Not Guilty

The gay marriage litmus test

2011-06-29T12:10:00.000-04:00

I use the term litmus test with only a vague understanding of it's meaning. I am, unfortunately, a science moron, and only remember something about paper turning purple if it's basic? Or is it acidic? Regardless, I understand it means "a test in which a single factor(as an attitude, event, or fact) is decisive." At least, that's what Merriam-Webster says and they are pretty popular so I will go with that. Most of the time we don't have a litmus test for our friends, we are willing to accept that people have different attitudes about things and if we share a number of similarities, we can agree to disagree about a few things without jeopardizing our entire relationship. For example, I can accept that people need religion. I don't get it (anymore) and I make judgements about people who say "because the Bible/Koran/Torah tells me so" in response to things. I once talked to a nice young fellow who believed the Bible invented marriage. It was a curious moment since I thought otherwise he was fairly smart, but he didn't understand the how or why of marriage and that it wasn't because God thought it was morally right and told Jesus who then told us (well, them, not me), and that made me a little sad. But while the reasoning was way off, if it helped him get to where he needed to be, that's ok, right?

I hear there are people who don't like Kimchi, there are people I am friendly with who are anti-choice or who think Sarah Palin isn't the dumbest person to ever walk the earth. They vote Republican and think I am a crazed liberal. There are people I like who choose to stay home and raise their kids and I think that is not the best thing in the world, and there are people who choose not to have children because they admit to being too selfish. I'm not sure I'm on board with that either. But see - all this proves I am just a terribly tolerant individual. Mostly. Except for this one thing.

If you are against gay marriage I probably don't really like you. If you are a person who clings to religion as the reason then you've clearly got two strikes against you. I cannot explain to you why I feel so strongly about this, but I do. Is it, maybe, because some of the people I know and respect most are gay? I don't know if that's it. Is it because the people who are opposed are such morons? That could be it, maybe. But there is just something about the desire to deny people who love each other the chance to have what the rest of us have that just makes me think you are just very, very wrong. If your reason is because God says it's wrong, I probably just feel terribly sorry for you and your inability to use the brain power that God gave you to think it through for yourself. How does God create someone and something he hates? Why?

If someone could give me a legal, logical, well thought out reason why same sex couples should not get married that doesn't involve getting married to a duck, I'd love to hear it. But, I doubt you can.

More Unnecessary State Sanctioned Killing

2011-06-21T12:23:00.000-04:00

I read an incredibly disturbing story today about a 26 year old former marine who was at home with his wife and two small children when a SWAT team broke into his house (ok, they had a search warrant which I'm sure was poured over by the judge who signed it) and gunned him down. Jose Guerena was 26 years old, and I'm sure some of you who read the story at the Huffington Post will say well, Mr. Geurena had a gun, the SWAT team thought they were in jeopardy, so they were justified in firing 70 shots at him while he stood in his OWN HOME.

This isn't the first time this has happened and it certainly won't be the last.

Are these your kids, ma'am?

2011-06-20T17:35:00.002-04:00

I am the mother of twin boys that will be four in August. If you follow the blog you know that I had trouble conceiving, was on bedrest for over four months while pregnant, and then had a very difficult recovery. All in all, actually physically bringing those boys into this world was tough. Now, I know that that might have been the easy part.

My goal in parenting was, I thought, quite simple. No douche bag kids. I wanted to let my kids fall down, suffer, feel hurt and anguish and pain and from that maybe learn about empathy and sympathy and toughness and generosity. I didn't want them to become too enamored of religion or anything else that could be a crutch that would prevent them from having to learn the rules of the road as they went along life. It turns out that these things are not so simple. It is hard to let your kids feel pain. It is far easier to coddle and try to cushion their every misstep. It is hard to see them struggle and let them work something out on their own. Not only is it hard, but it is so very time consuming. It is easier for me to put on shirt and shorts than to allow them to put it on backwards 10 times. But that is how they learn, isn't it?

And, this parenting thing has opened my eyes to how I practice law as well. While I felt sympathy for my clients before, I now empathize with their parents. How hard must it be to visit your son in a jail cell. How much must it hurt to sit in the back of a courtroom while your son is on trial for a crime you know he did not commit - or one that you know he did because he is full of bad choice-making. You know when your mother said "this is harder for me than it is for you" and you looked at her like "you are such a damned liar"? Remember that? Well, you know now that she was right, right? It is harder on this end when you are the decider.

This post is inspired, surprisingly, but a post by Ken at Popehat called "We forge our chains out of fear for our children." It is not about not raising douche-bag kids, although it sort of is. In the post, Ken writes about a great website (and a book too) called Free-Range Kids. I first heard of free range kids through a friend, a sister in the world of infertility. We try to bone up on the best way to raise our kids, like most parents, but we do it because, you know, when you spend ten trillion dollars to have your kids you want to make super duper sure you don't fuck them up because well, we can't afford therapy since IVF is costly enough. Anyway, Ken tells us about a post at Free Range Kids that discusses how a police officer told a parent in Western MARYLAND (the state where I practice law) that it was illegal for kids under ten to play outside unsupervised without an adult present unless it was in their own yard.

I ask you this question, dear reader - how have you allowed this to happen? How have you, facebook friend number 314, yes, I went to elementary school with you and we were allowed to leave school in SIXTH GRADE and walk to the pizza joint (as long as we had a note from our parents) how have you allowed the government to tell you your kids can't cross the street without you there. HOW? When will you learn? You are going to bear the burden of responsibility when my kids turn into sissypants who cry at every failing and need a security detail to leave the house. I blame you for turning my kids into douche-bags because it seems that my hard work in getting them onto this earth and then the hard work in letting them grow is for naught because ultimately you all have decided that it's better for my kids to get a trophy just for existing and to sit inside watching Barney until they are 6 to be chased by a dose of i-Carly when they are tweens than to be, I don't know, playing outside, climbing trees, interacting with other human children.

Here's another question I ask of you - tell me what you do in your day that isn't regulated by the government? Take a crap? Really? Who gets to decide on what kind of plumbing is in your house, do you pay your local government for the water in your john and the toilet tissue you use to wipe probably has some warning on it or other. Could you hunt or fish or build a house on Walden Pond unencumbered by some bureaucrat waiting for you to pay for your hunting license, fishing license, building permit. You want to add on a deck? Wait for the inspector to come to make sure the post holes are deep enough. You want your kids to play hide and seek in the cul-de-sac, you'd better make sure you are out there with them so that the law doesn't come by and issue you a citation.

By the way, there is no actual law that says your kids can't play outside, but I'm betting most of you thought there was. And if there was, what would you do about it? I'll bet not a single one of us would do anything, we would accept it for just a fact of living in this free country and maybe we would remember how it was when we were kids but also convince ourselves that it just isn't like that anymore. Except, it is. The fact that we have such incredible access to information doesn't change the fact that there aren't more child molesters in this country (although there are more people we think are child molesters since we put people on this asinine sex offender registries.) The world we live in today isn't any more harmful than the world we lived in in the 80's when I was jamming out to Thriller and had to be in when the street lights when on.

The noose is getting tighter, and I'm ashamed of the fact that we all walk up to it willingly. As Ken says, we have forged our own chains. Pity for our children.

The ranting shall commence

2011-06-15T16:39:00.000-04:00

I am terribly behind in reading the blogs over there on the right. I'm terribly behind on updating my website and moving my blog to the notguiltynoway domain name that I've recently acquired. But I've started to catch up and you know, I have to say, I liked the relative peace and quite afforded to me by having my head in the sand. While I've kept up on the state of the law (not to worry dear clients) and general goings on, I haven't been keeping up on the things that make us holler and cry and scream and stamp our feet "this just isn't fair".

Until today. And, to be honest, I don't know where to start. There seems to be a never ending fountain of piss from which to drink. Shall I discuss the current state of immigration in this country? While Obama has kicked off his campaign promising immigration reform, he has thus far failed us in about every way possible. Hmmm, Mr. President, where have I heard that before? You say you are for immigration reform and for finding ways for people who have been contributing members of our community to stay in the country? You say you are for finding ways for the children of undocumented aliens, children who are here through no fault of their own to become citizens? Why, that sounds just great. Here, let me help you get elected.

What was it that George W said "fool me once, shame on me, fool me twice, shame on your cat?" Right, that's what he said, isn't it?

Doesn't matter, I, along with many other registered democrats will swallow the bitter pill that is our current president because, well, have you seen the other side?

Then there is all the hullabaloo over the FBI's new guidelines, to which I simply say "thank you for putting it in writing." I don't see many criminal defense lawyers really getting their panties in a bunch over this because it has always been easy for the FBI to fuck with your personal life. My law clerk, Rosie, has written a post on this so I won't steal her thunder, but if you weren't afraid before all you walk between the raindrops types, you should be. But you won't be. Because you still think it will never happen to you.

Speaking of it never happening to you, I'm pretty certain that John Edwards never thought he'd be indicted on
campaign finance charges. I mean, all he did was have an affair with a woman while his wife was dying of cancer, had a baby with that woman, and then cover it up. Doesn't everyone do that? As one campaign finance expert put it "it's not illegal to be a pig" By the way, how do you get the job of campaign finance expert? I mean, you don't have any expertise in any other sort of finance but campaign? That just shows you how much we've fucked up this whole election thing, but I digress ( as usual)

In addition, Gideon has put out some very thought provoking posts. I wish I had his energy and his way with words, but I've just got this and the ability to link.

It was nice being in my cocoon, preparing for motions and trials and having warm fuzzies all around, but it might be time to emerge. I ain't promising no butterflies, you might just get a moth, but I'm gonna try to flit around from time to time.

Introducing The Clerks!

2011-06-09T12:53:00.000-04:00

Hello loyal blog fans! My name is Rosana Escobar Brown, but please call me Rosie. I am a Fordham Law student hoping to visit the George Washington University School of Law in the fall to complete my third year. My husband coaches baseball for the GW Patriots and I am ecstatic to have returned to the DC area to join him.

My academic exposure has been largely in political science and national security, but my legal experience was in criminal prosecution for the Albany County District Attorney’s Office, Mirriam’s old stomping ground. I relish the opportunity to learn everything she offers to teach me and gain experience in the DC area. The more exposure I gain in criminal law, the more I feel it may be the place for me. This summer I am also working part-time for a national security attorney and FOIA litigator to become well-rounded in legal practice areas. In my spare time, I still practice in the profession of my first career, in the exciting world of licensed opticianry. Yes, I made the shift from eyeglasses, contact lenses, and management to that of a returning student and soon, an attorney.

I can’t wait to share my thoughts with all of you, but please excuse me if I stray from the typical criminal defense repertoire. My eyes are wide open and my naiveté with the legal practice still prevails, so prepare yourselves for the worst!

Introducing The Clerks!

2011-06-09T12:52:00.000-04:00

My name is Joshua Gibbons. I always feel like introductions can be awkward, and usually like to act as though I am already close friends with whomever I’m talking to (which can be even more awkward). But, as this is a blog I’ve decided to (Mirriam encouraged me to) write a little introduction piece about myself. So on to the details.

First of all, I’m a 23 year old male. I finished my first year of law school at George Mason University School of Law about a month ago. I went straight to law school from undergrad at the University of Michigan. That’s where I’m from. Not the University of Michigan, but rather the state of Michigan. I’m from a city called Flushing that is right outside of Flint, Michigan. You are welcome to google either location, but it may lead to some depression. And that, in essence, is why I decided to come to the Washington D.C. metropolitan area. You see, Michigan is not doing quite well economically (depression, get it?), and even though it is quite beautiful, I decided to head for greener pastures. (I know there is significantly less greenery in this area than in Michigan, but there may be more job opportunities, which may result in another kind of green.)

The next question you may have is “how were you able to get such a great internship as the one you currently have?” Well, the answer to that is actually quite interesting (to me, to you it may not be). My law school connected me with a mentor, an real, live, actually accomplished attorney, that was in a field that I was interested in. This field happens to be immigration law. My mentor than offered to put my resume and cover letter up on a listserv for immigration attorneys in the area, which allowed for me to be found by Mirriam. As I was thoroughly enjoying my criminal law class, I informed Mirriam that I was interested in both criminal law and immigration law. After a rather painless interview, I was able to get this position. Since then, I have already learned more than I can convey, but thanks to this guest spot on the blog, I will try my hardest.

Summer summer summertime

2011-06-08T17:00:00.000-04:00

So, get this, I've got a couple of summer law clerks. They are smart and funny and have opinions but know when to shut their mouths. They carry my bags and I buy them lunch. They write pretty well and they show up on time and I'm hopeful when they leave they will have learned a thing or two. Right now we are working on motions and hearings and trials and they are learning the trials and tribulations of solo life. Like, I'm the one who does everything.

We talk about nerdy law stuff, and clients. We spend lots of time talking about clients, how we treat them, what we can and can't do for them and how we can set realistic expectations, take care of their needs and still get our work done (because when I mean needs I don't mean the motions they want us to write and the trials they want us to win, clients will want hand holding, information when there isn't any, and things done in time frames that are just not possible.)

I've asked the clerks - Rosie and Josh, to write a guest post now and again. I'll be honest that part of that is that I just have sort of lost the urge to write. Lots has happened this year, much of it too private to discuss in this ever so public forum. So, I've laid low. I'm hopeful to be back in full gear soon, but you never can tell. In the meantime I'll allow the clerks to introduce themselves in upcoming posts. Enjoy.

The 4th (circuit) leads the fight for the 4th (amendment) maybe?

2011-06-08T16:50:00.003-04:00

A while back I wrote about a case where the 4th Circuit determined that the government should not be allowed to infer that every innocent action has nefarious overtones. The case, U.S. v. Foster, I thought, perhaps, signaled a shift in the Court's incredibly conservative mindset and, perhaps, a resurrection of some of the basic tenets of the fourth amendment. You know, like no unreasonable search and seizure. So, while I remained hopeful, I went on my merry way as I think did most of my brothers and sisters in this district. After all, our circuit is notorious for being adverse to just about anything a defendant may have to say. We were afraid to be too optimistic in case this was a one off - a case so extreme that even this court couldn't brush it off.

There are currently four Obama appointees on the Circuit. And, while I'm one of those that thinks Obama has been quite a disappointment, I can't help but think that maybe the Foster decision, and the more recent one in U.S. v. Doyle is, indeed, signalling that a change is coming. Doyle is a child pornography case, and who doesn't hate child pornography? In this case, police officers got a warrant to search for kiddie porn after getting information that Doyle molested some children. One of the children said they were shown pictures of nude children. The warrant did not mention nude children, and it certainly didn't say that there was any pornography. In any event, a district court judge signed the warrant. Evidence was found. A magistrate judge recommended suppression, but the district court said no. The fourth circuit said yes, suppression was warranted. While the language in Doyle is not as sweeping as that in Foster, it is still pretty good for us on this side of the aisle. The decision is narrow, but still useful and, perhaps, trial judges won't be so quick to just rubber stamp anything and everything the cops do thinking "there is no way the 4th circuit is going to reverse this - it's the 4th circuit after all!"

I gave a quick interview recently about this case and compared and contrasted it to the Foster case. The reporter asked what I thought it meant for us practitioners and I said I didn't think it meant much of anything really, we just had to keep making the motions. But, I have to admit to thinking it would be pretty amazing if the most conservative circuit in the country led the charge to put some life back into the fourth amendment. After all, what could be more conservative than honoring and abiding by the constitution?

Chiming In

2011-05-18T13:11:00.004-04:00

Sometime in the recent past I wrote a post about Joseph Rakofsky, the DC (?) New York (?) New Jersey (?) lawyer who took on a murder case in a DC Court, got in over his head and had a mistrial declared. Oh, and then he went on facebook and bragged about it. As I said in my previous post, I'm loathe to give him any more ink since well, I don't think he deserves too much of my time. However, Mr. Rakofsky has felt that I am, indeed, worthy of his time for he has named me, along with 78 other folks, as defendants in a lawsuit for the posts we have written about his foibles.

I feel some measure of sadness for him because I think Mr. Rakofsky is without the benefit of caring and compassionate counsel, a father or mother, brother or friend - someone to tell him "Dear friend, you are but a young warrior. Give yourself time to rebuild your reputation. Human memory is short, but we hope life is long. Continue on and learn from this. I promise it will get better over time." But he did not. He decided to resuscitate this sordid story in hopes that. That. I don't know what he hopes, really.

So this post is not about him. It is, as usual, about me. Because this is my blog and I write about what I think. There has been some criticism of those of us who wrote posts about Mr. Rakofsky that perhaps we didn't do it the right way, perhaps we should have used the parable of this young man, taking on a murder case as his very first trial as a teaching moment. We should not have heaped criticism on him for saying he was an experienced trial lawyer on his website, and then saying, in open court that it was his first trial. No, we should not have done that. According to our critics, the lesson we should teach is don't take on a murder case as your very first trial.

So, um there. Don't make your first full-on-first-chair-jury trial a murder trial. Are we clear on that?

I am shocked and awed that I would actually have to say that. Do you young lawyers really not know that fresh out of law school, with a year of practice under your belt that your very first trial should not be one where one person is accused of killing another? If that is so, then I despair even more for the state of my beloved profession. That cannot possibly be what needs to be taught here - even at the tender age of 26 (which, by the way, is only a tender age in these United States where we have such an extended adolescence) I would hope that the idea of not getting in over your head should be one learned long before you hang out a shingle. But, alas, dear reader, it turns out I was wrong. Young lawyers don't know that they should not take on cases which they are not able to handle. It seems, I don't know, like a truism, you know - don't do things you can't do. Eh, what do I know?

I had a conversation with a good friend yesterday about competence and how we define it. He declares that there is a scenario that he can imagine in which a person just out of law school with no prior trial experience would be competent to try a murder case as his very first trial. I told him he had a better imagination than me. If you have never stood in the well of a courtroom, if you have never asked a judge if you can approach the bench or a witness if you've never moved an exhibit into evidence "I would now like what's been previously marked as defense exhibit A for identification into evidence as Exhibit A" how could you think you could do it in a case where your client is looking at the rest of his life in prison if you screw up. How would you allow yourself to do it? There is no amount of mock trial experience that will get you there right out of the box.

So there, I've taught you that. But really, the lesson I still think you should take from this is that your reputation should be earned - the internet has made it easy for people to create themselves out of whole cloth. We can write what we will about ourselves and create entire careers for ourselves. The hard work doesn't need to happen. If you write 'experienced trial lawyer' well, then, you must be one. Who is to say you aren't? Well, in this case, a whole bunch of people said he wasn't. See, the internet works both ways, doesn't it?

FYI - here is a "compendium of blog posts" on Mark Bennett's blog if you'd like to read more about this.

Where the lack of mentorship has left us

2011-04-29T15:33:00.000-04:00

A year ago I started my law practice all by my lonesome. I work in a building with lots of other people, but no other lawyers, so I joined a listserv for small and solo practitioners. I made some 'friends' and while I never posted a substantive question on the list (why would I ask a listserv comprised of 4,000 lawyers whose backgrounds I don't know a question about a case?) I enjoyed the general water cool atmosphere. In that time, however, there was a common theme - folks who looked at criminal defense as a way to make a quick buck (fast cash up front) and as a way to get courtroom experience (after all, the point of civil litigation is to never actually try a case). I find this offensive for a number of reasons. Number one, what about clients? And number two, what about clients. Finally, what about the clients?

This listserv is about support. In essence, if someone posts something moronic or bigoted or simply idiotic, the appropriate response is "way to go" or something along those lines. This past week, there were two posts that made me more mental than usual. One about same sex couples adopting (one list member said it was a 'social experiment gone awry' to which I responded "WTF, can I swear on this listserv") and another where another young lawyer wanted to know how he was going to get experience after the state in which he works gets a public defender system. The purpose of this post isn't whether this kid is right or wrong - for that you can go to Brian Tannebaum's blog where there is a lengthy commentary on the actual email. It's not about marketing - for that you can check out Scott Greenfield. My problem, again, is that the listserv has become what mentors used to be for us.

In a recent post, Carolyn Elefant, who is a mentor to us solos in her own right, says mentorship is dead especially in this era of listservs and legal research. There are lawyers out there floundering, wondering where their next meal is going to come from. They've been churned out of law school like so much - like so much what? I'm terrible at analogies. But I refuse to believe that every young kid fresh out of school who has hung a shingle did so because they wanted to make money and not because they wanted to practice law. I've hired two law clerks for the summer. Both of them look like they are willing to bust their asses. Both of them say they want nothing more than to learn how to practice law. I am hopeful they are being truthful, and nothing in their demeanor suggests otherwise. So, I don't want to be dismissive of the current economic climate and lump all new lawyers into the 'it's not a profession it's a meal ticket' basket. It is hard these to get a job and have an office where you can poke your head into the next office and say "hey, what do you think about this" but it can't be the case that you are left only asking on a listserv or otherwise just doing a crap job for clients.

Here's the truth: If you aren't a douchebag people will help you. If you stop panicking about the money, if you aren't so inartful in the way you phrase things (come on, you are a lawyer, choose your words more wisely) there will be many, many, many people willing to tell you how to not fuck up.

Fact - I have a trial coming up. I've been in practice for about a dozen years with a little hiatus in there for the kids. I called Norm Pattis this weekend. He spent an hour on the phone with me and sent me voire dire questions for my case. I've talked to local criminal lawyers and people who have practiced in front of this judge before to see how the judge runs the courtroom. A local attorney has offered to sit with me during the first day to help with jury selection. Why? Because he wants to. Because I went to him and we sat and talked about the case and I asked him questions. He and I have been practicing the same number of years.

I disagree that young lawyers need to know about practice management and technology. I refuse to believe that the practice of law is nothing more than a few click on a fancy gadget and whatever cloud computing program will churn out your timesheets most accurately. You cannot be a good lawyer without a mentor who can push you, inspire you, and maybe yell at you.

Young lawyer, new beacon of hope and light, please listen. Ask your elders. Ask your peers. But please, just ask.

Dear Anonymous

2011-04-16T14:06:00.000-04:00

We've had a good run, haven't we? It was nice back when I didn't know any better and I just let you have your say, not moderating your comments which were, on occasion, not so kind and frequently, not so clever. But, I'm sorry, it's you, not me. Or maybe it's me. But we're through. I need a name. I need to know who you are and someday soon I'll move to a platform where you will have to put in a valid email address so I will know who you are. Your advice means nothing to me if I don't know whether I should take it - are you a high school kind on the debate team, a lawyer who just graduated last year and feels that they should be able to advise the rest of us on how this system and this profession works, or a real live lawyer who has fought in the trenches and has something of substance to say? Sadly, I don't think you are the latter, because if you were you'd at least be brave enough to leave a fake name.

So, here's the new rule - no more anonymous comments. As much as it pains me to moderate comments, I'm doing it, and even if you are five star worthy, if I don't have a name it won't get published.

Have a great Saturday.

Padilla Retroactivity in Maryland

2011-04-15T14:30:00.001-04:00

Ah, a legal post. Aren't you all a-flutter. Don't lie. I know you are, especially one that deals with Padilla and retroactivity. Oh, and Maryland law. Here it goes:

In February, the Maryland Court of Special Appeals issued a decision, Miller v. State, that said that it is indisputable that Padilla is not retroactive, meaning, that any cases that are final cannot be challenged under grounds explained in Padilla because Padilla is a new rule. The general rule of thumb is this - if there is a new rule, it will not be retroactive. Because who could possibly go back and change all those decision just because the Supreme Court issued a new rule? It would probably impede the creation of new rules on behalf of criminal defendants (wait, is that why there haven't been any new rules increasing the rights of the accused? Hmmm. . . ) Anyway, if the Supreme Court is simply stating an old rule and saying that in the case of these facts, you apply the old rule, then it is retroactive. The Maryland Court of Special Appeals seems to think that Padilla created a new rule. Meaning, that before you didn't have to tell your clients about deportation but now you do so it's new.

Except that there is Strickland, and Strickland - the case which established the two-prong test for determining if counsel has been ineffective - has been around since 1984. All Padilla did was say that immigration consequences are serious and the lawyer should tell you about them, but that the issue was still Strickland - was there error and was there prejudice.

I've read and re-read this decision, and I can't wrap my brain around how the Court comes to it's conclusion so I ask you, legal eagles, to help me out. What is the 'new rule' that the Court talks about? Is telling your clients about immigration consequences really a new rule? Part of me thinks that the Court is sticking to their guns over this decision that came out just days before Padilla where they say that immigration consequences are collateral and, therefore, not of constitutional dimension.

On Grief, three weeks later.

2011-04-11T11:58:00.000-04:00

There are moments when I am well. Extremely well. Thinking about work and clients and obligations that I've put off to tend to the needs of my family in this time of grief. And then there are days when it all falls apart and while I can go through the motions it is hard to have my heart in it entirely.

But, then I get here, to the office or the computer and I look at the folks who are counting on me - my clients and their families and it reminds me that what we do here on this earth is all that matters. I hope you believe in an afterlife that is yours no matter how you behave in this life. I think that is a pleasant way of coping with your human frailties and failings, but since I lack such faith I figure that if I'm going to die, if worms are going to eat me and I'll end up as nothing more than so much ash and bones, I need to keep fighting the good fight as long as I've got breath to keep me going. Otherwise, what's it all for.

So, I'll go prep for the trials I have coming up, file motions and applications for clients and keep the faces of those who made it possible for me to be here steady in my rear-view mirror. And now and again I'll cry at a country song (but who doesn't) and hope that in time the grief will lessen but my resolve will not.

Ineffective assistance of counsel, again.

2011-04-08T13:22:00.002-04:00

So while Dontrell Deaner's judge was wise enough to halt proceedings and get him new, competent counsel before he spent the rest of his days in jail waiting for an appeal that would be fruitless, a trial judge in Michigan thought, ah hell, this fucker is guilty so we might as well just go on with the show and let Jeffrey Paul Gioglio be convicted after a farce of a trial. This is shocking only in light of the most recent DC debacle, otherwise, isn't this just how it goes?

The incompetent, shameless attorney in this case Susan Prentice-Sao. Ms. Prentice-Sao doesn't have a huge web-presence, but it seems she is a general practice attorney, you know, dabbling in criminal defense and also doing some bankruptcy here and there. Her reviews are mixed - she is either the best lawyer ever or she is a danger to society.

So, you want to know what Prentice-Sao did? Well, she took on a child sex case that she was incompetent to handle, she didn't make an opening statement, she didn't cross-examine witnesses, and she told the prosecutor that her client made admissions to the crime. How did the appeals court find all this out? Well, the prosecutor told them that he had concerns about Ms. Prentice-Sao's conduct during the trial. Holy fucking shit. A PROSECUTOR pointed out that she was incompetent. The trial court didn't see it. The Appeals court almost didn't buy it (the decision is not unanimous) but this lawyer was so bad that those folks we accuse of being eager to do nothing but convict, convict, convict realized that they didn't win as much as defense counsel made sure her client lost. Oh, and after the verdict was returned, this 'advocate' gave the prosecutor the thumbs up sign and said her client was 'toast'.

The Appeals court said:

“Defendant may very well be guilty and might deserve a lengthy prison term, but our constitutions do not reserve the right to the effective assistance of counsel to only those defendants who are actually innocent. ... In this case, it is clear that Prentice-Sao’s performance was so inadequate that, in effect, defendant had no assistance of counsel at all,” the judges said.

