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Blakely, Word on the Street

Here is some intel on how Blakely is working its way through one jurisdiction:
*The government is not concededing that Blakely applies.  [Well, of course.]
*But they will charge new cases, and bring superceding indictments in old cases, as if it does.  Thus, they will start charging sentencing enhancements in the indictment.  [I'm not quite sure how this will work.  A sentencing factor is just that, a factor applied only at sentencing.  One of the many problems people like me have with the current Guidelines is they allow a judge to enhance a defendant's sentence if he finds, by a preponderance standard, some factor.  A factor is some wrongful conduct engaged in by the defendant, e.g.., the defendant lied on the stand.  We argue that you may only punish the defendant for crimes you prove beyond a reasonable doubt.  If you think he lied on the stand, then charge and prove perjury beyond a reasonable doubt.  If you can't prove it, then you can't use it.]
*Blakely waivers will be required in all current plea agreements.  [Brady waivers are allowed, so I don't see this as a real problem - though I personally view it as scandalous!]

The Fallacy of the Freedom-Safety Dichotomy

Whenever I discuss civil liberties with almost anyone but a criminal defense lawyer, the following exchange is bound to occur:

Me:  I dislike X case because it takes away my right to Y.
Them:  Well, you have to balance freedom and safety. 
I have always been bothered by the freedom-safety dichotomy.  Benjamin Franklin's retort that the person who would surrender freedom for perceived safety deserves neither did not lessen my anguish.  My mind rebelled against the dichotomy, though I could not explain why - until now.

When we say that one must balance freedom and safety, we presuppose that surrendering civil rights makes us safer.  In other words, giving more power - power in the form of not having rights restrain governmental action - to the government will lead to safety.  Now, I have seen state action that turned my stomach.  I have worked on cases where mentally ill people were entrapped into taking actions the criminality of which they did not appreciate.  I worked on a Section 1983 action where a social worker threatened to take custody away from a mother if she refused to cooperate with an unjust prosecution against her husband.  But no matter how many examples of government misconduct I cite, people continually rely on the freedom-safety dichotomy. 

Ultimately, though, the freedom vs. safety debate arises only in the criminal context.  We all believe that when persons suspected of crimes have less rights, we are safer.  But almost all of us are enraged when Congress or the States regulate speech or deny us the right to vote.  Almost none would argue that you have to balance the freedom of speech or right to vote with safety, since bad ideas can corrupt a nation.  Bad political leaders can ruin our economy and start wars.  We will stack more dead bodies under a wicked President than we would by putting a gun in the hand of any mugger.  But no one argues that we need to restrain freedom of speech or the right to vote in the name of safety.

Indeed, about half of us would balk at a Congress seeking to take away gun rights or deny a woman access to abortion clinics.  To an opponent of gun control (which includes many people antagonistic to basic criminal rights), it is an unsatisfactory answer to tell them we must balance the freedom to own guns with the need to remain safe from unlawful uses of guns.  Gun owners say, "But the Constitution protects our right to keep and bear arms!" 

If I told a woman we must balance her freedom to have an abortion with the need for safety - since abortion teaches us to devalue personal responsibility - she would say, "I have the right to control my body!"  And so, people who support gun control or oppose abortion do not use the freedom-safety dichotomy.  Why is that?

I believe that underlying this bias against the Fourth, Fifth, and Sixth Amendments (Criminal Defense Clauses) is the belief that none of us will ever be charged with a crime.  That is why most of us do not care about the rights of persons charged with crimes.  Because, frankly, it will never happen to me.  But when a criminal prosecution happens, now the defendant changes his tune.

I have worked on many criminal cases for the defense.  No one - not even the staunchest law and order person - was willing to give up her rights.  Indeed, I would blissfully listen while these people - who never in their lives cared about the rights of our other clients - lectured me on the Constitution.  [My boss would with joy collect the large fees paid for the protection and vindication of these rights.]  Suddenly, they cared.  Even George W. Bush, whose would so willingly deny the right to counsel to others, retained a first-class lawyer.

I conclude that the freedom vs. safety dichotomy is fallacious since it presupposes the premise that more power in the hands of government leads to more safety. However, even if we falsify this smuggled premise, the balancing test applied is still accpetable for most people since even a complete repealing of the Criminal Defense Clauses would not harm them.  Unjust prosecutions happen, but most people will never be mugged by the state.   

Disavowing the rights of criminal defendants on the ground that these rights so important to them will never be relevant to you, is immoral.  Those who would allow the government to unconstitutionally abrogate the rights the rights of others but jealously guard their own deserve neither freedom nor safety.

