Crime & Federalism

Is a conversation "private" under Washington's Privacy Act when the speaker talks with his windows rolled even though he sees someone is beside his car, listening to him?

[Ed's note: This case does not add much to our understanding of section 1983. Since its facts are illustrative of modern law enforcement, I present the facts for you.]

From Johnson v. City of Sequim:

The undisputed facts show that on January 28, 2000, Johnson was videotaping several of his friends at Sequim’s public skateboard park when he noticed Chief Nelson drive up to the park in his patrol vehicle. Chief Nelson, who was on duty and had come to the park to look for a missing juvenile, stopped his patrol car in the park’s parking lot about seventy-five feet away from where Johnson was standing on an elevated cement ramp. From this distance, Chief Nelson observed Johnson videotaping him as he sat in his vehicle with his driver’s side window rolled down. After a short time, Johnson stopped recording Chief Nelson and approached the car. As Johnson approached, Chief Nelson’s police radio “was operating” and he was “dialing [his] cellular phone” to contact dispatch to obtain a description of the runaway he was attempting to locate. Johnson resumed videotaping when he reached the rear of the car. As Johnson came around to the passenger side of the car, Chief Nelson rolled down the passenger window, deactivated his cellular phone, and asked Johnson “What do you think you’re doing?” Although Johnson stopped recording Chief Nelson, he continued to point his video camera at Chief Nelson, who twice told Johnson to stop because Johnson “did not have [ ] permission to record [him] and . . . it was a violation of the law to record conversations without consent.” After the second warning, Chief Nelson got out of his car and “contacted” with Johnson, physically struggling with him to obtain the video camera. With the assistance of another officer, whom he had called for backup, Chief Nelson placed Johnson under arrest and transported him to the Clallam County Jail in Port Angeles.

After Johnson had spent three days in county jail, prosecutors filed a criminal complaint against him, charging one count of recording communication without permission, in violation of the Privacy Act, and one count of resisting arrest. Prosecutors also moved for a determination of probable cause, based solely upon a declaration from Chief Nelson that Johnson videotaped him “while [he] was making telephone contact with dispatch in an attempt to verify juvenile runaway information.” Although the state court found probable cause for the arrest, Johnson was released and the charges were dropped. Nearly two months later, prosecutors again filed charges against Johnson, this time for “attempted recording communication without permission” and for resisting arrest. On May 10, 2000, Judge Coughenour of the Clallam County District Court dismissed the charges against Johnson. Judge Coughenour found that Chief Nelson was not engaged, by cellular phone or police radio, in any conversation or communication with anyone while Johnson was recording him, and that Johnson therefore could not have “inten[ded] to record a conversation that [was not] occurring.” Moreover, Judge Coughenour found that even if Chief Nelson had been involved in a communication in his vehicle, there was no expectation of privacy because he had voluntarily exposed any such communication to the public by parking his vehicle in a public place with the windows rolled down.

At Holy Cross College, one Jesuit teacher demanded that his students:

[Write] three different translations of Juvenal's Satire X: one for the the school-teacher, one for the editor of the New Yorker, and one for the streets. Evan Thomas, The Man to See: Edward Bennett Williams, at 31.

This seems like solid advice for legal writers: You should be able to phrase your legal arguments for the United States Supreme Court, for your local bar journal, and for an indigent criminal defendant. If we understand legal writing this way, we might ask: If someone can not understand you, whose fault is it?

I get about fifteen visits a day from Googlers looking for "Raich v. Ashcroft" or "Ashcroft v. Raich" and am starting to feel guilty for having not blogged about it more. Thus, I started a new blawg, called Ashcroft v. Raich. It remains woefully inadequate, but since it's useful now, I've made it publically available.

Bob Sheridan - who is really coming into his own as a blawgger - has written an excellent article on false accusations in child abuse and molestation cases, entitled "Fooling Ourselves: Cargo Cult Law and Medicine."

The first principle is that you must not fool yourself — and you are the easiest person to fool (Feynman, 1985).