The dissenting appellate judge (a vigorous dissent) said that the trial judge was in a better position to determine whether Ms. Prentice-Sao was effective. Yes, that's true. But that would require the trial judge to 1. pay attention and 2. to care. It's possible that the trial judge did both and defense counsel did a bang up job and the prosecutor just wanted to, you know, have the appeals court reverse the conviction. That seems just a wee bit far fetched to me, but I could be wrong (no, I couldn't be, not in this case.)

Mr. Prentice-Sao is not what you would consider a newbie. She's been licensed to practice law for 6 years. I'm assuming, since she doesn't have a huge website or blog, etc. that she may have actually been referred. It's possible she just dropped the ball on this one and maybe she shouldn't be handling child sex cases if they make her squeamish. I don't know. What I do know is that bad lawyering makes me sick to my stomach.

What I wonder is this - how bad was Rakofsky that the trial judge there declared a mistrial? I've been in courtrooms and watched lawyers stumble through and heard "lay a foundation,counselor" with folks trying a million different ways and failing each time. I've seen lawyers waive opening statement, I've seen lawyers put their clients on to testify when they have clearly not been prepared, and not making objections which would be necessary to preserve the trial record. And none of those cases have come back. Are we reaching a point where we are starting to take the 6th amendment seriously? I don't think so, but something is happening out there.

So all you shit lawyers, watch out. Maybe someone is on to you. Maybe.

A silver lining.

2011-04-05T12:31:00.000-04:00

The story is all around the internet. It's the hot topic of the week, and it should be on the lips of every criminal defense practicioner, if not every lawyer who gives a shit about the legal profession - Joseph Rakofsky, an alleged criminal defense lawyer (with all of one whole year of experience) lied and lied and lied and was grossly incompetent in his 'defense' of a man accused of murder, Dontrell Deaner, standing trial in DC Superior Court. You can check out his website if you want to be just utterly sick to your stomach. This post won't give this lying piece of scum any more play, he's had his few minutes of notoriety and if you are interested in the story, which you should be, you can click the links and read for yourself.

This post is about the person who is going to be appointed on this case, David Benowitz, who is the anti-Joseph Rakofsky. Dave is a home grown (meaning trained by DC Public Defender Services) lawyer with well over a dozen years of strictly criminal defense experience under his belt, who was recently voted Best Lawyer in DC and he even has some criminal law trial certification that no one else in DC has (which seems like kind of a big deal and has fairly rigorous standards.) It seems to me that the judge who did the right thing by Mr. Deaner by granting the mistrial (although one wonders how that idiot Rakofsky got pro haced into the case in the first place) also wanted to make sure that there would be no question that Deaner would get someone who would vigorously advocate for him, and you know, also know how to make objections and move stuff into evidence and crap like that.

Here's why I'm excited about this appointment, after all, I'm not a DC lawyer, why should I care? I care because I'm of counsel to David's firm and I know the kind of work he does, the kind of lawyer he is. There is nary a doubt in my mind that he'll do everything he can and then some for Mr. Deaner. And, let's be honest, it means I can stick my nose in the case as well.

Oh, New York Times - Don't you at least have Google?

2011-04-01T06:57:00.001-04:00

So, today is April 1 - April Fool's. It seems as if mother nature has played a great big April Fool's joke on most of us - haha, you thought it was spring! Phhhtttt. And you know, that's ok. I mean, I'm just a mere human being. I can be fooled by a power as awesome as MOTHER NATURE. But, the New York Times? I mean, come on. Aren't they supposed to be better than that? After all, it is the 'Grey Lady' and has 'All the news that's fit to print.' I don't have any such awesome nicknames or mottos. (But now that I think of it, maybe I should.)

But, alas, once again, the times has been taken in. Last year, they fell for a couple of different pranks, publishing stories without checking facts and then trying to explain it away. This year they haven't fared much better, as this post at Brian Tannebaum's My Law License points out.

Don't the people at the New York Times have Google?

So there. If you get punked today by another mere human don't feel so bad. You don't have fact checkers or editors or, you know, people making sure of the accuracy of the information you receive or disseminate. But, if you have any say so with that Mother Nature, can you tell her the joke's getting old?

Death, Religion and Poetry

2011-03-28T15:41:00.000-04:00

And herein is a post filled with naval gazing and fluffy kittens, philosophical thoughts and deep musings. Or, it's nothing more than a chance for me to tell you that my grandmother died last week. It is the natural cycle of life. She was 82 and in steadily declining health. She lived to see great-great grandchildren and when her eyes were open last - on Saturday the 19th, she called out to my blue eyed boy - 'the civilized one' she called him. She didn't recognize who I was, but knew that the Ensure I was feeding her with a straw was not her usual blue topped lowfat milk. She laughed at how many kids her step-son had ("he has 10! 10!" He really only has 6") and she did not want to be taken to the hospital.

She went against her will on Sunday morning. My Yonas said "look mommy, fire truck!" It was 8 am and if you know little boys, you know their fascination with all motor vehicles with sirens and lights. We live six houses away from my mother, where my grandmother was staying, and when we saw the fire and ambulance turn into the street we knew what it was for. I had the forethought to brush my teeth and put on a bra and I ran up the hill. The paramedics were in the living room, my grandmother was non-responsive. My mother was being asked questions and instead of answering she was telling stories. I took over.

Three days later, my mother and her sisters decided to remove the support that was keeping my sweet grandmother alive. She left the earth in 30 minutes. I zipped her into the body bag. I cried more on Tuesday when she would open her eyes and try to remove the breathing tube than I did when I kissed her cold forehead and zipped her into that bag.

And now I am a grown up. At 40 years old. I made decisions and I planned. I thought about what we needed to do and how it should be done. I looked at my great big, crazy family and realized that there really is nothing more precious than a couple of kids, an amazing husband and a room full of cousins. The cream rose to the top - people who don't know me from Eve called or wrote or sent private messages. Other people were largely absent, caught up in their own lives with no time for the tragedy occurring in mine.

I am not religious. And, I've found that religion does not really help allay grief. It still comes fast and furious. Those who have religion and dogma and rules have not been saved from it so I don't think, right now, that not being religious puts me at any disadvantage when it comes to this whole dealing with death thing. And, honestly, I'm not a big crier. In fact, I've got a problem with feelings overall. I mean, I have them but they aren't on the surface and, to be honest, I never feel as if I'm entitled to the crying part. I mean, what's it for anyway? I've certainly had my moments, and it's hardest to watch my mother break down - she is the oldest daughter. But generally I haven't really given in to the heart break that I feel.

My lack of religion has made me feel like I'm at loose ends though, I will admit. So, I've been search for words and meaning and enlightenment and you know, all that other crap that you look for when people die. And I've found it in poetry. Now, I'm not going to lie and tell you that it doesn't make me feel totally pretentious to carry around a poetry anthology so for that I'm eternally grateful to my Kindle. I can read words that heal my heart while people think I'm doing my word scramble. I can tell why people read the Bible or the Quran or the Baghvad Gita, because it is all poetry (to them, not to me.) In these past few days I have been reciting this poem over and over and over again. So, this post is totally meaningless. It is written for no reason other than I felt like it. Maybe the same reason why EE Cummings wrote this poem:

i carry your heart

i carry your heart with me(i carry it in
my heart)i am never without it(anywhere
i go you go,my dear;and whatever is done
by only me is your doing,my darling)

i fear
no fate(for you are my fate,my sweet)i want
no world(for beautiful you are my world,my true)
and it's you are whatever a moon has always meant 
and whatever a sun will always sing is you

here is the deepest secret nobody knows
(here is the root of the root and the bud of the bud
and the sky of the sky of a tree called life;which grows
higher than soul can hope or mind can hide)
and this is the wonder that's keeping the stars apart

i carry your heart(i carry it in my heart)

Blawg Review # 301

2011-03-07T06:41:00.001-05:00

On March 7, 1876 Alexander Graham Bell patented the telephone. This post will not give you any insight into how the telephone works, for I do not know nor will I ever be able to comprehend it. I am satisfied believing that it, along with the fax and the internet are magical boxes that can manage to get my thoughts from inside my brain over to you. That is enough for me.


Alexander Graham Bell speaking into the telephone

You've probably all heard the story of Bell's first words to his assistant, Thomas Watson. If you have not, well, here they are: "Mr. Watson, come here. I want you." They are words now spoken over the telephone by bosses throughout the world. And, while I'm sure that Watson was thrilled that the invention for which they'd just secured a patent worked, he probably didn't realize that the boss would now have a much easier time of ~~being a pain in the ass~~ getting a hold of him. Bell would no longer have to stop what he was doing, get out of his seat and scurry down the hall to get trusty Mr. Watson. Now Watson was just a phone call away. Awesome for Watson, huh? Ever wonder why we never hear how Watson responded to his boss? Probably he said "Right away, sir" but was thinking "Crap, I know how this is going to go." Anyway. . .


Can you hear me now?

Early telephones were handled by switchboard operators. Most of us imagine lines of women "Operator, Madison 611 please" but, in fact, early switchboard operators were boys, who, according to this video, were rude and abusive. The telephone actually created an occupation for women. Mostly because women didn't swear at the customers. (They also weren't allowed to cross their legs or wipe their brows. Because um, you can see that over the phone, right?)

Like Video killing the radio star, the telephone put an end to the need for letters as the main method of communication. (by the way, on this day in history John and Abigail Adams exchanged five letters. Not texts, not emails, not facebook posts - LETTERS). Sweet nothings were no longer relegated to pen and ink, you could whisper them across the wires and songs were filled with references to those late night, long and passionate telephone conversations.

ELO Telephone Line (I don't really like ELO, but this makes the point that's needed here)

But really, what the telephone did was open up communication in ways that were beyond the comprehension of anyone who lived and tried to transmit a thought before it. No longer did it take weeks or days to get information from place to place and no longer was knowledge limited to the village or the town where you lived and worked. People could move away from their small town to the big city and still keep in touch, folks could find out about food, politics and fashion by calling up and well, just asking. But still, we humans are never satisfied with what we got. We always need better and faster. So we got it, the internet. A method of communication that leaves the poor phone looking like - err, a corded phone? In comparison to the internet and all it's instant communication and information transmitting glory, the phone is a dinosaur. In fact, our current smart phones are worst at their telephone function. Poor Bell. It's a good thing he's not around to see this.

And now, we don't ever talk anymore.

It's ok. I know you are busy.

It's hard to pick up the phone and talk. While email and the various forms of social media have made it easier to keep in touch in some ways, in many it's left us more isolated than ever before. We don't chat on the phone, we don't stop by each others houses for tea. Instead we post about our mundane lives on facebook "I'm potty training, Yonas went pee on the potty three times today! YIPEE!" While at one point I would call a friend and tell her the good news "He's dry all through nap" now I write it for 400 of my closest friends to see. (I don't give a shit about your kid's potty training, by the way, which is why you will never read about mine) Email has even gone by the wayside - it's impossible to keep up with these days, isn't it? We may have had fewer friends in the era of the ring a ling ling, but they probably meant a lot more than all the 'friends' we've got now. But as usual, I'm getting off topic.

While I often lament the loss of really personal communication (I don't count people who only use facebook and twitter to communicate with me as friends, I'm a huge fan of the ability to disseminate ideas (particularly my own) across the globe to lots of people all at once, and the ABA's listing of over 4,000 Blawgs shows I'm not alone. But according to the New York Times, blogs have also gone the way of the radio star, thanks to twitter. Niki Black at Sui Generis, who was here at the genesis of legal blogging, says the face of legal blogging is changing. Apparently, blogging is down 2% amongst people aged 18-33. Now, to folks like me and well, people who don't understand marketing, this 2% decrease means nothing, especially considering the increase in blogging in the other age groups. But Niki has a point that to marketers - advertisers - this is THE age group to watch for trends in things such as this. Scott Greenfield, ever the curmudgeon, takes liberties with Niki's post and claims that blogging is dead, dead, dead. But, what the hell, write something anyway. This seems out of character for Mr. Greenfield, who is usually taking shots at the poor quality of legal blogs out there. But in this post he says:

If you feel strongly enough about something to take the chance of putting your opinions out there for all to see, and suffering the slings and arrows of those who disagree, then you've both accomplished something and deserve the respect of those too gutless or lazy to try it themselves. I may be a bit less sanguine about the prospects of creating a successful blawg, having see way too many arrive and die unseemly deaths, but I certainly respect the effort.

It isn't until we get to the comments that we see what he really means - if the folks at whom blogs are marketed aren't using it for marketing anymore since THE age group doesn't care about it, perhaps we can return to the golden age of blogging when blawgs were written by the lawyers whose names were on them and actually had a point.

Eric Turkewitz disagrees with the New York Times and writes about blogs as primary research research tools for lawyers and says:

It’s now happened to me three times in three months. There I was at John Hochfelder’s New York Injury Cases Blog doing research on damages, before I turned to the usual suspects of Westlaw or the New York Jury Verdict Reporter.

I'm not sure if Turk picks up the phone to call people to get information on damages as well, but that would take an awful long time and he'd have to call an awful lot of folk. And, if lawyers are honest, they'll admit that more often than not they'll turn to blogs for an easy to understand analysis of a case or statute before turning to a law review article or hell, even before reading the case or statute itself. So are blogs dying, dead, on life support? I say, they are as alive and well as ever. And, while the telephone might have killed the handwritten, snail mail letter, twitter has not killed the blog - yet.

Speaking of dead and communication.

In a decision that basically all but over-ruled their decision in Crawford v. Washington, the Supreme Court held that dead men can, indeed talk (but only to police officers, everyone knows they can't actually use a telephone, or blawg.) Gamso lays out the facts and holding quite succinctly:

Here's the very short version of the facts. Police are called to a gas station where Anthony Covington is lying on the ground by his car, a gunshot wound to the abdomen, and seemingly (here's a surprise) "in great pain." Police questioned him for 5-10 minutes. Covington told them that "Rick" shot him. Covington died within an hour or so after EMTs arrived and took him to the hospital. Richard Bryant was arrested, tried, convicted. Covington's statements were admitted at the trial.

In an opinion by Sotomayor (for herself, Roberts, Kennedy, Breyer, and Alito), the Court explains that Covington's statements weren't testimonial because there was this ongoing emergency the police were concerned about and that was the "primary purpose" of the questioning. And that's to be determined by - here's Sotomayor.

In making the primary purpose determination,standard rules of hearsay, designed to identify some statements as reliable, will be relevant. Where no such pri-mary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.

The Confrontation Blog (which is devoted entirely to post-Crawford cases and analysis, wonder what it's gonna write about now) offers some pretty in depth thoughts and analysis on what the decision means for those of us in the trenches:

So one of my concerns is that police officers will quickly learn that they can get statements characterized as non-testimonial if they testify, in effect, “I came up to the scene and didn’t know what was happening. My principal concern was securing the public safety. What this person told me was very important for that purpose.” They will also have an incentive to gather as much information as possible before the situation is fully under control; thus, the decision in this case distorts their incentives in performing their policing function. And once they do control the situation, if they can no longer make a credible contention that they had some primary purpose other than evidence gathering, then they can pass the witness – so I may continue to call the person who makes a statement while understanding its likely future prosecutorial use – on to a social worker, whose "primary purpose," of course, will be therapeutic, notwithstanding the fact that in performing that function she repeatedly learns, and relays to juries, information that turns out to be useful in prosecuting crime.

And, in a blawg I've recently discovered, Preaching to the Choir, the problem with the decision is laid out quite clearly:

The Sixth Amendment guarantees the right to confront an accuser. In this case, the victim's statement that "Rick shot me" was allowed to come in at trial even though the defendant never got to confront that victim. Really, nothing else should matter. The defendant was accused but had no opportunity to confront the accuser. It really should be easy. Boy, did the court blow this one.

Well, Sarah, what about Zombies, huh? I mean, we could confront a zombie, couldn't we? Maybe that's what the Court really meant.


Crap, maybe zombies can use the phone.

If I call you, what shall we talk about?

Well, according to the Supreme Court, we can talk about anything. Really, anything. Because while we may have lost our Sixth Amendment (again) and we have been in a constant steady state of losing our Fourth, the First is alive and well (we don't need any talking zombies for this one but THEY ARE HERE ANYWAY). In Snyder v. Phelps, the Court held the Westboro Baptist Church, otherwise known as the "God hates Fags" church, had every right to spew forth it's rabid hate at military funerals. Initially that just feels wrong, right? I mean, people should not be allowed to say hateful, disgusting things at the funeral of those men and women that have fallen for us. Except that they should be. As the non-word-mincer Marc Randazza said at the Legal Satyricon:

To understand this case, you must unplug your emotional reaction to the speech that brought about the case in the first place. The fact is, nobody likes the Westboro Baptist Church. Or, more to the point, nobody worth a damn does. If you are one of the three people in America who does not know about Westboro, here it is: Westboro is a “church” made up of some lowlives from Kansas. These lowlives believe that there is a magic zombie who lives in space. By the way, the space zombie is Jewish. They think that the space zombie, and his father, who is the same person as the zombie, wrote a book. They also believe that this book says that homosexuals are bad. (mmmkay?).

As if that isn’t nutty enough, they also believe that the United States is too nice to homosexuals, and therefore this magic space zombie jew and his father (who is the same person as the magic space zombie jew) do bad things to America and Americans to punish us all for not killing homosexuals. To demonstrate this belief, the Westboro members go to funerals for soldiers killed in combat, and they hold up signs that say “GOD HATES FAGS” and “THANK GOD FOR DEAD SOLDIERS”.

Naturally, this chaps the ass of the families of the dead soldiers. It chaps my ass too. Were I the benevolent dictator of this country, I might very well have the Westboro followers rounded up, shoved into a wood chipper, and we would all live happily ever after. Of course, once I was done with that, my taste for blood would be unquenchable, and next thing you know, 100 million people would be run through the wood chipper before I got to half the people who piss me off.

This is a hell of a victory for free speech. We live in a political environment where the Right wing wants to limit all speech that criticizes the war and the Left wants to limit all speech that hurts anyone’s feelings. With that backdrop, this decision will make very few people happy. Veterans and Republicans will go all Walter Sobchak about Vietnam and 9/11. The PC crowd and the Democrats will whine into their tofu and lentils as they piss and moan that the First Amendment should not protect speech that makes someone feel bad. Most average Americans will say, “that just doesn’t seem right.”

At Above the Law, Elie Mystal concentrates on Sam Alito's dissent. The title of the post is brilliant: Unless You are a Corporation, Sam Alito Wants You to STFU. Now, in case you didn't know, Alito was the lone dissent in Snyder, he was the lone dissent in Stevens which held that animal crush videos were protected by the First Amendment (hey, whatever floats your boat) but voted in favor of Citizens United, which said that corporations were persons who had, uh, free speech:

I can’t wait until Sam “Not True” Alito writes a book or something explaining why regular people don’t deserve the free speech given to American corporations and sitting Supreme Court justices…

Greenfield, on the other hand, applauds Alito, saying that

And the lone dissenter, Sam Alito, knowing full well that his position would neither change the direction of First Amendment protections nor satisfy the need to fashion a means by which the most disgusting and offensive among us could be shut down without touching the right of anyone else, took the bullet for the Court.

I don't necessarily agree with Mr. G that Alito 'took the bullet' for the Court, particularly in light of his previous rulings, but this ain't my forum for that. This is just for telling. Right? Just the facts, ma'am, just the facts.


They really do just hate everyone.

But if you crank call me I will haul your ass into court.

If you haven't ever made a prank phone call you are lame or you weren't able to use the telephone before the advent of call waiting. See, in the olden days we used to be able to just dial the phone and say stuff, anything to anyone because no one knew who we were or where we were calling from. I mean, there were probably ways for people to find out but we didn't know what they were. There was that *69 thing that came around that would call back the last number that dialed you. Ohhhh, that was so advanced. But otherwise you could call and say things as dumb as "Is your refrigerator running? Well, you'd better go catch it." Or you could have pranks as complex as the ones my husband would do. See, he can do a fabulous radio announcer voice so he would call people up and tell them they'd won a new car from some radio contest. Hilarious. But the great state of Wisconsin wants to criminalize prank phone calls. Why? Because their governor got one and it made him look like a wienie. Johnathan Turley gives us some insight into the law, which mirrors language of the federal law enacted in December of last year making it a crime to cause a caller ID to transmit misleading information. Huffington Post reporter Jason Linkins speaks the truth when he writes:

Aren't there already laws against fraud and harassment and terrifying people in Wisconsin? Because this sort of makes it look like legislators are primarily motivated by the need to make "making Scott Walker look stupid" a criminal offense.

The bill would make it a crime to disguise your voice or give out a fake phone number. Really? I mean, come on. Really? And, in fact, while searching the world wide computer for other blog posts about this topic I came across one that was entitled "Are they" by a fellow named David Breston out of Texas:

really thinking about ‘criminalizing prank phone calls in Wisconsin that may make the current state governor look a little - foolish, inane, gullible, moronic, slow…However, when the party that is in power chooses to - for want of a better term - hijack the legislative process for the purpose of preventing their buddies from ending up with egg on their face - well, I suggest the American public would not be fully in support of this.

Ah, Mr. Breston, I disagree with you. I'm fairly certain a good segment of the American public would love this law, as they love almost any and all laws that criminalize whatever. The problem is the name. Will it be called "Walker's Law" or "Scott's Law"? I'd go with Scott's Law, a bit more personable and folksy, makes it sound like something really nefarious happened to Scott. The public loves that. And, in other news, it turns out that perhaps the prank caller is already guilty of identity theft, at least according to Associate Professor William Jacobson at Cornell Law School who. Thank God, because I was starting to worry that it might just have been a dumb prank phone call.

And in case you didn't think it possible, there are now love songs about the internet. You think I lie?

And I leave you with the words from a man of letters.
Robert Frost: Telephone

When I was just as far as I could walk

From here today,
There was an hour
All still
When leaning with my head again a flower
I heard you talk.
Don't say I didn't, for I heard you say--
You spoke from that flower on the window sill-
Do you remember what it was you said?'

'First tell me what it was you thought you heard.'

'Having found the flower and driven a bee away,
I leaned on my head
And holding by the stalk,
I listened and I thought I caught the word--
What was it? Did you call me by my name?
Or did you say--
Someone said "Come" -- I heard it as I bowed.'

'I may have thought as much, but not aloud.'

'Well, so I came'

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

The Fourth Circuit Revives the Fourth Amendment

2011-03-04T13:36:00.002-05:00

I spend so much time bemoaning the loss of our constitutional rights, in particular the beloved Fourth. It's gotten so bad that these days I feel a bit of the rebel when I quote it verbatim in motions and briefs. In case you haven't seen it in a while, here it is in all it's glory:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

That seems pretty self explanatory, right? I mean, it says that you are not to be subjected to an unreasonable search, and that warrants will only be issued by probable cause. It's unfortunate though, that the founding fathers left us to our own devices in determining what they meant by 'unreasonable' and 'probable cause' since, well, it seems these days just about anything is considered a reasonable search and warrants are issued on whim and caprice and because a cop asked for one. However, this week, the Fourth Circuit, in case called U.S. v. Foster, pushed back and said hey, listen, we give you a ton of leeway in ~~violating people's rights~~ conducting your investigations, but you need to cut it out, Government, and actually have SOME reason to search a person's car.

Ok, let's step back and give you the facts in this case, they are pretty simple and straightforward. Police officer Ragland is having lunch with his wife. He walks back to his car and notices a black male sitting in an SUV. As he continues to walk he sees the black male's mouth move and then another person pops up out of the passenger side and the passenger's arms start moving (going 'haywire' the cop says, although he can't actually see the arms above the elbow). Ragland recognizes the passenger as David Foster, see the cop used to date Mr. Foster's cousin and so they knew each other. Also, Ragland had arrested Mr. Foster on some traffic stuff and knew he'd been arrested for marijuana. Ragland walks by the SUV and says hi to Mr. Foster and asks what they are doing. The response is something innocuous "chilling" or some such phrase. Then, for some reason Detective Ragland goes to his car and calls in to another officer and finds out Mr. Foster is under investigation - for what is not clear. So, cop 2 shows up and Ragland and cop 2 block the SUV and search it. Inside they find cocaine, scales, and all sorts of other bad stuff that people are not allowed to have.

We've gotten so used to shit like this going on that it frequently doesn't phase us. We file the suppression motions and judges hardly ever rule in favor of a fourth amendment violation - there are always exceptions and reasons why the ends actually justify the means. We used to call it 'the very bad man rule'. If there is a way to keep contraband in, despite a seemingly obvious constitutional violation, they will. And, this case was no different. Despite the fact that all Ragland saw were two black males sitting in an SUV, the court determined this was enough to stop and search the car.

Let me back up for the uninitiated amongst us. The law permits an officer to make what's called an 'investigative stop' only if supported by a 'reasonable, articulable suspicion that the person seized is engaged in criminal activity' This means that the police officer has to actually point to things that are suspicious in order to stop someone. Like, they have to be able to formulate a cohesive thought and say why, not just 'well, I think it seemed kinda off" In this case, the officer said that he saw the driver's mouth move, then the passenger popped up and his arms were moving. And then they blocked them in and searched the car. The Appellate Court said no way, jose. No. Way. They chastise the government:

We also note our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity. We recognize that we must look to the totality of the circumstances when evaluating the reasonableness of a stop. Arvizu, 534 U.S. at 273. However, an officer and the Government must do more than simply label a behavior as "suspicious" to make it so.

At long last, they are saying just using the word 'suspicious' isn't enough. Because that's what happens. They say the movements were 'furtive' and they were looking 'suspicious' and VOILA, you get the big ok to search. The Court goes on to state:

Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception. Although these matters generally only come before this Court where a police seizure uncovers some wrongdoing, we would be remiss if we did not acknowledge that the exclusionary rule is our sole means of ensuring that police refrain from engaging in the unwarranted harassment or unlawful seizure of anyone—whether he or she is one of the most affluent or most vulnerable members of our community. See Terry, 392 U.S. at 12-13 ("Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions."). We appreciate that police are often called upon to make very difficult decisions about when to conduct Terry stops, and, for that reason, we give them leeway to make these determinations. Nonetheless, the Government cannot rely upon post hoc rationalizations to validate those seizures that happen to turn up contraband. See United States v. Martinez- Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose of the Fourth Amendment is to "prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure")

This is strong language from a Circuit that isn't know to be the friendliest to defendant's, nor the most lenient when it comes to issues such as these, but it may seem that for now, there are signs of life for the Fourth Amendment. Let's hope it can stay with us for a good while longer.

Writer's Block

2011-03-01T14:22:00.001-05:00

I haven't written in several days because I have writer's block. It's something I've never experienced before, something I always thought was just a wall you could push through. I'd heard about 'creative juices drying up' and 'needing to find the inspiration' but seeing the vast amount of injustice around me and a seemingly never-ending supply of cuss words, well, I was doing just fine.

