Crime & Federalism

I know, I know. We're supposed to write about crime, federalism, 1983 actions and lots of the other high-minded stuff. But I am distracted today. Sharon Stone is back. I confess a weakness for her.

You recall the 1992 film Basic Instinct, don't you? The leggy seductress Catherine Tramell? Crime writer? Murdress? Played, of course, by Ms. Stone. She made Glenn Close in "Fatal Attraction" look like a dowdy schoolmarm.

Basic Instinct 2 hits the screens today. Stone, now 48, is still the femme fatale.

A snotty review in today's New York Times panned the film. Stone can't act. She's lied about plastic surgery. The tale is tawdry. Etc., etc., etc. The instinct to defend arises. The author, Mahnola Dargis, arises in my imagination in the form of an ugly duckling who stole her first and most passionate kiss from a mirror.

I can't help myself. I am vulgar, middle aged, washed up, and destined to see Basic Instinct 2. Stone still smolders. Even at the half-century mark.

Click here and look at the eBay ad on the right hand side of the screen.  (Or download this Word document.)  I guess you really can get it all on eBay.

For at least a couple of years I've realized Justice Scalia's jurisprudence was Clintonesque.  Now, it seems, his public statements have followed in his jurisprudence's footsteps.  As with the BJ Clinton received from Monica Lewinsky, I think Scalia's "flipping off" his detractors was a non-isssue.  As with Clinton's perjury, Scalia's (it seems false) public denials are disturbing.

I might start doing a periodical podcast.  If I were to podcast, what, if anything, would you like to hear about?

Craig Williams and Bob Ambrogi have this interesting podcast:

Some of the best lawyers in the country are our Public Defenders. They have heavy caseloads, longer hours than most lawyers and they take starting salaries of $35K! in many parts of the U-S! Why do they do it? On this week's Coast to Coast with hosts and Law.com bloggers, J. Craig Williams and Robert Ambrogi, our guests give us a window on their world as Public Defenders. We're fortunate to have Attorney Josh Hayne from the Massachusetts Public Defender's office, Attorney Greg Apt, Public Defender in Los Angeles County and Attorney Robert Spangenberg, President of The Spangenberg Group, conducting research on civil and criminal justice system-related topics for over 20 years.

Check it out.

Here's another stupid Tony story. It appears Supreme Court Justice Antonin Scalia has a little too much time on his hands. Perhaps he's acting out because he wasn't made Chief Justice, a role he no doubt believes he is entitled to occupy by dint of intellect.

Hand Gestures In Boston

I suppose the Second Circuit's decision this week in Campusano v. United States, 04-513-pr, is good law. It certainly makes conceptual sense. But, oh, what havoc it will wreak on unwary counsel.

Consider: You represent a criminal defendant. Your client decides to enter a plea. The parties agree that if the sentence does not exceed a certain range, the client has waived the right to appeal. The client is canvassed half to death and the judge concludes that the waiver was made knowingly, voluntarily and with the assistance of competent counsel. Come sentencing day, the client gets a sentence below the range that would trigger a right to appeal.

Case closed?

No. Should the client ask that you file a notice of appeal, you must do so, even if you believe there is no merit to the claim; even if you believe that the plea agreement just perfected bars an appeal; even if all that is foreseeable is an Anders brief in which you recite all the reasons why your client's claim has no merit.

Campusano holds that it is ineffective assistance of counsel to fail to file the notice of appeal. That's because the Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470 (2000) has previously held it is per se ineffective assistance of counsel to file a requested notice of appeal.

This decision puts trial counsel in a difficult box. If you believe you have done your job and adequately advised your client, then isn't filing a notice of appeal conflict laden? Can you be a zealous advocate when ab initio you believe the claim frivolous? And if your client is right and the plea was defective, well whose fault was it to let that happen?

Here are the keys out of that box: Never attend a sentencing after a negotiated plea containing a waiver without a blank notice of appeal and a motion for waiver of fees and costs. After sentencing, have your client sign them and offer to file them if he or she elects an appeal. Let the Second Circuit find someone to write a brief saying your client's claim has no merit or that you were ineffective for permitting an illegal plea. 

Ian Best answers the question rather impressively.  Check it out.

Last week the Lincoln, Nebraska Journal-Star covered a story with a outrageous outcome: A college kid who wasn't even at his apartment was sentenced to 30 days in jail when his roomates threw a party.  Obviously, this was yet another example of conservative judicial activism.  The truth, uncovered by Orin Kerr here, was a little more interesting than the media story's fiction.

The "hapless" college student has had six run ins with law in less than two years.  Two of those previous run-ins included the offense for which the college kid was sentenced.  (Yes, when he was sentenced, it was for his third offense for throwing loud parties.)  So while I might not think 30 days is a "fair" punishment, I at least don't find it outrageous.  If you tease a lion often enough, you'll eventually get bitten.  Here, the college student wasn't a kid who fell into the lion's cage at the zoo: he was a smug little brat who poked the lion with the stick.  He's lucky he wasn't bitten earlier.

A friend of mine told me the other day she is to have breakfast with Antonin Scalia.

"Why would you do that?" I asked.

It turns out the Supreme Court Justice is passing through Connecticut some time soon. He will dine with members of the local Federalist Society.

She scoffed.

"I mean if you want to listen to vitriolic swill, just turn on Rush Limbaugh. Save the time. Get a diet of tripe and drive at the same time. At least the time won't be entirely wasted," I continued.

But people do go to listen to Tony.  Supreme Court justices, like rock stars, attract a crowd.

Scalia had an audience in Freiburg, Switzerland the other day. Of course he was questioned about this country's treatment of detainees at Guantanemo Bay. And of course Tony thumped his chest.

"War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts," spake Tony. This man who has made a near fetish of originalism jumped blindly into modernity without even noticing. War, to the founders, was between states. Our war on terror is a war on a tactic used by a nonstate entity. Does that mean we get to suspend the Bill of Rights as a tactical counterpoint?

But then Tony jumped wholly into the deep end of pathos. "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy," Scalia said.

The Justice then  accused Europe of hypocrisy for its condemnation of U.S. treatment of detainees.

Good God, someone please revoke Tony's passport. Tony won't recuse himself from Guantanemo cases based on an apparent conflict, although, on this statement he should. I wonder who paid for this trip, and why?