Crime & Federalism

Yesterday while driving in an unfamiliar city, I was amazed at the numerous (and helpful) speed limit signs.  When the speed limit would soon change, there was a sign letting me know "Speed Zone Ahead, 45 MPH."  This kept me from breaking the speeding laws.  This got me thinking about due process.

Due process requires the government to put a person on notice that his conduct is criminal before arresting the person.  One reason written laws are so important is that they give a person notice.  Unlike Nero, who hid the laws from the people, in the United States a person cannot be convicted for violating "secret" laws.  Fair enough.

But what happens when the laws are so complex that even lawyers and the government agencies charged with enforcing the laws cannot understand what conduct the laws proscribe?  Do those laws violate due process becaue they do not put a person on notice that his conduct might be criminal?  So far, the Supreme Court has said, No.  Which brings me back to speed limit signs.

Does due process require that the government inform us of what speed limits govern a certain geographical area?  If so, then why shouldn't due process prevent the government from convicting people based on violations of myriad regulations that few people even know of, and even fewer people understand?

If the Supreme Court held that due process does not require the government to inform us of speed limits, would anyone seriously argue that we know the speed limits of surrounding cities and townships because, somewhere, they are written?  Would such an understanding of due process make sense?

What are you thoughts?

Wow.

The maintstream press seems incapable of getting this week's story on the Moussaoui trial right. The government's lawyer has not been found inappropriately to have "coached" witnesses, as even The New York Times reported this morning. What was violated was a sequestration order.

No one expects lawyers to pluck witnesses off the street and throw them onto the stand without preparing them. Prior to trial, good lawyers review prior statements with witnesses, they even challenge a witnesses recollection, resorting at times to mock cross-examination to determine just how solid a witness' testimony will be.

Once trial begins, the parties have an opportunity to ask for sequestration orders. These orders do not require that witnesses be locked in the Holiday Inn for days. The requirements are simpler. Typically, a witness is not to discuss his or her testimony with others, and lawyers aren't supposed to do what Carla J. Martin of the Transportation Security Administration apparently did -- order daily transcripts, shoot them to future witnesses, and discuss how to harmonize their testimony with what has already been presented to the jury.

According to a story in this morning's Times, Martin is an edge player. If a judge draws a line in the sand, she tip toes over it and leers. One lawyer in an unrelated case said of her that her conduct "sticks out like a sore thumb."

As a result of her violation of the sequestration order in this case, a ruling she incredulously says she did not hear, the Government is now barred from using the testimony of the witnesses she contaminated. That sanction is appropriate, and is consonant with how sequestration violations are typically treated.

Also appropriate might be a grand jury investigation. If she is guilty of witness tampering, then prosecute. Let her tell a jury that she didn't hear the judge because she had a potato in her ear.

Shaun Martin has another interesting post up at California Appellate Report.

Everyone is telling me, Yes, but my reading of the State Department's website indicates, No:

What is the Western Hemisphere Travel Initiative?
The Western Hemisphere Travel Initiative will require all travelers, including U.S. citizens, to and from the Americas, the Caribbean, and Bermuda to have a passport or other accepted document that establishes the bearer’s identity and nationality to enter or re-enter the United States....

When will the Travel Initiative be implemented?
The proposed timeline will be as follows:

• December 31, 2006 – Requirement applied to all air and sea travel to or from ... Mexico ...                               

Doesn't that pretty clearly seem to imply that until Dec. 31, 2006, no passport is required to travel to Mexico.  What am I missing?

A long-time wish of mine has come true.  Orin Kerr has started a solo blog where he will discuss "law, the legal academy, and the legal profession."  I'm sure his blog will be on every legal wonk's must-read list.  Say hello to OrinKerr.com.

Focus. That is the most important thing to have and to maintain in appellate argument. Time is short. Good communication is key. Know what you want to say and find a way to say it.

Focus.

That is the sum and substance of what I have to teach on appellate advocacy. After more arguments in various appellate courts than I can recall, I thought I was an old hand. That I had seen it all before. But I had never bled for my client.

Until today.

I was first up on today's docket in the United States Court of Appeals for the Second Circuit. I've been there scores of times. Today's case was a criminal appeal. My client is serving 30 years for armed robbery. I'd like to get him a new trial.

I was arguing by videoconference from Hartford. The court's camera wasn't working, so the panel could not see me.

Good thing. A minute or so into argument I wiped my nose. Blood. Soon it began to trickle, and then drip, down my hand, onto my notes, onto the appendix, onto the lectern, on my shirt, on my jacket. What to do?

Focus.

I kept arguing, but then my hands were slimy with blood.

"Judge Pooler, I have sprouted a bloody nose," I said, I think. "I need just a moment to walk five paces to the men's room here and get some tissue."

"I am glad we can't see you," the judge said. She is of infinite good cheer. She looked a tad concerned. Had she seen me, she would have seen panic.

"The Government bloodied my nose at trial," I resumed, "and now they have done so on appeal." Then I resumed argument.

Focus.

I was invited not long ago to be part of a panel on appellate advocacy. I agreed. When the program flyer was published and I saw who my fellow panelists were, I at once felt out-classed and wondered what in the world I could talk about.

I now have a topic: Blood in the Second Circuit. Focus.

I have often wondered whether a lot of "the system's" problems would cure themselves if judges would just start naming, in judicial opinions, prosecutors who act unethically and defense lawyers who perform ineffectively.  In most cases even a saavy legal researcher has to do some serious squinting to learn the identities of the scoundrels-at-law. 

Today, Decision of the Day has offered "Exhibit B"* that the answer is, Yes, lawyers who are afraid of being held to account for their misdeads will behave ethically.  As the blogger explains:

The Department of Justice has come under fire from the courts of appeal for its handling of immigration cases, with the Seventh Circuit’s Judge Posner taking a leading role.... Thus, it was hardly surprising that when the petitioner in an immigration appeal drew a panel that included Judge Posner, the government decided to avoid another lashing by asking for a remand to the Board of Immigration Appeals.

Be sure to read the full post, here.  The implication is that judges who continue to refuse to identify prosecutors who hide evidence and act unethically are in material cooperation with evil.  As Edmund Burke might have said: All that is necessary for evil to flourish in the criminal system is for good judges to say nothing.

* "Exhibit A" is Judge Alex Kozinski's classic tongue-lashing of just about everyone, in U.S. v. Ramirez-Lopez (here).  If that case name does not ring a bell, then be sure to read this article, and this article.

Details here.

Wife: Arrest him!
More: For what?
Daughter: Father, that man's pissed in public!
More: There's no law against that!
Roper: There is, God's law!
More: Then let God arrest him!

Unfortunately, Justice Klein hasn't read A Man for All Seasons.  Details here.