Until a few weeks ago. Suddenly the will to write vanished. I've started many posts, on immigration, post-conviction remedies, recent awful decisions, etc. I sit down at the laptop and write a few lines, maybe even a few paragraphs and then I hit delete. It doesn't sound right, it sounds contrived and stilted. Recently, I bought the domain www.notguiltynoway.com in hopes that maybe a change of scenery would bring back the will to write. I had dinner with my college English professor. She suggested I lay off twitter (which I have) and read more (I've started doing that too). Again, all to no avail, yet.

Here's the problem - well, it's a many faceted issue. First, most of what I've said has been said before. A comment on a prior post summed up my posts quite well - rant and rave at the system and then collapse into a heap from exhaustion after that bout of wailing. And, it's not just that I've said it, it's that everyone else has too. Look, a really important case came down in the Supreme Court yesterday, but by today, it's old news. Ten thousand people have written about it, and most can do a much better job of summarizing the case and making it accessible to the readers. So, why rehash it? If I were to, here's what I'd say: Michigan v. Bryant is a shitty, shitty decision. If you want to know more, read Rants of a Public Defender, Gamso for the Defense, and Simple Justice. See, you don't need Not Guilty to tell you about that decision when many others have already done it for you.

Second, I'm busy. I'm trying to grow a business, not completely neglect my family and also try to do some decent legal work at the same time. Don't get me wrong, blogging is important to me. But at the end of the day I have to decide if I'm going to devote some time to my family, play words with friends, or try to come up with strings of words that hang together in some cohesive fashion - well, guess which one loses. The idea of having to write causes a level of panic. Not full fledged crap your pants before trial panic, but a low level "God, I really should, but what will I say?" and when I fail to come up with anything I just get another bowl of ice cream and start a new game of words with friends.

Another huge issue is that the topics I want to write about all come from real life situations, current or recent clients. After all, truth is frequently more intriguing than fiction, at least in our line of work. But clearly that's not something I can do. So I go through the day thinking "I should write about this, how would I do that and not divulge a client confidence?" and the jumps, twists and turns I'd have to make to do that are exhausting, and there goes another day with no post.

Finally, and most honestly, I don't know how much of myself I want to continue to expose to all of you. If you scroll through the blog, you'll see that most is personal opinion, the rants and the vents. The rest is personal, my quest to have kids and my move from New York to Maryland to Virginia. Staying home then being back at work. All of it opens me up to you and I don't know how many of you I can trust anymore. It was, as I've said a million times before, much easier when I had four readers. Now with about a thousand times that many I've lost a little control over where the content of this blog goes, and I can't even fool myself into thinking I've got control over how people interpret what I write.

So, there you have it, dear readers. Wah wah wah. I've got writer's block and you know why. I'm going to keep plugging away and trying to write something of substance, but I make no promises.

Legalize it?

2011-02-20T10:25:00.001-05:00

Last week I posted quickly on terrifying statistics in Baltimore City. That day, I got an email from Scott Greenfield containing an excerpt of a speech to the Cato Institute by John McWhorter, who is currently a lecturer at Columbia University and an Associate Professor of Linguistics at Berkeley. Mr. McWhorter has an undergraduate degree in French and a graduate degree in linguistics. But, why limit yourself to what you know? Professor McWhorter is also a political commentator who has written a fairly controversial book that says blacks have a culture of playing the victim and that the problems in black America (particularly as it relates to education) are the fault of blacks themselves.

I'm not black. And I haven't read McWhorter's book. But in the Washington Post article McWhorter says he wrote the book because he didn't feel the racism that others were feeling so he wrote this based on his living in a middle-class suburb of Philly going to private schools perspective. Oh, huh. Interesting. I also felt no racism growing up. I suppose I could say it didn't exist since I didn't experience it. And, I imagine if I wrote an entire book saying Muslim women are to blame for their own discrimination it might be a best seller and I could get on the talk show circuit. But, as usual, dear reader, I digress. This isn't an indictment of Mr. McWhorter, simply because at this point I don't know enough about him.

In case you don't want to click on the Cato link and read it yourself, the good Professor of Linguistics says now that the blame for the destruction of black America is the War on Drugs. Professor McWhorter says that legalizing drugs (and making them free, given in maintenance doses) would insure that black Americans didn't sell drugs or end up in jail or drop out of school. He makes broad statements and generalizations that are not backed by any statistics or actual, plausible theories and scenarios, he just says it. If we got rid of the war on drugs black men would go back to school. If we got rid of the war on drugs then black men would be united with their families.

I don't disagree that the war on drugs is a fucking waste of time and energy. I used to have the Drug Clock on my blog, a countdown (up?) of the number of actual dollars and actual people that are wasted on this 'war', but it's naive to think that legalizing drugs will make it all better. And, are you really going to legalize meth - really? Are you going to give it away for free, insuring that a segment of our population never functions, never contributes? I'm not sure that the folks arguing to legalize drugs think it through all the way, or perhaps they don't see first hand what ingesting things like PCP and heroin do to people. (These drugs are not like marijuana.) And the comparison to alcohol is weak, at best. While you can have a drink and not be drunk, you are not going to smoke crack and not get high.

And, while the argument for or against legalizing drugs is one that we will continue to have for years to come, to say that ending the war on drugs would solve all of black America's problems is just as disingenuous as saying that there is no racism in America.

Terrifying statistics

2011-02-16T16:29:00.000-05:00

I have been trying to form a blog post around this fact:

In the midst of a fiscal crisis, Maryland, like so many other states, simply can’t afford to spend such an obscene amount of money on corrections when viable alternatives exist. Maryland’s incarceration rate has tripled since 1980, disproportionately affecting communities of color. In Baltimore alone, more than half of African American men between the ages of 20 and 30 are under the control of the corrections system – most serving lengthy sentences for nonviolent offenses. Even after eventual release, the dark shadow cast by a criminal record leaves a large segment of Maryland’s population facing significant barriers to employment.

I wonder what I could say that would drive it home that this absolutely cannot be what our criminal justice system intended - this cannot be the outcome that legislators wanted when they dreamed up things like parole. Just writing it should do the trick, right? You should get it, that this is a bad thing. But the public is divided into two camps, those that are horrified (my choir) by this statistic and those that will think (and say to their spouse) things like "well, if black people didn't commit all those crimes they wouldn't be in jail"

I know there is a lot more to say, about justice and race and poverty and expectations. But there isn't time right now. There are too many wrongs to bring to light.

Blogging and Women. Wikipedia is just stupid.

2011-02-09T15:39:00.001-05:00

At Crime & Federalism, Mike Cernovich doesn't write too much about crime or about federalism. These days its about women blaming men for bad stuff that happens, recipes to develop more manliness, and alpha males man-handling their women and killing their own food. Okay, not really, but that's my take-away. Maybe I read between the lines, maybe it's because I don't see myself in the posts he writes, but I am not ever (hardly) offended, and frequently, like today, I'm amused. Yes, C&F makes me lol and while I think occasionally his logic is loose, I don't disagree with lot of what he says about religion, about women, and about American society in general.

Yesterday, Mike wrote about women not writing entries for Wikipedia. Now, the basic premise of that post was that women read People magazine and care more about celebrity gossip than facts and information and that is why we don't write for Wikipedia. (I say I don't write for Wikipedia because it's stupid, but that's a different post) He says that women don't blog because we are busy blaming men for things like our inability to blog. Here is a post where I am amused, I don't terribly disagree, but it's not the tightest argument ever. It's ok, I still liked the post and at the end of the day, for me, that's how I decide what to read.

OK, so then Carolyn Elefant wrote a response to this post wherein she says she reads Oprah when she's done with her day because it is an escape (and then she says it's good, but I don't believe that). She also said Mike is sexist. Carolyn writes that the reason why there aren't more women bloggers is because women bear the brunt of housework and child rearing so when deciding what to do and when, blogging takes a backseat (I'm not even going to touch the Wikipedia angle because, like I said, Wikipedia is stupid). I think Carolyn makes a good point as well. It's not the life I live since my husband is a true partner in every aspect. He knows I'm growing a business and that takes time and effort so he picks up a lot of the slack. However, he works ridiculous hours and I'm beholden to his schedule. I've had to cancel late evening or early morning appointments because he hasn't been able to get the kids, but hey, it's life and we manage to make it work.

Look, I'm not going to lie, this having kids and being a full time solo practice go-to-court and represent clients lawyer thing is hard. It takes a lot out of all parties involved and it's a lot of ducking and weaving and bobbing sometimes to get through the day. I meet clients after the kids go to bed. I work on Sundays. I make most meals (because I am a much better cook) but I don't do laundry (I take mine to the fluff and fold, it's my one indulgence). I choose to blog with a little less frequency since I've had to make choices on how I spend the little time I've got left in a day.

I have a friend, she works at a pretty high profile software company. Her son is the same age as mine. She is a single mom. When I talk to her I try not to complain. She does ALL OF IT by herself every single day. And she has since her son was born. And she thrives and is promoted and does what she needs to do to make sure she gets it done and thrives and is promoted. When school is closed and she has to present at the company international sales meeting she figures this shit out and gets her son where he needs to be and then presents at the sales meeting without a hair out of place. I'm not sure she thinks "gee, this isn't fair" I'm not sure she thinks anything other than "I love my job, I love my son, I'm going to make this work."

I don't think Mike is sexist. I don't think Carolyn is an idiot for reading Oprah (I mean, Oprah though, really?) But then again, the new feminist agenda is not something I've spent a lot of time thinking about in the recent years because I've been trying to run a law firm, have kids, raise kids, then run a law firm. Which, I thought, is what our feminist forerunners were trying to make sure we would get to do.

When I am an old woman I shall wear purple.

2011-02-04T12:32:00.000-05:00

This is one of my favorite poems:

When I am an old woman, I shall wear purple

with a red hat that doesn't go, and doesn't suit me.

And I shall spend my pension on brandy and summer gloves

and satin candles, and say we've no money for butter.

I shall sit down on the pavement when I am tired

and gobble up samples in shops and press alarm bells

and run my stick along the public railings

and make up for the sobriety of my youth.

I shall go out in my slippers in the rain

and pick the flowers in other people's gardens

and learn to spit.

You can wear terrible shirts and grow more fat

and eat three pounds of sausages at a go

or only bread and pickles for a week

and hoard pens and pencils and beer nuts and things in boxes.

But now we must have clothes that keep us dry

and pay our rent and not swear in the street

and set a good example for the children.

We must have friends to dinner and read the papers.

But maybe I ought to practice a little now?

So people who know me are not too shocked and surprised

When suddenly I am old, and start to wear purple.

Jenny Jones - When I Am An Old Woman I Shall Wear Purple

Here's the truth. I am sick of articles about what jewelry I should wear in court, what color my nail polish should be, or if I should wear peep toes (how MUCH toe cleavage exactly?) It's completely and utterly fucked up that we, women, can spend such an inordinate amount of time discussing such trivial and irrelevant matters. We size each other up in ways that men never do.

When that stupid ABA 100 thing came out, there were articles written about how it was so unfair to women, how women were under-represented and it was all a bunch of phony baloney. When this dumb little blog won, not a single one of those women (yes, they were women writing these things) commented, despite the fact that I was the only female to be nominated in the criminal justice category and the only one to win. I'm certain, though, that if I wore a too short skirt and too much makeup they'd be all over that. And I'm tired of it.

Look, if you see a woman wearing magenta tights and leopard print shoes in court you may roll your eyes and think "what the fuck" and if she is dropping papers and you can't tell who she represents then, well, maybe the outfit is truly representative of who she is, but how often does that happen? If it does, you do your sister a service by telling her she looks ridiculous and that she needs to get her shit together. Why snicker behind her back?

Please, ladies of the law. Write about where you are, how you do it, what you love and hate. Write about events in the world or the latest terrible decision or write angst filled posts about how you really want to go to the gym but have motions due or you want to have kids but don't know how it fits with your current life goals. But please, for the love of fucking GOD - leave my shoes out of it.

A win for the good guys, for now.

2011-02-04T12:01:00.000-05:00

A few weeks ago I wrote about the Supreme Court of Virginia removing a defendant's right to challenge their conviction via the writ of error coram vobis. The case involved two separate petitioners, both challenging their convictions based on ineffective assistance of counsel/Padilla. My friend Rob Roberston had a case pending in a lower court in Virginia and thought for sure relief would be denied. He was shocked and awed when the Judge refused to restrict the right to present a legitimate challenge to a Constitutional violation. That decision came out on Tuesday. Yesterday, another judge in another county did, in fact, deny relief based on the Virginia supreme court ruling. I say keep on fighting until we can't fight them anymore. Here is the decision in Rob's case.

FYI

2011-02-04T11:47:00.001-05:00

I'm hopeful that my friend Matt Kaiser is wrong, that I've not mythologized criminal defense and it's place in the legal profession. I hope that people who are thinking of becoming criminal defense lawyers aren't doing it because they think we walk around with wings of angels or carry cool, wet cloths to wipe weary brows as we pass through cell blocks. My wish is that people who are reading this know that it is really fucking hard work and a lot of the people we meet along the way haven't been friendly or neighborly and have committed, perhaps, some dastardly deeds. A lot of it is menial, as a friend in a foreign land says "scan, stamp, print, send" and a lot of it involves hours in cars, or trying to get into jails or just, you know, work type stuff.

With all of that said and out of the way, I still maintain that it's the coolest job around.

A wing and a prayer

2011-01-31T15:59:00.000-05:00

When we were struggling to have kids, I never thought maybe God didn't want me to have kids. Maybe I wasn't meant to be a parent. While I had faith (small 'f' even then) and believed in kismet, I knew that God gave humans the ability to overcome seemingly insurmountable odds, so I pushed forward without a second thought. I wore a pin that was given to me by a friend going through a similar struggle, a guardian angel that I'd pin in a discreet location when I would go for a treatment. While I had faith, I also knew that if it didn't work because man's science just couldn't get it together for me, I'd done everything I could. Including wearing a pin. I'm writing this post because I found that pin this morning. It was at the bottom of a bag I'd probably used the last time I'd gone to Shady Grove Fertility. It made me smile to think back on the hardships of those years and how far we've come. And, it prompted this post.

Well, to be honest, I've been mulling over this post for a few days. Ever since Mike at Crime & Federalism wrote about raring for fights and Fight Club (one of my favorite books). I told him that sometimes it's hard to find a good fight, and even the fight with yourself just doesn't seem worthwhile. Mike wrote another post about running up a steep hill. Well, it's more than that. But you should go and read it for yourself because the premise is that a fight with yourself is always worthwhile. It is what muslims call the greater jihad. It's the one within yourself, the one with temptations of the world and what you know is good for you versus what you want despite how it might affect your humanity - KFC versus a home cooked piece of chicken from the farmer's market, or smoking that cigarette vs. going for a run, or being faithful to your wife instead of fucking your 24 year old secretary. You get it, right?

So Mike writes the posts and I think about them. That's what good writing does to you, it is supposed to make you think, and not just think "wow, what a good piece of writing" but the written word actually makes an impact on your brain and maybe on your actions in the future. (By the way, I've been called a misogynist for being a fan of Crime & Federalism. It very well could be true, I suppose) But while the post stirred up a lot of deep and provocative thoughts, I've found that it's just those thoughts that are hardest to pin down and put into writing. Even now, while I write this, I'm not quite sure where I'm going with it, but I ask that you, dear reader, bear with me for just a wee bit longer.

Last year I couldn't find a job. I sent out resumes to places I thought I'd be well suited for, and others that sounded pretty dreadful but I needed to get out of the house and bring home a little kosher bacon. I had some interviews but most resumes just went out into the ether. So, in May of last year I rented this little office and got a sign for the door. It's not time for a retrospective, but, like I said, Mike's posts and that pin just got me to thinking about Faith with a capital F and internal struggles and will. And when I say Faith I mean Faith in myself and taking leaps and plunges and not being afraid of risk. I mean Faith that I might jump and it might be cold or someone might not be around to catch me. I mean Faith that if I put one foot in front of the other eventually I'll walk, maybe not in a straight line but even zigzagging I'll get around where I need to be.

In 2008 when my boys were 14 months old I ran a marathon. Honestly, 'run' might be an exaggeration, but I completed it. While I was training all I kept thinking is "I was on bedrest for 16 weeks, I had twins, this is nothing." Now, when I think of trying to make it, to build a business and do right by clients at the same time I think "I couldn't have kids and I did, I can do this."

So yeah, that's it. Today I signed a lease on a bigger office in my same little office building. It's not much bigger and it's not much more expensive, but I'm outgrowing my current teeny office. I'll bring my little coffee pot upstairs with me and while I'm not so sure what the next year - fuck it, I don't know what the next week will bring, I'm going to keep on keeping on. Because Mike is right, the fight with yourself is always worthwhile.

Stephen Fry Kinetic Typography - Language

2011-01-17T00:18:00.001-05:00

I admit my writing is frequently sloppy. I'm not as careful as I could or should be. However, I'm hoping that when I actually care about what I say, that comes across. There are some people who write and you can taste their words - sour or sweet, feel how silky smooth or jagged they are. The phrases sit in your stomach waiting to be digested. And others write well. They write words and the grammar is picture perfect but ho hum, who cares. So, I love this. I love the imagery, it's wild and whirly. But I love what Stephen Fry has to say about language and its sensuous nature. I am, perhaps, a bit biased since Mr. Fry also talks about the Joys of Swearing.

I don't matter (not yet, not yet.) Do you?

2011-01-16T23:52:00.002-05:00

There are a thousand people who will write about Dr. King today. They will relay his words, probably repeat them verbatim because his words don't need much in the way of explanation or analysis. The revisionists will write that he was nothing more than a pretty face and a fancy orator. And really, even if that's true, well, what more does a movement need from a leader other than to give it the will and strength to go forth into battle? There are a thousand people who will weave words and phrases about MLK that will make your spirits soar, your eyes well, or your heart break. And probably, most likely, none of those people matter. I don't matter.

Dr. King was younger than me when he was killed.

He mattered.

Let me tell you a secret. I am afraid. No. Let me correct that. I am AFRAID. When I sit at counsel's table with a human being sitting next to me, a human being (who is not my child) for whom I am responsible, I am afraid. Let me tell you another secret. When I first started this criminal defense thing, I was so AFRAID, I didn't think I could do it. I felt paralyzed sometimes - sick to my stomach and sweaty palms. My heart would race and my ears would ring.

So, I did what any good lawyer would do. I researched. And my research on fear led me to books (there was no Wikipedia at the time) of first hand accounts of the civil rights movement like "My Soul is Rested" by Howell Raines and Eyes on the Prize. I read accounts of folks who aren't household names but who staged sit-ins and who took to the streets for this cause bigger than themselves.

And as I read and read I learned this: Fear is not a problem. It is normal, it is natural, but it should not paralyze you into doing nothing. Fear, as it makes your heart pound and your ears ring, should make you move faster. You pick - fight or flight? Fear should be the fuel for your fights. That trembling anxiety is nothing more than energy that you should use in your favor to propel you forward.

When you fight you know there will be blows that land in tender spots and you will be achy and bruised even if you are ultimately victorious. That hose the police turned on you hurts like a motherfucker and that dog is trained to bite. And yet the people in Montgomery and Atlanta and Norfolk and Baltimore stood there and they took those hoses and those dog bites. And they got up and did it again. Over and over and over. Despite being mistreated, beaten and arrested. They fought through the fear and the pain. Through the sweaty palms and sour stomach. Nelson Mandela said "courage is not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear." ( Now, which one of you is going to call Nelson Mandela a wuss?) They fought through the nay-sayers and the powers- that -be that told them to just wait, be patient, in due course, justice will be yours.

In his "Letter from Birmingham Jail", Dr. King wrote how he was originally dismayed at the idea of being thought an extremist, but then found he was in good company:

Was not Jesus an extremist for love. . . Was not Amos an extremist for justice: "Let justice roll down like waters and righteousness like an ever-flowing stream." . . . Was not Martin Luther an extremist: "Here I stand; I cannot do otherwise, so help me God." And John Bunyan: "I will stay in jail to the end of my days before I make a butchery of my conscience." And Abraham Lincoln: "This nation cannot survive half slave and half free." And Thomas Jefferson: "We hold these truths to be self-evident, that all men are created equal ..." So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? Perhaps the South, the nation and the world are in dire need of creative extremists.

It's been years since I've taken to the streets for a cause. I can't even remember what it was for. And, it is only recently that I've found the fortitude to speak up (in my mousy little voice) against the injustices that we face on a daily basis. We write blogs and decry the awesome power of the state but without a unified force we are nothing more than armies of one. I sit in my little office in Takoma Park while another sits in his office in Connecticut, or California, or Ohio. All of us sing the same song but we are certainly not a choir, more like a cacaphony, with no voice or sound distinct enough to stand out and rise above the rest. There is no pretty faced, charismatic leader to give us courage in our fight. There is no one to compare to Jesus or Thomas Jefferson. There is just me. And you.

And I don't matter.

Do you?

And the hits keep coming

2011-01-14T11:55:00.000-05:00

I'm having fits today. How do we let this happen? Are your streets safer because the D.A. and his cohorts have convinced themselves that they've got the right guy even when it's clear that they don't?

Virginia is for Virginians. The rest of you be damned.

2011-01-14T11:06:00.000-05:00

Yesterday, the Virginia Supreme Court nullified the Supreme Court's holding in Padilla v. Kentucky. Basically, what happened is this, in Virginia there is a two year time limit on filing writs of habeas corpus. Since most individuals who have immigration consequences of their criminal convictions find out about these consequences long after the two year time frame, attorneys have been filing what's called writs of coram vobis arguing ineffective assistance of counsel based on this so called Padilla violation. The Virginia court ruled yesterday that the coram vobis is not the appropriate vehicle for an ineffective assistance of counsel claim. The Commonwealth's attorney says he's thrilled to pieces because these cases will go before the federal immigration courts 'where they belong'.

This is a head scratcher for me. I don't have any idea what relief a person wronged by their counsel could seek in federal immigration court since that court has no jurisdiction over the criminal matter. What I think Virginia court are saying saying is this: "Too fucking bad. Go back to where you came from." I could be wrong, but I don't think so. If there is no post-conviction relief available after two years, there is no post-conviction relief available at all. If Virginia courts aren't saying "Too fucking bad, go back to where you came from" then their prosecutors certainly are. These are prosecutors who file writs against judges and who appeal 1 day reductions in sentences (remember, there's a big difference between 365 and 364 days) just to make sure that people get deported. One wonders why it matters so much, they got their conviction, they got their sentence (albeit a 1 day reduction). It matters because they don't want them here. Go back to where you fucking came from.

Dear reader, I am so pissed right now I can barely see straight. Here is the link to the decision. Ask yourself this question: Can this really be a legitimate consequence of a guilty plea to a misdemeanor assault? Can this be the intended consequence of a plea to larceny? Can it be the intended consequence that people will serve their debt to society in the criminal context and then be ripped away from their entire lives? Clearly, in Virginia, the answer is yes.

If there is a prosecutor in Virginia who reads this, maybe one of those that is thrilled that they won't have to deal with this anymore, let me ask you this - do you realize the harm you do to people? When you get up in the morning and think that you are saving the world, do you ever stop and think that today, you will destroy someone's life who might not really deserve it? What could possibly drive you to appeal a four day reduction in sentence so that someone who has turned their life around, become a pastor, a father, and a productive member of our social fabric can be kicked out of the country. I'm going to ask you what people ask us criminal defense lawyers all the time, how do you sleep at night? And then you wonder why we get a small thrill when one of your kind has to face your own music.

What’ve you done in the past thirty years?

2011-01-08T14:52:00.007-05:00

In 1979 a woman and her male companion drove into a liquor store parking lot to use the phone and buy cigarettes. They might have been listening to Sister Sledge or Floyd on the radio, depending on their taste. Maybe they had put in an 8-track of the BeeGees, hanging on to disco with all their might. When the couple came out of the store, two black men forced them back into their car and ordered them to drive. The two men pushed the male companion out of the car and raped the woman at gunpoint. They debated killing her, but instead took her driver's license and rabbit fur coat and let her go. She was found unconscious on the side of the road.

Lucky for us, those men were positively identified by the young, traumatized victim. She picked them out of a photo array. Her male companion could not. Both of the men were convicted at trial. Cornelius Dupree was sentenced to 75 years in prison for the robbery. He was never tried on the rape. It is, indeed, a gruesome crime. Our streets are, no doubt, safer when people who commit these violent acts are contained and controlled. Certainly not even the most strident among us would argue that when there is a clean arrest and trial, the perpetrator of such an atrocity should roam free on the street.

There is just one thing.

The person who committed this crime was not Cornelius Dupree. Mr. Dupree wasn't 'not guilty'. He was actually innocent.

He was twenty years old when he was convicted of a crime he didn't commit. He served thirty years in prison.

This isn't a John Grisham novel. This is real life. Someone's real body and soul was locked up in a cage for thirty years for something he didn't do. That he knew he didn't do. In order to be released Mr. Dupree had to register as a sex offender and attend classes for sex offenders. In order to be released he had to recognize what he'd done (nothing) and repent for what he'd done (nothing).

Now I could rail at the injustice of it, but that's more of the same from me, isn't it? I could ask when will we hear the outrage, where is the revolution, but I know it's not coming. So, instead, let's try a little exercise so that we might better understand what thirty years in prison means.

I would like for you, dear reader, to go get a piece of paper and a pen. Put it next to your computer. Now, go back to when you were twenty years old. I'm not asking you to imagine yourself as a twenty-year old Cornelius Dupree, free and easy until you're arrested and your life is stolen from you. I'm not going to ask you to do that because Rick Horowitz is right, you can't. No. I'm asking you to imagine yourself at twenty. You see yourself? OK, what are you wearing? I'll go first: I am wearing a black tank top, some type of ridiculous skirt, black fishnets and combat boots. I've probably got a cigarette in one hand and a philosophy text in another. In my mind's eye I am in front of the Humanities Building at Union College with my friends David, Zaibi, Amy, Sally and maybe Larry is there too. Where are you? Write it down.

Now, let's fast forward five years since sometimes the years themselves blur together when you're busy living, right? So, twenty-five. Do you see yourself? What are you doing? Who are your friends? Write it down. I'm in law school, second year. We had a smoking lounge so I still hadn't given that up. Larry is there too, and so is Sally. David is in New York, Amy is in New Hampshire, and Zaibi married an Imam.

Let's go five more years to thirty, you know the drill by now – stop, close your eyes and picture your thirty-year old self. (I know, you young ones can't do this, so go back to birth and start from there). Write it down. I went on my first date with my husband. I bought an Audi. David came to my wedding. Sally and Amy are gone. Larry comes and goes.

At thirty five I was trying desperately to get pregnant and finally did. I had twin boys after months on bedrest. I gave up my position as partner in my little law firm in order to stay home. I moved. Larry lives near me. I've lost touch with the others.

That's fifteen years. Half of what Mr. Dupree served.

What do you think his list looks like? Compare your list to his. Is 'unjust' a sufficient word? Cornelius Dupree is as guilty of committing that crime in 1979 as you and I are.

