfriends in the dead of night. He was jealous, the argument went. Never mind the testimony that the girls were going out to buy a cigar to stuff with marijuana. This had somehow to become a sex crime. "We girls stick together," the state said at some point. We were not surprised when we heard a lone male cry out during deliberations: "I am not the enemy here." This case was not about the battle of the sexes. Tranforming into one was a classic example of ignoring the evidence and losing a jury.
But never mind. The state can retry the murder case, and has announced it will.
What of the sentencing judge? He bemoaned the archaic sentencing options as his disposal, and wished for a more civilized response to crime than warehousing people. It was sensible rhetoric, but no more. After opining at length about the killing for which my client was not convicted, the judge threw the book at him: Twenty-seven years.
My client's family was devastated. "How could the judge base his decision on factors for which the jury did not find guilt?" "Is there anything we can do?" "Is the state really going to try Matt again?"
And I explained, to yet another group of strangers, the law of the jungle. The state is a surly beast, and once it grabs a man it rarely let's go, Matt's odds are grim. Although the fight continues, but once a man has lost the presumption of innocence hope is hard to find.
The sentence was archaic. The events on the night of the shooting were horrible. And now the aftermath. Darrow was right, of course. There is no justice in or out of court. There is just the drumbeat of the jungle. Sometimes the drummer is a judge.
Thursday, November 19, 2009
The Wolf At The Door ...
Sit down. Put your feet up. Close the door, and put the calls on hold. I want a few minutes of your time. I want to talk to you about Philip Roth, the practice of law and, that most exciting topic of all, professional responsibility. The topic here is humility, as in the act of becoming humble. And suicide.
Lawyers are magicians. Much like writers we take masses of raw experience and transform them into utile forms. These transformations are a sort of alchemy. We can pass title, set men free, bind parties into perpetuity, and, insofar as money can, we say with a wink and a nod, rectify harm. It’s no small wonder that we acquire a second-hand sense of immortality and invulnerability.
But we all owe nature a death, and, before death, a reckoning.
Sometimes that reckoning comes simply with the passage of time. Once quick hands falter, and we lose a step, then another. One day the fight simply seems too much, and something irreplaceable snaps.
Thus the protagonist in Philip Roth’s new book, The Humbling. An aging actor loses his confidence, and thus his touch. He recedes into depression, and loses his wife, and then, briefly, his mind. He reawakens and turns to a species of love he once reveled in for revival. When that fails, he simply loses hope. The end is sadly predictable: the actor’s final role is to star in his own suicide. The death angers. It is unnecessary and feels, as all suicides do, like a betrayal.
I read Roth with a compulsive fascination. Each year, he produces a new book. Each year, he writes with grace about the contours of a world vividly felt and splendidly realized in beautiful prose. But, each year, he depresses me more and more. Roth knows one thing and one thing only: desire. And as that desire ebbs, so does his reason for living. His recent fiction represents not just the failure of a center to hold, but the collapse of the world into a vortex of spent longing.
Roth could just as easily be writing about the legal profession these days. Accounts of lawyer suicide appear to be on the rise. The ABA journal carried a report the other day of a lawyer who took the final exit rather than face the fact that his once confident grip on the law was faltering. And a Connecticut lawyer ended his life earlier this month as debts mounted. He was a real estate attorney who enjoyed decades of successful practice and an unblemished disciplinary record. As the real estate market dried up, so did his practice; somehow his will to live also evaporated.
Economic pressure is evident everywhere in the practice of law. A friend of mine recently laid off a couple of people. Common chatter in the courthouse is of slow phones, slower payers and a bewildering sense of awakening in a strange new world. Bills, however, keep coming, and so do new rules regarding the practice of law, and then there’s the ever present sense that the Internet threatens to drive the marginal cost of all professional services to zero. Old practice models are dying hard.
I write about these things as though I am visiting from another world. But I thought I saw the wolf peering into my doorway the other day. The stale yellow of his eyes, and foreign scent of his breath made me shudder. No one is immune, he seemed to tell me, from the press of necessity. He stared long and hard before loping away into the dark, turning once to remind again with unwavering eye against the sin of pride.
I sat for long moments thinking of a friend’s suicide note. He killed himself a few months back after an adverse ruling in a case. I miss him still, and wish I could talk to him now. I wish I had been a better friend, a friend to one in a need who I was too busy to see.
Suicide is not the answer. We remain a service profession. We are ambassadors for other people’s woes, and we cannot serve them if we are undone by our own concerns. But we are not immune to life’ s storms, and when harsh winds blow we, too, must seek shelter and a beacon. Let that beacon be honor, not fallen pride.
I asked you to close the door when you read this. This will strike a nerve in a few of you who are close to an unspeakable edge. If you cannot serve, let a fellow lawyer serve you. Call someone to ask for help. Call me if you must. I do not have many answers, but I know where to find them.
Reprinted courtesy of the The Connecticut Law Tribune
Lawyers are magicians. Much like writers we take masses of raw experience and transform them into utile forms. These transformations are a sort of alchemy. We can pass title, set men free, bind parties into perpetuity, and, insofar as money can, we say with a wink and a nod, rectify harm. It’s no small wonder that we acquire a second-hand sense of immortality and invulnerability.
But we all owe nature a death, and, before death, a reckoning.
Sometimes that reckoning comes simply with the passage of time. Once quick hands falter, and we lose a step, then another. One day the fight simply seems too much, and something irreplaceable snaps.
Thus the protagonist in Philip Roth’s new book, The Humbling. An aging actor loses his confidence, and thus his touch. He recedes into depression, and loses his wife, and then, briefly, his mind. He reawakens and turns to a species of love he once reveled in for revival. When that fails, he simply loses hope. The end is sadly predictable: the actor’s final role is to star in his own suicide. The death angers. It is unnecessary and feels, as all suicides do, like a betrayal.
I read Roth with a compulsive fascination. Each year, he produces a new book. Each year, he writes with grace about the contours of a world vividly felt and splendidly realized in beautiful prose. But, each year, he depresses me more and more. Roth knows one thing and one thing only: desire. And as that desire ebbs, so does his reason for living. His recent fiction represents not just the failure of a center to hold, but the collapse of the world into a vortex of spent longing.
Roth could just as easily be writing about the legal profession these days. Accounts of lawyer suicide appear to be on the rise. The ABA journal carried a report the other day of a lawyer who took the final exit rather than face the fact that his once confident grip on the law was faltering. And a Connecticut lawyer ended his life earlier this month as debts mounted. He was a real estate attorney who enjoyed decades of successful practice and an unblemished disciplinary record. As the real estate market dried up, so did his practice; somehow his will to live also evaporated.
Economic pressure is evident everywhere in the practice of law. A friend of mine recently laid off a couple of people. Common chatter in the courthouse is of slow phones, slower payers and a bewildering sense of awakening in a strange new world. Bills, however, keep coming, and so do new rules regarding the practice of law, and then there’s the ever present sense that the Internet threatens to drive the marginal cost of all professional services to zero. Old practice models are dying hard.
I write about these things as though I am visiting from another world. But I thought I saw the wolf peering into my doorway the other day. The stale yellow of his eyes, and foreign scent of his breath made me shudder. No one is immune, he seemed to tell me, from the press of necessity. He stared long and hard before loping away into the dark, turning once to remind again with unwavering eye against the sin of pride.
I sat for long moments thinking of a friend’s suicide note. He killed himself a few months back after an adverse ruling in a case. I miss him still, and wish I could talk to him now. I wish I had been a better friend, a friend to one in a need who I was too busy to see.
Suicide is not the answer. We remain a service profession. We are ambassadors for other people’s woes, and we cannot serve them if we are undone by our own concerns. But we are not immune to life’ s storms, and when harsh winds blow we, too, must seek shelter and a beacon. Let that beacon be honor, not fallen pride.
I asked you to close the door when you read this. This will strike a nerve in a few of you who are close to an unspeakable edge. If you cannot serve, let a fellow lawyer serve you. Call someone to ask for help. Call me if you must. I do not have many answers, but I know where to find them.
Reprinted courtesy of the The Connecticut Law Tribune
Sunday, November 15, 2009
Suzanne Jovin: The Lab Tech Did It?
DNA evidence has become the gold standard of a criminal prosecution: Find it, type it and match it and a suspect is either transformed into a guilty party or exonerated. We forget, however, that DNA evidence does not speak. It remains circumstantial evidence. At most, DNA evidence permits a fact finder to draw an inference that the presence of a person's DNA at a crime scene means that the person was there at the time the crime was committed. That's it!
Consider the unsolved case of Suzanne Jovin. The 21-year-old Yale University student was found stabbed to death in an affluent residential neighborhood in New Haven in 1998. Her throat was slashed and she had been stabbed repeatedly in the back.
Lawmen announced that the DNA of another person had been retrieved from beneath a fingernail on her left hand. The stranger's DNA was there as a result of Ms. Jovin's close quarter struggle with her killer, lawmen told the world. Identify the source of the DNA and there's your killer.
The state tested the DNA of nearly 50 suspects, and failed to find a match. The case remains open. So far as the world knows, the state is no closer to solving the case now than it was a decade ago.
Except for the following: We now know the identity of the person whose DNA matches that found beneath the fingernail of Ms. Jovin. The man's name is Kitti Settachatgul. He is a retired state worker who once was suspended from his job of taking money he should never have accepted. Where was Mr. Settachatgul the night Ms. Jovin was murdered? Is he able now to construct an alibi for his whereabouts one discreet night a decade ago? He know lives in Thailand, after retiring from state service.
Ms. Settachatgul is not a suspect in the crime, however. He is not a suspect because although his DNA matches that allegedly taken from beneath the fingernail of Ms. Jovin, the state has constructed an innocent explanation for the presence of his DNA: You see, Mr. Settachatgul worked in the state DNA lab responsible for identifying, extracting and typing Ms. Jovin's DNA. The state's working theory is that Mr. Settachatgul's DNA is associated with crime because of sloppy police work: Mr. Settachatgul contaminated the DNA sample by careless handling of the evidence.
The limits of DNA evidence are at once on display. Had the DNA matched that of one of the 50 or so suspects whose DNA had previously been taken, there is little doubt but that a warrant would have been issued for the arrest of the matching party. Woe to the unlucky defendant in such a case. DNA is a talisman in the criminal court: it sets men free and sends men to their death with the algorithmic calm of a metronome. Indeed, in Connecticut, the state's Innocence Project has declared open love and adoration for the state's forensic crime lab: state and defense work under terms of an inquisitorial vow that looks askance at the adversarial process. DNA is regarded as magic.