UPDATE:  CrimLaw makes these comments in an email to me.  Safety?  Nothing in this drive to order promises safety or a government looking out for a person's best interest.  The government promises a more orderly society but in order to get there you must forfeit some of the safety guarantees you have against the government.  All the citizens are doing is calculating the risk posed by the terrorist and the risks posed by their own government.  Giving the government more power reflects a value judgement as to whom the citizenry is more afraid of in the short term.  Sadly, it does not consider the long term consequences.

Blogs I Really LIke

I want to highlight some blogs that I especially enjoy, even though they have nothing to do with crime, or federalism.

Underneath Their Robes is dedicated to compiling "[n]ews, gossip, and colorful commentary about the federal judiciary." It is really funny. This most recent post is illustrative.

WHACK! Consider yourself BENCH-SLAPPED! Welcome to the inaugural post of "Bench-Slapped! Article III Infighting," dedicated to chronicling spats, feuds, and rivalries within the Article III judiciary.

The title "Bench-Slapped!" is derived, of course, is from the term "bitch-slap." Lest you think Article III Groupie profane or uncouth, she would note for the record that this venerable term has been recognized by no less an authority than the Oxford English Dictionary, which defines "bitch-slap" (yes, it's hyphenated) as follows: "to deliver a stinging slap to (a person), esp. in order to humiliate one regarded as inferior." Considering that the Article III bench is occupied by 877 legal egos, many of them enormous, bench-slappery is inevitable--which is fortunate for us, because watching brilliant and distinguished jurists bench-slap each other silly is a deliciously guilty pleasure, Article III's answer to female mud wrestling.

The author is obviously brilliant. Her allusions to the comings and goings of the federal judiciary indicate a significant amount of insider information. I imagine she could adopt a "scholarly" tone and publish her thoughts in a law review. Thankfully, she blogs instead.

Another non-crimlaw blog I particulary enjoy is Jeremy Blachman. Jeremy modestly says, "This is a weblog to capture my random trying-to-be-funny observations about law school life." It should, "This blog is very funny because I am reflective enought to spot the ironies in life." His reflections on life often stir internal dialogue not heard since my days as a philosophy major.

In his most recent post, he imagines what a fortune teller would say to an associate at a large law firm:

>"You will stay late at the office tomorrow."
>"You will work at some point this weekend, or some weekend in the near future."
>"You will check your Blackberry sometime within the next five minutes."
>"You will use one or more legal research services in the near future."
>"You will purchase some new business casual attire."
>"Your vacation will be in danger of being cancelled, but providence will be on your side and it will take place as planned, despite the nagging feeling in the back of your mind that you ought to be at work."
>"Your clients will settle soon."
>"Your salary will soon rise in a stepladder increment."

"We All Lose if Cops Have All the Power"

So Mr. Hiibel entitled his op-ed in yesterday's LA Times.

The opening paragraphs read:

A lot of people want to know why I went all the way to the Supreme Court rather than give my name to a policeman. "What's so important about that?" they ask. "What's the big principle at stake?" And last week, when the Supreme Court ruled against me, maybe some thought I was foolish to have done it. But I still think I did the right thing and that there were some issues that had to be decided.

The story began on May 21, 2000, when I was on a rural road near my ranch in Winnemucca, Nev. My daughter and I had gotten into an argument. She was driving, and I was the passenger. We stopped by the side of the road, parked legally, and we continued our argument. I figured we would finish it out and then cool off for a moment.

I was touched by his op-ed.  It lacked all the lawerly talk used in the Supreme Court opinion.  It came from his heart.  It spoke truth. 

When I was a kid, my friends and I would make fun of teachers we thought were being bullies.  We would say, "Show me your papers!"  Like it was a joke.  Like it showed how unreasonable the teacher was being.  Up until the Hiibel decision, I would similarly crack jokes about professors who thought they had a lot of power.  I'd laugh to a friend and say, "Show me your papers!"  It was the biggest joke.  Only in South Africa during Apartheid were citizens required to show their documents before moving freely within their own country.  But today, in America, that's where we are at. 

Some people argue that the Court's decision was narrow - that Hiibel was arrested for failing to identify himself.  But those people are either liars, or they didn't read the lower court decisions or read the briefs - in which case they are incompetent.  You can see here on the video that Hiibel is arrested for not presenting his identification.  He was arrested for not showing his papers.  You can then watch the police throw his daughter onto the ground.  You can watch two grown men bully a young woman.  Then you can talk to me about the narrowness of the case.  You can talk to me about the balance between freedom and safety.  You can then tell me that somehow I am safer by having to identify myself to police when they have reasonable suspicion (which in reality, means a hunch plus a lie). 