Is his list okay with you? I mean, do you think that because, generally, the system 'works' it's okay that some people like Cornelius Dupree will have a list that just lists "prison" for thirty years? Are there individuals who need to be sacrificial lambs so the rest of us can stay safe. That is, unless we are the ones heading to slaughter. Let me ask this - are you willing to sacrifice yourself for that belief? Would you be okay with spending your life in prison for a crime you didn't commit in order to make sure that other people who are actually guilty get convicted? Would you give up your son or brother for this 'convict at all costs' cause? If you would, then your position is airtight and I will not argue with you (because you are clearly off your fucking rocker). But if you wouldn't consent to being victimized by the state, then how on earth is it okay for Cornelius Dupree?

Mr. Dupree gave a brief interview on CNN. In it he says "this could have happened to anyone. I'm just unfortunate that it happened to me." I do hope, my friends, that we all remain fortunate and continue to walk between the raindrops.

Rainy days and mondays always get me down. But then I won that award. A post in two parts.

2011-01-04T11:33:00.001-05:00

Yesterday was my first day back at the office. I'd been home Thursday because one of the Y's was sick. My best friend from law school flew into town on Friday and I didn't come into the office at all over the weekend, which is unusual since I like to come in on Sundays and figure out what stuff I'm going to procrastinate, er, complete, for the week. But, being a holiday week and seeing as how the boss was in a decent mood I just decided to relax, read a book (not even the sentencing guidelines) on my brand new Kindle and relax.

PART ONE - THE MONDAY PART WHERE IT STARTS OUT SHITTY AND GETS BETTER

Monday, I had the day planned out. Work on a few Padilla based post-convictions motions and then go out to the jail to see some folks. I've got my first federal sentencing on Thursday but the memo is done. I wrote another memo based on a dirty trash search (pun intended) last week while I was at home so that was done. I have a hearing in State court on Friday, but it's relatively small so I wasn't too concerned about that either. The big news for this week was a hearing in federal court on an immigration case for a temporary restraining order filed a few days before Christmas. Let me give you some background, bear with me for a paragraph or two that's got some legal shit in it, ok?

The Department of Homeland Security used to be called Immigration and Naturalization Services (INS).DHS has three branches but the one we focus on today is called Immigration and Customs Enforcement (ICE). They are the investigative and the police officers for DHS. With me so far? So, ICE has offices called Detention and Removal Offices (DRO). They are in charge of removing (not deporting, right?) people from the United States of America. They even have their own planes so they can be super efficient. Pretty cool, huh? Anyway, there are generally two ways people get removed from the U.S. (please be advised this is really a cursory review of this for funsies.) One way is through an immigration judge in immigration court. If this happens your client gets a Notice to Appear and they get to file papers and see a judge and then appeal to the Board of Immigration Appeals and you know, it's more or less normal and you have some time to work things out. Or, at least you have a judge that you can ask for things. The other way is administratively via ICE and their DRO - this is called expedited removal because it is, um, expedited. This is what happens to clients who are convicted of aggravated felonies. THEY ARE REMOVED EXPEDITIOUSLY. They don't see a judge, the Immigration courts don't even have jurisdiction. A client can make it harder on ICE by not signing a removal order and getting some due process, but a lot of people don't know better and they sign them. And when they do, it's almost impossible to do anything about it. Except go to Federal Court and file a TRO (or a habeas, but really only in limited circumstances).

We now know that part of our obligation as criminal defense lawyers is to inform our clients of immigration consequences. We also know that lots of lawyers have neglected this part of their job. Many clients plead to aggravated felonies which put them in expedited removal. The current regime has stepped up enforcement because they want to increase the number of removals and expedited removal is obviously an incredibly efficient way of doing this. So, they round up folks who have ag fels, send them to a detention facility, have them sign admin removal orders, and give them a one way ticket to a warm and sunny climate (usually) courtesy of the taxpayers of America.

Come on, Mirriam. What the fuck does this have to do with yesterday? Aren't you going to write about how you won the ABA Blawg 100? Isn't that what this post should be about. That's big news. Come on, gush, you know you want to.

You'd think, right? But no.

I got to the office at 6:15 a.m. yesterday. At 7:30 I got a call that my client was on his way out of town. Like, a long, long, long way out of town. This was the client for whom we'd filed the TRO. We had a hearing. Everyone had been served. How could they move him? But, the truth is, they could. If they wanted to. Which, clearly they did. I'm sure there are lots of you who are thinking "well, the guy was an aggravated felon since he was in expedited removal, who cares if he gets deported?" You are the same folks who don't think that people accused of crimes should get representation so really, there's no hope for you. The fact is that the Supreme Court said we have some rights and well, if they are violated really what you've done has nothing to do with anything. That's how it works, if it works properly. Let's move on.

I was ready to do a ton of other work that was desperately needing attention. But this call knocked me off my feet because it was completely unexpected. I was angry, I was sad, I was thinking "why am I doing this? Maybe I should do worker's comp or cruise law." Instead of changing my website to indicate that I was now an expert in some other area of law, I ran around some, made phone calls, and talked to some reasonable people that work for the government (shocking, I know, but they do exist). Oh, and I won that Blawg award. I emailed Terry Kindlon asking him to tell me to suck it up, that sometimes our clients get crushed despite our best efforts. He told me exactly that, but then said it was ok to feel like complete shit when it does happen. Blah blah blah, ABA award. At 4:30 pm we got a message from ICE that said "your client won't be removed today because of the TRO, but he came damned close". At 7:30 pm the client's family called and said he was literally on the plane and they pulled him off of it because of that TRO. He is back in Virginia. I can visit him tomorrow. He will be in cold, gray VA and not on a tropical island. His family can go say hello. I did a dance, I high fived Rob Robertson because in the world of criminal defense and immigration, this is a win. Then I sat down to write those post-convictions. Today I am going to the jail to see those folks who were neglected yesterday. We live to fight another day.

PART TWO - THE PART ABOUT THAT AWARD

I had lots of folks congratulate me on the ABA Blawg 100 thing. I don't want to appear ungrateful. But to be honest, there are lots of other blogs that are much better than mine. My blog is simple, and thus far it's doing exactly what I intend it to do. I don't want to preach to the choir, I don't want to tell you how to make your law office better, faster. I'm not necessarily going to tell you when to make hearsay objections (but when in doubt, do - always preserve your record) and I don't scour the headlines to come up with the hottest topic of the day. The purpose behind Not Guilty No Way is and always has been well, just to have a place to go to write about stuff that I think is important. It's not important to everyone. Some days friends will complain about how legally intense the posts are, other time folks tell me that while the blog is amusing, it's heavy on the fluff and light on the law. I think all of those criticisms are fair and I think about them each time I start a post. At the end of the day though, this blog is me and will hopefully just continue to be.

I do have a New Year's goal though, and that's to have two blog posts a week. I can't promise much more than that since my main objective is to grow my practice and well, to help grow my kids as well. And, I can't promise that the posts will always be just fun to read, or will give you the latest practice pointers. But I can promise that whatever I write I'll mean. I hope that's good enough.

If you are not a U.S. Citizen, the ABA might be able to save you. (not really)

2010-12-30T13:45:00.005-05:00

Scott Greenfield wrote yesterday of the ABA's forward thinking task force devoted to determining something something something about Padilla v. Kentucky with respect to criminal defense lawyers. The task force will be headed by a professor, so we have no need to worry that he will be spending valuable client time on this issue. To be honest, while I've read the ABA article a few times, I cannot fathom what this task force will do. Will it determine if defense attorneys are giving out accurate information? They can ask the few criminal defense attorneys who have some experience in immigration law and we can tell them right away that despite the plethora of information that is out there, the answer is no. Will it determine if it's made more work for criminal defense attorneys who would otherwise believe that their only job is to plead clients without telling them what's at stake? Well, that one is easy too - yes. For lawyers who weren't telling their clients that a criminal conviction had consequences, and maybe very serious immigration consequences, this has created a great hardship because now they have to, um, do their job, or risk being declared ineffective (finally). Or, perhaps the ABA just wants to create a task force so people can meet and have donuts and coffee and sigh about how dreadfully difficult it has all become. Note to the ABA: It was never easy. People just ignored it hoping it would go away. Once the clients did go away (were sent to a far off land) it was, really, out of sight out of mind. A deported defendant files no post-convictions. Well, now they do. But, I digress.

One of the folks who commented on the Simple Justice post is a man named Rob Roberston with whom I've had the pleasure of working on a couple of cases. (it's a cute name, but his first name isn't really Rob. I won't tell what it is unless he gives me express permission) Rob is a Virginia licensed criminal and immigration attorney. Right now we are working on some TRO's in the Eastern District of Virginia, followed by Padilla motions, followed by applications for relief. Let me say this guy knows of what he speaks. (the link is to today's Washington Post that discusses his latest Padilla win, check it out) And, I think that because sorting through the INA and CFR is second nature to him (not to mention the memos, cables and precedent) he says that if an attorney figure out how the Intoxylizer works, she can figure out the immigration laws. This is a dangerous thing to say because, well, the immigration laws are, as I've said over and over again, complex, to say the least. In speaking with Rob he tells me that what he should have said is that lawyers need to follow what Justice Steven's said in Padilla, that if it's obvious you should advise your client as such.

So what is obvious and where can you find obvious? Well, interestingly enough, as with many aspects of the law, there are these things called 'statutes' and, there are statutory aggravated felonies that are clearly laid out for criminal practicioners. (scroll down to (a)(43) in the INA it is 101(a)(43)). They are not as murky as trying to define what may be a crime of violence or a crime involving moral turpitude and see, it's in the statute. For example, here's one you should know by now - a conviction for a theft crime with a sentence greater than 364 days is an aggravated felony meaning your client is subject to removal (remember also, we don't say 'deported' anymore. You'll look like a hack if you do.) And, if your client is removed for an aggravated felony THEY CAN NOT COME BACK. And if they do come back they face increased penalties because they came back after having been removed after an aggravated felony. (Note, the removal doesn't have to be BECAUSE of the felony.) If you think you are super awesome because you had that felony theft reduced to a misdemeanor and got your client a one year sentence with all of it suspended you are a fuck up. Yes, nothing more and nothing less, because there is a statute that you could read that would tell you that your super awesome lawyering skills got him booted from the United States. The suspended sentence doesn't matter. You would have done better by your client if you'd agreed to 364 days in jail. It would, indeed, make them inadmissible (and you should get an immigration attorney to help you with those distinctions) but it would not royally screw him forever.

Look, there are times when there really won't be anything we can do for our clients. I went to a CJA conference where the Padilla presenter was an adjunct professor who was telling us all what we 'should' be pleading to, like misprision of a felony. One CJA member raised his hand and said "sure, that would be nice, but most of the time our clients are fucked and then what do we do?" (I don't think he said 'fucked' but that's what I heard) The nice professor lady just stared for a minute and then nodded her head that yes, she understood the dilemma and we just had to do the best we could and get the best offers we could. Duh.

And yes, there are also times where what's in our client's best interest in the immigration context is not in their best interest in the criminal context. I know it's against our grain to tell our clients it is better for them to serve time in jail than to get a suspended sentence, or that it's actually better to take a straight guilty plea on a misdemeanor with jail time than to take probation before judgment after entering a plea on a felony since in the criminal arena that PBJ means your client has no record, but in the immigration world it's as good as guilty. In cases like these it makes sense to have an immigration attorney friend who will tell you how to approach your client with the news, and might even sit with you while you go over it. As Rob said, he's not the only one giving the milk away for free, I do it regularly and most immigration lawyers I know are more than happy to help out. It would be nice if you'd all take my advice and include your friend's consult fee in your retainer agreement (I'm gonna keep harping on that until you all listen) but it's okay if you don't find value in our work, even if it keeps the post-conviction hounds away from your office door.

Fret not, dear reader. This longer than normal post ends with some helpful advice. The New York State Immigrant Defense Project is an invaluable resource, my friend. It is created for criminal attorneys and should be used as a starting point when representing non-citizen clients. It has charts and graphs and all sorts of practice pointers. They are even available to talk to on the phone if you have questions (I shit you not, they call you back and talk to you about this stuff for free). Use them, use your friends who know about immigration law. I don't know that the ABA's task force is going to make anyone's job easier. The only folks who can do that are the people who created the convoluted and unnecessarily harsh immigration laws in the first place.

So this chick criminal defense lawyer walks into a bar

2010-12-16T11:19:00.001-05:00

Well, this year has been sort of a nutty one for notguilty. I wasn't blogging and the blog was dead. It was revived. Some people started reading it. Some more people started reading it. And somehow the folks who make some sort of decisions at the ABA Journal started reading it (American Bar Association for those who don't know) and the next thing I know this blog was chosen as one of the top 100 law blawgs for 2010. Seriously, I'm still surprised that you all have nothing better to read on your smartphones while taking a shit. Perhaps you need to renew your subscriptions to Highlights magazine or something. But, I kid. I do. Mostly because I am fairly well blown away by having people notice this blog.

A lot of you know this blog is my first baby. I've got a website and I could blog over there. I could use more keywords and improve my google rank. But I don't know if that would make it as fun for me to write or as, I guess, fun for you to read. My goal for 2011 is to write two not terribly sucky blogs posts a week and to include some content that is usable, such as the immigration/criminal stuff, instead of just venting and ranting - although I'm sure there is much more of that to come as well. Unless our government decides to radically change the way. . . ah, just count on a lot more ranting. There may be less swearing, but not too much less. The day there is no swearing is the day you'll know I've hired a ghost writer.

If you take a look at the Blawg 100 list you'll notice most of the folks on my blogroll are on there as well. These guys (and girl) have become people I've talked to and turned to during this start up year of my little law firm. So, they are more than just great writers who can churn out great content and turn a phrase like no one's business, but they are wonderful mentors, guides and lawyers. They are, in fact, the real deal. I am in the company of giants. And I really am just a teeny little girl.

If you are not a U.S. citizen please do not steal from Walgreens

2010-12-06T14:47:00.002-05:00

Here is my public service announcement for you all today. Shoplifting is bad. We know this, right? When you were a kid and walked out of the store with a kit kat or some marbles (or whatever dumb thing you had in your hand as you wandered out) your mom made you go back in and give it to the manager and apologize. You probably got a good dressing down by your parent and you went on your way. Good. You shouldn't steal. Lesson learned. Sometimes, people steal stuff though. They steal in the manner of Bernie Madoff or they steal in the manner of pilfering a couple hundred dollars worth of stuff from Macy's. A lot of the time people get away with it (bastards!) but sometimes they get caught. It sucks because they have to give back the merchandise and probably will have some sort of criminal consequence. In New York State there is also a civil penalty for shoplifting.

I know, I know, you are thinking come on Mirriam. This is so lame. We don't read this blog for commentary on shoplifting. Not only that, but you've barely uttered a swear word and you are already on your second paragraph. What's going on?

Well, here's what's going on. I'm seeing a lot of really good lawyers drop the ball on this immigration stuff with pretty serious consequences for their clients. So, I figured maybe now and then I'd leave the ranting for another day and you know, provide some information. Let's go with it, shall we?

Shoplifting has very dire consequences in immigration law for a criminal client who is not a U.S. citizen. Let me repeat so that it's clear: you can be removed from the United States of America, your home sweet home, if you are convicted of shoplifting. If the sentence received is greater than one year (felony theft) you can be removed as an aggravated felon which is very, very bad because it means most avenues of getting back into the country once you are out are closed to you. If the shoplifting conviction comes within five years of your admission into the U.S. and the conviction is for a felony, then it's considered a crime involving moral turpitude and the client can be removed.

So then, you're a good lawyer. Your client's been in the country for 10 years, she's got no prior criminal history and this was just a terrible lapse in judgment that you are certain will never occur again. You look up some stuff online and you see that if you can get her a sentence under one year she won't be removable (it's no longer called 'deported') so you convince the prosecutor to reduce the felony theft (over $500 dollars) to a misdemeanor. You get her under just under a year in jail (365 days being the magic number to trigger removal), all of it suspended, and you tell her she's safe. And she is. Unless she leaves the country. And if she does ever leave to go on vacation with her U.S. citizen husband or see her parents abroad, she won't be able to get back in. But you don't tell her this. Because really, you don't know. How could you possibly know? And really, she's not going to get a dismissal of the charges since she's guilty and they can prove it. So, you take the plea thinking you did good. And, you probably did. Until she's detained at Dulles and sent to a detention facility. Because of the shoplifting conviction.

My dear criminal defense lawyer friends, know this: shoplifting is a crime involving moral turpitude. And the rules for getting into the country (admission) are different than those for being removed. While it does not make her removable, unless the crime falls within the petty crimes exception (1 CIMT for which the sentence that could be imposed is not greater than one year, i.e. a misdemeanor AND the actual sentence imposed is less than six months) your client will be inadmissble. And that is just bad.
I need to tell you one more thing. A sentence of imprisonment is not just the time served in prison. It is any sentence even the part that is suspended. It would have been better for the client in my scenario to have served a four month jail term than to take the 350 days suspended. I'm fairly certain her lawyer did not know that. Also, in most jurisdictions, deferred prosecutions require an admission of guilt that is later stricken. This is a conviction for immigration purposes. FYI, in Maryland, a probation before judgment (PBJ) is a conviction for immigration purposes. (Also, to any MD lawyers who read this, a 2nd degree assault conviction in Maryland with a sentence greater than one year is considered a felony even though we call it a misdemeanor. It's stupid and makes no sense, but that's how it is. Do me a favor and stop taking pleas to these so called 'misdemeanors' in District Court. Your client gets a five year sentence and we don't even get a transcript to see if his rights were protected during the allocution)

See, a not guilty post with barely a single swear word. Trust that when I get clients who are stunned at the news I give them about their immigration consequences of their criminal convictions I want to swear. They want to swear. This is very serious, dire stuff folks. My suggestion to my criminal colleagues is this - in your intake questionnaire find out where your client is from. Find out what their immigration status is. If they are not U.S. citizens work a consult fee with an immigration attorney into your fee agreement. The Supremes have said this is no longer a collateral consequence and you and your clients should take it as seriously as they have.

Contract 'Lawyering' - The Fast Track to Nowwheresville.

2010-11-30T06:44:00.001-05:00

I did an interview (twiterview?) on twitter - I know, I know, it sounds really strange but it was actually kind of fun. Anyway, I did this interview with attorney Lance Godard from the Godard Group and one of the questions was what advice do you have for under or unemployed lawyers struggling to find work in these economic times. My response was that people should not fall into the contract lawyer trap, it's a dead end, and that lawyers who are under or unemployed should volunteer. Of all of my brilliant responses, this was the one that was retweeted (which, for you normal people who have other things to do means that other people tweeted it as well). Lance and I picked up this 140 bit at a time conversation yesterday because of an article that asked whether working a contract job is like working at Burger King, i.e. should you leave it off your resume. I would link to the article but I have no idea what it was or where I read it. And, actually, it wasn't very informative. It said whether on not you include it depends on where you are applying for employment. If you went to law school, took the bar and are actively seeking work this answer should come as no surprise to you. The 'it depends' is a typical lawyer answer for "fuck if I know". Anyway.

Let me back up for the non-lawyer readers. A contract lawyer is someone who is employed by a temp agency to do work for a (usually) large law firm. The work consists of document review (usually) which means the lawyers (usually licensed meaning they can practice substantive law if they choose to) sit in a cubicle and go over documents (electronic or actual paper) and determine if they are privileged or relevant. You click off boxes on a computer. You might learn some new legal concepts but nothing in depth, just enough to make sure you are accurate when you go through your 1000 documents a day. I have always called it "walmart for lawyers" because it's not really practicing law. It's a job. It pays the bills. I might as well be working at Walmart except at a contract job I get to wear a stupid suit and heels and feel like I'm sort of lawyering.

Mark Bennett wrote about this a while back. A few doc reviewers posted comments and said they liked what they did as document reviewers and gave some excuses on why it was a good job. The primary thing was money. They want to run marathons, travel and drink good wine. That's great. These people don't actually want to practice law. Good for them. I'm talking now about people who want to be called 'lawyers'.

It's a con. It's not really lawyering and that's the problem with contract jobs. They are truly meaningless. While it is important to pay the bills and put food on the table, you cannot claim to be a lawyer if all you do or have done is document review. I've done it. I did it for 6 months last year when I was just getting back to work. I did it for several months in 2005 when I had just moved to Baltimore. I get it. You've got to pay the bills. You've got a family to feed. So you find a contract job that has overtime because while 28 bucks an hour isn't great 28 bucks plus time and a half gets you through the week. So you work 50 hours, maybe 60. At first you think, I'll do this job and look for something else, or volunteer, or take on a traffic case or two. But you don't. You sit your ass in that cubicle and hit shift F5 and before you know it a year has passed and while you have amassed no late fees on your credit cards and no overdraft fees on your bank account, you have also amassed no new skills. You have made money at the expense of making money in the future.

Look. The shit is hard. The economy is rough. I've been a trial lawyer my whole big girl life. This is a skill very few people have - give me a file today I can try it tomorrow. I figured when I wanted to go back to work the whole world would be clamoring for me. I was wrong. I'd been out of the game for two years and then all I had to offer was "contract lawyer". While it showed I was working, it also showed that after two years at home all I could now do is get myself dressed in clothes not stained in spit-up. Because there is no actual lawyering involved in document review. I repeat. You are not practicing law.

Truthfully, it is hard to find a job that pays 28 bucks an hour. I mean, we lawyers bitch that it isn't enough but who else makes that kind of money at a regular brain dead job? Yes, it's valuable work for the client that we never meet and who doesn't give a fuck who we are, but it's not horribly complicated and it's not problem solving. So really, we shouldn't bitch too hard about getting paid four times minimum wage to skim papers and do basic data entry. If you've been doing it for over a year and you are still complaining I'm just not gonna listen to you anymore.

So, what do I suggest? Volunteer. Anywhere. Catholic Charities is a good place to go. They are always looking for volunteers for their pro-bono immigration panel. I'm sure there are others. Take a day off from your dead end job - I know you need the money but think of it as an investment in your future, like law school was - and go work at a job that day with a small firm or solo practitioner. They may not pay you time and a half, or even pay you $30 an hour, but if you get paid anything at a law firm you can put on your resume that you did LAW WORK. Like, you might get to go to court. Oh no! How could I go to court for only $20 bucks an hour when I can sit on my ever expanding behind and hit some computer keys and get paid $28?? That is just crazy talk Mirriam. Can't you do basic math?

Maybe I can't. But I went to law school to practice law. Didn't you?

Your bad parenting is not my problem

2010-11-10T16:22:00.002-05:00

Well, it's good we've finally acknowledged that we are 100,000% unable to think for ourselves Clearly, our reading comprehension is so staggeringly poor that when the surgeon general puts on our cigarettes "You will Die if you smoke this" we dismiss it as mere hyperbole so now, just for those of us who can't read at a second grade level, they are going to put pictures right on the front of the pack for you. Aren't you glad our government is looking out for us like this? Because you know, we are fucking morons. And now, the fine folks of San Fransisco have determined that they are going to take on childhood obesity by banning toys inside happy meals. This is, in fact, a great plan. Brilliant. Why didn't we think of this before? Four-year-old's will be less likely to drive themselves to McDonald's, park in the parking lot, walk across said parking lot, go to the counter, place the order, get out her money, pay the worker, get her change, get her food and then go fill up her soda, put her ketchup in the container, sit down at a damned table and eat her chicken nuggets if they can't do so while playing with their brand new, shiny My Little Pony.

"The supervisor who initiated it, he couldn't even get is own daughter to eat right.That's what started it, When he looked in her toybox and saw Happy Meal toys," said San Francisco resident Allen Jones. Sigh. Mr. Jones. So your schmuck of a supervisor couldn't get his kid to eat right and that meant he had to ruin it for others who might go to McD's as a treat every few months? Really? Is this okay with you? In a perfect world - no, in a world not filled with god damned dumbasses, the supervisors inability to parent wouldn't mean that everyone else has to suffer. But we don't live in that world, now do we?

I am of the firm belief that the people who are in favor of the San Fransisco ordinance are the same people who are in favor of anti-bullying legislation who are the same people who are in favor of the twinkie tax who are the same people - well, you get my point. These are the same people who should not be allowed to have children since they are incompetent, but unfortunately, they are not impotent. Hey, supervisor, your four-year-old cannot get to the McDonald's without you. She can't. She might cry for it. She might really, really want it. But you don't have to take her whiny ass there.

Look. I take my kids there. We eat at chik-fil-a. We eat pizza and hot dogs and crap. We eat at home. My kids cry for french fries. There is crack in them, we know that to be true. But there is this word we use. I know it's rare these days, but you should try it out. It's not horribly long or complicated. Here, try it.

No.

Do it again.

No.

Come on. You can. I swear you can. Tongue near your teeth for the 'nnnn sound' then round your lips 'ooooo'. You can say it in a calm voice. You can say it while crying yourself as you drive by the 'french fry store' as my boys call it. I am not going to tell you it's easy. It's not. I have twin boys that are three. There are times I feel like giving in to their every last desire in order to get some peace and quiet. But then I remember my 'no douche bag' rule and carry on. Your kids will live. You will live. You don't have to let the government do your work for you and you really don't want them to because the time will come when they will make a law that you don't like and well, then it will be too fucking bad.

Death at Your Doorstep

2010-11-08T15:06:00.002-05:00

If you haven't been following the trial of Steven Hayes, good for you. This is the stuff nightmares are made of. This is a plot line from Criminal Minds. It is the stuff that even we criminal defense lawyers say is such a rare case that we really shouldn't fear it and we laugh when people say "how could you defend people LIKE THAT." Well, they mean like Steven Hayes. The Petit family probably didn't fear it that July night. They were safe in their beds. Or so they thought.

If you haven't followed it, dear friends, I won't tell you this gruesome story now. Suffice it to say the judge in the case summed it up by telling the jurors that "[they] have been exposed to images of depravity and horror no human being should ever have to see." If a judge thinks that. Well, just imagine.

After three days of deliberations, a Connecticut jury has determined that Steven Hayes should die. There are people who say that this case is one that cries out for the death penalty. If there ever were a case for it, this is it. On a purely emotional level I cannot disagree. Who would not want the person who committed such a cold, calculated act to die? Come on. Who is that pure of heart that they don't wish some sort of torment, torture and misery to befall Steven Hayes? Even those who say they are not for death, well, maybe in this case it's okay. I can't say I don't understand. I do.

Gideon says we all have blood on our hands. Scott Greenfield says we've had this blood for a lot longer than today. And Gamso tries to differentiate between what Hayes did in deciding to kill and what the jurors did in - well, in deciding to kill. And Norm Pattis is mad.

I'm not having the argument with anyone today on why the death penalty is wrong. It still is. Even for Steven Hayes.

It really was great in theory.

2010-11-03T15:51:00.001-04:00

I'm not a public defender. I'm a private lawyer that accepts appointments through the Criminal Justice Act panel in Maryland. I don't do any state court assigned work, the pay is crap and the cases are usually terrible. The cases aren't great in Federal Court, but few cases in the federal criminal system ever really are. In fact, I started comparing federal criminal practice to hospice, where we just administer palliative end of life care. A good friend who is an assistant public defender in New York responded that it makes each person we can cure that much more rewarding. I agree. The work is hard. The stakes are high. And sometimes the best you can do is hold someone's hand and help them understand where they are and maybe get them out sooner than they would otherwise. I'm not gonna stamp my feet and say we win in Federal Court because, while it's true that we do, and we can. We frequently don't. It doesn't mean we aren't ready to rumble. We just know that sometimes rumbling isn't best for our client.