But there is no magic in the Jovin case. Instead, there are new questions. Were their epithelial cells present beneath the fingernail of Ms. Jovin? These are skin cells, easily shed, and bearing DNA identifying the source of the cells. If so, was the density of those cells sufficient to support an inference that they were deposited under Ms. Jovin's skin during a struggle, rather than during the routine handling of evidence by a careless laboratory technician?
How did the State conclude that foreign DNA was beneath Ms. Jovin's nail? When was this determination made? Why did it take eight-plus years to figure out that the DNA sample matched a lab employee? And, perhaps most telling of all, just how did law enforcement decide to rule out Mr. Settachatgul as a suspect?
"[A]ll along we knew that the DNA evidence when only relevant when we knew who it belonged to," said the prosecutor responsible for investigating the case. "Now we know it is irrelevant."
The logic defies me. More needs to be known than that the suspect DNA was a lab worker. Had the DNA belonged to one of Ms. Jovin's professors, that professor would have faced a myriad of questions. What questions has the lab worker faced?
I realize how farcical the suggestion that the lab worker did it sounds. I raise the issue here not because I have any reason to suspect his guilt, but to hold in relief both the power and limits of DNA evidence. When viewed through a lens of suspicion, the evidence damns. Remove that lens, and all the evidence shows is mere presence.
Sadly, this example of poor laboratory work will now reopen the investigation of all those folks who were ruled out as a result of the assumption that foreign DNA under Ms. Jovin's fingernail belonged to that of the killer. This powerful piece of circumstantial evidence has been destroyed. It is back to square one for the Jovin family, and for all those whose lives were scrutinized in the weeks and months following the murder.
The case also raises important questions for the criminal defense bar in any case involving DNA: Should the defense be entitled as a matter of right to testing to determine whether DNA retrieved at a crime scene matches that of any of the folks who handled the evidence, including first responders, evidence officers and lab technicians?
Chain of custody evidence is sometimes treated as the step-child of trial. The Jovin case reminds us that great injustices can be built upon fatal and unchallenged assumptions. Unless, of course, the lab technician really did commit the crime. And, of course, that's a possibility the state seems unwilling even to consider in the troubling case of Suzanne Jovin.
Consider the unsolved case of Suzanne Jovin. The 21-year-old Yale University student was found stabbed to death in an affluent residential neighborhood in New Haven in 1998. Her throat was slashed and she had been stabbed repeatedly in the back.
Lawmen announced that the DNA of another person had been retrieved from beneath a fingernail on her left hand. The stranger's DNA was there as a result of Ms. Jovin's close quarter struggle with her killer, lawmen told the world. Identify the source of the DNA and there's your killer.
The state tested the DNA of nearly 50 suspects, and failed to find a match. The case remains open. So far as the world knows, the state is no closer to solving the case now than it was a decade ago.
Except for the following: We now know the identity of the person whose DNA matches that found beneath the fingernail of Ms. Jovin. The man's name is Kitti Settachatgul. He is a retired state worker who once was suspended from his job of taking money he should never have accepted. Where was Mr. Settachatgul the night Ms. Jovin was murdered? Is he able now to construct an alibi for his whereabouts one discreet night a decade ago? He know lives in Thailand, after retiring from state service.
Ms. Settachatgul is not a suspect in the crime, however. He is not a suspect because although his DNA matches that allegedly taken from beneath the fingernail of Ms. Jovin, the state has constructed an innocent explanation for the presence of his DNA: You see, Mr. Settachatgul worked in the state DNA lab responsible for identifying, extracting and typing Ms. Jovin's DNA. The state's working theory is that Mr. Settachatgul's DNA is associated with crime because of sloppy police work: Mr. Settachatgul contaminated the DNA sample by careless handling of the evidence.
The limits of DNA evidence are at once on display. Had the DNA matched that of one of the 50 or so suspects whose DNA had previously been taken, there is little doubt but that a warrant would have been issued for the arrest of the matching party. Woe to the unlucky defendant in such a case. DNA is a talisman in the criminal court: it sets men free and sends men to their death with the algorithmic calm of a metronome. Indeed, in Connecticut, the state's Innocence Project has declared open love and adoration for the state's forensic crime lab: state and defense work under terms of an inquisitorial vow that looks askance at the adversarial process. DNA is regarded as magic.
But there is no magic in the Jovin case. Instead, there are new questions. Were their epithelial cells present beneath the fingernail of Ms. Jovin? These are skin cells, easily shed, and bearing DNA identifying the source of the cells. If so, was the density of those cells sufficient to support an inference that they were deposited under Ms. Jovin's skin during a struggle, rather than during the routine handling of evidence by a careless laboratory technician?
How did the State conclude that foreign DNA was beneath Ms. Jovin's nail? When was this determination made? Why did it take eight-plus years to figure out that the DNA sample matched a lab employee? And, perhaps most telling of all, just how did law enforcement decide to rule out Mr. Settachatgul as a suspect?
"[A]ll along we knew that the DNA evidence when only relevant when we knew who it belonged to," said the prosecutor responsible for investigating the case. "Now we know it is irrelevant."
The logic defies me. More needs to be known than that the suspect DNA was a lab worker. Had the DNA belonged to one of Ms. Jovin's professors, that professor would have faced a myriad of questions. What questions has the lab worker faced?
I realize how farcical the suggestion that the lab worker did it sounds. I raise the issue here not because I have any reason to suspect his guilt, but to hold in relief both the power and limits of DNA evidence. When viewed through a lens of suspicion, the evidence damns. Remove that lens, and all the evidence shows is mere presence.
Sadly, this example of poor laboratory work will now reopen the investigation of all those folks who were ruled out as a result of the assumption that foreign DNA under Ms. Jovin's fingernail belonged to that of the killer. This powerful piece of circumstantial evidence has been destroyed. It is back to square one for the Jovin family, and for all those whose lives were scrutinized in the weeks and months following the murder.
The case also raises important questions for the criminal defense bar in any case involving DNA: Should the defense be entitled as a matter of right to testing to determine whether DNA retrieved at a crime scene matches that of any of the folks who handled the evidence, including first responders, evidence officers and lab technicians?
Chain of custody evidence is sometimes treated as the step-child of trial. The Jovin case reminds us that great injustices can be built upon fatal and unchallenged assumptions. Unless, of course, the lab technician really did commit the crime. And, of course, that's a possibility the state seems unwilling even to consider in the troubling case of Suzanne Jovin.
Someone Needs A Playmate
I am receiving multiple emails a day from a person signing on as "Jim" or "RADIOFREEWYO." I don't read them any longer, but the writer is obsessed with me, with the Trial Lawyers College, with Gerry Spence, with Scott at Simple Justice, and with a bunch of miscellaneous chatter. I've suggested he start his own blog page; as near as I can tell he, or, perhaps, she, has not done so.
Those of you with a hankering to keep yapping about the aforesaid topics ought to drop the writer a line. He or she is in serious need of a playmate, and I am uninterested. Here's the address from which the latest arrived: RADIOFREEWYO@aol.com.
Have fun!
Those of you with a hankering to keep yapping about the aforesaid topics ought to drop the writer a line. He or she is in serious need of a playmate, and I am uninterested. Here's the address from which the latest arrived: RADIOFREEWYO@aol.com.
Have fun!
Thursday, November 12, 2009
Ned Lamont and the Presumption of Innocence
I would not normally write about the voir dire of a prospective juror. I respect how difficult it is to answer questions in open court in the presence of strangers. But I am going to make an exception just this once. I am going to make an exception because the prospective juror is a public figure and is now interested in becoming governor of the State of Connecticut. The man’s candid answers under oath are worth pondering.
I was surprised when Ned Lamont surfaced in a jury pool in Stamford in the wake of his race against Joseph Lieberman for the United States Senate. Sure, I knew that a guy named Lamont had run, and sure, the fellow sitting in the back row looked a lot like the politician. But I don’t watch television, except for college football, and I’d only seen a few pictures. I suppose I was also a little star-struck. Ned Lamont? In my courtroom?
When he was called out for questioning -- jurors are questioned one at a time outside the presence of all other potential jurors in Connecticut -- I decided to treat him as I would any juror. I have a stock set of questions designed to test a venire person’s willingness to apply basic legal principals in a criminal case. I sometimes fear that what the criminal law requires of a juror is counterintuitive, and that jurors will follow their intuition rather than the law.
"Suppose the judge asked you to vote, this very minute, on whether my client is guilty or not guilty of any or all of the crimes charged. Based on your life experience, the legal principles you learned about today and what you’ve seen in this courtroom, how would you vote?"
The question is designed to test willingness to apply the presumption of innocence. A vote in the absence of evidence should be "not guilty". That is axiomatic. Yet most venire people say they cannot vote because they have heard nothing. Some say they would guilty; the defendant, after all, must have done something wrong or he would not have been arrested. No more than 10 to 15 percent of jurors answer that they would vote not guilty because they have heard no evidence.
I expected Lamont to fall within the class of those who grasped without tutoring the presumption of innocence. I was wrong.
He looked puzzled, even a little annoyed by the question. He told me he couldn’t vote, because he had no evidence.
"Did you see anything on the film shown to jurors that led you to conclude there were legal principles with which you disagreed that you would be required to follow here?"
"No," he said.
"If I understood the judge, the presumption of innocence means that unless and until the state proves its case beyond a reasonable doubt, if it can, the law requires that you vote "not guilty." Any reservation about doing so?"
"No," he said. I caught a glimmer of what he must look like on the stump, a man fighting for American values and flustered that anyone could doubt him.
"You’re going to think I tricked you in a moment, so let me apologize now," I said. "Can you see how if you used the presumption of innocence we just discussed, your vote right now would have to be "not guilty" because you have heard no evidence?" Most jurors blush a little, or nod in recognition of a lesson newly learned.
Not Ned Lamont. He started to argue with me. He just didn’t seem to get that in a criminal trial, the starting point is the presumption of innocence. He looked betrayed by the question and started to quibble about whether the presumption of innocence really did require a vote of not guilty in the absence of evidence. The prosecutor and I quickly looked at one another; even the judge seemed startled. Ned Lamont, erstwhile candidate for U.S. Senate, either unable or unwilling to understand the presumption of innocence.
I was troubled by Lamont’s response. So troubled that I rejected him as a juror in a case where my client’s life might depend on his decision. I am hard-pressed to conceive of a reason why I should trust him with stewardship involving my life. If I had to vote this minute for governor of the State of Connecticut, I would not vote for Ned Lamont. He just didn’t get the presumption of innocence.
Reprinted courtesy of the Connecticut Law Tribune.
I was surprised when Ned Lamont surfaced in a jury pool in Stamford in the wake of his race against Joseph Lieberman for the United States Senate. Sure, I knew that a guy named Lamont had run, and sure, the fellow sitting in the back row looked a lot like the politician. But I don’t watch television, except for college football, and I’d only seen a few pictures. I suppose I was also a little star-struck. Ned Lamont? In my courtroom?