How am I safer when police hit people in the flashlight when they are on the ground.  How am I safer when police rough up a woman?  How am I safer when a prosecutor throws his weight around to have a young student thrown in jail for taking his subway space.  And these examples are only what we see captured on video.  Bad cops and corrupt D.A.'s are like cockroaches - there are twelve for each one that you see.  But no one stops the corruption.  I am safer they abuse their power.  Read that again.  We are safer because the police have the power to place us in danger.  Danger is safety.  Slavery is freedom. 

You can spit all the legal mumbo jumbo you want at me.  Law school hasn't robbed my ability to see the truth.  Our freedoms are going out the door.  The Court has very recently held that citizens can be detained while police conduct an informational roadblock.  I can be placed in handcuffs, have my car impounded, and have my good name tarnished for committing a traffic offense the violation of which does not carry a jail sentence.  I can be arrested if a small amount of marijuana is found in a car in which I am a passenger.  If I am arrested (and again, remember that in Texas a soccer mom will be arrested for not wearing a seatbelt) after I left my car, it will be seized and impounded.  Do you have $250 to get your car from the impound lot?  I hope you carry cash since many impound lots do not take check or credit card.

Why am I safe?  How does giving the police more power over me make me safe?

I have not been on this Earth for very many years.  But even in my short time, this America is not the same one I saw as a child.  I do not recognize my home. 

Is anybody listening.  Does anybody care?

Guess Who Wins

This story begins:

Aboard a crowded Brooklyn-bound B train last Wednesday, one of those nasty little spats broke out over who was in whose space. Leaning against the center pole was a diminutive young woman in a skirt. Towering over her was a heavyset man in a suit, with long dreadlocks. The big guy accused the woman of hoarding the pole. The woman told the man to move his hand. He told her to stop taking up so much room. She shot back that he should do the same and go on a diet. Ouch.


Black said the big guy pulled her off the train, banging her hard against a pillar on the platform. When she was able to yank her bag away, the man said he was going to call the police. "I started walking, and he kept following me. I walked out into the street; I just wanted to find someone to help get this guy away from me."

The girl was 23-years old and 5'2". The 37-year old man was a strongly built 5'7". When police enter the scene, whom do you think they arrest? Would you change your guess if I told you that the man was an assistant district attorney? I sure hope so.

Outside, Black said, Nottage was on the phone loudly telling someone he was with the district attorney. Within minutes, five squad cars were on the scene, she said. A female officer apologetically told Black she would have to handcuff her and take her to the precinct. "She told me not to worry, that he [Nottage] was raising a big stink, but there was no way I would be arrested." The worst-case scenario, Black was told, was that she would get a ticket and have to show up later in court.

At the station, Black was held in a cell. As the hours ticked on, sympathetic officers told her they were trying to file a cross-complaint against Nottage for taking her bag. Nottage, however, had gone to the precinct's top commanders, she was told, who were worried about bucking the D.A. "They told me they had to work with the district attorney's office, so they really couldn't go up against him," she said.

One cop told the Voice that everyone in the precinct was angry at the way the incident was handled.

"My heart went out to her; so did everyone's in the precinct. This guy [Nottage] was about twice her size," said the officer, who asked not to be named, citing Nottage's apparent clout. "Did he throw his name around as to who he was? Absolutely. The worst that would usually happen would be that she would get a D.A.T. [desk appearance ticket]. Instead he insisted she be put through the system."

Black was kept in the precinct holding pen through the night and the next day. Black said she suffers from hypoglycemia and became dizzy and ill twice, having to be transported to the hospital, then back to the precinct.

Please read the full story.

"Pair Nailed In AOL Spam Scheme"

The Smoking Gun has the Criminal Complaint brought against two spammers for the following conduct:

An AOL software engineer was arrested today for stealing the company's entire subscriber list--totaling 92 million screen names--and selling it to a 21-year-old Las Vegas spammer. According to the below federal criminal complaint, Jason Smathers, 24, last year illegally accessed the highly confidential AOL list by using another employee's identification codes. Smathers, who worked in AOL's Dulles, Virginia office, then allegedly sold the list to Sean Dunaway, who used the AOL database to promote his own online gambling business and who also sold the list for $52,000 to fellow spammers, one of whom used the names "for purposes of marketing herbal penile enlargement pills," according to the complaint.

You can read the entire document here.