ABSTRACT: A fundamental cause of false accusations is the tendency of adults to fool themselves. Adult investigators who are biased towards believing an accusation is true will be unable to conduct an appropriate investigation and therefore will find what supports their prior beliefs.

So many child sex accusations turn out false that I have wondered why presumably intelligent and well-meaning authorities believed them in the first place. False accusation fiascos have included McMartin Preschool, Morgan-Foretich, the Jordan, Minnesota case, and the Cleveland, England affair. In my practice, a six count case (worth 23 years in prison) was dismissed before trial last April after the client spent three months in jail and a 61 count case was dismissed after a hung jury a few years ago; both were false allegation cases.

I encourage you to read the full article.

Today I'm Evan's guest blogger at Notes from the (Legal) Underground. What did I blawg about? Go check it out.

On Friday I'm going to serve as a judge to help a team with their Moot Court competition. I broke my strict no extracurricular activities rule this once since a friend (and very nice guy) asked me to do it, and because the issue deals with the wire fraud statute. In any event, agreeing to help them reminded me of an article by Judge Kozinski. Here is it's lede:

I must tell you how impressed I am with the performance of both teams. In my fourteen years on the bench, I have seldom seen lawyers who served their clients so well. In fact, I wish I had lawyers this good appearing in my courtroom all the time - it would sure make my job a lot easier.

These words, or very similar ones, are uttered by the presiding judge at the end of every moot court competition I have attended - and there have been many. The associate judges, on either side, vigorously nod their heads and everyone in the courtroom beams - the participants, their coaches, their boyfriends and fiancees and, most important, theirmoms and dads, who are confirmed in the belief that their little Cadwalader or Eustacia really is the second coming of Cicero, or at least Melvin Belli.

This is all hunky dory, except for one fact: It's not true. It's one of those standard lies like "I tested negative last week," "I didn't inhale," and "Absolutely, 100% not guilty!" that are designed to get you past an awkward situation. I've said it myself many times and never meant it, and many more times I was one of the vigorous head-bobbers, adding a thumbs-up or an OK signal for emphasis, all the while thinking that these young folks needed a lot of ripening on the vine before they would become real lawyers.

You can read In Praise of Moot Court - Not! here.

Bob Sheridan offers some very good advice for criminal defense lawyers:

It is better to read law books calmly than it is to experience the frustration of having your time wasted because you were insufficiently self-protective.

One way to avoid having your time spent improvidently is to limit the amount of time you'll spend on a free discussion to encourage a prospective client to come in so you can evaluate his situation.

Another is to agree to a modest cover charge for the initial discussion which will be credited against a retainer, should there be a retainer.

The best way that I've found to avoid Nonclients is to discuss an amount for attorney compensation to a telephone caller.

No matter what amount is mentioned, this caller, blessedly, will never come in. This technique works so predictably well to screen out anticipated problem-clients that it seems like magic. Use it when you've decided it will not be helpful for this person to come in. You mention an amount, the person doesn't come in. Neither of you is disappointed.

His full post is here.

On November 2nd, California voters will decide whether to adopt Proposition 66, which would amend our 3-strikes law. Currently, any felony qualifies as a third strike. Thus, someone who steals $400 worth of golf clubs will receive a 25-to-life sentence for that theft. Proposition would correct that injustice by allowing only "serious or violent" felonies to constitute a strike. Now let me put on a prosecutor's hat.

Imagine someone molests two children on two different occasions (two strikes). Once he's out of prison he goes into a park and exposes himself to children (not a strike under Prop. 66). Do we really want this guy kept within our organized society? Do we have any doubt that he will molest another child? Should we just let him molest a third kid (re: ruin another child's life) before we send him away for life?

Imagine someone is found guilty of two different B&E's (two strikes). His latest theft involves only a small amount of property and thus does not qualify as a serious or violent felony under Prop. 66. Do we really want to keep this person in society? How many times must someone violate the social contract before he is removed from society?