When he was called out for questioning -- jurors are questioned one at a time outside the presence of all other potential jurors in Connecticut -- I decided to treat him as I would any juror. I have a stock set of questions designed to test a venire person’s willingness to apply basic legal principals in a criminal case. I sometimes fear that what the criminal law requires of a juror is counterintuitive, and that jurors will follow their intuition rather than the law.
"Suppose the judge asked you to vote, this very minute, on whether my client is guilty or not guilty of any or all of the crimes charged. Based on your life experience, the legal principles you learned about today and what you’ve seen in this courtroom, how would you vote?"
The question is designed to test willingness to apply the presumption of innocence. A vote in the absence of evidence should be "not guilty". That is axiomatic. Yet most venire people say they cannot vote because they have heard nothing. Some say they would guilty; the defendant, after all, must have done something wrong or he would not have been arrested. No more than 10 to 15 percent of jurors answer that they would vote not guilty because they have heard no evidence.
I expected Lamont to fall within the class of those who grasped without tutoring the presumption of innocence. I was wrong.
He looked puzzled, even a little annoyed by the question. He told me he couldn’t vote, because he had no evidence.
"Did you see anything on the film shown to jurors that led you to conclude there were legal principles with which you disagreed that you would be required to follow here?"
"No," he said.
"If I understood the judge, the presumption of innocence means that unless and until the state proves its case beyond a reasonable doubt, if it can, the law requires that you vote "not guilty." Any reservation about doing so?"
"No," he said. I caught a glimmer of what he must look like on the stump, a man fighting for American values and flustered that anyone could doubt him.
"You’re going to think I tricked you in a moment, so let me apologize now," I said. "Can you see how if you used the presumption of innocence we just discussed, your vote right now would have to be "not guilty" because you have heard no evidence?" Most jurors blush a little, or nod in recognition of a lesson newly learned.
Not Ned Lamont. He started to argue with me. He just didn’t seem to get that in a criminal trial, the starting point is the presumption of innocence. He looked betrayed by the question and started to quibble about whether the presumption of innocence really did require a vote of not guilty in the absence of evidence. The prosecutor and I quickly looked at one another; even the judge seemed startled. Ned Lamont, erstwhile candidate for U.S. Senate, either unable or unwilling to understand the presumption of innocence.
I was troubled by Lamont’s response. So troubled that I rejected him as a juror in a case where my client’s life might depend on his decision. I am hard-pressed to conceive of a reason why I should trust him with stewardship involving my life. If I had to vote this minute for governor of the State of Connecticut, I would not vote for Ned Lamont. He just didn’t get the presumption of innocence.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, November 11, 2009
People V. DiPiazza: Rare Break For "Sex Offenders"
"The implied purpose of the sex offender registration act, public safety, is not served by requiring an otherwise law-abiding adult to be forever branded as a sex offender because of a juvenile transgression involving consensual sex during a Romeo and Juliet relationship."
Finally, some words of common sense from an appellate court on the topic of sex offender registration. And it gets better.
The Michigan Appellate Court last week held that the requirement of registration as a sex offender could constitute cruel and unusual punishment under the state constitution. Failing to distinguish between a rapist and lovers, the court realized, makes no sense.
Now for the bad news: The case is limited to its facts.
The defendant was eighteen and was romantically involved with his fifteen-year-old girlfriend. The pairing was consensual, and the parents of the parties were aware of the nature and extent of the relationship. In fact, the couple is now married and have a child.
But back in 2004, a teacher found a photograph of the couple together in bed. The young man's hand was on the so-called victim's breast. Authorities were called. DiPiazza was prosecuted. This was a statutory violation of laws against sexual contact and consent was therefore not a defense.
DiPiazza was adjudicated under a a youthful offender program in Michigan that resulted in an erasure of his criminal record. But after this adjudication, the law regarding the sex offender registry was changed, and he was required to register on a public sex offender registry. In other words, he was held out to the world at large as a sexual predator.
Folks on the list live in a harsh world of fear and paranoia. Just a week ago, during Halloween season, I had calls from several folks on the list here in Connecticut. Their homes were vandalized and they were targeted for abuse. Anxious parents checked the Internet to see just where to take their children for Trick or Treat. When they discovered the sex offenders in their midst, trouble followed.
But Mr. DiPiazza was no sex offender. And his lover was no victim. They were young people in love. Is love a crime?
Michigan sensibly offers what many states do not, a way for folks under the age of 21 to escape a criminal conviction for precocious sexual conduct. But Michigan still required these young people to register as sex offenders. Lawmakers sometimes don't reason with acuity.
Attempts to challenge these requirements on grounds of a violation of the Eighth Amendment's prohibition against cruel and unusual punishment typically fail, and failed in this case. The jurisprudence is unrealistic but clear: registration is not punishment; it is a regulatory consequence of a conviction intended to provide the public with notice of potentially harmful people. Practitioners in the federal court know well the pernicious quality of the incident-to-punishment doctrine: just try ask a court to vacate a conviction when a client faces deportation and his lawyer never really explained that pleading guilty is a one way trip out of the country. "Deportation isn't punishment, counsel," the court intones. Really? And I suppose when the Chinese sell the condemned man his bullet the transaction is recorded as a charitable contribution.
Such reasoning is gibberish. And the Michigan Court of Appeals recognized that by finding on the facts of this case that registration was cruel and unusual punishment under the state constitution. "As a result of registering as a sex offender, defendant has been unable to find employment and, in fact, lost two jobs ... He is depressed and, although he finally married [the victim], the opportunity to marry and pursue happiness was withheld because of his inability to find employment ...." The court speaks not enough of the shame and social isolation that comes of being labeled an outcast.
Of course, this case is highly unique and applies to a limited class of registrants. DiPiazza was on the registry even though he took advantage of a youthful offender program that left him with no criminal record. But every state has people on their registration lists who are just like this young man: removing these folks from the registry is just.
This case illustrates the importance of federalism and the vitality of state constitutions as a means of redressing harm when the federal courts refuse to act. A state's constitution may offer rights more expansive that the rights offered by the federal constitution. Michigan's cruel and unusual punishment clause is simply more humane than its federal counterpart.
The DiPiazza case is a rare ray of sunshine in an area of the law beclouded by unreasoning fear. It should inspire practitioners in other states to turn to their state constitutions to look for creative solutions to the legislative mandates that fail to draw common sense distinctions. Perhaps if enough states follow Michigan's lead, the federal Supreme Court will one day understand that labeling a man a criminal for improvident love is cruel and unusual.
People v. DiPiazza. 2009 WL 3644130 (Mich.App.)
Hat tip: Cheryl Carpenter, Redford, Michigan
Finally, some words of common sense from an appellate court on the topic of sex offender registration. And it gets better.
The Michigan Appellate Court last week held that the requirement of registration as a sex offender could constitute cruel and unusual punishment under the state constitution. Failing to distinguish between a rapist and lovers, the court realized, makes no sense.
Now for the bad news: The case is limited to its facts.
The defendant was eighteen and was romantically involved with his fifteen-year-old girlfriend. The pairing was consensual, and the parents of the parties were aware of the nature and extent of the relationship. In fact, the couple is now married and have a child.
But back in 2004, a teacher found a photograph of the couple together in bed. The young man's hand was on the so-called victim's breast. Authorities were called. DiPiazza was prosecuted. This was a statutory violation of laws against sexual contact and consent was therefore not a defense.
DiPiazza was adjudicated under a a youthful offender program in Michigan that resulted in an erasure of his criminal record. But after this adjudication, the law regarding the sex offender registry was changed, and he was required to register on a public sex offender registry. In other words, he was held out to the world at large as a sexual predator.
Folks on the list live in a harsh world of fear and paranoia. Just a week ago, during Halloween season, I had calls from several folks on the list here in Connecticut. Their homes were vandalized and they were targeted for abuse. Anxious parents checked the Internet to see just where to take their children for Trick or Treat. When they discovered the sex offenders in their midst, trouble followed.
But Mr. DiPiazza was no sex offender. And his lover was no victim. They were young people in love. Is love a crime?
Michigan sensibly offers what many states do not, a way for folks under the age of 21 to escape a criminal conviction for precocious sexual conduct. But Michigan still required these young people to register as sex offenders. Lawmakers sometimes don't reason with acuity.
Attempts to challenge these requirements on grounds of a violation of the Eighth Amendment's prohibition against cruel and unusual punishment typically fail, and failed in this case. The jurisprudence is unrealistic but clear: registration is not punishment; it is a regulatory consequence of a conviction intended to provide the public with notice of potentially harmful people. Practitioners in the federal court know well the pernicious quality of the incident-to-punishment doctrine: just try ask a court to vacate a conviction when a client faces deportation and his lawyer never really explained that pleading guilty is a one way trip out of the country. "Deportation isn't punishment, counsel," the court intones. Really? And I suppose when the Chinese sell the condemned man his bullet the transaction is recorded as a charitable contribution.
Such reasoning is gibberish. And the Michigan Court of Appeals recognized that by finding on the facts of this case that registration was cruel and unusual punishment under the state constitution. "As a result of registering as a sex offender, defendant has been unable to find employment and, in fact, lost two jobs ... He is depressed and, although he finally married [the victim], the opportunity to marry and pursue happiness was withheld because of his inability to find employment ...." The court speaks not enough of the shame and social isolation that comes of being labeled an outcast.
Of course, this case is highly unique and applies to a limited class of registrants. DiPiazza was on the registry even though he took advantage of a youthful offender program that left him with no criminal record. But every state has people on their registration lists who are just like this young man: removing these folks from the registry is just.
This case illustrates the importance of federalism and the vitality of state constitutions as a means of redressing harm when the federal courts refuse to act. A state's constitution may offer rights more expansive that the rights offered by the federal constitution. Michigan's cruel and unusual punishment clause is simply more humane than its federal counterpart.
The DiPiazza case is a rare ray of sunshine in an area of the law beclouded by unreasoning fear. It should inspire practitioners in other states to turn to their state constitutions to look for creative solutions to the legislative mandates that fail to draw common sense distinctions. Perhaps if enough states follow Michigan's lead, the federal Supreme Court will one day understand that labeling a man a criminal for improvident love is cruel and unusual.
People v. DiPiazza. 2009 WL 3644130 (Mich.App.)
Hat tip: Cheryl Carpenter, Redford, Michigan
Prosecutorial Immunity? Quit Your Job Or Stand Trial?