My practice also consists heavily of immigration work. I've said this before, but there is a huge disconnect between immigration, where you are heavily limited in what you can do for your client, and criminal, where really, the sky (and the ethics rules only) are the limit. I love them both, but truly prefer the single minded and client-centric nature of the criminal work. But there is a great need for someone who can do both. So I do.

Scott Greenfield wrote a post the other day entitled "Great in Theory". I'm the person who called him on that case. The case wasn't mine, but I wanted to help a friend. I was desperate to find a way that real justice would prevail. Or, to put it in a way that Jeff Gamso would appreciate, so that injustice would be averted. Scott did, indeed, throw cold water on my theory with a simple two or three line email. I passed the word along but it didn't diminish my friend's vim and vigor for the fight. And fight she did. She lost and injustice ruled the day once again. When she was done she sent me the newspaper clipping which I then passed along to Scott. I spoke to her on the phone for hours, consoling her really. It's what we do for each other. Because even though the best criminal lawyers I know are the ballsiest bunch of men and women on earth, we still need to be told that we did what we could, that our fight wasn't for naught. Except. When it is. Which is quite often. And the words then, when you believe your client is innocent, ring hollow. But talk we did. Until she ran her bath and settled in and got up to fight another day.

Last week I went to go see a mother about representing her son. I quoted a fee that was reasonable. I drove to her house which is an hour away. She had no furniture. She has small children. She could not afford me and I am not expensive (not yet, anyway). I did the math in my head on how much it would cost me to represent her son, who is incarcerated over three hours from where I practice. She talked to me about the public defender. How they didn't care. How she went to the wrong courtroom and before she got to the right one her baby had had a bench trial and been convicted of a crime that carried a maximum penalty of 20 years in prison. Which he got. But 8 of those 20 were suspended. This mother is not older than me. She had her baby boy young. She did what she could. And now she can't help him. My mother's heart broke for her. My mother's heart reminded me I had to pay for daycare and that tooth that Yonas knocked loose. My lawyer's head remembered the rent for the office. This woman, with no couch, this kid, who needed me most, wouldn't get me. Injustice would prevail, once again.

I talked to Mark Bennett today. We discussed feral cats, blogs, and cry baby lawyers. I came back to blogging thinking that we were all in this together. I thought I would write and people would say hey, yeah, we are fighting the same machine. We are on the same side. I didn't expect the asides and the jockeying for position or people telling me that I was being disrespected by other bloggers. First, I don't care. I'm pretty comfortable in my own skin. Second, I don't think it's true. I have been doing this long enough to have earned a fair measure of respect from people. And, I find the back-biting to be odd and immature. Furthermore, it brings me back to the original theory behind this post, and this blog in general these days:

Aren't there clients in prison? Aren't there people being stripped from their families? Have you ever been to prison and seen little boys, sons, cry when visiting hour is up? Have you sat across from a mother dressed in prison garb who hasn't seen her children since they were teeny babies? There is injustice everywhere. This battle started long before any of us got here and each last one of us is nothing but a foot soldier in it. We are as ready for the fight as we are to soothe a weary brow when the battle is done. I am thankful to be able to be a part of a profession where we can do so much good if we allow ourselves, where we can lend a hand not just to our clients, to their families - but also to each other.

You drive a poopy car mommy

2010-10-27T14:04:00.001-04:00

I've been mulling around a few post ideas for several weeks. I know it's been slow over here at notguilty, but I'm working on some stuff and things that are very client-centric right now - motions and discovery and general lawyer like business. I have been reading some blogs, but not with the frequency I used to, but today I took some time and perused the blawgosphere and came upon Scott Greenfield's post on criminalizing bullying. As some of you know, I have three-year-old twin boys. They recently started full-time daycare and they really do like it, but little did I know that all of this craziness starts this young - the name calling, the creation of cliques and pecking orders - 'mean girls' and 'cool kids'. I see it now in this little daycare in our little suburban town.

The other day Yonas got into the car and said to me "Poopy. Mommy poopy. You drive a poopy car." Now, I cannot argue with the basic premise of his statement. My car is a piece of shit, of that there is no doubt, but before daycare and exposure to other kids, it was "our van" (yes, I drive a mini-van, get over it). Then last week Yacob had dirt thrown in his face by another kid. I know, I know, they are only three and this stuff will happen. But it's not like it stops later on. There are forever kids who throw dirt in other kids' faces. Eventually there are even meaner words and, eventually, fist fights. I know it's coming. I know it is. And I want to protect my babies from the mean, callous, cruel world. I want them to know how wonderful they are and how much potential they have to do great things if they want to, if they try. I want to teach them to be kind, and strong, and unafraid. To know when to fight and when to turn the other cheek.

With that said, I don't want bullying to be criminalized. It is a sign of weakness as a society, as adults and parents that we would abdicate this responsibility of teaching our children right from wrong to the schools. What wisdom is there left for us to impart onto our children when the schools get to decide it all? I no longer need to have a word with the parent, or call the school, I don't have to tell my child that if someone pushes them, to push back harder because, well, the school's taking care of all of that. I am decidedly against school turning my kids into giant weenies who won't know how to stand up for themselves, or for others. How will my kids know right and wrong if they never see it, if they never hear it or have to fight against it? Are we just going to perpetuate this ridiculous idea that all of the world is friendly and nice forever? For how long can we keep this up and what happens when the fantasy breaks down? Who will take care of my kids when they face meanness as adults? What school will step up to make it all better then?

I was never bullied so I don't know what it feels like. My parents always told me that if someone tried to do something to me, or said something to me, I should take matters into my own hands and they would have my back. They always made sure that I knew that it wasn't okay for me to stand by while others were being picked on either. So, I stand up for those who can't stand up for themselves. I've made it sort of a career, in fact. And I know that those who were bullied will probably be in favor of this law and tell me I have no idea what it feels like, and they are right. But that's par for the course - people always want laws that they feel benefit their particular situation. The truth is that you can't mandate that everyone be nice.

Or can you? Maybe it's time to think about home-schooling.

National Coming Out Day

2010-10-11T18:39:00.001-04:00

Do we all have a story of a friend who came out to us? I have several, but the one I remember most is a very good friend of mine in college, Tony. We hung out all the time, talking and eating and drinking and just doing what college freshman do. I knew he was gay. I don't mean he told me, but I suspected. Was it in how he talked or dressed? No, not that I can recall. He didn't have a lisp or swish his hips and he wasn't overtly feminine in any way. I just knew there was something he was keeping and hiding. At that time I was pretty good at reading people - in fact, I was pretty good at hiding stuff myself so I could see a kindred spirit in Tony. One night, we were sitting in the lounge in my all girls' dorm and he said "I'm gay" and I said "I know." We went out and bought bad bologna sandwiches from the gas station and cleaned them out of candy and I think we got 4 packs of cigarettes. We sat up all night laughing and joking and he was Tony. He was out. At least to me. Over the next several weeks he came out to others. And, some took it well, others did not. This was 1990, and things were not like they are now. Union College, while a liberal arts school, was not the liberal place I had envisioned college to be, growing up with tales of demonstrations at Berkeley and heavy drug use in Washington Square Park by NYU.

Tony started wearing eyeliner. He started dating a much older guy. He wore smoking jackets and started to become a bit more effeminate. He drank a lot more. He was figuring himself out. I was wearing fishnets and combat boots, rallying against the Greek system (which I was more than happy to use for it's free beer) and was figuring myself out. Tony, after a while, decided being that gay (as he put it) wasn't for him. He wanted to take it back. He wanted to be straight. He told me he was straight and in love with me. I, in my 19 year old state of mind, felt betrayed by him. I supported him and stood by him while others ran away. He'd been privy to things that most guys would never glimpse, the secret girl world and the secret girl code. I just didn't get it. He was still figuring it out. But I didn't get it. How could you not be gay, then be gay, then not be gay? You either liked to suck cock or you didn't. Now I know, things are hardly ever that simple, especially when you are 19.

I turned my back on him. He left Union the next semester.

I've never told this story before because it is shameful. But there it is. That was, my friends, my first experience with really fucking things up.

Justice, Justice, Shall You Pursue

2010-10-10T17:44:00.001-04:00

My friend and fellow criminal defense lawyer, Kathy Manley, had this poster in her office back in Albany. I can't remember what the graphic was, but the words were written in Hebrew and in English - "Justice, Justice Shall You Pursue" I am not a biblical scholar, and while I've been to synagogues on high holy days and have several close, Jewish friends, I don't know where in the Torah this is or what the context is for it. I do know that justice is a theme throughout the religions of 'the book' as we call them - Judaism, Christianity and Islam. No, this isn't a dissertation on justice in Islam. That's for another time. And, I suppose I could find a Wiki link for this particular quote, but I assume you, smart reader, could do it yourself. While talk of justice amongst criminal attorneys is as common as talk of sexual conquests at swingers club, it's an important one nonetheless. And, one that is easy to write about. After all, who doesn't want to believe they pursue justice?

Last weekend I went to the inaugural conference of the National Coalition to Protect Civil Freedoms. The mission of the group is to do something about the spate of preemptive prosecutions by the Department of Justice. Most of the people prosecuted are muslim or of middle eastern origin. They might speak out against US policy in the middle east, most notably the treatment of Palestinians and US policy in that region. Maybe they don't like the war in Iraq or think Afghanistan is pointless. Roughly half the people who are members of NCPCF are white. They speak out against US policy in discriminating against minorities, against demonizing religions and races of people, and against the lack of respect for civil liberties shown by our government.

Let's be clear, I'm not anti-war. I'm not a dove by any stretch of the imagination. I think, sometimes, you have to fight. I think, in Afghanistan, it was our obligation to fight and I still think that if we don't clean that mess up we're in for an even bigger mess as years go by. You can't win one war on the backs of a struggling people and then turn away, leaving a wasteland, and not expect very bad things to happen. This is not the same as saying we deserved it. It's just current events in context. But just because I'm not a part of the peace community doesn't mean I'm not a part of the justice community.

So these people are being prosecuted, not for actual acts but for thoughts and speech, and the crime they are being prosecuted for is a violation of the Material Support Provision Under the Patriot Act. I am not talking here about the shoe bomber or people who have legitimately tried to blow shit up in this country. I'm talking about people who have been set up by the FBI with their agent provacateurs or people discussing things that would otherwise be classified as speech protected by the first amendment. Maybe these people have relatives who are actually part of some organization, or they donated to charitable organizations that have tenuous ties to groups that are against US policy in the Middle East. All of this is against the law.

This year, the Supreme Court upheld the ban on material support despite the fact that there is nary a doubt it infringes on protected speech. But hell, if our safety is at stake, why not give up freedom? This was a blow to many groups who provide expert advice to groups that are on the 'terrorist list' on how to engage in peaceful dispute resolution, human rights advocacy and educational assistance. This means that if a lawyer tells a 'terrorist organization' that the best way for them to get their grievances heard is to go to the U.N., they can be indicted under this provision. This is serious stuff, friends, because it is just a slight slip down the rabbit hole to a strange and foreign land called you ain't got no more freedoms.

There are people out there who are pursuing justice in ways I am not brave enough to take on. They are petitioning our government, they are lobbying, they are holding meetings across the country to stop this crazy train. They are setting up brief banks so that people who are taking on these cases won't have to reinvent the wheel. This group is going to challenge the policy of solitary pretrial confinement for people held on 'terrorist' charges (I use this word and phrase in quotes, because the government uses it to fear monger) 23 hour lock down with little to no communication with their families. They are publicly decrying, once again, the use of secret evidence and secret experts. They are bringing to light the horrific conditions of confinement at the Communications Management Units (CMU's) in Illinois and Indiana. Most importantly,they are giving each other moral support so that when one of their compatriots feels like she can't keep banging her head on this concrete barrier anymore, someone hands her a bag of frozen peas to press against the bump and says, keep on banging, eventually you will break through.

Dear friend, dear lawyer, dear lover of justice on either side of the aisle, we are giving it all away and have been since 9/11. When do we stop? When do we say enough? And what are we going to do about it? If 'they' hate us for our freedoms, 'they' should love us right about now. We are arresting our own, we are intimidating people who are exercising one of our fundamental rights - the right to speak out against our government. We are indicting people not for acts, but for thoughts, for words. One of the speakers said he frequently feels like he's preaching to the choir, but want he really wants is for the choir to sing. I want other people to join the choir, to realize that the government isn't just doing to them what it couldn't possibly do to you. Here, I know you've heard this before, but it bears repeating:

In Germany they first came for the Communists,
and I didn't speak up because I wasn't a Communist.

Then they came for the Jews,
and I didn't speak up because I wasn't a Jew.

Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist.

Then they came for the Catholics,
and I didn't speak up because I was a Protestant.

Then they came for me —
and by that time no one was left to speak up.

Pastor Martin Niemöller

Tyler Clementi: A Guest Post by Crista Livvechi*

2010-10-04T13:02:00.004-04:00

In the wake of Tyler Clementi’s suicide there has been a lot of talk in the media (both commercial and social) about the role of webcams, the lack of civility among today’s youth, bullying, and all kinds of other issues that might have been to blame. Some have questioned our youth’s ability to stand up to one another in the face of homophobia, racism, and other forms of bigotry and intolerance. Rutgers University (full disclosure: I earned my undergrad degree there, and feel particularly moved by this incident) has made it clear that the institution is imperfect and is continually striving toward greater acceptance of marginalized groups – admitting that there are problems on campus. At my current academic home (Penn State), our LGBT community (of which I am a member) is actively looking for ways to address incidents of homophobia here in University Park as well as at our satellite campuses. Clearly, everyone agrees: something has to change, and we cannot afford to wait.

I think this general feeling is on the mark. But I also think it’s important to take a step back and consider a few things.

I didn’t know Mr. Clementi, nor do I know his family. And I wonder: can any of the commentators out there claim to know them? And this, I think, points to one of the most important aspects of this entire tragedy: there are a lot of unknowns, and there are lots of people making lots of statements about what happened without really knowing what was going on. Let’s consider what we do have: the bare facts. Mr. Clementi committed suicide by jumping off the George Washington Bridge after his roommate, Dharun Ravi, posted video of Clementi having what the media repeatedly refers to as a “sexual encounter” with another man without his knowledge or consent. Clementi approached his resident assistant about this, but it seems no immediate action was taken.

There are a lot of assumptions here. The most obvious assumption is that Clementi ended his life because of the videos. Less obvious, but perhaps more striking is this: we assume Clementi was gay.

You’re probably yelling at your monitor right now. How could an out lesbian – someone who discovered and came to terms with her own sexuality 16 years ago at the very same university as Clementi – possibly, for one minute, question that he was gay? Why on earth would she even ask this question? Here’s why: we simply don’t know. The Star Ledger reports that very few other students actually knew Clementi. To the best of my knowledge, there’s no indication that he was out to himself, to his family, or to anyone – no indication that he was doing anything more than questioning or exploring his sexuality.

This is incredibly important. In fact, I would argue that this is the most important aspect of the entire story, and here’s why: the moment when a person begins to question his or her sexuality is one of the most vulnerable moments he or she will ever know. Once a person has come to a conclusion about his or her sexuality, once a person is in effect out, there’s a community ready and waiting. And while nationwide the queer community is fighting legal battles to protect us from discrimination in jobs, to allow us to legally marry, to allow us to adopt children, these national battles are being fought for people who are already out. There are no allowances, no protections for those who are just beginning to learn about themselves, for those who are questioning, for those who are truly vulnerable.

Twenty or thirty years ago, those who were questioning, exploring, and experimenting had the ability to maintain their privacy. Not just because the technology we’re pointing our fingers at now didn’t exist then, but because there was a clearer sense of where the line between public and private actually was. New technologies are changing this, yes, but technology doesn’t exist in a vacuum. Two or three decades ago, the US still had an interest in manufacturing and industry. Today our economy – and our lives – revolve around the ready availability of, and access to, information. What has happened around this is that our ideas about public and private have shifted. Slowly, we’ve allowed the private to become public. The famous feminist mantra – the personal is political – is an example of this shift in thinking.

Now, I’m not saying this is always a bad shift. The dissolution of the boundary between personal and political, or more broadly between public and private, is what has made it possible for us to gain some of those important protections. But it’s a double-edge sword, and Clementi’s suicide – in the wake of an incident where the private was made public without his consent – is a clear reminder that we are living in very confusing, very unsafe times for youth who are questioning their sexuality or gender identity.

In an era when great political strides are being made, the backlash against them is equally great. Don’t believe me? Spend some time browsing the website of the American Family Association – or better yet, sign up for their email list. But what it comes down to is this: standing up for one’s rights is easy when that person knows who s/he is. It’s not so easy when one hasn’t figured that out yet. If we want to prevent more suicides, if we really want to nurture and protect and welcome people into the queer community, we have to make a space that’s safe not just for those who know who they are, but for those who aren’t sure yet.

Anthony Graber MD Wiretap case - Now with decision!

2010-09-28T12:43:00.001-04:00

The Baltimore Sun reported yesterday that the case against motorcyclist Anthony Graber has been dismissed. Mr. Graber was speeding down the highway, popping wheelies, when an unmarked car pulled in front of him. The driver of the car pulled out a gun before announcing he was a police officer. I've written about it a bunch and am sort of in a rush so I'm not going to link to all of the previous entries right now (I know, bad for my google juice.) Anyway, the Judge wrote: "Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation. 'Sed quis custodiet ipsos cutodes' ("Who watches the watchmen?”)."

Here's a longer article with some tasty snippets from the police chief and the State's Attorney.

I've been trying to find a copy of the decision online but can't right now. I'm writing an article right now, and I've got to edit out all the swear words. If I get to another part of Maryland this week I'll see if I can pick up a copy of the decision and publish it here for you all.

UPDATE:

Found it here

Copy of the Motion to Suppress.

Power to the people, or something like it.

More on Mentorship, updated

2010-09-26T11:52:00.002-04:00

It's come to my attention that the last paragraph of my last post caused some confusion. So, I wanted to take some time on this rainy Sunday morning to clear it up. First, you all need to know I only can speak from my own experience. Every criminal defense attorney I know and respect is, um, quirky. And, when I say they are willing to help new lawyers out because they like to hear themselves talk, I say it lightheartedly. In fact, as a wise man said to me on Friday, most of us do it because we are paying it forward.

If you've read this blog for the past couple of months, you'd see that I'd written about mentorship before. It is incredibly important for new criminal defense lawyers to have people they can go to and ask for help, whether it's a seemingly simple and straightforward misdemeanor assault or a multi-defendant federal fraud and conspiracy case, every case is a big one to our clients. We can't afford to fuck any of them up. OK. So we're on the same page with that, right? I understand that not everyone has a Terry Kindlon to teach them how to do this. That's a shame. There should be more hard assed, crazy as shit lawyers out there willing to take newbie attorneys under their wing and show them the ropes.

But, I need to make it very plain to any young lawyer that guys like Kindlon are not going to give you a great big hug and tell you everything you do is wonderful. They will tell you if you did poorly, if you fucked up. They will let you know if you are way off base and shake their head in dismay at just how off base you are. If you are looking for ego boosts or "you did great" they aren't the folks for you.

Mentorship is not about telling you you're a superstar. It's about helping you get it right, or at least getting you closer to right than you were before you asked for help. It's also not about being nice. I published a letter from Terry to me wherein he basically tells me to go fuck myself and my hurt feewings. I know at the time I probably cried when I read it. It's not nice. It's the opposite of nice. But in that same letter he tells me to suck it up because I've got what it takes. That, my friends, is high praise from the likes of him. Good lawyers are made, not born. But like any other creation, it's not a simple process. It is painstaking and methodical and requires a great deal of effort. It also requires an incredibly thick skin.

I called Scott Greenfield the other day. Yes, the old curmudgeon. I needed help on a case. He spent over an hour on the phone with me walking me through the steps I'd need to take to establish my defense. He told it to me straight. He didn't make me think it was going to be a bed of thorn-less roses. Many months ago I called on Trace Rabern and Mark Bennett for help on a post-conviction motion that will (hopefully) change the way we conduct pleas in Maryland. They questioned my premise, they pushed me harder. They helped. I talk frequently to my friend Matt Kaiser, a fellow criminal defense lawyer who used to be a federal P.D. in Maryland. He helps lighten the mood when he can, and as another solo attorney, he understands that we need the constant feedback and give and take to get through a case.

This work is tough. Lives hang in the balance, even in a situation where there is no jail time on the table. If your client applies for citizenship and has been convicted of any sort of crime, he has to disclose and explain. It takes a relatively simple process and makes it complex. You will make mistakes, and it will be terrible. Some you can fix, others you can't. You will look back on your career with regret, on occasion, and other times you'll go back over something and smile and say "yeah, I fucking killed that." But no one can do it without help.

The point is this: Ask for help. Realize that this isn't about you. You probably don't know anything, or you know close to nothing. You have questions you don't even know to ask. Your ego will take a beating, it's ok. You'll live.

More on mentorship. Just ask.

2010-09-23T13:29:00.000-04:00

I am in the throes of trial prep. It's been a little while since I've had to get out the three hole punch and make a trial notebook, but as I'd hoped, it is very much like riding a bike. I haven't completely forgotten how to do this dance. I've got the sentencing guidelines at the ready to make sure that the client understands what the risks are at trial, and I've got a good pile of discovery to still wade through before we get to the starting block. But all in all, it feels pretty good to be where I'm at right now.

The most important thing I have right now are really good mentors. I work in an office by myself. There are no other attorneys in this entire building. It's just me and the folks at the home health care and interior design office. The benefit to this office is that it's cheap. The detractor is that it's lonely. I am a terribly social person, as most people who know me will attest to. But, as a born-again lawyer, I find that I second guess a lot of what I think. You know, maybe my gut instincts aren't what they used to be, maybe it needs a little recalibration. So, I've looked outside and found a whole slew of lawyers who, while extraordinarily busy, are willing to take time to walk me through scenarios or talk me down off the ledge.

So, young lawyer asks, how do I find a mentor? How do I find someone who is willing to give up valuable time and not think I'm a complete moron for asking very basic questions. Well, first, the mentor might think you are a complete moron. Really, they might. But, as a member of the criminal defense family, these people want you to no longer be a moron. They want you to fight the good fight and be good at what you do. If you are incapable of being good and you've already taken on a matter, they want to make sure you don't royally fuck it up and screw up someone's life but good. Ask the stupid, basic question regardless of how you think it makes you look. It's better than the alternative.

The mentor finding is really quite easy. If you are a criminal defense lawyer, you probably know other criminal defense lawyers who know more stuff than you. Ask them a question. Seriously. Email them and say do you have some time I have X issue and I'd love to talk about it with you. Most of us are complete law dorks. We love talking (and writing) about these issues and we love to hear ourselves talk and we like to think we know a lot of stuff and would probably be flattered that someone thinks we know more stuff than them. It's also a great way for those more experienced lawyers to learn a thing or two and maybe get creative and away from how we normally do things. I promise you that if you ask an experienced criminal defense lawyer for their time, they will 95% of the time say yes.

In Not Guilty's previous incarnation I would talk at length about the case and the facts and what I thought a defense might be. I'm disinclined to do that for a variety of reasons, including the fact that it doesn't really matter. What does matter is that I need help. I've been a practicing lawyer for 10 years (2 years were lost to stay at home momhood) and I still need help. I've tried a few cases, and I still need help. I've said it before, but I've found a lot of wonderful, helpful lawyers in the blogosphere. The folks you see on the right are not just people I read because they write pretty words. They are good, smart lawyers and because they take the time to write about issues that affect each and every one of us (yes, even you super law abiding citizen, you have whatever protections you have because those guys and girls over there ----> go to bat for people who do get jammed up), they also take the time to talk to new and re-newed lawyers about their cases.

As an aside, baby lawyers take note - there are very important things to be learned from our elders at the bar. I know they get involved in ridiculous disputes online and they may seem fairly off putting in how they handle themselves on occasion, but it is the nature of the beast. People who do this work are not sane, they are not completely um, normal. Do not dismiss any one of these people because you don't like their take on twitter or whether to allow comments on their blog. Those are distractions from the real value of their blogs, and trust this not so baby but kinda brand new lawyer, there is great substance in what those wise folks are saying.

Supreme Court October Term Oral Argument Schedule

2010-09-20T14:40:00.000-04:00

I didn't get to a single argument this year, but I'm planning on it this term. Here's the link to SCOTUblog's October term's list of arguments.

Update on the Anthony Graber Maryland Wiretap Case

2010-09-13T14:56:00.000-04:00

I've written quite about about Maryland prosecuting citizens for videotaping police officers doing their jobs in very public places. The most notable of these cases is that of Anthony Graber, the motorcyclist who, with his helmet cam, video and audio taped an off duty police officer who, er, pulled a gun on him. The issue here is not the videotape, but the audio, which is where the wire-tap statute comes into play. Well, it turns out that my old law firm, Schulman, Treem, Kaminkow and Gilden represents Mr. Graber (pro bono, I might add). It's a top notch firm that does amazing work (yeah, I'm kind of tooting my own horn here too.) They had a hearing this past Friday to determine whether there will be a trial in this case. There shouldn't be one. The Maryland Attorney General has issued a decision that says citizens should be allowed to tape police officers since most interactions with officers cannot be considered private. Here is a copy of Joshua Treem's motion in the case. I should give a proper acknowledgment to the others who worked on this with Josh- Nicholas Vitek and David Weinstein.

Carlos Miller at Photography is Not a Crime (an amazing blog, by the way) has a great post that summarizes the hearing. Looks like the Judge may rule in favor of the people. Not "THE PEOPLE." But, you know, us.

A 9/11 post on 9/13.

2010-09-13T06:11:00.003-04:00

This post is a few days late, what with their being so many 'where were you' posts on facebook and twitter, I didn't want my 'where were you' post to get lost in the mix. So, here it is friends, this is my 9/11 story.

I don't know if I've ever told this before. I don't really go back and read this blog and when I do I get that "oh my God, I wrote that?" feeling so I hurry on to a blank screen. If I've said this before and you've managed to stay with Not Guilty for 6 years, I'm sorry. But, here goes. I'll try to make it as short and interesting as possible, but I make you no promises.

Two weeks before 9/11/01, I boarded a Virgin Atlantic flight bound for Rome. Six Americans and one Brit. We'd rented a villa in the small fishing village of Massa Lubrense and were scheduled to head there a few days into our journey, so with some time to explore before our real holiday began, my friend Susie (a leggy British blonde) and I decided we'd head to Capri. We'd both been to Rome and you know, who needs to go more than twice? It was end of August, maybe, and as we lay sunning on a rock Susie said "I'm going to miss the Lira" Now, youngsters don't know, but there was a time when there was no Euro. Each country had it's own money. We would laugh in Italy when we'd pay for a tee-shirt with millions of lira saying that if it had been the 6 million lira man he wouldn't have made it across the street. While I thought the statement was funny at the time. I think she was onto something. I miss the lira too.

