Crime & Federalism

Does anyone have a recommendation for a good guide on PTSD?

Andrea Peacock, author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation, has written three (of seven) posts about a massacre in Libby, Montana.  According to independent research and court transcripts, executives of the W.R. Grace Corporation knowingly exposed miners, town residents, and even children to asbestos.  Ms. Peacock's post will discuss the  murdered residents and culpable executives:

Here three posts are located here:

Guest Post: Libby, Montana
Guest Post: Mountain of Grace
Guest Post: Dying

(Hat tip: Evan Schaeffer.)

I am not at all sure I understand the Connecticut Judicial Review Council's decision to suspend New Haven Superior Court Judge Joseph W. Doherty for five days.

The judge disclosed at his renomination hearing last March that he had failed to file tax returns in 2000 and 2001. He attributed this to his wife's illness, and, shortly before renomination by the governor, filed late returns, with substantial penalties and interest. Notwithstanding this lapse, the Legislature reappointed him to an eight year term.

Doherty's failure to file a return looks stupid, but not worthy of discipline.

Why did the JRC need to jump ugly?

The council rarely acts. Doherty's is the first hearing on judicial discipline in almost  a decade.  In the past three years, the council has received 236 complaints about judges. This is the only complaint in which probable cause was found. Unless and until probable cause is found, complaints remain confidential.

Doherty's omissions do not affect public confidence in the court. They arise from no dereliction of judicial duty. No injustice was done; there was not even an eppearance of impropriety. He just looks disorganized and careless in his personal affairs. If that is the standard, then where will the line be drawn on what private acts of misconduct can warrant judicial discipline. Query: Two judges engage in an affair. Discipline? What if one of both are married to others? Discipline. I am not sure I want to go down that road.

Confidence in the JRC is low. The council is thought to be a sleeper; a do-nothing, know-nothing claque dedicated to the principle that no judicial boat shall ever be rocked. Did it need to find a wrist to slap merely to demonstrate it has a reason for being?

I hope the judge a good way to spend his week off. He should spend at least one day shopping for a tax accountant.  On the other four days he ought to be careful. Lord knows what the council will seize upon next.

From the same judge who gave us the long footnote about the modern use of the word "'ho."


After receiving what can best be described as a whopper of a sentence—1,200 months in a federal prison—Karl Bullock filed this appeal claiming it was unreasonable. Today, we resolve his appeal. Bullock pleaded guilty to five counts of distributing heroin. Each count carried a maximum penalty of 20 years. 21 U.S.C. § 841(b)(1)(C). The district court imposed the maximum sentence for each of the counts, stringing them together for a total sentence of 100 years. One hundred years is a long time—one year longer, in fact, than the standard lyrical shorthand for an unimaginably long sentence. [n1]


[n1] See, e.g., Bruce Springsteen, "Johnny 99" ("Well the evidence is
clear, gonna let the sentence, son, fit the crime / Prison for 98 and
a year and we'll call it even, Johnny 99."); Bob Dylan, "Percy's
Song" ("It may be true he's got a sentence to serve / But ninetynine
years, he just don't deserve."); Johnny Cash, "Cocaine Blues"
("The judge he smiled as he picked up his pen / Ninety-nine years
in the Folsom pen / Ninety-nine years underneath that ground / I
can't forget the day I shot that bad bitch down."); Ed Bruce,
"Ninety-Seven More To Go" ("Ninety-nine years go so slow / When
you still got ninety-seven more to go."); Bill Anderson, "Ninety-
Nine" ("The picture's still in front of my eyes, the echo in my ears
/ When the jury said he's guilty and the judge said ninety-nine
years."); Chloe Bain, "Ninety-Nine Years" ("The sentence was
sharp, folks, it cut like a knife / For ninety-nine years, folks, is
almost for life."); Guy Mitchell, "Ninety-Nine Years" ("Ninety-nine
years in the penitentiary, baby, baby, wait for me, around twentyfifty-
five we'll get together dead or alive.").

Special thanks to MrETramp.

Connecticut is essentially a feudal state. Although the state has counties, there is no county government. All 169 cities and towns guard their independence ferociously. So do the state's 13 regional state's attorneys. Yesterday, the prosecutorial lordlets toppled their chief.  There must be glee in their gloaming castles today.