I am a realist and I read the Supreme Court's opinions. Prosecutorial immunity is virtually impenentrable in cases arising under 42 U.S. Section 1983. But I am also a true believer in the rule of law, and this belief dies hard. How is it that the courts have declared off-limits virtually everything a prosecutor does?
The case law is depressing. Prosecutors acting within their adversarial function are absolutely immune from suit. Thus, merely initiating a criminal proceeding against a defendant is immune if the prosecution later turns out to be ill-founded. Burns v. Reed, 500 U.S. 478 (1991). Appearing in court to present evidence is also subject to immunity. Kalina v. Fletcher, 522 U.S. 118 (1997). Indeed, failing to train prosecutors for failure to do their constitutionally required duties is also covered by the same immunity. Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009). It is expected that the Court will decide in the Pottawattamie County case, argued last week, that prosecutorial fabrication of evidence to win the conviction of an innocent man is also immune.
Of course, there are limits. A prosecutor who speaks improvidently to the press might lose his immunity. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). So might a prosecutor who serves as a complaining witness. Kalina.
Searching for a center of gravity in these cases that permits an assessment of just what falls within the orbit of the immunity yields the following conclusion: A prosecutor bringing an action, making decisions about evidence, charges and disposition of a case is immune from suit. But the advocacy function must be tethered to what the state can seek as it enforces the penal code. Bring an action for murder and prosecute in a courtroom by means fair or foul: immunity is granted. Stand on the courthouse steps and sully a man's name: not immune. Not everything a prosecutor does is immune, only those things integrally related to his role as a minister of justice.
Query: Does this immunity extend to a prosecutor's decision to require remedies outside the jurisidiction of the criminal courts as a condition of resolving a case short of trial?
Consider the following fact pattern: A police officer is charged with a petty crime. The allegation is one involving dishonesty, however the conduct arose while the officer was off-duty. The police chief and senior administrators want the police officer fired. One motive for the desire to fire is to silence the officer, who is pressing a claim that police brass covered up evidence of an administration favorite's drunk driving. The police chief makes clear to the prosecutor that any plea deal involving the police officer must include the police officer's resignation from the department. The prosecutor offers in effect to drop the charges if the police officer resigns from his job. Is the prosecutorial immune in this case?
A powerful argument can be made that the prosecutor has shed his immunity. While making plea offers and deciding how to resolve a case is part of his core prosecutorial function, conditioning a plea on a remedy outside the scope of the criminal law's sanction seems like over-reaching. If convicted, the police officer could be incarcerated or fined; he might also be placed on probation. While a probationer, the officer could contest the reasonableness of any terms of probation. No criminal law grants the state the right to force a person from his job, however. That is an issue covered by collective bargaining agreements and the law of employment, not criminal law. Isn't forcing a man to quit his job to obtain a favorable outcome of his case as unrelated to core advocacy functions as standing on the courthouse steps and calling a man a liar?
I am on the cusp of bringing a lawsuit raising these very claims, and as I research the prosecutorial immunity issues, I am bewildered. Anyone out there have any thoughts on this? The law seems to be moving in the direction of shielding virtually anything done in a courtroom. Do these facts fall inside or outside the ambit of prosecutorial immunity?
The case law is depressing. Prosecutors acting within their adversarial function are absolutely immune from suit. Thus, merely initiating a criminal proceeding against a defendant is immune if the prosecution later turns out to be ill-founded. Burns v. Reed, 500 U.S. 478 (1991). Appearing in court to present evidence is also subject to immunity. Kalina v. Fletcher, 522 U.S. 118 (1997). Indeed, failing to train prosecutors for failure to do their constitutionally required duties is also covered by the same immunity. Van de Kamp v. Goldstein, 129 S.Ct. 855 (2009). It is expected that the Court will decide in the Pottawattamie County case, argued last week, that prosecutorial fabrication of evidence to win the conviction of an innocent man is also immune.
Of course, there are limits. A prosecutor who speaks improvidently to the press might lose his immunity. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). So might a prosecutor who serves as a complaining witness. Kalina.
Searching for a center of gravity in these cases that permits an assessment of just what falls within the orbit of the immunity yields the following conclusion: A prosecutor bringing an action, making decisions about evidence, charges and disposition of a case is immune from suit. But the advocacy function must be tethered to what the state can seek as it enforces the penal code. Bring an action for murder and prosecute in a courtroom by means fair or foul: immunity is granted. Stand on the courthouse steps and sully a man's name: not immune. Not everything a prosecutor does is immune, only those things integrally related to his role as a minister of justice.
Query: Does this immunity extend to a prosecutor's decision to require remedies outside the jurisidiction of the criminal courts as a condition of resolving a case short of trial?
Consider the following fact pattern: A police officer is charged with a petty crime. The allegation is one involving dishonesty, however the conduct arose while the officer was off-duty. The police chief and senior administrators want the police officer fired. One motive for the desire to fire is to silence the officer, who is pressing a claim that police brass covered up evidence of an administration favorite's drunk driving. The police chief makes clear to the prosecutor that any plea deal involving the police officer must include the police officer's resignation from the department. The prosecutor offers in effect to drop the charges if the police officer resigns from his job. Is the prosecutorial immune in this case?
A powerful argument can be made that the prosecutor has shed his immunity. While making plea offers and deciding how to resolve a case is part of his core prosecutorial function, conditioning a plea on a remedy outside the scope of the criminal law's sanction seems like over-reaching. If convicted, the police officer could be incarcerated or fined; he might also be placed on probation. While a probationer, the officer could contest the reasonableness of any terms of probation. No criminal law grants the state the right to force a person from his job, however. That is an issue covered by collective bargaining agreements and the law of employment, not criminal law. Isn't forcing a man to quit his job to obtain a favorable outcome of his case as unrelated to core advocacy functions as standing on the courthouse steps and calling a man a liar?
I am on the cusp of bringing a lawsuit raising these very claims, and as I research the prosecutorial immunity issues, I am bewildered. Anyone out there have any thoughts on this? The law seems to be moving in the direction of shielding virtually anything done in a courtroom. Do these facts fall inside or outside the ambit of prosecutorial immunity?
Monday, November 9, 2009
Child Pornography And Computer Viruses
ABC News carried a terrifying story this weekend: Hackers have the ability to use an unsuspecting party's computer to store and transport child pornography. Reading the story was enough to make me wonder whether it made sense ever to go online. Check it out: http://abcnews.go.com/Technology/wireStory?id=9028516
Possession of child pornography is a possessory offense. It is a crime simply to have it. The number of images in your computer dictate the prison sentence to which a possessor is exposed. In most cases, there is a mandatory minimum sentence of at least five years.
Of course, as with any possessory offense, the accused must be in knowing possession of the prohibited material. But try telling a prosecutor, or a jury, that you didn't know the contents of your computer. "It's an example of the old 'dog are my homework excuse.' The problem is, sometimes the dog does eat your homework," said Phil Malone, director of the Cyberlaw Clinic at Harvards's Berkman Center for Internet & Society.
The report cites the case of Michael Fiola, a former investigator of worker's compensation claims in Massachusetts. When supervisors found that his computer was storing an inordinate amount of date, they investigated. They found child pornography.
Fiola claimed the material was there without his knowledge or consent. Never mind, he was fired and charged with a felony. He spent his life savings, mortgaging his home and even selling his car, to find the right experts. He was able to show, in the end, that his computer was severely infected by viruses. One virus visited as many as 40 child pornography sites a minute. One night, someone logged on to his computer while he and his wife were away from his home, and spent 90 minutes surfing porn sites. He was eventually exonerated, but only after his life was undone.
One expert contends that 20 million of the estimated one billion computers used to connect to the Internet are infected by viruses that could give a hacker full control over a third party's computer. A computer can serve as a warehouse for images accessible to strangers without the owner even being aware of it.
Of course, prosecutors and prosecution experts say the problem is overstated, and that such incidents are rare. But, frankly, any instance of such contamination of a computer is terrifying if you happen to be the owner of that computer.
It strikes me that there ought to be something like a two witness rule in computer child pornography cases. If mere possession ought to be criminalized, it seems that there ought to be some sort of corroboration requirement in the form of direct or circumstantial evidence that the defendant had actual knowledge of what was stored in his computer. Absent that, there ought to be a fund to which defendants can apply to secure the services of an expert. As always, in a prosecution, the state has the government's resources at its disposal to investigate and present its case. Indigent folks can avail themselves of public defenders and the wealthy can take care of themselves, but folks caught in the middle are on their own.
In Wyoming, a man named Ned Solon of Caspar is doing six years for possession of child pornography. He and his expert contend that the material was present because of a virus. A jury didn't get to hear the whole story, however, because the trial judge cut off the funding for Solon's expert before trial. Money mattered in that case, and it shouldn't have.
Possession of child pornography is a possessory offense. It is a crime simply to have it. The number of images in your computer dictate the prison sentence to which a possessor is exposed. In most cases, there is a mandatory minimum sentence of at least five years.
Of course, as with any possessory offense, the accused must be in knowing possession of the prohibited material. But try telling a prosecutor, or a jury, that you didn't know the contents of your computer. "It's an example of the old 'dog are my homework excuse.' The problem is, sometimes the dog does eat your homework," said Phil Malone, director of the Cyberlaw Clinic at Harvards's Berkman Center for Internet & Society.
The report cites the case of Michael Fiola, a former investigator of worker's compensation claims in Massachusetts. When supervisors found that his computer was storing an inordinate amount of date, they investigated. They found child pornography.
Fiola claimed the material was there without his knowledge or consent. Never mind, he was fired and charged with a felony. He spent his life savings, mortgaging his home and even selling his car, to find the right experts. He was able to show, in the end, that his computer was severely infected by viruses. One virus visited as many as 40 child pornography sites a minute. One night, someone logged on to his computer while he and his wife were away from his home, and spent 90 minutes surfing porn sites. He was eventually exonerated, but only after his life was undone.
One expert contends that 20 million of the estimated one billion computers used to connect to the Internet are infected by viruses that could give a hacker full control over a third party's computer. A computer can serve as a warehouse for images accessible to strangers without the owner even being aware of it.
Of course, prosecutors and prosecution experts say the problem is overstated, and that such incidents are rare. But, frankly, any instance of such contamination of a computer is terrifying if you happen to be the owner of that computer.
It strikes me that there ought to be something like a two witness rule in computer child pornography cases. If mere possession ought to be criminalized, it seems that there ought to be some sort of corroboration requirement in the form of direct or circumstantial evidence that the defendant had actual knowledge of what was stored in his computer. Absent that, there ought to be a fund to which defendants can apply to secure the services of an expert. As always, in a prosecution, the state has the government's resources at its disposal to investigate and present its case. Indigent folks can avail themselves of public defenders and the wealthy can take care of themselves, but folks caught in the middle are on their own.