We left Capri after a few days and met up with our friends in Massa Lubrense. We set up house and got into a lovely routine. Two of us would get up in the morning and take the Vespa into town. We'd hit the fishmonger, the baker and the vegetable stands. Since it wasn't a huge tourist town, the locals knew us and helped us find the freshest fish and veg. One morning I fried up whole, fresh anchovies. We ate them for breakfast with sliced tomatoes. Then we swam from a rocky beach. This was, September 4, 2001. Sometime that week I crashed the Vespa into a bus while driving in the dark on the treacherous road to Amalfi, good thing I wasn't going more than 15mph and we escaped with superficial scrapes.

We left Massa Lubrense on September 8 to head back to Rome but we made a stop in Pompeii along the way. It was interesting to see an entire civilization frozen in time, destroyed by events completely out of their control and never able to rebuild. After a day in Pompeii we headed to the airport. Six Americans and a Brit. We had a brief layover in London and one of our friends got left behind after a trip into town. The flight was uneventful and we landed in New York City on the 9th. I can't remember how we got back to Albany - car? Train? But we were back snugly safe and warm on the 10th. No body scanners, I think we each had a bottle of water that we brought onto the plane and maybe even some full sized perfume. We all hunkered down for a rest on the 10th before going back to work the next day.

September 11 was a Tuesday. I had on a cute Tahari suit inspired by Ally McBeal. Completely inappropriate in retrospect, but no one seemed to mind. I was the duty DA making the rounds in my favorite judge's chambers. We all know what happened. And then everything stopped. Everything. The courthouse shut down. I said "let the persecution of my people begin." And it did. And it hasn't ended yet.

In the words of President Obama, let me be clear. When I said 'my people' on 9/11, I meant muslims. I didn't know that non-muslim Americans would begin to savagely persecute each other, that we would vie for who could be the most willing to sacrifice civil liberties in the name of security. I should have, but I didn't.

I went to the local red-cross site that morning. The line went around the building twice. Local restaurants and grocers donated food and drink to those waiting. My parents lived outside of New York City. They would have had no reason to be in the city proper that day, or anywhere near the towers, but the chaos and fear was intense. Phone lines were busy. I couldn't get through. It's rare that you get that recording "all circuits are busy" in the U.S. On 9/11, that's what I heard. I called my best friend. We cried on the phone. How would we know which way was downtown without the towers to guide us? How could this happen? Why? After many, many hours, they made an announcement that those with Type O negative blood should come to the front. I walked up and gave my blood. It was the only thing I could do.

I went home. I called my parents. I sat with my friends who'd all just come home with me. We stared off into space. My soon to be sister in law (I didn't know it at the time since Drue and I didn't start dating until end of October) was in China with her sister-in-law. They were trapped for a week. My best friend's soon to be sister-in-law escaped the towers. Many, many, many others did not.

A few months later my family was contacted by the producers of PBS Frontline. They wanted to do a program on an Afghan family post 9/11. We agreed. We took a ride to ground zero in November. It was a graveyard. It was nighttime. Everything was gray. We sat in the car stunned silent. This was not the New York I knew. Cameras followed us around for a couple of weeks. I had a felony jury trial and we got permission for them to film it. Then the folks from Frontline disappeared. I think, truly, we weren't Afghan enough for them, not foreign enough. We acted like Americans. We weren't threatened or afraid. We just - well, we just were. Who wants to watch people who just are?

I don't think we've acted well since 9/11, my friend. I don't think our knowledge of world affairs and U.S. foreign policy is deep or broad enough to really allow us to give an educated opinion as to why those planes flew into those towers. I can tell you this much, it's not because they hate our freedoms. Although, that's a good, tight reason to recruit young boys and send them off to foreign lands to fight. If you have loved ones in Afghanistan, I am sure they tell you it is unlike anything they've ever experienced before. It is light years removed from Iraq (literacy rate in Afghanistan is currently at around 28% which is a 100% increase from the pre-war rate. Iraq's literacy rate is 74%) There are no words to describe it, possibly because none of us can imagine a country that has been ravaged by three decades of war.

But this post isn't about our foreign policy in the near and middle east. It's not about the U.S.'s ties with the bin Laden clan (at this point you have to be living under a rock not to know about it). It's not even about all we've given up in the name of safety. And, shit, have we given up a lot. Those posts would take hours to compile and write and, if I did tell you, kind reader, would you even believe me? Are you aware of the fact that the CIA recruited young muslim men from Mosques in the United States to go fight the Soviets in Afghanistan? Do you know that Afghans, as a rule, will stab you in the eye before they'd take a cowards way out and use a car bomb, anonymously? These are not things that are inherent in Islam, in Afghans, in humans. These are things that are taught. These men, boys, children, who willingly and joyfully strap vests full of explosives and walk into a building full of innocents do so not because they don't want you to drink vodka, although that might be what they are told is wrong with us over here. They do it because we taught their superiors how to do it, in Afghanistan, then we left. As far as being free - well, all you've got to do is remember the Patriot Act. Need I say more?

I'll never forget. But I'm not going to wallow either. I'm with Scott Greenfield and Mark Draughn from Windypundit on this one. We have let this terrible and tragic event define our decade in the worst way possible. If one looks back you will not see a country coming together to stand firm in it's commitment to it's founding principals. We have devolved and splintered. In this 'war on terror' who do you think is winning?

I am never going to tell this story again.

Everyone Just Settle Down

2010-09-08T15:46:00.002-04:00

So, apparently there is an idiot in Florida, a so-called 'man of god', who is holding a burn the Quran day on September 11. His church has 50 followers. I'm not so sure, but that doesn't seem like so many. I'm left to assume he isn't the most charismatic guy ever. But still, he's got everyone up in arms over this. Patreaus has weighed in, the President, Hilary Clinton. All sorts of powerful and important people say just don't do it. They all say this is wrong, immoral, against what this country STANDS FOR (although really, what we stand for today is sort of unclear to me, but I'm glad to know it's not about book burning). In the meantime, Reverend Moron gets more media coverage than, I don't know, than things that are probably deserving of media coverage.

As most of you know, I'm muslim. I'm a terribly bad muslim. I like bourbon. I married a white. I don't pray. I eat just about anything regardless of it's halal or non-halal status. I am what they probably call a 'cultural muslim'. I go to mosque on the high holy days and wear a hijab when I'm there. I wear strapless dresses otherwise. (Not everyday, obviously.) I don't much care for a lot of the dogma since, quite frankly, it doesn't make sense to me and despite my love of espousing my feelings on this blog, I like things to make sense. For example, I don't get why God would want people to be mean and nasty and hungry and not able to function like normal human beings for one month out of every year. I really don't. I know the theory is to maintain some sense of inner calm and peace and renounce earthly pleasures from sunup until sundown, but during those hours (and even afterward) regular life ceases. Folks are just tired and hungry.

The other truth is, for a lot of muslims in this part of the world, it is the only month when any type of religious activity is done. The rest of the year people act just like me (well, not exactly like me, I might be an extreme) I'm not here to judge. I don't care if you don't eat bacon but love martini's, or wear a bikini but won't have a budweiser. I ain't God. And quite honestly, I don't care. And I don't speak for him, but I don't think he does either. There's kind of a lot of other stuff going on what with flooding and oil spills and whatnot.

Now, the folks in the muslim countries don't see it like that. Despite the fact that the Islamic religious text specifically states that only God judges, well, they've chosen to ignore that part and stick with the 'women in burqua and no fun ever' portion of the Quran. They say that if this dude, this Reverend Shit-for-Brains has this burning day of their holy book they will kill Americans. There will be more innocent blood shed. They actually say "if we allow them to burn our book, what do we have left?" Uhhhhh, ummm.

The problem is that the people who say stupid crap like that actually mean it. They mean the book itself is everything. The symbol is all. Ironic, for a religion that doesn't take kindly to symbols and calls things like crucifixes and statutes in churches 'idol worship'. The book is actually printed in a factory somewhere. It is printed on a computer. It is just a book. Islam is not the book, I hope. It is the message contained within the book, which is really not about the book at all. Muslims get all up in arms about these things. Like draw Mohammed Day. I mean, really? Your faith is so weak that someone drawing a picture can shake you? Someone burning a book that doesn't even belong to you (because I'm assuming you already own a copy, most likely in a language you don't even understand) can make you KILL PEOPLE? I am flabbergasted by this.

Come on folks, settle down. Have a shot of maker's and a big mac. Now that I've said that, they'll probably come after me.

Blawg Review #279

2010-08-30T07:13:00.001-04:00

International Day of the Disappeared

A Blawg Review in Three Parts

I am really quite nervous to be hosting Blawg Review #279. It's sort of a big deal. I read Blawg Review pretty regularly and I know that people who wouldn't otherwise stop by Not Guilty's little spot on the blogosphere might do so. I was thinking of sprucing the place up a bit, maybe not using the 'f' word at all and using some more formal language, proper grammar and whatnot. But that would just be false advertising and bait and switch and price fixing. Then folks would come back next week and be like "What the fuck? She was so civilized last week." So, here you have it. Welcome to Blawg Review #279. I am pleased to be your host.

PART I - The Day

Today, August 30, 2010, commemorates the International Day of the Disappeared. I started college as a political science major with a pretty heavy emphasis on Latin America, so I was familiar with the day as it related to Peru and Costa Rica and the enforced disappearance of young men there. Since that time, there have been wars aplenty where enforced disappearances of civilians are just another military tactic. The numbers of the missing soldiers and civilians during the Iran-Iraq conflict is staggering. The International Coalition Against Enforced Disappearances is spearheading the movement to get nations to sign and ratify the Convention Against Enforced Disappearances. FYI, neither the United States nor Canada has signed or ratified the Convention. I haven't read the document, and there may be very good reason why we wouldn't sign. Like, we actually think it's ok to conduct enforced disappearances. No. That can't possibly be the case, can it?

As a child, I knew about the disappearances of loved ones in Afghanistan who were taken and tortured by the Soviets, or sent for re-education in the U.S.S.R. I watched the movie the Winds of War about World War II. There was a scene where the Nazi's took old men, women, mothers and children and put them in a ditch and then shot them. I sat stunned. I cried. I asked my mother "did they really do that?" She said "they are doing that in Afghanistan right now." We think my great uncle was dropped out of an airplane alive by the Soviets. We do not know. He disappeared.

Who would have thought that years later, it would be none other than the United States conducting similar missions on those same Afghans who helped the U.S. win the Cold War. We are familiar with Guantanamo Bay and the fact that the detainees have been held for years without charges , we know about the secret prisons at Bagram Air Force Base in Kabul. And hopefully, most readers know that Obama has said it's okay for the CIA to continue their missions of kidnapping people and sending them to third countries for interrogation, a practice called rendition. Obama pledges 'rendition light' - NOW with more oversight! I know that it didn't start with Obama and that our secret rendition program has been going on for years (decades probably)., but he was to be the Change We Could Believe In. Sorry, I just expected more. (The agents discussed in the secret rendition link just before this sentence were convicted in Italy in 2009. See the follow up story here.) Also, be aware that if you are secretly kidnapped and tortured, and it was all a big mistake, you can't expect monetary compensation from the United States. In fact, you can't even expect an apology.

Before you move on to section two, I invite you to view this video of a woman in Nepal whose husband was kidnapped, tortured and then killed by Maoists. She thinks. She doesn't know. He has just disappeared.

Part II - Children in Prison - the Disappearance of Reason.

Omar Khadr was 15 when he was picked up in Kabul, Afghanistan and charged with throwing a grenade at an American soldier. He is now 23 and ready to start trial before a military tribunal. The President says he is concerned that this is the first trial in the revamped tribunal because, um, it sucks? Maybe? A little. Because Mr. Kahdr was a child, living in Afghanistan. A child who never knew a day of peace. Wait. This is blawg review. Let's see who else has something to say about this.

Jeffrey Kaye is a psychologist who has been writing for the Daily Kos since 2005. He writes his own blog as well, Invictus, which featured the letter from Mr. Khadr to his lawyer. The words are heart-wrenching. You can hear a young, scared boy writing them. They are not the words of a terrible terrorist. Norm Pattis had questions for the prosecutors of young Omar. The questions boil down to this - why are we trying children in military courts. And New Media and Politics Canada calls out the government of Canada for it's role in this travesty. The Courts just ruled that Khadr's statements, which were the product of threats of gang rape and torture could be admitted against him at trial. It ruled that it was preposterous that he would admit to anything at all just to keep from getting gang raped. Don't you agree? I hope not. Not if you're reading notguilty by choice.

But we try children as adults all the time, so there is probably nothing too shocking for us about trying a 15 year old in a military court. We try 11 year olds as adults. Have you seen an 11 year old? Have you talked to one? Do you think they are mentally the equivalent of an 18 year old? At least we can rest easy that earlier this year, the Supreme Court determined that juveniles who were not convicted of murder could not spend the rest of their lives in prison. For a wonderful synopsis of the case, head over to Jeff Gamso's Gamso for the Defense. I mean, he's a criminal defense lawyer, so don't expect a fair and balanced overview. We think it's a good thing to let children pay their price, get rehabilitated, and then grow up.

Part III - The Disappearance of Civility - How the Internet Lets you Be a Douche.

Keith Lee had a fabulous piece this week entitled "Think People are too negative online, welcome to the Internet." In it he outlines the "greater internet fuckwad theory" which simply states that people are so much cooler online. That is that people will say really mean dumb shit if they are allowed to do so anonymously. On that same day (the day before my birthday, I might add), Scott Greenfield posted about all of the positive energy on twitter and how it made the whole experience rather shallow. Shallow? How can one possibly consider 140 characters shallow? And leave it to Mr. Greenfield to be annoyed at all the rah rah'ing and go teaming! going on. Mr. Greenfield also gave some juice to the 'greater internet fuckwad theory' in a post talking about anonymity as it relates to a group of law bloggers that don't think anonymity is necessary or good - until they want to ramp up the their fuckwad quotient on the internet. I dig the greater internet fuckwad theory because I think it's true. The internet gives people who would otherwise be anti-social mumbling idiots free reign to write, rewrite, delete and perfect whatever shit for brains comments they want to make.

Let's take, for example, a wonderful post written by Brian Tannebaum about the core of a criminal defense lawyer. If you scroll through the comments you will see one written by yours truly, and one by Anonymous, who I then call dickwad. Here's a question: if Anonymous is so sure about what he's saying, why not use his real name? He knows this is a criminal defense lawyer's blog. He knows he will get trounced by the rest of us if he uses his name, so he figures that since he is allowed to leave an anonymous comment and be a dickwad (fuckwad to use the correct terminology) he will do so and escape all of our wrath. Hey Anonymous, our wrath doesn't care what your name is. Anonymous then, came back for more after Brian's second post on the Stale Anonymous Argument for and against defense attorneys. If I wasn't so busy writing this, I'd be back over there giving anonymous what for. But see, the greater internet fuckwad theory doesn't apply to me. Since I've got a picture and you all know who I am. (By the way, I know many people think that Tannebaum is uncivil in his dealings with some people online. I had dinner with the man. You may not believe this, but he is one of the nicest, most genuine people I have ever met. And I hate everybody. Except on my blog. Here, everyone gets a balloon.)

I could go on and on in this week's Blawg Review. The legal blogs and the information superhighway sure has changed since I lasted co-hosted. I'm glad to have been able to do it again. Thanks for visiting.

Next week's Blawg Review is hosted by Ron Coleman's Likelihood of Confusion. Check it out. You might learn something.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Hey, if it's good enough for the Judge.

2010-08-28T15:16:00.004-04:00

A young lawyer linked to this article in Time Magazine that talks about a decision by the 9th circuit in U.S. v. Pineda-Moreno holding that law enforcement can attach GPS devices to cars as part of their surveillance. (FYI, the article is by Adam Cohen who is usually a day late and a dollar short.) Baby lawyer's comment on the article was would the people have the willpower to exclude such actions statutorily. I responded, because I couldn't help myself. I asked why would I want the people to decide anything? These are the same people who decided that Proposition 8 was a good idea. These are the same people who are following Glenn Beck to the Lincoln Memorial to take back their ~~white~~ history. I don't know about the rest of you, but I don't much trust the people. And, I think a lot of the people think that if you aren't doing anything wrong, the fourth amendment should not be a concern to you, i.e. let the officer search your car if you have nothing to hide. Fuck the constitution. Only criminals need it.

But, I digress (and I probably will a lot during this post). The rest of my comment was that it is so easy to get a warrant, even a wiretap, that maybe the 9th circuit just decided to stop the charade. What's the point? We don't really mean probable cause. We just mean give us some stuff that we can sign off on. And then the rest of us judges will just continue to sign off on it since, well, that first judge wouldn't have signed off if there wasn't actually probable cause, right? We, who have been there and done that know this isn't so. We read the warrant applications (when they are deemed necessary for the search) and think "who would ever believe this?" We know who believes them. Judges. They don't live with us. If you think you know a judge who does. You are probably mistaken, or in love with them. If you think you know a judge who really does get it, tell them thank you from the rest of us.

Back to point one. The facts in the 9th circuit case are absurd. The man bought fertilizer (which is known to law enforcement to be used by people who grow marijuana. It is sold at Home Depot) He also bought irrigation equipment. He bought deer repellant. My good people. HE BOUGHT A LOT OF GROCERIES. What more do I need to convince you that this man was up to no good? No good I tell you. And, Mr. Pineda-Moreno lives in a trailer park. Thus, he had no reasonable expectation of privacy in his driveway, despite the fact that it was within his curtilage. Judges don't live in trailer parks, my friend.

The dissent in the case is remarkable. The language illustrates what many have been saying for a very long time, that until we decide to put someone in charge who has some balls, we will just keep seeing the demise of our rights until we've just got nothing left:

There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.

The dissent didn't believe it. But they don't count. All's well that ends well. We don't play to the dissent, unfortunately.

I recently had an appeal with the following facts: Search warrant on house based on information from a CI* (that's it, no surveillance, no trash dump, nothing). CI says there's a shit ton of coke and heroin in this stash house. Cops go in. No one is home. They find a small amount of heroin and cocaine. Certainly not stash house worthy. They find a document (or dozens, it's hard to tell from the suppression hearing or the trial since defense counsel never actually looked at the discovery, but that's a post for another day) with client's name on it and then get an arrest warrant. He's walking down the street and they arrest him. They take him to the station to process him and the testimony is that a man and woman walk into the station and ask to talk to this guy who is currently under arrest for possession with intent. The cops say, of course! Go right ahead. My client hands over a key to this man and woman and then the man says "where's the dope, where's the dope" client says "in the gas tank, in the gas tank" and then the cop comes over, takes back the key and man and woman (can you say co-conspirators?) leave. The cops let them leave. See you later. We don't need your name. We don't need to know where you live. Give us the key and have a nice day.

It gets better. The police officer in the station, after kindly asking the couple to depart, calls two officers who are on the street. He says, check the gastank of the car. I've got the key. Now, it's dark. It's nighttime. But the officers find the car and the gas tank is locked. They shine a flashlight into it and can see yellow glassine envelopes. Voila! How freaking perfect is that? Could you dream up something more implausible in your entire life? I think not. Oh, you could hope. But you would fail.

You can't make this stuff up. I can't anyway. But people can. And they get away with it.

I have done a substantial number of wiretap motions. There is a show on HBO called "The Wire" and it's about Baltimore and the drug trade and wiretaps. There were times when I was working in Baltimore when I couldn't separate fact from fiction. And all of the wiretap applications started to look the same. At one point I wrote, in a motion, that I actually copied my argument from another motion verbatim, since the police had done the same. The only thing both of us had to change were the names. I also used statistics from the United States Courts that shows how many wire tap applications were applied for and how many were granted. If you take a peek here, you'll see that in ten years, only two were denied. Two. I've read these things. They suck. Most of the time the police can't figure out a way to get to the top guys and they'll say so in their application. The applications will read that they can't get any evidence by doing, you know, police work, so they desperately need to infringe on any and every right a person might possibly conceive of having. And the courts say, ok.

This angers me as much as the Glenn Beck rally. Maybe even more. Because the folks at that rally I can dismiss as dimwitted morons. I cannot dismiss judges who hand out wiretaps like candy. I cannot dismiss judges who refuse to maintain the sanctity of what this nation is supposed to stand for, who accept the fact that if you buy stuff for a garden and also buy groceries and live in a trailer park you don't get no stinking privacy. Or those who believe that you can shine a flashlight in a gas tank and see drugs or that police are letting co-conspirators walk out of police stations. It seems preposterous to me that anyone would believe such things.

I guess I'm never going to be a judge.

* CI is a confidential informant. A guy who almost always has something to gain by helping the cops out.

Blawg Review

2010-08-27T17:47:00.000-04:00

In even more exciting news, I am hosting Blawg Review #279. Submission guidelines are here. If you have something you think I should consider, please send it to the editor at blawg review for um, blawg review. I'm excited to take a gander at the latest and greatest out there and to maybe do a halfway decent job of the upcoming review.

This blog - 39 years 1 day.

2010-08-27T11:45:00.001-04:00

It is the first day full day of the 39th year of my life. I was thinking I would write an angst filled post about the unexpected twists and turns my life has taken, how chaos has been the rule rather than the exception, and making a list of regrets and laments.

But, what would be the point?

I believe in kismet. I do. It might be the fool's way out of taking responsibility for poor forethought and bad decisions, but when I look at the crooked, cracked and pothole filled path that got me to this little square office in Takoma Park with two kids and a mortgage - well, I don't know how it could be any other way. Listen, I'm not saying it's all good. If I said that it would be an outright lie. It's not been all good. If you go back to this blog in 2006 you will read some things that I am shocked I wrote about. I exposed parts of me that probably should have remained behind closed doors. In my 39 years plus one day, I have had a series of life lessons that I could have probably done without. I have seen family and friends suffer at at the hands of our justice system in ways I wouldn't wish on my worst enemy. Marriages have disintegrated - poof - right before my very eyes. Children have been born and died. Children have been wanted and not had. In 39 years plus one day my heart has been broken and put back together so many times that I wonder how it still keeps on beating.

But it does. And it feels good and strong and ready to fight another day.

And, really, fight we must. Each day (when my head isn't up my ass) I make the rounds of the blogs over there on the right. It is, indeed, the choir. They all have a similar opinion on most matters and we have a nice time discussing the day's issues and nodding our heads in agreement with each other. Yes, there is grave injustice in that case. Yes, the judge was horribly mistaken. Yes, we are brave and strong warriors. We pat each other on the back for fighting the MAN. Go us! And the fight feels so good that we then resort to fighting each other. Our hearts beat good and strong and the fight is in us. We are only following our natural instincts. Is there any other way?

I have been asking questions and contemplating things. I write this blog, see. Some have called it 'crappy' others have said I spend too much time doing what I am doing right now, naval gazing and blathering on. Others are fond of the self-reflection and the stories. I have been accused of being too nice, or being a hatchet man, of being too lawyerly or not lawyerly enough. I have been told I have a responsibility when I write and I have rejected that notion. To whom am I responsible? Who could possibly take what I say that seriously? Or take it and misinterpret it to mean something other than what the words mean in their ordinary use? It is just words written by a now 39 year old lawyer turned stay at home mom turned returning lawyer. I would expect that people would take what I write in the spirit it is intended.

But maybe I'm wrong. Maybe there is a responsibility. Maybe people don't know what the spirit that is intended is. The bloggers on the right say big, deep, meaningful and important things. Most of them have been at this criminal defense thing for a very, very long time. A few are new and trying to learn. I am. Both.

So, I don't always write about big, deep, meaningful and important things because, at 39 years and 1 day I am still trying to figure out where I stand. I have been at this law thing since 1997. That is not a short amount of time. But I was at home for two years. And while I thought that my skills as a trial lawyer would be a huge asset, and dammit, it was only TWO YEARS. I was wrong. To those women who think they will simply scurry back to the workplace once they are done raising their children let me tell you this - you will be devastated to find that it does not work like that. The world does not wait for you while you wipe noses and raise men. It does not care that you baked banana nut muffins from scratch or got the kids to their activities on time. The world wants to know who you have defended and when you had your last trial. The world wants to know where you were and why you left it.

So here is the fatalistic portion of this post, the part where I tell you that it is kismet that got me back here. Kismet that led me back to the arms of the law. It is kismet that will define where all of this ends up. I do hope,though, that I have another 39 years and 1 day before I find out.

Pick your jury, any jury.

2010-08-24T17:08:00.001-04:00

I've been working on a number of post-conviction motions these days and I get to do a fair amount of armchair quarterbacking. I know appellate lawyers like to think that they know what's up, they could do this stuff better than that silly, flashy trial lawyer. I like to think I'm above that when I have my post-conviction hat on. After all, I've tried a case or two back in the day and I know what it's like to be asked a question by the judge, a question you totally did not expect, and have to answer it right then in an instant. No time to look it up, no fastcase on your iphone. Just "Ms. Seddiq, well. . . " and all eyes are on you thinking "Come on, you're the hot shit trial lawyer. You MUST know the answer." And, sometimes you get it wrong. Most appellate and post-conviction lawyers have never felt that pressure. They've got a deadline months and months out. They have the time and the luxury to think things through, mull it over, talk to friends and colleagues. So I get it, trial lawyers. I really do. But when I read some trial transcripts my heart sinks and I wonder what on earth the lawyer was thinking.

My biggest beef these days is with the lack of participation by counsel during jury selection. In New York, we got to voire dire the jury. It was fabulous. The jury knew you, knew your client and knew your case. You got to educate them, speak to them one on one. While you couldn't always be certain that you didn't get loonies on the jury (and I have stories about that) you got to get a pretty good feel for them. That's not the case in Maryland where the judge conducts voire dire, asks seven questions, and counsel just sort of stands there and nods. I've recently read transcripts where people have come to the judge and said "my mother was shot" and the judge says "can you put that aside and be fair and impartial?" and the potential juror answers "yes" and then the juror sits down. No follow up by defense counsel. Maybe not even a skeptical look (it's a transcript so I couldn't really tell). In this particular case, the prosecution made a Batson challenge, saying that the defense was systematically removing white men from the jury (cause you know how the Man be trying to keep them down). The Court asked defense counsel why he removed the three white men from the jury. He couldn't give an answer because he hadn't a clue about any of them. The judge didn't sustain the challenge, but warned defense counsel that he would be watching if any more white men were removed - by the way, the defendant was black.

I know it's not the norm to participate in jury selection. But people, do it. Let the judge shut you up. Let the judge tell you that it's not in your province to ask questions of the jurors who will decide your client's fate. Why are you so afraid that the judge will not like you, will tell you you're a dumb poopy head for trying to protect your client's rights? Your client, that person standing next to you - he is entitled to a jury that will be fair, impartial and unbiased. If all you know is that potential juror lives on Oak Lane that probably won't help you get there. And then us armchair quarterbacks will have no choice but to lament the state of affairs today and continue to be convinced we'd be better trial lawyers than you.

Ego or Justice?

2010-08-18T11:31:00.003-04:00

While I've had my head up my ass, a lot of great discussion has taken place in the blogosphere regarding the notion of justice and our role as criminal defense attorneys in that great ideal. While I consider the discussion to be valuable, I think what's even more interesting is really WHY people choose to become criminal defense lawyers. Look, we have to know that there is something a bit odd about a person who would kill anyone who harmed one of their own family members, but would fight to the death if someone was accused of doing that same sort of awful thing to someone else's family member. It is a contradiction, it's hypocritical. So, why do we do it. Not just why do we do it, but why are we so drawn to it that some of us (not mentioning any names) come back to it.

