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September 2005
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November 2005

Why the Supreme Court Needs a Criminal Lawyer

I hope the next Supreme Court justice is a former criminal lawyer - prosecutor or defense.  Someone needs to tell the justices to quit granting cert. on so many crim pro non-issues. "But when he was alone, he spoke to his heart: 'Could it be possible? These old Justices on One First Street have not yet heard the news, that the Fourth Amendment is dead!'"  The Supreme Court has been granting cert. on Fourth Amendment issues that almost never arise in real life.  I can't remember the last time someone I know won a suppression motion.  Suppression motions are always filed, but winning one is "'almost as rare as hen's teeth." Prosecutors usually offer someone with a good suppression issue a sweet plea bargain.

Meanwhile there are really important issues that need addressed, and that are being ignored:

*  What is "testimonial hearsay" under Crawford v. Washington. Specifically, are excited utterances/spontaneous declarations admissible when the declarant is unavailable?  This issue arises in over half of all domestic violence cases.  Domestic violence cases are manifold, and they are very serious.  Because of the Lautenberg Amendment, anyone convicted of a misdemeanor domestic violence offense loses his right to firearm ownership.  These are serious cases, both for battered-women and falsely accused me.  Whether or not someone can be convicted without having the opportunity to confront his accuser has serious real-world implications.

*  Is Booker retroactive? 

*  Dozens of other important sentencing-related issues are being ignored.  Since over 95% of cases are resolved by plea agreement, sentencing is arguably the most important aspect of modern criminal practice.  Crim pro and trial-related issues are "sexy," but mundane sentencing questions have much more practical import.

Perhaps a former criminal lawyer will tell the justices that these issues don't really matter, while also bringing attention to crim law-issues that do matter.  Something - anything - needs to be done.  Come to think of it, maybe the Court needs Judge Pryor to help them pick cases.

Judge Manion Kicks Rogue Social Worker's Rump

As regular readers know, rogue social workers are a target of criticism at Crime & Federalism.  They wield near prosecutorial power, and they have almost no accountability.  I was thus excited to read and oldie-but-goodie from Seventh Circuit Judge Danile Manion. 

In Doe v. Heck, a social worker tried taking children from their families because parents were spanking the children.  The social worker, rather than trying to outlaw spanking, tried to enact his policy preferences.  By taking away children from their parents from spaking, one social worker was able to terrorize numerous parents.  Broadly speaking, like in Gonzales v. Oregon, allowing a social worker to make such decisions would have given him the power to enact policies a majority of citizens would oppose.  Judge Manion took the social worker to task.  Steve Dillard highlights a choice exceprt.

Drinking Game Sends Bar Owner to Prison

If an 18-year old drinks himself to death in a bar, the bar should be sued.  If a 21-year old drinks himself to death, the bar owner should not be sued, but such a lawsuit against the bar owner wouldn't be outrageous.  When a 31-year-old woman, while at a bar with her mom and sister, drinks herself to death, the bar owner should not be sued.  And he certainly shouldn't go to prison.  There's something rotten in Kansas.  (Via CrimLaw).  UPDATE: Doug Berman says that reading "the full story makes the prosecution seem less outrageous," so please read the full story.

The 31-year-old woman played a drinking game while at a bar with her mother and sister.  When he went home, she died of alcohol poisoning. Prosecutors charged the bar owner with involuntary manslaughter, and he was convicted at trial. Here's the best line from the story:

Goodpasture's mother, Bev Brown, said Scott deserved punishment. "A lot of us are at fault, including myself," said Goodpasture's mother, Bev Brown. "But he took a life and I think he should be punished for it."

Let's talk about moral duties (putting aside that the decedent was 31-years old).  Who has a greater moral duty to the 31-year old woman - her mother, or the bartender?  Mom "let" her adult daughter drink herself to death, and she blames the bar owner.  Unbelievable.

Federal Courtspeak

A few months ago I showed you how appellate courts tell lower courts: "Your reading of this law is so screwy that we know your decision was raw activism."  Today I'll show you how appellate courts tell federal agents: "You lied."

A major development in the district court frames the district court’s factual findings and our decision on appeal. The district court found inexplicable discrepancies between, on the one hand, the events as depicted in an audio recording and reports of agents nearly contemporaneous with the arrest and, on the other hand, later statements, reports and testimony of the agents. Accordingly, the district court discredited the later statements, reports and testimony, and confined its determination of probable cause to the sparse earlier evidence. The government does not challenge the adverse credibility finding on appeal ....