In Wyoming, a man named Ned Solon of Caspar is doing six years for possession of child pornography. He and his expert contend that the material was present because of a virus. A jury didn't get to hear the whole story, however, because the trial judge cut off the funding for Solon's expert before trial. Money mattered in that case, and it shouldn't have.
Saturday, November 7, 2009
Reasonable Fees: Should There Be A Lower Limit?
Bar regulators show an increased willingness to police the upper limit of attorney's fees, declaring some to be too high. What about the flip side? When are fees too low?
Actually, the rules are silent on both the upper and lower limit. Rule 1.5 of the Connecticut Code simply advises: "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." The rule then goes on to state the factors that may be considered in any calculation of reasonableness. Among them are the time and labor required, the opportunity costs associated with selecting one case rather than another, the time limitations imposed by the client or circumstances, and the experience, reputation and skill of the lawyer.
What happens when a lawyer charges too little to a client?
Most firms represent a number of clients at the same time. That means the firm must manage the time and energy it devotes to each client. Too many clients can yield a situation in which necessary work does not get done. Too few clients means that the firm cannot generate the revenue necessary to keep working. Each firm, and each type of firm, must find just the right balance.
Firms that charge too little run the risk of having to take on too many clients to pay attention to the files of all clients. Assume for the moment overhead of $10,000 per week. That means a firm must generate $2,000 per day, Monday through Friday, to remain open and to keep working. In a bad economy, such a firm might decide to reduce its rates to remain in business and to remain competitive. But a fifty percent reduction in rates means taking twice as much work to break even. What firm is so awash in talent that it can double the workload simply on demand? Rates too low mean that corners will get cut, and the quality of representation will suffer.
And let's not forget that some clients have exceptional needs. Is it ethical to charge a flat fee for representation to such clients? Some clients require almost daily care and feeding. A client paying a flat fee for such service imposes a tremendous burden on the firm: Either respond to those needs, or stand accused of failing to communicate. Perhaps the rules should require a minimum hourly rate to be charged to all clients, the better to make sure that clients understand that a lawyer's time is limited.
Of course, the suggestion that there should be minimum fees will meet with resistance. We are professionals, after all, and guard jealously our independence. Yet to the extent that the bar sees fit to regulate the upper limit to protect clients, it should pay as much regard to regulation of the lower limit. This, too, protects clients in a paradoxical by assuring that a lawyer does not choose to spread himself too thin by taking too many clients, or that he be spread too thin by the demands of a handful of clients.
I do not favor the regulation of attorney's fees, mind you. It is an open and competitive market. But the dangers of charging too much are, I suppose, overstated. Clients are free to choose a lawyer or not based on the price demanded. Lawyers, too, are free to give their services away. On balance, however, I think there is a greater danger to all clients posed by fees that are too low. In such cases, necessary work does not get done, and clients are promised the illusion of effective representation by a lawyer too harried to do her job.
I am wondering whether anyone has ever read of a case in which a lawyer was disciplined for not charging enough? I suspect there are no such cases. But if one scratches the surface of many an ethics complaint, I suspect the driving force was not enough hours in the day to meet the demands of all the clients a firm has chosen to represent. Had the firm been required to charge a reasonable fee, these problems might be avoided/
Actually, the rules are silent on both the upper and lower limit. Rule 1.5 of the Connecticut Code simply advises: "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." The rule then goes on to state the factors that may be considered in any calculation of reasonableness. Among them are the time and labor required, the opportunity costs associated with selecting one case rather than another, the time limitations imposed by the client or circumstances, and the experience, reputation and skill of the lawyer.
What happens when a lawyer charges too little to a client?
Most firms represent a number of clients at the same time. That means the firm must manage the time and energy it devotes to each client. Too many clients can yield a situation in which necessary work does not get done. Too few clients means that the firm cannot generate the revenue necessary to keep working. Each firm, and each type of firm, must find just the right balance.
Firms that charge too little run the risk of having to take on too many clients to pay attention to the files of all clients. Assume for the moment overhead of $10,000 per week. That means a firm must generate $2,000 per day, Monday through Friday, to remain open and to keep working. In a bad economy, such a firm might decide to reduce its rates to remain in business and to remain competitive. But a fifty percent reduction in rates means taking twice as much work to break even. What firm is so awash in talent that it can double the workload simply on demand? Rates too low mean that corners will get cut, and the quality of representation will suffer.
And let's not forget that some clients have exceptional needs. Is it ethical to charge a flat fee for representation to such clients? Some clients require almost daily care and feeding. A client paying a flat fee for such service imposes a tremendous burden on the firm: Either respond to those needs, or stand accused of failing to communicate. Perhaps the rules should require a minimum hourly rate to be charged to all clients, the better to make sure that clients understand that a lawyer's time is limited.
Of course, the suggestion that there should be minimum fees will meet with resistance. We are professionals, after all, and guard jealously our independence. Yet to the extent that the bar sees fit to regulate the upper limit to protect clients, it should pay as much regard to regulation of the lower limit. This, too, protects clients in a paradoxical by assuring that a lawyer does not choose to spread himself too thin by taking too many clients, or that he be spread too thin by the demands of a handful of clients.
I do not favor the regulation of attorney's fees, mind you. It is an open and competitive market. But the dangers of charging too much are, I suppose, overstated. Clients are free to choose a lawyer or not based on the price demanded. Lawyers, too, are free to give their services away. On balance, however, I think there is a greater danger to all clients posed by fees that are too low. In such cases, necessary work does not get done, and clients are promised the illusion of effective representation by a lawyer too harried to do her job.
I am wondering whether anyone has ever read of a case in which a lawyer was disciplined for not charging enough? I suspect there are no such cases. But if one scratches the surface of many an ethics complaint, I suspect the driving force was not enough hours in the day to meet the demands of all the clients a firm has chosen to represent. Had the firm been required to charge a reasonable fee, these problems might be avoided/
The World Within: Faith, Hope, Love and Insight
"The four highest achievements of human effort [faith, hope, love and insight] are so many gifts of grace, which are neither to be taught nor learned, neither given nor taken, neither withheld nor earned, since they come through experience, which is something given, and therefore beyond the reach of human caprice."
Reading Carl Gustav Jung is like walking outside during the moments before a thunderstorm. The ground keeps shaking, there is rumbling in the air, a sense of expectancy fills the quiet before the intimation of a storm. His quotation above is from an essay entitled "Psychotherapy or Clergy." Among the questions addressed in the essay is the role of a loss of meaning in the malaise the characterizes modernity.
When I read the following, I see the outlines of a critique of what we have become: "But what will [a doctor] do when he sees only too clearly why his patient is ill: when he sees that it arises from his having no love, but only sexuality; no faith, because he is afraid to grope in the dark; no hope, because he is disillussioned by the world and by life; and no understanding, because he has failed to read the meaning of his own existence?"
Jung issues a challenge. Modern science has transformed the world. The materialist assumptions that undergird scientific success -- that events have material causes, that the world of sensation can be charted and known -- have their place, he acknowledges. But does giving them pride of place, setting these assumptions loose to devour all that we can conceive, does this make sense? Is not the psyche an independent source of experience, of vitality?
If mind is mere epiphenomenon of brain, then it is at least possible that we can derive a chemical alogrithm for each mood, each idea. Yet crossing the synapse from mind to matter is, literally, inconceivable. At best, we can associate a sense of lived reality with any given set of phyical phenomenon. These associations can be tested for statistical significance. Armed with the assumption that all that we experience is caused bya material substrate, we can reach every farther for a paradigm that shatters the now unbridgeable chasm between mind and body.
But what if this assumption is wrong? What if this assumption is, in its own way, as crazy and misplaced as the notion that all the world is simply the creation of mind? We reject naive idealism because it does not comport with common sense. But, in reality, does naive materialism comport with lived experience? Jung says no, and he is convincing. Why must we regard the ghost in the machine as an unwelcome guest?
I am struck in Jung's writing by a simple argument I cannot defeat. We acquire self-consciousness in the course of living. Yet we spend a significant portion of our life in a non-self-conscious state, either pre-conscious or, frankly, asleep. The reality of our unconscious experience is entitled to great weight in considering who we are and what we become. Is it not likely that given our membership in a species with common characteristics as both conscious and physical beings, that we also share common unconscious characteristics? Is not a complete view of the psyche, that force which expresses itself through us and gives our life shape, one which accounts for the role of the unconscious?
Earlier this year, I began psychoanalysis. I spend four hours a week considering what it is that becomes apparent to me in my waking state, reveries, fantasies and dreams. But for this experience of seeing how my very sense of self is less the creation of conscious will than something summoned from sources, depths, if you will, I cannot perceive, has opened me to consider that Jung may well be right, if not in the contours of the world he conceives, at least in the notion that the world is both far more and far less problematic than the conscious mind conceives.
Consider the issue of dreams. A reductionist approach to dreams regards them as mere symbolic representations of past experience. This seems closer to the view Freud espoused. But suppose one looked at dreams not simply as reductive renderings of the past to be decoded, but as in some sense evocative of an independent present reality? Suppose a dream is not simply a tug reaching backward, but an invitation to something new and as yet unseen? Suppose dreams are as much a part of us as are arms, legs, appetites and desires?
I'm not sold on the notion of the collective unconscious, at least not yet. But I am drawn to Jung in a way that I cannot quite fathom. I've recommended his Memories, Dreams and Reflections as a good introduction to the man and his work. Those wanting to take the next step might consider a slim volume of essays entitled, Modern Man in Search of a Soul. Jung invites consideration of a secret world accessible to all because we each carry it with ourselves. Somehow accepting this invitation has become an imperative.
Reading Carl Gustav Jung is like walking outside during the moments before a thunderstorm. The ground keeps shaking, there is rumbling in the air, a sense of expectancy fills the quiet before the intimation of a storm. His quotation above is from an essay entitled "Psychotherapy or Clergy." Among the questions addressed in the essay is the role of a loss of meaning in the malaise the characterizes modernity.
When I read the following, I see the outlines of a critique of what we have become: "But what will [a doctor] do when he sees only too clearly why his patient is ill: when he sees that it arises from his having no love, but only sexuality; no faith, because he is afraid to grope in the dark; no hope, because he is disillussioned by the world and by life; and no understanding, because he has failed to read the meaning of his own existence?"
Jung issues a challenge. Modern science has transformed the world. The materialist assumptions that undergird scientific success -- that events have material causes, that the world of sensation can be charted and known -- have their place, he acknowledges. But does giving them pride of place, setting these assumptions loose to devour all that we can conceive, does this make sense? Is not the psyche an independent source of experience, of vitality?