I'm still undecided, which bothers me because prosecutors and defense lawyers are united among party lines. In any event, The SoCal Law Blawg is hosting an online symposium. Please go there to post your comments on 3-strikes laws.

May a convict present an inneffective assistance of counsel claim in the Sevent Circuit when his lawyer snatched defeat from the jaws of a winning motion to supress?  Until today, "No."

The Seventh Circuit overruled Holman, which held that a convict could not claim ineffective assistance of counsel unless he showed that IAC prejudiced him. A convict could only be prejudiced if his lawyers ineffectiveness created the risk that an innocent person would be convicted. Thus, under Holman, a convict could never establish IAC for his lawyer's bumbling a suppression motion.

In Owens v. United States, No. 03-1507, Judge Posner wrote for a unanimous three judge panel:

[C]riminal defendants should not be allowed to vindicate through federal habeas review their right to effective assistance of counsel where counsel’s primary error is failure to make a timely request for the exclusion of illegally seized evidence—evidence which is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.  [The U.S. Supreme Court] never intimated that the right to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, [SCOTUS] decline[d] to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt. Furthermore, petitioners do not suggest that an ineffective-assistance claim asserted on direct review would fail for want of actual prejudice whenever counsel’s primary error is failure to make a meritorious objection to the admission of reliable evidence the exclusion of which might have affected the outcome of the proceeding. [SCOTUS] decline[d] to hold that the scope of the right to effective assistance of counsel is altered in this manner simply because the right is asserted on federal habeas review rather than on direct review.

We conclude that Holman should be overruled, and we have therefore circulated this opinion to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). A majority of the judges voted not to hear the case en banc.

This is a huge win for criminal defendants and the Fourth and Sixth Amendments.

Let's say you're a judge whose court docket is clogged with cases where the defendants face a maximum penalty of $100 with no jail time. These cases are really getting you down. After all, the golf courses are 'a calling.

What do you do? Well, you might think to yourself: "These guys don't got no lawyers. Let's really screw 'em over." Thus, you set bail at $25,000 to get these rag bags to cop a plea.

Hey, that's what one now-ex-judge did. Via the New York Law Journal comes the story of ex-judge Henry Bauer:

The 39 misconduct charges upheld against Bauer essentially fell into two categories: more than two dozen cases where the commission found that the judge set excessive bail and several cases where he failed to advise defendants of their right to counsel. In general, Bauer was accused of abusing his bail discretion to coerce guilty pleas from unrepresented defendants.

One case cited by the commission and Court involved a man who was charged with a violation for riding his bicycle on a sidewalk without the appropriate lights. Even though the maximum penalty for that offense was a small fine, Judge Bauer sent the man to jail for seven days in lieu of $25,000 bail, records show.

Bauer, obviously part of the "personal resonsibility" crowd blamed a vast ACLU conspiracy for waging against conservative judges like him. Yup Mr. Bauer (how's that sound, Your Unholiness?) that's gotta be it. After all, conservatism means never having to say, "Excessive Bail Clause." Do not see, Amendment VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.")

Unfortunately, New Yorkers have it bad for two reasons. The first batch of bad news comes from this story:

Bauer received support from the community at large as well as the legal community. Prominent, well-respected legal minds, including County Court Judge Patrick McGrath and Supreme Court Judge Thomas Keegan, testified on his behalf.

Well, who can blame someone for loving a hanging judge? Of course, I don't wanna hear you whine when your neck is in the noose.

Secondly, its highest court split 4-3 on whether Tyrant Bauer should be removed for life.

Let's see...a judge willfully ignores a citizens constitutional rights for at least three years. He tosses people in the slammer (where they risk getting gang-raped, losing their job, and getting evicted from their apartments) even though the statute does not call for jail time. Do not see Federalist No. 78 ("The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.")

Would any law student pass his Legal Ethics law school course if he said that such a judge should not be removed from the bench? Expect more bad things from New York...

(Story via HaikuEsq).