Chief State's Attorney Christopher Morano announced yesterday he would not seek appointment to a full term as chief. Why? Well, in part there was a revolt in the ranks. Eleven of thirteen of the state's regional state's attorneys wrote a letter to the commission that appoints prosecutors saying they had no confidence in Morano. The prosecutors never really said why. So take that, King Morano

Morano, a veteran state prosecutor, has been serving as either acting chief state's attorney or chief state's attorney since 2002, when his predecessor, John Bailey fell ill and then died. During that time he has been a visible and vocal leader of the state's prosecutors. His office's cold case squad solved some old homicides. Indeed, Morano co-chaired the prosecution of Michael Skakel for the Martha Moxley homicide. Morano has also been a steady presence in the state capitol. He has also sponosred a pilot program on electronic recording of confessions. And did I mention that his public integrity unit has been unsparing in its investigation of the governor's office?

So why give him the axe?

Under the state constitution, the thirteen regional prosecutors are independent. The chief cannot force them out, and the chief may not require them to do anything. If they do not want to be led, then, by golly, they won't be led. It is an inefficient and anachronistic system. Sort of like denying a governor the right to hire, fire and direct the work of commissioners of state agencies.

Morano's sin? He tried to act like a leader. He was visible. He took risks. He created new units with new mandates. Put another way, he stepped on some toes. Hence the opposition to him without even the courtesy of a bill of particulars.

In his place, the lordlets have selected from their ranks one of their own number. They now want him annointed shadow king. Sir Kevin Kane of New London is a quiet, hands-on prosecutor in his early 60s who will, most likely, implode due to boredom if he chooses to where run his office as a mere figurehead. That is assuming he views the new job as more than a pre-retirement sinecure designed to bolster a mediocre pension.

I say amend the state constitution. We don't need 13 minilords and a figurehead chief cluttering up the courts. Centralize control of the state's prosecutors: It will yield efficiency and savings.

In the meantime, give me a call if you are looking for work, Chris. Plenty of work here on the darkside. As you know, some of the state's prosecutors swing first and ask questions later.

Did you know that when a telemarketer calls asking you to donate to a charity, that up to 85% of that money goes to the telemarketing company as a "commission."  I didn't either.  But Tim Lyons and Gabe Sanchez, old college buddies, did.  And they used this knowledge to make millions.

Lyons formed a church and several sham charities.  Sanchez formed a telemarketing-coordinating company.  Lyons would retain Sanchez's company to raise funds for the church and charities.  Sanchez would retain third-party telemarketing companies to call people up asking for money.

When some sucker  kind-but-naive person donated money to the charities, the telemarketing company kept 80% - leaving 10% each for Sanchez and Lyons.  Of the money Sanchez helped Lyons raise for the church and other charities, Lyons spent almost none of it on charitable endeavors, even though Lyons told donors that he would use the money he received for good words. 

After making several million dollars, a reporter learned of the scam and published an expose.  Finally, federal prosecutors indicted Lyons and Sanchez.  They were convicted.

On appeal, Lyons and Sanchez argued that the government impermissibly introduced the high commissions paid to telemarketers as evidence of fraud.  This was a very strong argument.  After all, every charity that users telemarketers does this.  The evidence thus was not probative of guilt.  Realizing, of course, that a court would likely hold any evidentiary error harmless, the defendants argued that introducing evidence of fundraising cost violated the First Amendment.

Under the First Amendment a telemarketer soliciting money from you on behalf of a charity cannot be compelled to tell you that 80-85% of the money is going to the telemarketers' bottom line.  After all, begging for money is protected speech.  And even though the high commission is unseemly, it's not fraudulent.  Indeed, keeping mum about the high commission is constitutionally protected. (!)  So Lyons and Sanchez argued that constitutionally-protected conduct cannot serve as evidence of criminal wrongdoing.  Makes total sense, right?

Wrong, according to a three-judge panel of the Ninth Circuit.  United States v. Lyons (here).  After several pages of unpersuasive analysis, the panel concludes: "Neither Madigan nor the First Amendment insulates defendants from criminal prosecution for fraudulent misrepresentations about their charitable endeavors. Rather, the government is constrained from charging that high fundraising costs per se are tantamount to fraud."

Isn't what the panel is doing here a textbook case of bootstrapping?  After all, Lyons and Sanchez could not have been prosecuted for giving the high commission to telemarketers.  Yet all along they could have been prosecuted for lying about doing good works with the money they received, as that's a textbook case of misrepresentation. 