If mind is mere epiphenomenon of brain, then it is at least possible that we can derive a chemical alogrithm for each mood, each idea. Yet crossing the synapse from mind to matter is, literally, inconceivable. At best, we can associate a sense of lived reality with any given set of phyical phenomenon. These associations can be tested for statistical significance. Armed with the assumption that all that we experience is caused bya material substrate, we can reach every farther for a paradigm that shatters the now unbridgeable chasm between mind and body.
But what if this assumption is wrong? What if this assumption is, in its own way, as crazy and misplaced as the notion that all the world is simply the creation of mind? We reject naive idealism because it does not comport with common sense. But, in reality, does naive materialism comport with lived experience? Jung says no, and he is convincing. Why must we regard the ghost in the machine as an unwelcome guest?
I am struck in Jung's writing by a simple argument I cannot defeat. We acquire self-consciousness in the course of living. Yet we spend a significant portion of our life in a non-self-conscious state, either pre-conscious or, frankly, asleep. The reality of our unconscious experience is entitled to great weight in considering who we are and what we become. Is it not likely that given our membership in a species with common characteristics as both conscious and physical beings, that we also share common unconscious characteristics? Is not a complete view of the psyche, that force which expresses itself through us and gives our life shape, one which accounts for the role of the unconscious?
Earlier this year, I began psychoanalysis. I spend four hours a week considering what it is that becomes apparent to me in my waking state, reveries, fantasies and dreams. But for this experience of seeing how my very sense of self is less the creation of conscious will than something summoned from sources, depths, if you will, I cannot perceive, has opened me to consider that Jung may well be right, if not in the contours of the world he conceives, at least in the notion that the world is both far more and far less problematic than the conscious mind conceives.
Consider the issue of dreams. A reductionist approach to dreams regards them as mere symbolic representations of past experience. This seems closer to the view Freud espoused. But suppose one looked at dreams not simply as reductive renderings of the past to be decoded, but as in some sense evocative of an independent present reality? Suppose a dream is not simply a tug reaching backward, but an invitation to something new and as yet unseen? Suppose dreams are as much a part of us as are arms, legs, appetites and desires?
I'm not sold on the notion of the collective unconscious, at least not yet. But I am drawn to Jung in a way that I cannot quite fathom. I've recommended his Memories, Dreams and Reflections as a good introduction to the man and his work. Those wanting to take the next step might consider a slim volume of essays entitled, Modern Man in Search of a Soul. Jung invites consideration of a secret world accessible to all because we each carry it with ourselves. Somehow accepting this invitation has become an imperative.
Say What? Big Brother's Lists A-OK?
Ken Krayeske is a political activist. He is outspoken. He is brash. And, insofar as Connecticut law enforcement is concerned, he is marked man. Guess what? That's just fine and dandy, according to a recent ruling by a United States District Judge.
Krayeske actively supported Green Party candidate Clifford Thornton in the 2006 race for governor in Connecticut. Not surprisingly, Thornton was defeated in the general election by N. Jodi Rell, the oh-so-vanilla Republican incumbent. During the campaign, Krayeske attended Rell events. He raised questions. He was provocative. He exercised his right to freedom of speech.
This earned him a spot on a watch list apparently maintained by the Connecticut State Police. When Gov. Rell strutted peacock-like down the streets of the state capitol in January 2007 during her inaugural parade, Krayeske turned up, camera in hand, to take pictures. He wrote on a blog page encouraging others to show up and show something less than support for Connecticut's queen bee.
Before the parade, law enforcement officers were alerted to Krayeske's dissident ways. He and others had spoken out, you see. Officers spotted Krayeske as he arrived at the parade route. The surveillance society succeeded in isolating and targeting a critic. Krayeske, a law student and free-lance journalist, took out his camera. Officers pounced. He was arrested, although he had committed to crime. We appeared in criminal court on his behalf and insisted on a dismissal of the charges against him. When the case was dismissed, we sued in federal court, challenging, among other things, the practice of law enforcement's keeping lists of outspoken persons.
Yesterday, United States District Court Judge Stefan Underhill, rumored by some to be on the hot list for appointment to the United States Court of Appeals for the Second Circuit, heard argument on the defendants' motion to dismiss. He ruled from the bench: it is no violation of a person's constitutional rights to be so listed. Krayeske's suit lives, but only as to the arresting officer's unjustified decision to seize Krayeske and subject him to criminal prosecution. Those who generate and maintain such chilling lists were told all is well.
The judge's ruling disappoints. I tried to review the rationale for his decision this morning, but, sadly, there is no written opinion. The court ruled from the bench. Those trying to discern the labyrinth of constitutional interpretation that establishes the state's constitutional right to keep lists of dissidents will look in vain for the court's reasoning.
I am deeply disturbed by the court's ruling in this regard. At a minimum, this case should have been permitted to go to trial. But for the list and the action of the other defendant's in subjecting Krayeske to increased scrutiny on account of his political expression, his decision to take photographs of the governor at her inaugural parade would never have amounted to his arrest. The acts and omissions of officers in creating and disseminating the list were proximate factors that played a substantial role in the events leading to Krayeske's arrest. Insulating law men who keep such lists from liability on an attenuated theory of causation merely encourages a culture of government secrecy and deception. Endorsing this conduct without so much as a written decision reeks of the inquisitors scorn.
We'll go to trial on the remaining count, and we will ask a jury for punitive damages in an amount sufficient to deter other law enforcement officers for arresting people because their political opinions render them suspect to those in power. The Krayeske decision rendered yesterday terrifies. When the court pats Big Brother on the back, winks and whispers "all is forgiven," there is reason to shudder.
Krayeske actively supported Green Party candidate Clifford Thornton in the 2006 race for governor in Connecticut. Not surprisingly, Thornton was defeated in the general election by N. Jodi Rell, the oh-so-vanilla Republican incumbent. During the campaign, Krayeske attended Rell events. He raised questions. He was provocative. He exercised his right to freedom of speech.
This earned him a spot on a watch list apparently maintained by the Connecticut State Police. When Gov. Rell strutted peacock-like down the streets of the state capitol in January 2007 during her inaugural parade, Krayeske turned up, camera in hand, to take pictures. He wrote on a blog page encouraging others to show up and show something less than support for Connecticut's queen bee.
Before the parade, law enforcement officers were alerted to Krayeske's dissident ways. He and others had spoken out, you see. Officers spotted Krayeske as he arrived at the parade route. The surveillance society succeeded in isolating and targeting a critic. Krayeske, a law student and free-lance journalist, took out his camera. Officers pounced. He was arrested, although he had committed to crime. We appeared in criminal court on his behalf and insisted on a dismissal of the charges against him. When the case was dismissed, we sued in federal court, challenging, among other things, the practice of law enforcement's keeping lists of outspoken persons.
Yesterday, United States District Court Judge Stefan Underhill, rumored by some to be on the hot list for appointment to the United States Court of Appeals for the Second Circuit, heard argument on the defendants' motion to dismiss. He ruled from the bench: it is no violation of a person's constitutional rights to be so listed. Krayeske's suit lives, but only as to the arresting officer's unjustified decision to seize Krayeske and subject him to criminal prosecution. Those who generate and maintain such chilling lists were told all is well.
The judge's ruling disappoints. I tried to review the rationale for his decision this morning, but, sadly, there is no written opinion. The court ruled from the bench. Those trying to discern the labyrinth of constitutional interpretation that establishes the state's constitutional right to keep lists of dissidents will look in vain for the court's reasoning.
I am deeply disturbed by the court's ruling in this regard. At a minimum, this case should have been permitted to go to trial. But for the list and the action of the other defendant's in subjecting Krayeske to increased scrutiny on account of his political expression, his decision to take photographs of the governor at her inaugural parade would never have amounted to his arrest. The acts and omissions of officers in creating and disseminating the list were proximate factors that played a substantial role in the events leading to Krayeske's arrest. Insulating law men who keep such lists from liability on an attenuated theory of causation merely encourages a culture of government secrecy and deception. Endorsing this conduct without so much as a written decision reeks of the inquisitors scorn.
We'll go to trial on the remaining count, and we will ask a jury for punitive damages in an amount sufficient to deter other law enforcement officers for arresting people because their political opinions render them suspect to those in power. The Krayeske decision rendered yesterday terrifies. When the court pats Big Brother on the back, winks and whispers "all is forgiven," there is reason to shudder.
Friday, November 6, 2009
Ambivalence and the Plea
I was in the office until about 8:15 last night. My last call of the day was a friend. "You sound exhausted," she said. "What's the matter?"
"I just put a tough criminal case to bed," I replied. "It was that manslaughter case involving a claim of failed brakes and reckless disregard of truck safety."
"I thought the case was going to last another month," she said.
"It was supposed to. But the state offered the client a walk, so we took it."
"Congratulations," she said. "You should be ecstatic. He was facing major jail time."
Entering a plea never feels like a win, and while I accomplished the goal of keeping the client out of prison, I also left a lot of fight on the table. I'll never know now whether I could have persuaded a jury that the state's case was poorly founded. My office worked hard on this case; I had alot to work with. Shouldering my weapons is hard now, just on the cusp of a firefight. I don't think I've ever walked away from the entry of a plea without feeling a stab of deep regret, even a looming sense of cowardice.
Criminal law is like that. You dangle daily between exhilaration and despair, settling most days for gnawing uncertainty.
The overwhelming majority of cases end by way of a plea. The state arrests, selects charges, gathers its proof, and launches its attack. A client comes, wide-eyed with fear and tells what he or she knows of the allegations. The defense then probes, looking for witnesses, hidden weaknesses in the state's case, paradoxes in the law than can explode and destroy the state's case. In the months and sometimes years between accusation and trial, the parties settle into to their trenches, occasionally poking their heads into the firing line to snipe at the other side. Like weary soldiers in World War I, the parties await the call to battle at trial, checking and rechecking their gear, making amends to the silent gods overseeing them and preparing as best they can to win while reckoning the likelihood of failure. Fateful bargains are struck with the gods in the pre-dawn hours.
In my case, the client owned a trucking company. One of his drivers was operating a dump truck one morning when the truck went through a stop sign, colliding with a small passenger car. The driver, a grandmother, was killed; her daughter and granddaughter were seriously injured. Police investigated and claimed brake failure, operator error and a host of regulatory violations regarding truck safety. My client was charged with reckless assault and manslaughter; the state contends he had a long history of operating vehicles unworthy for the road, and that he had actual knowledge of this truck's dangerous condition. My client claimed the truck was road worthy, and that operator error was the sole cause of the accident.
This was a case about trucks, maintenance and what caused a horrible accident. If I lost the trial, the client faced up to 20 years imprisonment; if I won, well, the client would walk away a free man without a record. Given the market in human suffering, a sentence of somewhere between 8 and 12 years was foreseeable on a conviction.