U.S. v. Collins (here).  In light of the Libby indictment, maybe judges should talk tougher.  If people are going to be indicted for lying to federal agents, shouldn't federal agents be indicted for lying to federal judges?  Indeed, as Windypundit notes here, the agents likely lied to their supervisors, and thus, obstructed justice.

UPDATE: Here's a great crim pro quote: "The district judge stated that the granting of motions to suppress was 'almost as rare as hen's teeth. I think I have done two in ten years and none in federal court.'" Id. at 9.


I don't know why, but yesterday afternoon when I was thinking about who the President would nominate, Maureen Mahoney popped into my head.  Thus, that's my prediction, which is based entirely on intution.  Don't trust it, don't bet on it, don't believe it.  But that's my prediction.

UPDATE: The buzz over Alito is getting louder.  Doug Berman has his own thoughts, and lots of links, here.

Judge Samuel Alito on Federal Courts and Appellate Advocacy

People who know better than I are that predicting Judge Samuel Alito (CA3) will be the President's choice to replace Justice O'Connor.  During my second year in law school, Judge Alito guest-lectured in my federal courts and legal ethics classes.  His intelligence, graciousness, and humility were admirable.

He posed a couple of hypothetical questions to my federal courts class.  One question I remember was this: If a case is receiving a high amount of public attention, should the judge speed the along the docket, that is, give it a swifter resolution than it might otherwise have received?  I said, no.  A case is the case, and public perception shouldn't accelerate adjudication.  He disagreed, and said that it would be appropriate to move the case up since the public has an interest in the resolution of court cases.  He made it very clear that the public's opinion should not effect the outcome, but that judges should respect that courts ultimately serve the public.

Indeed, a lot of his lecture focused on public perception of the court and respect for democratic procedures.  Legal proceedings, and judicial opinions, he said, should be transparent because the public has a right to see clearly why a judge reached a given conclusion.  In other words, if a case is truly law, and not politics, a judge has no reason to fear public scrutiny.  This respect, and his overall humility, impressed me.  But what do you expect from a federal judge who bags his own groceries?

He also focused intently on jurisdiction.  Respect for separation of powers (and the democratic processes underlying jurisdictional rules) demands strict application of jurisdictional rules. 

These are just random bits, of course, but they're consistent with what others are saying, namely that he's a "process-oriented judicial-restraint type" of judge.

After his discussion, he opened the class for questions.  I also asked him several questions.  (To his credit, he tolerated me.)  One question was this: What's the most important part of an appellate brief?  His answer (paraphrased 2 years later): "The statement of facts.  I'm smart enough to figure out the law, and I have smart clerks who can find the law.  The only thing you know better than I is the facts.  If you give me the right facts, I'll be able to spot most issues."  I then asked: Should the statement of facts be written scholarly and objectively?  He smiled and replied: Well, don't slant them, but if they don't have the punch that a lawyer's advocacy should have, I'll wonder whether you believe in your case. Someone else asked him whether oral argument was a waste of time, and he said no.

In my legal ethics class I asked him a couple more questions.  I can't remember the questions, but I do remember thinking: "My, he's very deliberate."  He would weigh the precedent on either side of the issue - that is, cases where the law clearly would and would not apply - and then challenge us to determine whether our hypothetical case was closer to either end of the spectrum.  He presented the image not of a philosopher-king, but of a common law judge.

So You Want Pro Se Litigants, Do You?

Congress is once again considering legislation to penalize lawyers who repeatedly file frivilous law suits. Never mind that the Judicial Conference of the United States opposes the legislation. Lawmakers think such legislation will make the world safer for business people.


Forget for a moment the obvious commerce clause and federalism issues. Let's focus on the policy concerns.

Lawyers are professional combatants. We operate by settled rules of procedure and evidence. The disputes we wage come in recognizable forms reined in by doctrine and precedent. Sure, lawyers test the limits and boundaries of every issue.  But we do so on behalf of clients with complaints.

Does Congress really think that punishing lawyers will yield fewer lawsuits?  Are lawyers whipping up cartloads of angry people and dumping them on courthouse steps?

One consequence of the legislation would be that lawyers would take fewer cases pressing novel legal theories, and would cream-skim, focusing only on clear winners. This will leave many people unrepresented. A hefty percentage of them will file pro se complaints. Expect a boom in self-help books. Hell, I may write one: "How To Be Your Own Civil Rights Lawyer." Chock it full of form pleadings and boilerplate motions, and watch the courts swell with swill as the untutored throw paper they do not understand at everything that moves. One reason the Judicial Conference does not want this new legislation is that the judges are well aware of the fact that a boom in pro se litigation will cripple the system.