So what this opinion allows prosecutors to do is bootstrap otherwise constitutionally-protected (and thus non-prosecutable) conduct onto conduct that can be properly criminalized.  And at the end of the case we seem to be left with this rule: High fundraising costs is relevant evidence of fraud, but standing alone would be constitutionally insufficient to support a fraud conviction.

One expression I often use, when asked whether I'm sure about something, is this: "Yeah, I'm sure.  I'm sure enough that I'd bet $100, but not a $1,000."  When I use this expression, the listener is familiar enough with me to know that $100 is not something I would risk lightly.

What brought this to mind was an exchange between law professors Orin Kerr and David Moran - both Fourth Amendment experts in their own right.  Disagreeing over the application of a legal principle, Professor Moran made Kerr an offer: "Let's wager $500."  Professor Kerr turned him down.

Which has me wondering.... Perhaps Professor Kerr is only $100 sure?  Personally, I wouldn't take either side of the bet, though I would accept Moran's position with much lower stakes - perhaps a drink.  Anyhow, be sure to check out the interesting and insighful exchange.

The purpose of the exclusionary rule is to deter police misconduct.  Courts recognize that exclusion, which allows the guilty to go free, is important because it ensures that the police obey the Constitution - the Supreme Law of the Land.

Yet the exclusionary rule does not apply when the police act in good faith.  After all, exclusion is no deterrent to the honest-but-mistaken police officer.  The good-faith exception, in most contexts, makes sense.  Yet there has always been something about the exclusionary rule that has bothered me.

Shouldn't the exclusionary rule apply even in cases where there is probable cause for a search warrant, if a police officer lies in the warrant application?  In other words, shouldn't there a bad-faith exception to the rule of non-exclusion that applies when probable cause is present? 

Let's say a police officer lies in a search warrant affidavit because he is not sure that the truthful assertions he makes in the search warrant application will amount to probable cause.  To ensure that the application is approved, the police officer spinkles in falsehoods with truth.  Which is what might have done in U.S. v. Sandoval-Rodriguez (here):

On January 14, 2005, Sandoval moved to suppress evidence obtained from the search of his residence, arguing that the affidavit submitted by Agent Waymire in support of the search warrant contained knowing misstatements of fact concerning whether Pollard had witnessed Augustin retrieve drugs from Sandoval's residence. The district court noted a discrepancy between the warrant application affidavit and a subsequent report prepared by Agent Waymire concerning his interview with Pollard, but the district court determined that the affidavit supported probable cause even without the information attributed to Pollard.

The trial court denied the motion to suppress because, even without the "discrepancies," there was probable cause for the search.  Yet if the exclusionary rule exists to deter police misconduct, shouldn't it apply in a case like this?  Shouldn't people like Agent Waymire know that, when applying for a search warrant application, he must be totally above board or risk having any evidence obtained from the search be suppressed?

I'm curious to hear your thoughts.

To say that my week at Glen Highland Farm was wonderful would be an understatement. Let's talk mind-blowing. An experience akin, I say, to time at Thunderhead Ranch, the home of Gerry Spence's Trial Lawyers College.

Of course, there are differences.

Glan Highland, located in upstate New York, is the home-base of a northeastern border collie rescue effort. Scores of dogs walk the grounds of the farm. Some have been seriously abused by hapless or cruel owners. Love Dogs? Check it Out?

Not our dogs. My wife's and my children are all in college or beyond. Our nest was empty, so in walked Odysseus and Penelope, our two 18 month old border collies. I am not sure who owns whom in our house.

So there we were at camp with the dogs last week. Our passion? Herding sheep. The dogs loved it, and it was pretty good exercise for me, too, expecially when I was knock on my fanny by a panicked ewe. We're going to be purchasing a small flock of sheep soon, just as soon as we fence in one of our pastures.

So why write about this on a law-related blog?

I was reminded of the Trial Lawyers College over and over again. Take people from their usual surroundings, place them in a remote but beautiful spot and force them to interact with strangers. The alchemy is powerful.

My wife and I laughed ourselves silly one night imagining some the staff from the trial lawyers' college at dog camp. The notion of dog psychodrama had us in tears.

I'm back at work now, but still aglow after a week with the dogs, just as I was aglow after 30 days spent in Wyoming with other lawyers. I miss the time with the dogs. I can't say the same of the college, however. I guess dogs are just easier to be with than people.