After three days of jury selection, I renewed my request to the state to consider a suspended sentence in exchange for a guilty plea to manslaughter. I had no particular reason to expect success. A similar pitch had failed many times before. But the state listened, and promised to go back to the victims for their input. Once the jury was selected, after four days of jury selection, we had hammered out a deal. My client goes on probation and his trucks are subject to periodic inspection; failure to keep them in safe operating condition could result in a violation of his probation and a trip to prison. My client plead guilty under the Alford doctrine, a legal ploy that permits him to plead guilty without admitting the state's factual allegations.
Win, loss, draw? Once again, the simple calculus of the sporting life fails to apply. There really are now winners in criminal courts, at least in cases involving death and serious injury. What there is is pain, sorrow and fear. In this case, these furies were appeased and my client, at least, was able to walk away a free man. That's an outcome I can live with, but it hardly inspires joy. The proceedings revolved around the death of a good woman and injury to her loved ones. Nothing good could happen in such a case. Nothing good did.
I won't linger long in this twilight. My orders were clear. Once this case was resolved, I was to report to another judge in another town. She has given me a few days to regroup and put things in order for a very different sort of case set to start next week: This case presents a different form of loss, a young girl is expected to testify there. Her claim is that her uncle fondled her, a claim the uncle denies. A different wind blows in that case, but the same scent of destruction hangs in the air. One client's war has ended, another now moves centerstage: Both are battles my firm has committed to fight, and the fight is, frankly, sometimes all that is.
"I just put a tough criminal case to bed," I replied. "It was that manslaughter case involving a claim of failed brakes and reckless disregard of truck safety."
"I thought the case was going to last another month," she said.
"It was supposed to. But the state offered the client a walk, so we took it."
"Congratulations," she said. "You should be ecstatic. He was facing major jail time."
Entering a plea never feels like a win, and while I accomplished the goal of keeping the client out of prison, I also left a lot of fight on the table. I'll never know now whether I could have persuaded a jury that the state's case was poorly founded. My office worked hard on this case; I had alot to work with. Shouldering my weapons is hard now, just on the cusp of a firefight. I don't think I've ever walked away from the entry of a plea without feeling a stab of deep regret, even a looming sense of cowardice.
Criminal law is like that. You dangle daily between exhilaration and despair, settling most days for gnawing uncertainty.
The overwhelming majority of cases end by way of a plea. The state arrests, selects charges, gathers its proof, and launches its attack. A client comes, wide-eyed with fear and tells what he or she knows of the allegations. The defense then probes, looking for witnesses, hidden weaknesses in the state's case, paradoxes in the law than can explode and destroy the state's case. In the months and sometimes years between accusation and trial, the parties settle into to their trenches, occasionally poking their heads into the firing line to snipe at the other side. Like weary soldiers in World War I, the parties await the call to battle at trial, checking and rechecking their gear, making amends to the silent gods overseeing them and preparing as best they can to win while reckoning the likelihood of failure. Fateful bargains are struck with the gods in the pre-dawn hours.
In my case, the client owned a trucking company. One of his drivers was operating a dump truck one morning when the truck went through a stop sign, colliding with a small passenger car. The driver, a grandmother, was killed; her daughter and granddaughter were seriously injured. Police investigated and claimed brake failure, operator error and a host of regulatory violations regarding truck safety. My client was charged with reckless assault and manslaughter; the state contends he had a long history of operating vehicles unworthy for the road, and that he had actual knowledge of this truck's dangerous condition. My client claimed the truck was road worthy, and that operator error was the sole cause of the accident.
This was a case about trucks, maintenance and what caused a horrible accident. If I lost the trial, the client faced up to 20 years imprisonment; if I won, well, the client would walk away a free man without a record. Given the market in human suffering, a sentence of somewhere between 8 and 12 years was foreseeable on a conviction.
After three days of jury selection, I renewed my request to the state to consider a suspended sentence in exchange for a guilty plea to manslaughter. I had no particular reason to expect success. A similar pitch had failed many times before. But the state listened, and promised to go back to the victims for their input. Once the jury was selected, after four days of jury selection, we had hammered out a deal. My client goes on probation and his trucks are subject to periodic inspection; failure to keep them in safe operating condition could result in a violation of his probation and a trip to prison. My client plead guilty under the Alford doctrine, a legal ploy that permits him to plead guilty without admitting the state's factual allegations.
Win, loss, draw? Once again, the simple calculus of the sporting life fails to apply. There really are now winners in criminal courts, at least in cases involving death and serious injury. What there is is pain, sorrow and fear. In this case, these furies were appeased and my client, at least, was able to walk away a free man. That's an outcome I can live with, but it hardly inspires joy. The proceedings revolved around the death of a good woman and injury to her loved ones. Nothing good could happen in such a case. Nothing good did.
I won't linger long in this twilight. My orders were clear. Once this case was resolved, I was to report to another judge in another town. She has given me a few days to regroup and put things in order for a very different sort of case set to start next week: This case presents a different form of loss, a young girl is expected to testify there. Her claim is that her uncle fondled her, a claim the uncle denies. A different wind blows in that case, but the same scent of destruction hangs in the air. One client's war has ended, another now moves centerstage: Both are battles my firm has committed to fight, and the fight is, frankly, sometimes all that is.
Wednesday, November 4, 2009
A Welcome Verdict In Milan
I am a CIA reject. Almost thirty years ago, I was a candidate to become an undercover operative, or spy. I interviewed with agents fresh from assignments in Moscow and South Korea in hotel rooms at Manhattan’s Algonquin Hotel. I took aptitude tests at an anonymous looking building in Reston, Virginia. I met with a recruiter at another location where I was told things looked good. I would soon by a secret sentinal serving national security.
Of course, that was before the polygraph exam I took at CIA headquarters. My examiner had the charm of a desperate used car salesman. I could not satisfy him as regards drug use and sexuality. He apparently knew things about me I still do not know.
I was reminded of this while reading about the conviction of 23 CIA operatives in an Italian court. They were convicted of kidnapping for their role in the abduction of a man named Osama Moustafa Hassan Nasr, or Abu Omar. Nasr was abducted in broad daylight in Milan in 2003, stuffed into a van, taken to an American military base, flown to Germany and then dumped in Egypt, where the law permitted him to be tortured.
Had I passed my polygraph, I could well have participated in this mayhem, and I am sure I would have justified my conduct as warranted in the war on terror.
But I am not a CIA agent. I am a lawyer and an American citizen, and I am ashamed of the acts undertaken in my name on Italian soil. One of the agents, Robert Seldon Lady, a former CIA base chief in Milan, reportedly told an Italian newspaper this past summer: "Of course it was an illegal operation. But that’s our job. We’re at war against terrorism."
The agents charged fled Italy rather than face trial, and were hence tried in absentia. The Italian prosecutor handling the case may seek international arrest warrants for them. Mr. Lady was sentenced to eight years imprisonment. Twenty-two other agents were sentenced to five years each. None of the Italians suspected of complicity in the act were convicted: some were not charged, others were granted immunity.
News that international warrants may be issued for American agents presumably now safely at home prompts warring impulses. The jingo in me roars in defiance. Just try to come and get ‘em, I sneer. Hurrah for sovereignty. And harrumph, too.
But a calmer, rational voice welcomes the embrace of emerging international norms. Kidnapping is wrong. Spiriting a man away without lawful process should be a crime under any penal code. Rendering a suspect to place fetid enough to permit torture is not the act of a confident sovereign. It is the act of a thug, a thug in this case wearing stars, bars and singing the national anthem.
Mr. Nasr has apparently filed suit in the European Court of Human Rights. I would like to see him file suit in the United States under the Torture Victim Protection Act, passed by Congress in 1992. This statute permits a person to bring an action for damages arising from an act of torture committed "under actual or apparent authority, or color of law, of any foreign nation." Would the Italian judgment be res judicata here? I suspect not, but it is an intriguing possibility.
Americans strutting the globe and breaking the laws of other nations are no credit to American ideals, and often do great harm to our national interest. If the kidnapping were justified in the name of national security, then defend on that basis. Don’t cut and run.
I mulled this and recalled the words of my CIA interviewer. I was on the cusp of being hired. I was told I would soon be assigned a cover. A day to report for training and then language school was set. I wanted to study Arabic and work in the counter-terrorism unit. It looked like I might get my wish. But why, I wondered, was I not offered the top pay grade?
"That’s for former Green Berets and Sea Bees," the agent said. He paused, looking me in the eye. "Professional killers," he said. "You’re not one, ... yet," and then an icy smile.
I suppose I am glad the rejection letter came. No explanation. No cover. No Arabic. No learning to shoot guns, build bombs and drive evasively. It all seemed like a grand and glorious adventure then.
Today is seems reckless, perhaps even foolish, and certainly dangerous in ways I could not as a youth comprehend. I am relieved by the judgment of the Italian court, and view it as a sure sign of progress in the development of international norms. I am sure I’d see it otherwise if I were a spy.
Reprinted courtesy of the Connecticut Law Tribune.
Of course, that was before the polygraph exam I took at CIA headquarters. My examiner had the charm of a desperate used car salesman. I could not satisfy him as regards drug use and sexuality. He apparently knew things about me I still do not know.
I was reminded of this while reading about the conviction of 23 CIA operatives in an Italian court. They were convicted of kidnapping for their role in the abduction of a man named Osama Moustafa Hassan Nasr, or Abu Omar. Nasr was abducted in broad daylight in Milan in 2003, stuffed into a van, taken to an American military base, flown to Germany and then dumped in Egypt, where the law permitted him to be tortured.
Had I passed my polygraph, I could well have participated in this mayhem, and I am sure I would have justified my conduct as warranted in the war on terror.
But I am not a CIA agent. I am a lawyer and an American citizen, and I am ashamed of the acts undertaken in my name on Italian soil. One of the agents, Robert Seldon Lady, a former CIA base chief in Milan, reportedly told an Italian newspaper this past summer: "Of course it was an illegal operation. But that’s our job. We’re at war against terrorism."
The agents charged fled Italy rather than face trial, and were hence tried in absentia. The Italian prosecutor handling the case may seek international arrest warrants for them. Mr. Lady was sentenced to eight years imprisonment. Twenty-two other agents were sentenced to five years each. None of the Italians suspected of complicity in the act were convicted: some were not charged, others were granted immunity.
News that international warrants may be issued for American agents presumably now safely at home prompts warring impulses. The jingo in me roars in defiance. Just try to come and get ‘em, I sneer. Hurrah for sovereignty. And harrumph, too.