I've been having this discussion with a few good friends. My friend Mark Kamish, a criminal defense lawyer in Indiana, and I met years ago at the National Criminal Defense College in Macon, Georgia. We chat on the phone on our commutes home from work, and the topic of conversation - after general traffic griping and talk about our kids (his are big, mine are little) is criminal defense, the law, the way it 'used to be' (you know us old folks love to talk about the good old days) and why the fuck we do this. Jamison Koehler and I had a long chat while I was fake starbucks lawyering it the other day as well about egos, the desire to win, and something about needing to be the center of attention.

It is, honestly, hard to define what sort of person becomes a criminal defense lawyer. Terry Kindlon tried to explain what makes us tick in several of his emails . Is it really about 'justice' and serving those least among us? I like to think, on those days when I'm in court fighting the good fight, that I'm doing a service for the good of humankind. People have rights, I make sure they are taken care of. As a small human being, I like that I can play a larger than life role in all of this. But then, isn't that about me? About how standing in a courtroom and hearing the sound of my own voice resonate in the well makes me feel? What about the justice? Is it merely an afterthought or a nifty collateral consequence of me being able to strut and swagger? Here's the bigger question: Does it even matter?

Here's a description of me. Let's see how many of you criminal defense attorneys see yourself this way as well:
I am very good at compartmentalizing. Most people don't know what's really happening behind the curtain. My hands rarely shake (genetics, maybe, since my pop is a surgeon, after all) and no one would ever tell I throw up three times before opening statements. What happens in one part of my life rarely affects what happens in another. I suppose, that is part of why I can defend someone accused (and even convicted of) child sexual abuse without a second thought. I am literal and competitive. I can't draw a circle with a compass or a straight line with a ruler and I can't sew or decorate my house. I run marathons and have cooked through 3/4 of the Art of French Cooking. I am horribly outgoing and not shy about much. I disclose just enough to make others comfortable with disclosing even more. I can take a licking and keep on ticking. I have mountain biked and crashed and gotten back up and kept on going. I fight with my friends for reasons I can't fathom and I can hold a grudge forever. Or forgive and forget tomorrow. Or this afternoon. I never forget, and I never remember.

I want to win. I want to win. I want to win.

I have a great slew of criminal defense lawyer friends. A few are kinder and gentler than I, but really, not many. Most are vicious fighters and great drinkers. Perhaps if we were fighting for a cause less noble than justice we wouldn't be as adamant about it. But, we won't ever know. Thank goodness justice has given us cover for those of us crazy enough to pursue it.

Where I've Been

2010-08-18T10:52:00.000-04:00

The folks over at the notguilty household have had a fairly tumultuous month. Suffice it to say that my mind hasn't been on blogging, but on trying to figure out ways to build the practice and providing emotional relief for the people at home. Dad is back from Afghanistan for a month. He has great stories to tell and hopefully I'll dig my head out of my ass for long enough to relay at least a few of them here.

In the interim, I went to Miami and learned a thing or two. Mostly, I learned that there are fantastic resources available to CJA panel attorneys through www.fd.org. If you haven't checked it out yet, you should. I also had dinner with world renowned blogger, Brian Tannebaum, but doesn't that deserve it's own post?

The Library Under the Deck

2010-07-29T13:36:00.001-04:00

We grew up around books. Lots and lots and lots of books. My parents had a large house in Rockland County, NY, and it had a giant, unused space in the basement that my dad had fitted as a library with built in bookshelves and a huge entertainment system. He'd watch video lectures on great philosphers and art. When they moved to Virginia, the house was a lot smaller, but pop found some unused space under the deck and had it built out:

This room is much smaller than the one they had in Rockland, and the books aren't organized in any way (in Rockland they were by topic), but it's twice what you see in these pictures. The shelves are filled with knick knacks and just general junk from my parents' travels around the world, the walls are covered with framed photos taken by my father. My dad has hosted numerous gatherings in this library, usually a bunch of Afghan guys sitting around, smoking cigarettes and drinking bourbon, talking about politics and religion and cursing the East and the West. Women folk usually stay upstairs, but I always have ventured down to join the men and I usually just listen and take it all in. The knowledge that can be gained from sitting with people who have lived more is amazing, even if what they say, factually, is completely off base.

But, back to the library, because there is a point here. I am like a kid in a candy store when I go downstairs. Or, let's just say it - a nerd in a library. There are no return dates or overdue fines (although pop knows when something has gone missing for too long and all his books are stamped). And there is a book on just about any topic you could imagine - from tantric sex to vegetarianism and everything in between. We have a photo book on Carnival in Brazil. Why? I have no idea. We have volumes on Islam, Christianity, the Bagvad Ghita. There is nothing off limits or banned or censored.

Today I went down because I knew I had contributed John Rawls' "A Theory of Justice" to the collection at one point and I wanted to retrieve it. I bought the book in college when I was doing my philosophy thing. It was used then, and now it's even more battered and bruised.

While I have vague recollections of the premise of his theory (veil of ignorance, etc.) I'm eager to re-read and re-evaluate and see how much I've evolved since my dress in black, smoke cigarettes and pretend that I'm Simone De Beaouvoir days of old.

While most days, now, are spent with Federal Sentencing Guidelines or trial transcripts, heading down to the library reminds me that there is more to the practice of law than getting up and putting on a skirt, heels and grabbing your files. There is theory, there are thoughts and ideals. The room is filled with why I studied philosophy and why I became a lawyer. And while we debate back and forth about innocence, justice, and trial tactics, the room under the deck proves that there is room for engagement, disagreement and discussion on all topics big and small.

I've used a word I said I never would.

2010-07-26T14:27:00.002-04:00

I am not taking sides. Really, I'm not. There is a bit of a tug of war going on in the interweb and I want to maintain a somewhat neutral presence without being called a cheerleader or a phony. Perhaps it's time to let that go by the wayside and say this, and please, Jamison Koehler forgive me for using this phrase, but can we all please stop whining?

I don't know when being a criminal defense lawyer was easy. Was it easy when a federal judge would tell us he would love to look at all the reasons why he should sentence a client outside the guidelines but he was 'constrained' by them and had no choice? No, it wasn't. Was it easy before we had instant access to hundreds of true believers who could answer a question at any time of the day or night? Was it easy when the sex offender registry laws were first implemented and we had no idea how to fight them? I don't recall that it was. I think it was very, very hard. And yet very, very worthwhile.

I love my little blogosphere. From Scott Greenfield to Norm Pattis, Rick Horowitz, Jeff Gamso and yes, even Brian Tannebaum. I think Mike Cernovich at Crime and Federalism is one angry mofo and I love reading just about everything he writes. I sit down each day with a cup of coffee at my messy desk (sitting upright and in bad shoes) and take it all in. I love the emotional posts and the substantive ones and the ones that call for revolution. But I'm not digging this last round of boohooism. Sorry. I love you all. I think you are stellar and supreme lawyers. But I just got back in the game and to hear you all saying it's just not worth is, well, it makes this girl a little weepy.

And, if you think almost three years at home with twin boys was a rest you are sorely mistaken.

Perhaps we didn't pick this life. Maybe it was chosen for us. In our culture and religion, we believe in Kismet - fate. We cannot say "if only" because there is only this, here, now. The way it was meant to be is the way it is, like it or not.

Yesterday, I got this magnet in the mail from Carole Dee of Public Defender Revolution.

If you've signed up for a lifetime of pushing this rock up this hill, then let's just get on with pushing it. I'll help.

Mommy Blog Post

2010-07-22T22:07:00.000-04:00

Warning - extensive self-absorbed commentary ahead:

How could I ever have thought I could leave? How did I think that I could simply walk away, stay home, make cornbread? Why was I trying to put a round peg into a square hole?

I am admitting this now, I was a terrible stay at home mom. I did not sew, I did not keep house all that well, and I certainly didn't feel fulfilled at the end of the day. I didn't feel angry either. But you know when you are at a job and it just doesn't feel right? Well, that's how it was.

I even would say, when people asked me what I did - I would say, I do nothing.

I hand it to the stay at home moms. My life is substantially easier than theirs. I know, I did it for over two years, the diapers and the late nights and the staring at the driveway waiting for the reprieve. There are some women who are made for it. I truly believe it is a gift to be able to stay home and raise good and solid citizens. I am not gifted in that way.

Right now my kids are at a stage where they are really speaking, conversing and interacting. They will be three in just over a week. We talk about going to mommy's office and they like bringing their skate boards to ride in the halls. They can say "mommy is a lawyer" and it's music to my ears. They are learning to say "she defends the constitution" and I'll be on cloud nine when they do.

But back then, when I was still high from the hypothyroidism, I thought, truly, that staying home was the right thing to do, that I could do it better than anyone else could.

I think, it's still true. I am their mom. I do it best (well, daddy rules the roost, but you know what I mean). But in order for them to have a full appreciation of the world at large, and their spot in it, mommy has to be who she is. And that is a lawyer. A criminal defense lawyer. A mommy who puts on the suit and lipgloss, grabs her litigation case and does her thing, for better or worse.

I have lots of mommy friends who will read this when it gets pushed to facebook (hi you!) I know they know what I'm talking about. Raising your children is a multi-pronged project and there is no one right answer. I am thankful that at the end of the day, I've found the thing that works for us. Mommy is a lawyer. She defends the constitution. And she loves us.

Today

2010-07-21T17:26:00.002-04:00

Today I listened to Mark Bennett. The courthouse freaked out. I didn't 'win' in a technical sense, but the client got his day in court and I earned my keep. Isn't this what we signed up for?

Maryland state trooper doesn't know why he has lots of child porn. Probably just needs a hug.

2010-07-20T12:37:00.004-04:00

Maryland State Trooper Bruce Allen Tucker (I wonder how many people he worked with knew his middle name was Allen) has been charged with possessing child pornography. According to the Baltimore Sun, Tucker had hidden his computer, which contained over 3000 images, in a water heater closet. After that, Tucker gave a statement to the cops saying he didn't know why he collected the images, but he was hurt and angry after his wife cheated on him and left him.

While Tucker says he didn't know why he was looking at the porn (allegedly), Baltimore County Police Lt. Rob McCullough wastes no time stepping up Trooper Tucker's defense: Says the Lieutenant:

"There's no indication at this time that he was actually involved in taking the pictures or that he was actually depicted in any of the images with any of these children," said Baltimore County police Lt. Rob McCullough. "He couldn't offer any real reason (for it). He basically told investigators he was curious about the images and he just started casually looking at these things over the Internet, and his interest grew. . . I'm sure he had to know it was illegal"

OK, I'll play. Lieutenant, are you trying to make the citizens of Baltimore County feel better about the Trooper, you know, he was a good guy and didn't actually have any pictures of him doing stuff to little kids? Or, are you trying to set up some sort of defense or mitigation? Hey, I'm a defense attorney so I dig it, but can you come by later on this afternoon because I got a guy who is charged with having 20 images and he isn't in any of them either. No? You're busy? I understand.

Second, let's look at the statement "he couldn't offer any real reason for it." Pray tell, Lieutenant, what might be a 'good reason' for having over 3000 pornographic images of children on your computer? I've heard a lot of reasons - the first amendment usually being a big one. What reason would have sufficed? It was for work? I like looking at little kids? I'm sure other folks in Mr. Tucker's position would love to know, you know, for future reference.

The kicker though is the Lieutenant's statement that the trooper "had to know it was illegal" said almost wistfully, like maybe, possibly the trooper didn't know. Now, I'm not all that clear on how the troopers are trained (and if this were a Baltimore City Police officer it may be that he didn't know) but that it would even be doubted that he knew it was illegal to have images of children engaged in sex acts with adults is unfathomable.

Let me just say that I hope Mr. Tucker gets the best counsel money can buy and that his lawyer tears it up. But the double standard is absolutely incredible.

Debriefing the debriefing, perspectives on losing and the never ending autopsy.

2010-07-19T14:18:00.001-04:00

Last week, Mark Bennett wrote a post about talking to jurors after a guilty verdict. Jamison Koehler followed up with a post on perspectives on losing at trial. In his post, Jamison discusses the differences, generally, between the defense and prosecution regarding post-verdict post-mortems. That post was inspired by prosecutor/blogger D.A. Confidential who lists reasons why he doesn't think too horribly hard about the could've, should've, would've's when he loses at trial. (Whew, now that everyone has gotten their links, let's move on) I didn't find any of the reasons he lists surprising for a prosecutor, but I don't really buy them either. If he loses, I think he probably reflects on it for longer than the time it takes him to get back to his office. The prosecution is not supposed to lose (unless it's Baltimore City). And, if he doesn't think about it for more than four minutes, if he thinks it was a case he should have lost anyway, why did he try it in the first place?

With that said, Jamison makes a couple of statements in his post that really stood out to me. First, he intimates that there are some criminal defense lawyers who, after a conviction, probably don't do a post-game wrap-up of where things went wrong or how they could have done better. I shudder to think of that lawyer representing someone, of standing next to a living, breathing human being in the well of the courtroom. This is the practice of law, and each time we move - whether it's forward, backward or sideways, we are learning something. If we are not able to sit down and reflect on what could have gone better after we have just heard the words "guilty" come out of a judge or jury's mouth, we should call it a day and go home and never set foot in a courtroom again.

Second, the post states that the 'verdict tends to contaminate the assessment' of how well we did at trial. Meaning, if we lose, we suddenly don't think we did so hot even if we felt like we killed every cross, made every objection perfectly and held our ground at every turn. Here's the thing, we really attempt to avoid trying cases we know we are going to lose, we try to get good deals, mitigate, etc. But some cases just have to be tried. And, if you are going to try them you have to convince yourself that if you choose the right tactic, you could win. So you go through and prepare and convince yourself you could win, even when the deck is stacked, even when every other human being on earth looks at you like you are a complete moron and doesn't understand why you even show your face in public, you do it. So, when you lose, even if you were meant to lose, you take it very hard. As Mark Bennett said, the verdict IS the assessment of how well you did at trial. If you pull it out when it should have been a loser, it was because of you. Likewise, if your client is looking at several years behind bars, it's also because of you.

I am a girl. I get to go back to my office and cry about it. In fact, after my first loss that's exactly what I did. My first trial as a defense attorney was an attempted murder/kidnapping/weapons possession. My client was a gentleman if there ever was one - soft spoken and kind (at least to me). I worked my ass off, went to the scene at the same hour as the crime was alleged to have occurred, videotaped the area, went door to door in Arbor Hill asking folks questions. I thought we had a really great case. My client testified and was convicted of the gun charge (which cost him more time than the attempt murder would have). The jury told me that they were about to walk my client until he testified, and then they realized he was probably guilty of all of it, but could only get him on the gun.

My heart sank. This was my fault. I let him testify. I counseled him, I prepped him. I gave him all of the advice I could think to give. I told him the pros and cons. Yes, it was his choice, but could I have prevented it if I had lobbied harder for him not to testify? Could I have prepped him better for cross? I spoke to Terry at length about this case. I thought I had done my due diligence. I was wrong.

I think about this case even now, almost a decade later. It's the never-ending autopsy. I can tell myself I did everything I could, that there was no way to know how that was going to turn out, but it matters very little. And yes, I cried.

And I got back up, and I went out and tried another case. And another. And I wrote appeals, and drafted motions and reviewed and reflected on every win and every loss. I hope I continue to do so, I hope I never think that the verdict doesn't matter, as long as I do a "good" job. I hope I never get 'too busy to engage in too many post-mortems" and forget that I'm not just a cog in the wheel, that I represent fallible and fragile human beings.

Mr. Confidential summed it up best himself in a comment on his post:

The problem you have, Jamison, is that when you lose there is an individual who suffers a negative impact. A conviction, maybe prison time. That must hit close to home when you've been working with that person a lot prior to trial. For us, we have victims sometimes and they can be distraught when we lose. But they get to go home and kick the dog, lose themselves in a book, have a strong martini. Your guys don't. So I can see how that would be hard for you all.

It is hard, and well it should be. When it's not. Let someone else take over.

Before we discuss the law stuff.

2010-07-19T13:18:00.000-04:00

First thing's first, I wanted to thank everyone who took the time to vote, to comment, to tweet or to email me about the photos. While I am more secure in my appearance now than I was when I was 16, it still took a bit of a deep breath for me to post those, knowing that the internet can be a cruel, cruel place. But alas, my faith has been restored. So, thank you. Oh, and picture number 1 was the runaway winner. When the website goes up (promises promises) that will be there somewhere.

I have been away the past couple of of weeks (in the internet sense, I didn't actually physically go anywhere) and found the break to be refreshing. I am back in full force now, though, and am eager to keep writing and continue the conversations in the blogosphere, so expect a flurry of activity in the next few days. The practice is picking up some speed and I'm trying to figure out how to devote more time to the practice of law and less to the administrative stuff that you can't bill for but is essential to not committing malpractice. The boys turn three in a couple of weeks, and we are celebrating a slew of birthdays of miracle children, all who were born via IVF in the summer/fall of 2007.

I'm heading to Miami in August to attend the Federal Defender/CJA training and am looking forward to continuing the evolution of mommy/lawyer and in the meantime, trying not to fuck things up for either camp. I'm purchasing books for my little law library, getting some 'art' on the walls, writing an article on immigration for the ABA GP/Solo magazine.

In the meantime, I'm trying to spend some time with the kids and remembering to floss regularly.

Now let's move on.

Pick the Pic

2010-07-12T16:17:00.000-04:00

Below there are three pictures that I'm thinking of using on the new website. To the right is a poll. Have at it!

PICTURE 1

PICTURE 2

PICTURE 3

Update on Not Guilty

2010-07-12T12:59:00.000-04:00

So, I've made a decision. Notguilty will stay exactly as is and I will have a new blog on my website that will be devoted to giving folks general information they might be looking for. It has taken me a long time to figure out how to handle it, and I wasn't sure how to make a seamless transition from naval gazing (as I've been accused of doing) and general legal rants to "If you are charged with a crime, don't talk to the popo" which is how I would say it here, but wouldn't if talking to the general public.

My audience here is general, I've got moms and friends and law students and they probably couldn't give a crap about the latest development on criminal procedure in Maryland or the increased filing fees for immigration.

So, rest easy, my good people. Notguilty's vibe will stay the same. And if you want to get word on those filing fees, you can check out www.mzslaw.com (when it goes live at the end of the week)

A Tale of Two Cities.

2010-07-07T11:54:00.005-04:00

I was perusing the newspapers this morning and in the headlines of the Baltimore Sun was this: "Black Guerrilla Family: Federal Grand Jury Indicts 15 in Connection with Gang" If you are of the law and order mindset, this will come as wonderful news because really, isn't cleaning up the streets what it's all about, especially the streets of Baltimore City where crime rules the day?

If only it were that simple. Allow me, dear reader, to give you some statistics and background on Baltimore and some insight on how I ended up there. This is my tale of two cities.

If you think of Baltimore, you may think of the inner harbor, crabcakes, and the Wire. The City (as opposed to the County) is an independent municipality, with about 640,000 residents, the majority of whom are black. Baltimore City has the third highest homicide rate for cities with populations over 250,000. It had 238 homicides in 2009, up 4 from 2008. When I practiced in Baltimore, the murder rate was higher, nearing 300. Maybe four more dead people doesn't seem like that many, and in fact, even 40 more might not, but that's four or forty more people who aren't on this earth anymore. Four or forty more fathers, brothers and sons who have vanished. And, most of these people are young black men. (But, that's a post for another day.)

The Baltimore City Paper does a regular column called "Murder Ink". They also have regular features on the homicide rates in Baltimore and follow and report on trends. There is a popular blog called Baltimore Crime that keeps tabs on the homicides and updates on criminal activity in Baltimore. The City will probably have just about 200 or so murders this year, which will be a marked decrease from prior years. Remember there was the show "Homicide, Life on the Street"? That took place in Baltimore and is actually based on a book written by a Baltimore Sun journalist who spent a year with the Baltimore City police. The characters in the show are real, I've met some of them (the people on whom they are based, not the actors). The show is pretty accurate in portraying life in Baltimore City, and if you've ever watched the Wire, well it was sometimes hard to separate fact from fiction, as I've written about before.

So, why on Earth would a girl from upstate New York's cow country move to a city like Baltimore? Well, you want the truth or the doctored up version? Listen, I like to move. That's the truth. If I ever apply for a job and an employer reads this blog they may question my ability to be loyal to their firm, and I wouldn't really blame them. I am a rolling stone and have been my entire life. We moved 23 times before I was 14. We've had a few moves since marriage and luckily, Drue has been game and has kept up. We had a great life in Albany. I had very good work, we made good money and our friends were a wildly diverse (yes, you heard that, Albany is diverse) smart and fun group. I had a clique of criminal defense attorney girlfriends and when I sat in the well while waiting for cases to be called I never felt alone. We were going to build a giant house on a couple of acres of land in Averill Park (with a pond in the backyard, despite Drue's cautionary tales of it turning into a cesspool). We were going to send our girls to Emma Willard and our boys to Albany Academy. Life was all planned out.

Life didn't like my plans.

And, it was just time to go.

My family lives in Northern VA. Drue wouldn't move to the 'burbs of D.C. (which is where we live now) He'd been a 'burbs kid his whole life and was ready for a change. So, one weekend we went to Baltimore for my best friend's wedding. It was a beautiful July day and the liquid love was flowing. I think it was ArtFest and we were hanging out in Charles Village. Our flight back to Albany was delayed so we had a couple more at the airport. I turned to Drue and said "I don't want to die in Averill Park" and he said "Let's move to Baltimore". And that's what happened. I didn't work for a while, just kind of hung out and got to know the neighborhood. I did some contract work in D.C. I took the out-of-state attorney exam and applied for jobs. I got a ton of offers from all types of firms, but settled on one that did criminal defense and turned down all the bankruptcy and other litigation type stuff. I wasn't happy at the firm, but the work was intense. There are few better places to practice criminal law than Baltimore City.

Why? You ask? What's so great about being a criminal defense lawyer in Baltimore City? Well, as I've already told you, the cops are not all that great. The jurors don't live in lala land so they know first hand that the cops trample on people's rights regularly. The court system is over burdened, lawyers don't regularly file motions because they don't think they have to, and it frequently is a circus. In New York, we had night court in some smaller jurisdictions. Some of these places had judges who weren't lawyers. We called these courts CPL free zones (Criminal Procedure Law) Most of Baltimore City is a CPL free zone. So, you can win cases. Which is our job. So people, our clients, got used to winning. Repeat offenders still won. It's not as if the cops got better at doing their job with more practice. It was a lot of catch and release, and not just of the low level quality of life stuff. But we felt good because we fought the good fight and won because people, jurors, got it. They knew how life was for black men in Baltimore City.

Baltimore city gave me a false sense of how good I was at lawyering. It also gave you a false sense of how willing people were to believe that cops lie. In Albany, I had cases tossed based on untruths from police officers, but I had to give the judge something else to hang his hat on in order to get the suppression, the dismissal. And jurors never believed that a police officer fabricated testimony. They lived in a different world from the folks who stood before the bar. A jury of your peers. Laugh. Not so in Baltimore City. The jury would most likely be black people from the neighborhood who had seen those very same cops rough other young guys up.

In upstate New York we had a judge who was called Maximum Clyne. I never practiced in front of him since he had retired before I came of age, but his theory was if you were convicted of a crime in his jurisdiction, he would give you the maximum sentence allowed under the law. We had the Rockefeller Drug laws, we had all white juries. We were not too much more afraid of the feds (who never trampled on the State's jurisdiction anyway) because our own courts were frightening enough. You were frequently punished for going to trial, if you were offered five to life (as was Elaine Bartlett who is quoted in the story linked above) and don't take it, you will get 20-life after trial (which is what happened to Ms. Bartlett, a first time offender who was granted clemency after serving 16 years in prison). We did not take everything to trial. We made deals. We mitigated. We fought when and where we could, but we didn't have an overinflated sense of ourselves as lawyers. We didn't have judges called "Maximum" anymore, but we would frequently have drinks after a long day in court and when asked "what did the judge do?" we'd respond "he maxed him." We didn't have stets or nolle pros's, there was no such thing as expunging a record as a matter of course, cases weren't dismissed just because victims didn't show up to court. Oh, victims showed up. If they didn't come willingly, there would be material witness orders and they'd show up in shackles.

What does this have to do with the article in this morning's paper? Well, Baltimore City has handed over its prosecutorial function to the federal government. Instead of letting the judges and juries of Baltimore City wade through their own mess, they've given the honors to Rod Rosenstein, the US Attorney for the Great State of Maryland. In upstate New York, having a federal case meant having a federal case, not a state case that the state couldn't handle and had to hand over to the feds. But then again, our juries in federal court were similar to those in the state, we had horrible sentencing ranges for relatively minor drug crimes, so our fear in both places was on a similar plane.

Not so in Maryland. Federal juries in the District of Maryland are not the same as Baltimore City juries. First of all, they are usually white since they are made up of citizens from outlying communities (communities which don't have the same distrust of police officers that city folks do) Second, federal sentences, as we all know, are astronomical. And finally, as the Sun pointed out this morning, Maryland doesn't have a state racketeering law, so they can't charge guilt by association. In order to prove that someone is guilty of a crime, they have to prove that the person committed a crime, as opposed to proving that they associated with people who committed a crime, which is what the RICO laws do. People get caught up in a giant net and really, everyone gets eaten. As Mr. Rosenstein pointed out "This is the most powerful tool we have in our federal toolbox to prosecute" criminal organizations. And, now, the Feds are going to use it to clean up Baltimore City.

What I found most interesting about the article in the Sun was the summary of the dastardly deeds done by the Black Guerrilla Family. Now, I'm not saying they are a litter of pussy cats doing nothing but empowering black families, but take a look at some of the activities outlined in the indictment:

The 23-page indictment unsealed Tuesday supersedes last year's version and builds on it. It describes the BGF as a sophisticated paramilitary operation that kept a "treasury," made motivational T-shirts (slogan: "Revolution is the Only Solution"), held meetings in Druid Hill Park, developed a gang manual, conducted counter-surveillance on law-enforcement agents and paid off prison workers like Simmons with cash and debit cards.

I think I own that t-shirt, the handbook is entitled "Empower Black Families", if you've ever been to Druid Hill Park then you know, you must have gang affiliations, and we are fully aware that the Maryland PD is camera shy. And this, my friends, is the type of information they will use to prove the more nefarious stuff like drug trafficking.

I don't think the way things worked in Albany was all that great. In fact, when I go through the archives of that local paper my heart sinks at some of the stories of injustice that I just missed since I was so busy plugging away at what I was doing - defending people. I don't think Baltimore city functions too much better, but at least we are able to protect the constitution to some extent, at least in the Court system. If the cops fuck up, our guys can get released, or at least get some semblance of a decent outcome. But that is only because the citizens have had enough and they vote in the jury box. Bringing these crimes over to the federal system just invites more of the same, more ivory tower justice, which isn't really justice at all.

There are days when I regret the move. I miss Albany so much it hurts. I am nostalgic for the friendships, the cold lakes of the Adirondacks and the low cost of living. I wonder if I could have been a better crusader for justice and made changes to the status quo, the way I intend to do here, now.