The fact is that lawyers, even bad ones, sculpt litigation and transform a dispute from something akin to a slugfest into a conflict that can be resolved on a principled basis. Deterring lawyers from filing claims won't discourage pro se plaintiffs. My hunch is that litigation costs will increase, and not decrease, if the legislation passes.

And what of costs? Sponsors of the bill, including Rep. Lamar Smith, R-Texas, contend that all these bad suits are driving up the cost of doing business. Businesses often settle rather than litigate, it is contended. So let me see if I get this. If we give the money directly to the pro se litigants we will save money. Huh?

Rep. Smith might want to ask questions about costs of defense. I from time to time represent lawyers who are being sued for vexatious litigation or from whom attorney's fees are sought. What I have learned is stunning: Defense counsel routinely generate hundreds, sometimes millions, of dollars of legal fees defending cases they claim are without merit. Question: If the case you are defending is so lousy, why are you spending hundreds, sometimes thousands of hours defending it? Whose butter is getting churned?

From time to time I appear on behalf of pro se clients on the eve of trial. Typically, the cases are hopeless. But I try the case for the client and believe that my role is valuable as the discipline I can impose on the client, and my ability to apply existing law to recalcitrant facts, saves everyone time and expense. The reaction from judges after these cases is usually gratitude, not sanctions. I won't try these cases any longer is the risk is loss of my license.

Lawyers are part counselor, part warrior and part diplomat. I take pride in these roles. Even in a bad case I serve as an officer of the court, doing my best to keep the dispute, and sometimes the disputants, within the limits of the law.

Blaming lawyers for the rise in litigation is sort of like blaming doctors for cancer. There are a lot of angry people out there. They'll go to court by themselves if they can't find a lawyer.

Did a Judge Help Cover-Up a Murder?

It's rare to read a case like Harrison v. McBride (here).  James Harrison was convicted of murdering a woman and her two children.  Did he really do it?  Did someone else do it?  Did Judge James McBride, who presided over Harrisons' murder trial, have connections to drug dealers who were trying to kill the murder victim?  We don't know, but something about the Judge McWine's actions was rotten.  It was so rotten that a unanimous three-judge panel of the Seventh Circuit Court of Appeals, applying highly-deferential AEDPA standards, affirmed a district court's grant of Harrisons' writ of habeas corpus.  It was rotten enough that the district court concluded: "This is a case in which actual bias has been demonstrated not by judicial rulings, but by Judge Redwine's personal participation in the development of the proceedings .... Apart from his rulings, Judge Redwine’s statements and actions preceding trial, at the change of judge hearing, during trial and in the letter denying certain attorneys fees, illustrate an unmistakable bias infecting James Harrison’s trial and depriving him of a fair trial."

Here are some choice facts from the appellate court's opinion:

During the course of preparations for Mr. Harrison’s trial, defense counsel learned through depositions that, not long before Forsee was killed, she had told officers of the Indiana State Police (“ISP”) that she feared for her life. More specifically, she told Detectives Gary Gilbert and Larry Rhoades that she was being followed by a man in a suspicious van, that she had information about drug activity in Posey County involving her ex-boyfriend, Charles Hanmore, and another individual, Roger Greathouse, and that Judge Redwine had been present at Greathouse’s home when drugs were being unloaded on Greathouse’s property.

These are, as-yet, unconfirmed allegations.  They could be false.  But what's not false is that the judge did everything within his power to keep the defense from arguing that someone else committed the crime, even though the murder victim made a police report before being killed.  This wasn't a boogey-man defense.  The defense wanted to argue that "members of the local drug community, rather than Mr. Harrison, had targeted Forsee because of her knowledge of drug activity."  Who was the judge to whom they wanted to argue this?  Judge Redwine.  Thus, the defense asked for a new judge.  Judge Redwine denied the motion.  It gets worse ... much worse.

The panel continued: "On the same day that the motion for a change of judge was filed, Judge Redwine telephoned Greathouse and shared with him the allegations in the motion. The Judge requested that Greathouse attend the scheduled hearing on that motion."

During the hearing, a detective testified that the murder victim told him that "Judge Redwine was a person who was aware of drug activity," specifically, "that [he was] aware of semi loads of marijuana."  Of course, "A tape recording of this interview had been made, but subsequently had been misplaced."  Really?  Misplaced?  A good detective, upon learning that a judge might have ties to a drug organization, would keep that tape close to the vest.  Or so we'd think.

More later...