But a calmer, rational voice welcomes the embrace of emerging international norms. Kidnapping is wrong. Spiriting a man away without lawful process should be a crime under any penal code. Rendering a suspect to place fetid enough to permit torture is not the act of a confident sovereign. It is the act of a thug, a thug in this case wearing stars, bars and singing the national anthem.
Mr. Nasr has apparently filed suit in the European Court of Human Rights. I would like to see him file suit in the United States under the Torture Victim Protection Act, passed by Congress in 1992. This statute permits a person to bring an action for damages arising from an act of torture committed "under actual or apparent authority, or color of law, of any foreign nation." Would the Italian judgment be res judicata here? I suspect not, but it is an intriguing possibility.
Americans strutting the globe and breaking the laws of other nations are no credit to American ideals, and often do great harm to our national interest. If the kidnapping were justified in the name of national security, then defend on that basis. Don’t cut and run.
I mulled this and recalled the words of my CIA interviewer. I was on the cusp of being hired. I was told I would soon be assigned a cover. A day to report for training and then language school was set. I wanted to study Arabic and work in the counter-terrorism unit. It looked like I might get my wish. But why, I wondered, was I not offered the top pay grade?
"That’s for former Green Berets and Sea Bees," the agent said. He paused, looking me in the eye. "Professional killers," he said. "You’re not one, ... yet," and then an icy smile.
I suppose I am glad the rejection letter came. No explanation. No cover. No Arabic. No learning to shoot guns, build bombs and drive evasively. It all seemed like a grand and glorious adventure then.
Today is seems reckless, perhaps even foolish, and certainly dangerous in ways I could not as a youth comprehend. I am relieved by the judgment of the Italian court, and view it as a sure sign of progress in the development of international norms. I am sure I’d see it otherwise if I were a spy.
Reprinted courtesy of the Connecticut Law Tribune.
Pottawattomie County: A Forgotten Heroine
The Supreme Court will hear argument today in another prosecutorial immunity case, Pottawattomie County v. McGhee. The question is whether prosecutors who manufacture or fabricate trial evidence are immune from a suit arising under 42 U.S.C. Section 1983. I will be surprised if the Court decides that prosecutors are not immune. The growth of the immunity doctrine has tended to encompass more with each new decision. Expect another defeat for plaintiffs. What pleases the prince, after all, has the force of law.
But I am not writing about the law and the development of legal doctrine. Today, I would like to write about one woman, who, as I write this, is standing on line outside the Supreme Court in Washington hoping to gain admission to oral argument in the Pottawattamie case. Her name is Anne Danaher.
Ms. Danaher first wrote to me several years ago to discuss this case. But her for, there might not be a case at all. You see, Ms. Danaher was a prison barber who listened to inmates as she trimmed their hair. What she heard shocked her. She heard tales of police corruption, and she heard tales of bad prosecutors, making up evidence against innocent men. She heard and she acted, finding lawyers for the men and making a stink.
I got a nice note from Ms. Danaher yesterday. She was on her way to Washington and wanted to know whether I had any tips on how to get a seat. (I told her to arrive at the courthouse at 4:30 a.m., and, in no case, no later than 5:00 a.m.) She might not be a plaintiff in this case, but in a very real sense, the case is hers. But for her, there might not be a case at all.
So today when lawyers argue and justices parse doctrine, one woman will be sitting silently among the spectators knowing that justice is not mere game. The law is not a mere match of wits. Real men suffered as a result of official misconduct. An ordinary person saw the suffering and was outraged. She did what we want a good Samaritan to do: she acted. She sought justice. I wonder how she will feel when the argument is done. I wonder whether she will see justice in action?
So much of the debate about judicial philosophy is a pious fraud. The various immunities we grant public officials are one of the surest and stablest signs of judicial activism. These judge made doctrines befoul a constitution dedicated to rights of ordinary Americans. Ms. Danaher is likely to get a rude awakening to law and power in the Pottawattamie case; at least I think she is. I hope I am wrong.
Ann Danaher deserves recognition today. She believed in justice and in the law. She is a heroine.
But I am not writing about the law and the development of legal doctrine. Today, I would like to write about one woman, who, as I write this, is standing on line outside the Supreme Court in Washington hoping to gain admission to oral argument in the Pottawattamie case. Her name is Anne Danaher.
Ms. Danaher first wrote to me several years ago to discuss this case. But her for, there might not be a case at all. You see, Ms. Danaher was a prison barber who listened to inmates as she trimmed their hair. What she heard shocked her. She heard tales of police corruption, and she heard tales of bad prosecutors, making up evidence against innocent men. She heard and she acted, finding lawyers for the men and making a stink.
I got a nice note from Ms. Danaher yesterday. She was on her way to Washington and wanted to know whether I had any tips on how to get a seat. (I told her to arrive at the courthouse at 4:30 a.m., and, in no case, no later than 5:00 a.m.) She might not be a plaintiff in this case, but in a very real sense, the case is hers. But for her, there might not be a case at all.
So today when lawyers argue and justices parse doctrine, one woman will be sitting silently among the spectators knowing that justice is not mere game. The law is not a mere match of wits. Real men suffered as a result of official misconduct. An ordinary person saw the suffering and was outraged. She did what we want a good Samaritan to do: she acted. She sought justice. I wonder how she will feel when the argument is done. I wonder whether she will see justice in action?
So much of the debate about judicial philosophy is a pious fraud. The various immunities we grant public officials are one of the surest and stablest signs of judicial activism. These judge made doctrines befoul a constitution dedicated to rights of ordinary Americans. Ms. Danaher is likely to get a rude awakening to law and power in the Pottawattamie case; at least I think she is. I hope I am wrong.
Ann Danaher deserves recognition today. She believed in justice and in the law. She is a heroine.
Sunday, November 1, 2009
Sunday Rumination: To TLC Or Not?
The poll results are in: Just under half of those responding believe that I should continue to post about the Trial Lawyers College. I'm tempted, but I am going to say "no thanks."
First, even if the poll reflects some broader reality, a dubious proposition given the fact that the comments section of this page is awash with commentary from one or two people, I am not obliged to the follow the results. This isn't a democracy, and I am free to write or not.
Second, I have more or less said all I have to say. Gerry Spence is a great lawyer and a flawed human being. One of his flaws is a misbegotten quest for immortality and cloying need for adoration. He seeks these through a college he controls. That is his right, as is mine not to be involved. I've been in touch with Spence recently, and I've wished him well. He professes to harbor no ill will, only hurt. Sometimes it's time simply to move on. This is such a time.
Third, it is unclear to me whether sparring with disciples of Spence's makes any sense at all. I am accused of folding in response to Rex Parris's email of recent weeks. I understand the perception, but Rex is a friend, not someone who inspires awe or fear. He is hungry for fame and recognition; as hungry, in his own way as Spence. I suspect both use money as a means of keeping score in what they conceive of as the game of life. This saddens, but I accept it. And as for recent board members' chest-thumping about the college: Quite frankly, I cannot get excited. One board member credits the college with having made him a human being after decades of practicing law. I simply don't know what to make of that sort of hyperbole except to pity the author. I will leave the law's Shirley McLeans to themselves.
Finally, the comments this blog have attracted on TLC don't enrich me or, I suspect, readers of this page. I refused to publish some of them for a while, but then realized that evaluating whether to block them required reading them all. Frankly, I can't make sense of many of them. Someone hates Gerry and the college and believes that I am part of a vast conspiracy of some sort. OK. I am flattered, I suppose. But I've never been much of a fan of Oliver Stone's.
I am told at least two other blog pages feature commentary on the college. One is written by a fellow named J.R. Clary, who is a new TLC board member. The other is written by a fellow named David Tarrell, who is apparently a member of the F-Warrior's board. Please people, move the discussion there, or start a page all you own. Or, perhaps, start a college all your own. You can even by hypocritical about it all so long as those to whom you tell half truths are willing to accept what you are offering.
Bottom line: Gerry has a weakness. He needs unquestioning adoration. I can't give it. Plenty of people can and do give it because it fills an emptiness within. Thus the odd synergy of charismatic leader and sychophant. It ain't against the law for these parties to play footsie with one another and with the truth. So let them, I say. Just do it elsewhere, please.
In the meantime, I am going to disable the annonymous comments feature here for a while. Maybe that will encourage folks to move elsewhere. It will certainly spare me the rage of strangers.
First, even if the poll reflects some broader reality, a dubious proposition given the fact that the comments section of this page is awash with commentary from one or two people, I am not obliged to the follow the results. This isn't a democracy, and I am free to write or not.
Second, I have more or less said all I have to say. Gerry Spence is a great lawyer and a flawed human being. One of his flaws is a misbegotten quest for immortality and cloying need for adoration. He seeks these through a college he controls. That is his right, as is mine not to be involved. I've been in touch with Spence recently, and I've wished him well. He professes to harbor no ill will, only hurt. Sometimes it's time simply to move on. This is such a time.
Third, it is unclear to me whether sparring with disciples of Spence's makes any sense at all. I am accused of folding in response to Rex Parris's email of recent weeks. I understand the perception, but Rex is a friend, not someone who inspires awe or fear. He is hungry for fame and recognition; as hungry, in his own way as Spence. I suspect both use money as a means of keeping score in what they conceive of as the game of life. This saddens, but I accept it. And as for recent board members' chest-thumping about the college: Quite frankly, I cannot get excited. One board member credits the college with having made him a human being after decades of practicing law. I simply don't know what to make of that sort of hyperbole except to pity the author. I will leave the law's Shirley McLeans to themselves.
Finally, the comments this blog have attracted on TLC don't enrich me or, I suspect, readers of this page. I refused to publish some of them for a while, but then realized that evaluating whether to block them required reading them all. Frankly, I can't make sense of many of them. Someone hates Gerry and the college and believes that I am part of a vast conspiracy of some sort. OK. I am flattered, I suppose. But I've never been much of a fan of Oliver Stone's.
I am told at least two other blog pages feature commentary on the college. One is written by a fellow named J.R. Clary, who is a new TLC board member. The other is written by a fellow named David Tarrell, who is apparently a member of the F-Warrior's board. Please people, move the discussion there, or start a page all you own. Or, perhaps, start a college all your own. You can even by hypocritical about it all so long as those to whom you tell half truths are willing to accept what you are offering.
Bottom line: Gerry has a weakness. He needs unquestioning adoration. I can't give it. Plenty of people can and do give it because it fills an emptiness within. Thus the odd synergy of charismatic leader and sychophant. It ain't against the law for these parties to play footsie with one another and with the truth. So let them, I say. Just do it elsewhere, please.
In the meantime, I am going to disable the annonymous comments feature here for a while. Maybe that will encourage folks to move elsewhere. It will certainly spare me the rage of strangers.
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