But enough wondering for today. There are many battles yet to fight. The war is still waging, just on a different battlefield.

Coming up

2010-06-30T12:02:00.000-04:00

I have some guest posters coming up. Kathy Manley will continue to fill us in on the terrorism and sex offender issues their office is working on, Mardi Crawford of the New York State Defender's Association will give us an update on what's happening with the Public Defender Legislation, and Terry Kindlon - yes THE Terry Kindlon, has agreed to do a post on whatever he wants. As long as it is complimentary to me.

Last night I went to a D.C. South Asian Bar Association dinner meeting wherein I got to wax poetic (or just talk a lot) about hanging up a shingle. My history as a lawyer is tough to pin down since I've really only worked for a law firm once, and I totally sucked at it. It was interesting to lay out the path that's gotten me here, though, and even more so to hear what other young lawyers think about it. We got some good feedback (it was a small ground, just 8 of us). One woman, a 3L, said she felt that there was so much to learn in order to start your own practice. Another gentleman said we made it sound very do-able. I think both perspectives are true. It is do-able, but its also a lot to learn.

Today I go to Baltimore on my first CJA case. I am properly attired with appropriate court shoes. But no nude hose!

The Law, a Love Affair of Sorts.

2010-06-29T12:37:00.003-04:00

I am running short on ideas of things to write about. Well, that's not entirely true, there are lots of posts I start and then stop because I run out of steam. It seems there is so much injustice everywhere I turn, so many long Supreme Court decisions, and so much drama on the interwebz that I am suffering from blogging related ADD. So I asked rising 2L Laura McWilliams (you can find her on my blogroll) what I should write about. She said "tell us law students what it's like to really be a lawyer." Seems simple enough, right? I can run through a typical day and say here's what I thought it would be like and here's what it is really like. Here's why law school doesn't prepare you and here's where being a real lawyer isn't so glamorous and not what it's cracked up to be. But, all of this is tough to write because, well, it's hard to be objective when you are in love. It's impossible to be objective when you are smack dab in the middle of something and when it is so much a part of who you are that you can't see the forest for the trees, and you forget about the trees because the forest is so dense.

I am also not an ideal judge because I did a lot in law school that prepared me for the 'real' world. I wasn't on law review because I compared it to being a janitor. If you told people that you had to be in Mensa in order to be a janitor, it would seem like a highly esteemed position and people would be vying for it. There didn't seem anything glamorous to me about editing other people's boring law review articles, or writing my own boring law review articles. But probably I watched too much Perry Mason growing up and I wondered what all that editing had to do with practicing law. (Caveat - I'm not saying you shouldn't be on law review. In fact, I think you SHOULD because why not have as many options open to you as possible?)

I had a friend who had graduated from law school and was working at the DA's office. He said he would get me an internship at the office in the Appeals Bureau and he did. I started there the winter of my first year, something we weren't supposed to do. I didn't get school credit that first year, but I got to learn to write appeals and I hung out with criminal lawyers in the courthouse and at the local watering holes. I went to see arguments at the Appellate Division and the Court of Appeals, I wore fancy dresses to the Court of Appeals dinners. I met the judges and their clerks. I got paid whenever Sol Greenberg wanted to cut me a check, which he did often enough It wouldn't be much, but back then, when I wasn't even supposed to be there, 400 bucks at Christmas was all the acknowledgment I needed.

I tried my first case when I was a 2L. It was a misdemeanor assault jury trial. I had the book I was telling you all about: The First Trial- Where do I sit? What do I say? I remember the victim in the case was a young kid of 15 with a tattoo on his arm. During a pre-trial interview I asked him about his gang affiliation, he said "I'm not in a gang ma'am" so I asked about the tattoo. He said "It's not for a gang, it's for my family. They took care of me inside. The Latin Kings, you know? My family." I remember wondering how that would come out and what it would do for my poor kid victim. I remember standing in front of the jury during voir dire and saying "I would bring my pen up here to write down your answers, members of the jury, but I'm afraid it would slip out of my hand, its sweating so much."

I think I won the case, but I don't remember.

So law school, for me, was about going to class, getting the grades, and getting out. I graduated with honors and worked at the DA's office the entire time. No one ever asked me for a transcript. I didn't even need a resume. One day, December of my 3L, Sol walked in, puffing away on his pipe, and said "kid, you want a job, right?" And that was it. While all of my law review friends were signing up for on campus interviews (I never even got a single one of those interviews even though I tried) I had a job. A full time real job doing real law stuff. I graduated with decent grades and guaranteed paycheck.

What's the lesson here? That I had an awesome law school career and did everything right and you should do what I did? No, not at all. In fact, there are probably a million better ways of doing law school than the way I did it. But, here's the part in this post where I tell you what's different about being a real lawyer and what I wish I had known in law school. Because despite the fact that I was playing lawyer in law school, reality still hit like a ton of bricks. Ready for it? Here's what was different:

The people. The responsibility for the people. Your clients. Their families. It is, sometimes, overwhelming. When you sign up for this, you sign up for a fight each and every day of your life, whatever side you are on. People, these people, they look to you. You are their soldier.

When you are a law student you work under someone else. Someone else signs the papers, someone else tells the clients the awful truth about the potential outcomes of their cases. Yes, dear victim, the cross-examination will be tough, but I will be there with you. Yes, witness, the perpetrator will be in the room, but I will be there to protect you the best I can. Yes, dear defendant, your rights were violated and I will do my best to set the government straight.

You, as a student, stand by with legal pad (maybe laptop now) and nod your head in agreement. And you feel bad. And, it probably feels crushing to you standing there. How can this injustice go on? How can I live in a world where these terrible things happen to people every day? You think it's bad now. Just wait.

Your clients will break your heart. They will expect you to work miracles. Your victories will make you swell with pride and want to dance in the street. You will wonder how you can capture that magic so you can use it next time. Next time, you will wonder where the magic went. Your losses will hurt more than when your 8th grade boyfriend dumped you for Heather Lansing. They will hurt more than every dumping you've ever had, plus every paper cut.

And wait, there's more.

Jails smell bad. Especially during lunch. There are some people you really can't help no matter what.
You think the law is supposed to make sense, but it doesn't.
There are days when judges will yell at you and you will think it was the best thing ever.
There are days when judges will yell at you and you will think it was the worst thing ever.
Older lawyers will try to take advantage of you in court no matter how long you've been at the game.
There is always someone who has been at this game longer than you. (I tried a case against TLK wherein he got a judge to overrule a hearsay objection I made based on the 'federal forms exception'.)
Clients don't understand what "business hours" means. You are always on call. Always.
The more you know, the more you realize that there is so much more to know.

The list could go on, but why not let you youngsters figure out some of this stuff on your own? It's like when people say 'having kids will change your life'. While you know what each of those words means, the reality is something that is ineffable and the statement fails to convey all that it needs to.

Law school is a wonderful means of learning the law. The lawyer part comes after, and that is entirely up to you.

Weekly Roundup First (and last) Edition

2010-06-25T11:24:00.001-04:00

I started three blog posts this week (besides the two that were actually published) but life got in the way of my good times. So, instead of three separate posts, I thought I'd do a weekly roundup and tell you what I was gonna say in those three posts.

By now, you all should know that I love Supreme Court Day! Scotusblog is not just for lawyers. Seriously. Check it out. They do a liveblog on decision days that is funny and fun to read. It gives you a rundown of how the nomination process of our newest Supreme Court Justice, Elena Kagan, is going. It's not written in horrible legal-ese and the summary of the decisions are easy to read and understand.

This week on Supreme Court Day (which was yesterday, by the way) the Court decided that Jeff Skilling might get a shot at a reversal on some of the counts on which he was convicted. Who? Come on, you remember Jeff Skilling - Enron? Remember 2001? A lot of shit went down that year, including Enron and Jeff Skilling (remember Ken Lay?). I didn't post a link to the decision, because its 114 pages long and I haven't read it, but if you are so inclined and need some beach reading, you can find it on Scotusblog.

In other news, the Baltimore City Police Department settled a case with the NAACP and ACLU for 'quality of life' crimes. A friend asked me "what is a quality of life crime" and I half jokingly replied "being black and sitting on your stoop in Baltimore city". That was before I read the article in the Baltimore Sun, which says that my half joke was actually no joke. Now, I knew about all of this because I represented people who did nothing more than sit on their front stoop, got arrested, got searched (incident to arrest) and had marijuana on them. Yes, marijuana is illegal. I know. And yes, I've also represented people who had crack on them. And yes, crack is illegal. But sitting on your stoop shouldn't be the basis for arrest. What it is is a pretext, just a reason to stop and round people up. Because you know, when black people are outside it could potentially affect your quality of life. Most of these cases got dismissed because the basis for the search was no good. So, at the end of the day, the cops didn't do anything except prevent a crack or pothead from taking a few puffs for a day or two. The circle of the life of crime continued unimpeded.

But, according to the article in the Sun, folks like Tyrone Braxton did nothing more than stand on a sidewalk. He didn't even have marijuana or crack on him. He spent 36 hours in Central Booking (probably the worst place on earth) before he was released. His charge was impeding the flow of traffic, because as humans we take up space and, um, when we stand somewhere people have to walk around us.

In 2005, the police made over 100,000 arrests (the Sun reports that is one arrest for every 6 people in Baltimore. FYI, Baltimore's population is 64% black)

In addition to giving a whopping $870,000 dollars for all plaintiffs (there were 13 who were brave enough to step forward and this sum includes attorney's fees and $240k for an independent auditor who will review the city's quality of life arrests over the next 3 years), the Baltimore Police agreed to implement new policies and reforms like not arresting people for ~~being black~~ low level crimes but issuing citations instead, and training the officers in the law and on the constitution. If you think I am kidding, you are mistaken. Let me repeat myself: The Baltimore City Police Department is implementing reforms. The officers are now going to get training on the law. Oh ye who reside within the Baltimore city limits, sleep well tonight. Your finest will soon know what the fuck they are doing! Governor O'Malley, who was Baltimore City Mayor at the time says this is really all no big deal, and that the settlement was not a rebuke. There, that should make you feel better, right?

I also wanted to follow up on my original post on the Maryland Wiretapping statute and the prosecutions. When I talk to people about this they are incredulous. Wait, what do you mean they can tape me but I can't tape them? Well, it seems that it is continuing to happen. Last week a woman was arrested for taping a police officer talking to other people in the neighborhood. Yvonne Nicole Shaw was standing about 12 feet away and was recording the officer's interaction with the neighbors. She says she wanted to show how the cops harass folks in the neighborhood. The officer confiscated her cell phone and when they played it back, they could hear their voices on the recording (remember, the statue only deals with audio, not video). Now, I'm not so good with numbers, but I'm assuming if you could be heard from 12 feet away then you probably weren't whispering. The prosecutor is quoted as saying:

"Cell phones are so pervasive," the prosecutor said, "that recording something that occurs in public raises a question of whether or not it's unlawful. If I'm convinced this was a public encounter that just happened to be recorded, I probably will not proceed with the prosecution. The facts will probably bear out that it was not a private one-on-one conversation."

Now readers, remember last week we talked about the fact that the statue covers those conversations where you have a reasonable expectation of privacy.? The prosecutor in this case answers his question by stating that the recording occurred "in public". If something happens "in public" do you have a reasonable expectation of privacy? I think not. Or, at least we citizens don't. And the prosecutor here seems to get it. But the fact is that Ms. Shaw was arrested, she was put into the system, and even if the case is thrown out she still has to follow up with getting it expunged so it doesn't show up on her record forever. If she applies for a security clearance she'll have to tell them about the arrest. It's not as if the prosecutor, in electing not to prosecute the case, puts Ms. Shaw in the position she was in before the arrest. Maybe the St. Mary's County police need to get on that training about the law that the Baltimore City Police are going to get.

So, there you have it, my friends - Not Guilty's first weekly roundup. To be honest, this took me a really long time so it'll probably be the last.

Runaway General - Rolling Stone's Interview with McChrystal

2010-06-23T15:30:00.000-04:00

If you haven't read it, I urge you to do so, it's here. McChrystal has resigned and Patreaus is in. What does this mean for the future of Afghanistan and the counterinsurgency strategy? What does this mean for the fall offensive in my hometown of Kandahar? I am going to ask around and see what people on the ground have to say, but in the meantime, take a look at what the General has to say about the war.

While I hate to admit it, I think Obama did the right thing by firing the General. McChrystal made the U.S. strategy in Afghanistan look weak and disjointed (which it is, but why would you let the enemy know that?) I also think its bad form to talk shit about your boss in a major publication. So read it and let me know what you think.

Black and white and brown all over.

2010-06-23T12:31:00.000-04:00

I've been receiving some criticism on this blog as of late. I had a friend with whom I share a long history tell me that she was not too pleased with the incredibly legal-ish tone of it. She reads everything I write, but doesn't feel as if she has the ability to respond or comment because its all so serious and out of her league, it is no longer within her reach. I have others who say that I'm really not a legal blogger at all, and should just resign myself to the realm of mommy bloggers since every post doesn't contain legal headlines or supreme court decisions.

I am brown in a black and white world.

I have a good friend who is African - American. OK, I never call her that. I call her black. We discuss race relations a lot. I get to say stuff that most white people never get to say because I'm brown. But there is a line I can't cross because I don't get ALL of it, because I'm not black. There are things I can say to white folks that black people couldn't. But I can, because I am brown. I am in a unique position to straddle the fence, to cross-cultures, to speak in two voices. This friend, we'll call her Misty (as fake a name as any, what kind of black girl is named Misty?) frequently asks "whose team are you on today?" I am a racial chameleon. I am on neither team. I just am.

I am in a unique position in the blogosphere as well. I can speak to the moms, I can speak to the non-lawyers - yes, you Jen and Jen and Jenn (you think I'm kidding?) It's really nice and great and awesome to win the adulation of other lawyers, but all we do is spin our wheels. When the citizenry doesn't know, when they don't hear or feel or care, what have we accomplished?

So, I won't make promises I can't keep. Dear friend, I am a lawyer, there will be law stuff in this blog. It can't be helped. I love the law and I love what I do. I will spend time trying to help you understand what it is and why. I will tell you about my trials and tribulations as a mom trying to build a fledgling legal practice, and I hope that anytime you want you feel free to comment on anything at all, with no fear of reprisals. Dear legal reader, law student, or wannabe, you might happen upon notguilty on a day when she is feeling nostalgic, or frustrated. She might be in a mood to talk about her shoes. I suggest, on those days, you click away quickly so as not to feel disappointment. Dear readers, I am not one dimensional, and neither is this blog.

A Father's Day Post in Two Parts

2010-06-20T09:28:00.000-04:00

PART ONE

I don't think my husband will ever write about what it means for him to become a father. I tend to hog the spotlight when it comes to our conception story since the physical stuff happened over here. But he was there. And I know he longed and wished and hoped. But it was his job to stay strong for me when I felt weak. It was his duty to say "It's fine if we never have kids. I still love you. I will never leave you." when I told him to find someone who could give him the family of his dreams. He never wavered. Not even for a minute.

I don't know what he did when I wasn't around. Perhaps he closed his eyes and saw himself standing with a little boy or girl, picking out punk rock records from his extensive collection, telling his miniature never to get a tattoo while showing off his own. Maybe his heart broke a thousand times over when he thought that wouldn't happen. But he held me when I broke down over other people's good news. And he never let me go. Not once.

My pregnancy was difficult. He made me BLT's and brought me frozen White Castle Cheeseburgers. He did without a wife for those 5 months. I don't know how he soldiered on, having nothing to look forward to after a hard day's work but a horribly fat, morose woman who hadn't left the house in weeks. But he did.

My husband is an incredible father. I can say, without fear of contradiction, that he is a better father than any I have seen among family or friends. He was told by another friend who has small children, while her own husband was sitting right there, that he was the best father she knew. Her husband was hurt, but it is just a fact. It would be like saying he is a male. It just IS. When people assume I have the same struggles as any other working mother, I don't correct them, but I should. But the truth is, I don't have those same struggles. I can go to meetings and networking events and work at the office on the weekends without even the slightest bit of guilt (although, maybe I should try to have more work-life balance).

Drue and the boys pick out punk rock albums from his collection. They listen to them while running around on the back deck. Someday soon he will warn them about tattoos. Happy Father's Day, sweet man. It was worth the struggle, wasn't it?

PART TWO

It is hard to write about my own father because he is a contradiction. An ambiguity. He was the master of the household, but not really. He was horribly strict, but not really. He was absent, but not really.

I imagine my father as a young boy in Kandahar running on rooftops and throwing stones at stray dogs, refusing to get up to go to morning prayer with his father, and tipping over the horse cart because he didn't know how to drive it. I see him sitting on the veranda with a book, dreaming of another world. What else is there? And how can I get there?

My father knew, from the time he was a small boy, that he wanted to be a doctor. In Afghanistan, university is free, but the government picks what you'll do. My father took the test to go to medical school, but his grades came out that he'd be better suited as a teacher. My pop is a stubborn man, and instead of settling, he did his year in the army and took the test again. This time it came out right and he went to medical school. He completed his study, traveled through Europe and India, and then came back to find a girl to settle down with.

I have written of how my father came to American and left his new bride in Kandahar. When we all came to the U.S., my parents tell the story of why it is I call my father "uncle". I was almost two when I met my father for the first time. When he approached, my mother said "there is your baba" and I said "no, that's not my baba, my baba is here (pointing to a picture of my father) that is my kaka (uncle)" They say that early bonding is important. My dad and I probably had a rough go of it, each jealous of and covetous of my mother's attention. He left Afghanistan a newlywed, but still free of the chains of fatherhood. He didn't have time to get to know the woman he'd married, to establish a life and a routine before this little runt entered the picture.

My father provided well for us, but let us know that he worked for it. "If I can do this, a simple man from the streets of Kandahar. If I can become a surgeon in this America, why can you not become something too? If I had the opportunities you had, I would be something even better, even greater. A politician, or a philosopher."

I giggle even writing that, because really, what's better than being a surgeon? But in his mind, politicians had the power to change the world, and philosophers had the power to shape our thoughts. It is no small coincidence that I graduated from undergrad with a degree in philosophy. It is no small coincidence that I went to law school.

If I tell you life with my father was easy, well, I think most of the people who know us will know that's a lie. When I say that life with my father was an adventure, that would be true. When I say that life with my father was worthwhile, that would be most accurate. Pop taught us that easy is not the flavor of choice in the Seddiq household. Easy was for lazy people. And Seddiq's were not lazy. My father instilled in us the Seddiq code of ethics - fight for what you believe in, fight for your honor and your family name. Be proud of who you are, never waver, never falter.

Dad sent me an email a few weeks ago. I have been toying with the idea of moving back to New York because it really is quite hard to start a practice in a new place during a great recession. My father has given me much guidance in my life and my greatest fear is disappointing him. It turns out, my insecurity was causing him great distress. He wrote:

Dear Zary Jan Salam.
Firstof all excuse my spelling and sentences .
Kiss the kids for me.
We(pushtoon or Afghans) have not been trained how to express our love to our children.We do it not through our intellect but through our intution.
Our love for you Adam and children is beyond limit.I know,that I am not the perfect father I know my weaknesses and shortcoming. Of course I was protective based on my culture,religion,prejudices and social habits.I have tried not to interfere into your personal liberties-what to do what not to do.
Here is the source of the stimulus of my e-mail.
Rohma gave me a disturbing news that Zary wants to move to NY. I was confused and really unhappy.Here is for the first time my expression of disagreement and telling you not to.

Whenever I do something, I think, WWKS (what would Kaka say). Here I was, violating a great rule of our upbringing, taking the easy way out. And here was my fear come to light, his disappointment. Suffice it to say the S-K household won't be leaving anytime soon.

Father, Kaka, stay safe. You have taught your children well. Be easy in knowing that we cherish the name you gave us, the sense of history, values and love. Happy Father's Day.

Gideon's Trumpet - Loud and Clear

2010-06-18T16:47:00.001-04:00

I wish I could force you all to click this link and read what Gideon has written about prison. I wish I could just reprint it here so that when it gets pushed to facebook and goes beyond the choir, you will already be face to face with it and might give it more than a passing glance.

Dear reader, this is not a blawg, its a blog. I mean it to be accessible and easily understandable because what point is there for me to continue to jump up and down with my comrades in arms if you won't stand up for yourselves? I know my rights, I understand the law. I know, first hand, the terrible things that can happen to people - sometimes when they least expect it. I don't need to explain to my fellow lawyers what things mean, they already know. I am convinced that you, kind citizen, don't know, because if you did you wouldn't let it continue to happen. So I am trying and will continue to try to let you know that bad stuff is happening all around, and maybe open up some doors for you to peek through.

Or, maybe you just really don't care. I'm hoping that's not the case.

Don't get me wrong. I'm not saying everyone in prison is innocent. I'm not saying most of them are. I am not arguing innocence at all. I'm simply saying take a moment and step back from what you think you know. Allow your curiosity to take over - suspend disbelief and click on that link. Yes people deserve to be punished for their transgressions against society, but how much is enough? How much is too much?

I am feeling particularly sorrowful today. I sat next to a friend while a family member of his was sentenced to 57 years in federal prison. My heart breaks each time I think of it. Fifty seven years. Where will I be in 57 years? Dead. My kids will have grandkids. We might have flying cars, or at least electric ones. The oil spill might've stopped. And this young man of 28 will be 85.

Click on the link above. You might pound your fist and say "serves them right!" but at least you will have a bit more of an understanding what you are arguing for.

Maryland's Wiretapping Statute (come on PEOPLE!)

2010-06-16T16:08:00.006-04:00

Over the last couple of weeks I have written a couple of quick posts about the Maryland State's attorney's office prosecuting citizens under the wiretapping statute. To summarize, the statute makes it a crime to audiotape anyone without consent. (The statute is limited to audio only )Sounds simple enough, right? If you want to tape someone's oral communication, you must obtain their consent. Oral communication is defined as "any conversation or words spoken to or by a person in a private conversation" Unfortunately for the masses, the term "private conversation" was not defined for us and lord knows we can't actually use our own judgment on these things, so we had to sit around and wait to find out what the powers that be deemed it to mean.

Luckily for us, the Maryland Attorney General, in 2000, issued an opinion stating that Montgomery County police were allowed to have video and audio recording devices in their car and that audio taping conversations with citizens during a traffic stop while standing on the side of the road was legal. The AG specifically said:

Statements that a person “knowingly expose[s] to the public” are not made with a reasonable expectation of privacy and therefore are not protected as “oral communications” under the State and federal wiretap laws. Malpas v. State, 116 Md. App. 69, 695 A. 588 (1997). See also John Doe Trader Number One, 889 F.2d 240, 242-44 (7th Cir. 1990) (statements made by broker on floor of futures
exchange were “expos[ed] ... to the public” and therefore not “oral communications” under federal statute); Holman v. Central Arkansas Broadcasting Co., 610 F.2d 542 (8th Cir. 1979) (violation of federal statute to record loud complaints of municipal judge jailed for public drunkenness as they were not made with expectation of privacy).

To summarize, if you are having a private conversation - say on the telephone or in a private corner somewhere - you cannot have an audio recording device on unless the other party says you can. Now, if you are in that private corner and you are yelling and someone records it, that's fine since you cannot have a reasonable expectation that your yelling is private. If you are pulled over by the police and standing on the side of the road with thousands of people driving by, not private. Got it?

So, now that we've had our lesson on what the statute says, what the Attorney General said in response to the police being able to tape interactions with the public (and good for Montgomery County cops, too - I'm glad I set up shop here), we should be able to just move forward and exercise our right to videotape our interactions with our men and women in blue, right? I mean, what's good for the goose is good for the gander, isn't it? If police officers (who work for us, don't they?) can tape me, I should be able to tape them, especially if we are in a clearly public place, it makes sense, doesn't it? I mean, what's private about a public highway or the inner harbor or the Preakness?

You, dear reader, fellow taxpayer, are not allowed to tape the police. They may videotape themselves ~~breaking into your home~~ executing a lawful warrant, or ~~videotape the shooting of your seven year old child so the squad can be on The First 48~~ executing a less than lawful warrant, but you cannot do the same, at least not in Maryland.

So now, sons and daughters of Maryland, we need to ask why it is illegal for you to tape public interactions with police officers. The state, though, wants to know what the big deal is. In fact, in this morning's Washington Post, the assistant state's attorney who is prosecuting Anthony Graber was surprised that anyone even cares about this law since they've prosecuted people under this statute just recently and no one batted an eye:

The attention the Graber case is receiving has surprised Harford prosecutor Joseph I. Cassilly, who said his office has prosecuted similar cases before, including one within the past year against the passenger of a car that was stopped during a drug investigation who started taping officers with a cellphone camera. Cassilly said he didn't know the status of the case because the prosecutor handling it has been out sick.
"The question is: Is a police officer permitted to have a private conversation as part of their duty in responding to calls, or is everything a police officer does subject to being audio recorded?" Cassilly said.

I may not be the sharpest tool in the shed, but let me respond to Mr. Cassilly's question: Generally, yes, Mr. Cassilly. Just about everything a police officer does should be subject to audio recording. It should be public. Why shouldn't it be? I'd really like to have an answer to that question. Just one. One teeny weeny logical, rational answer as to why a police officers actions should not be subject to audio recording? If the police are supposed to be there for the public good, why should anything they do that is supposed to be in furtherance of that public good be private?

OK, so maybe some things they do should be private. I can give them that. Take a wizz, talk to your girlfriend, maybe even talk to victims of crimes you are trying to solve. These are private things. And, the wiretap statute described above clearly states that oral communications are those conversations where you would have a reasonable expectation of privacy. (We all know how that whole fourth amendment reasonable expectation of privacy thing has been going - almost nothing is private any longer and our expectation that it should be so has been reduced to rubble.)

We citizens have let ourselves get to this point. Allowed ourselves to let the fox run the hen house, let ourselves be led to the slaughter, and every other cliche and trite statement about just giving it all away for nothing. Mr. Cassilly thinks his office should be left to continue to prosecute people under this statute, unfettered. And it looks like we might just let him. The man is surprised that people care about this prosecution. Surprised. That people care. That they are being treated like playthings for the government.

So, ordinary non-lawyer reader, what to do? Well, make a stink. Write to the Attorney General and tell him this is total bullshit. Call your legislator and tell him or her that if Gansler won't issue an opinion on the matter that is in favor of the citizens of Maryland, they'd better be willing to step up to the plate and change the law.

I use the phrase 'walk between the raindrops' quite a bit. I know its an old phrase, but I first heard it in a Joydrop song called "Beautiful Like You". Apparently, its also the name of a Steely Dan song. I use it in reference to the regular folks who just live a regular life and assume its always going to be that way. I'm sorry, dear friend, but the reality of things is that life sometimes gets you. You go to bed with your wife of twenty years lying next to you and when you wake up she's gone. Or you go to bed with your husband of ten years lying next to you and the next morning the feds are breaking down your door. I know, I know, it couldn't happen to you. It wouldn't. But realize the forecast always calls for rain. Someday, you might get wet. Wouldn't it be best to have an umbrella, just in case?