Turnabout Is Fair Play and All That

All right.  Maybe it's unseemly for me to be pleased when someone is sentenced to 28 years in prison, which for a guy who's 61 is effectively a life sentence.

But maybe not too unseemly when it's Mark Ciavarella, Jr. 

That's the guy was formerly, and formally but only nominally, the Honorable Mark Ciavarella, Jr.  You know, the Juvenile Court Judge felon who took bribes and kickbacks to deprive kids of fair hearings and counsel and then send them off to juvenile detention centers for the most trivial of offenses.  He made millions from the scheme.

And now he's got a 28 year sentence.

I complain here about judges who care more about the next election (or appointment) than about enforcing the rules.  I complain about judges who are prosecutors in disguise (and sometimes it's not much of a disguise.

Ciavarella wasn't like that.  Plain and simple, he was a crook.  He used his office to line his pockets at the expense of kids.  He violated the rules and the law with something very close to impunity.  He ruined lives.  Thousands of them.  Abused his office.  Betrayed the public trust.

Maybe it's unseemly of me.  But I don't represent Ciavarella.  In this case, I'm just a citizen.

28 years seems about right.

Sheriff, Arrest Thyself

I turned to the Arizona Republic because I wanted to write about the execution this evening of Donald Beaty.  I still want to, and I will.

But you know how it is when you dip a toe into the waters deserts (that's not fair, there's water, in the Copper State, too) of the Grand Canyon State.  You just get sidetracked because dammit, Sheriff Joe and the boys have made the news again.

This time it isn't Joe himself making the headlines, it's three of his minions.

3 in MCSO accused of cartel ties

Seems that Tuesday morning, following a yearlong investigation, a Multi-District Drug Task Force arrested a dozen people and darned if three of them didn't work for Joe.

Deputy Alfredo Navarrette, 37, has worked with the Sheriff's Office for nearly a decade, serving in a special unit designed to target human smugglers moving through Maricopa County. But investigators believe Navarrette was himself involved in human smuggling. Investigators found two undocumented immigrants in Navarrette's home when he was arrested early Tuesday morning in a sweep that concluded a yearlong investigation.
"The fight against drugs, illegal immigration and human trafficking is important not only to me but the citizens of Arizona," Sheriff Joe Arpaio said. "That a deputy sheriff would provide information and associate with these drug and human traffickers is despicable."
Investigators from a multijurisdiction drug task force also arrested two sheriff's detention officers, Sylvia Najera, 25, and Marcella Hernandez, 28. They are accused of laundering money and moving drugs for a Valley-based drug-trafficking organization with ties to Mexico.
Arpaio said Hernandez is eight months' pregnant with the child of another suspect arrested Tuesday, Francisco "Lorenzo" Arce-Torres, who is described in court records as a member of the Sinaloa drug cartel and the leader of the Phoenix-based drug-trafficking organization at the heart of the probe.
Court records indicate Hernandez had $20,000 cash on her when she and Najera were arrested Tuesday morning on their way to work at the Lower Buckeye Jail.

So, let's recap.  Three of Joe's folks are busted for being part of a drug smuggling ring.  One of them is part of Joe's special anti-immigrant unit and allegedly hires or harbors or something undocumented immigrants.  That's embarrassing.  Another is 8 month pregnant with the child of the head of a drug cartel.  A third is carrying 20 grand that are, supposedly, drug proceeds.

Are any of the three (hell, any of the 12) guilty?  No idea.  Innocent people get arrested all the time.  So do guilty ones, of course.  But it isn't pretty.

And Joe?

Physician, heal thyself.

Schadenfreude.

Who We Are and What We Do - Once More Into the Breach

Think of this as an extended comment on Mark Bennett's brilliant opening entry into the competition for best criminal law blot post of 2011.

Already Matt Brown and John Kindley and the anonymous scold Atticus have weighed in with their own posts on it (and Kindley pretty much made his a comment, too).  Me, I hesitated to weigh in at first because I couldn't think of anything to add beyond what Lee Stonum pointed out (and what I said above): This is a likely nominee for best criminal law blog post of 2011.  But as I've gone back and read the comments (and the posts by Brown and Kindley and Atticus), I started to write my own comment.  Except the damn thing was getting so long, I said (to myself) "the hell with it," and decided to just write my own post.

So, if you're interested enough to be reading this, and if you haven't read Bennett, you should.  Go ahead.  I can wait.

If you won't do that, here's the very quick version:

Prosecutor argues that guy who got convicted of causing a death while driving drunk should do life so as to send a message to others who would drive after drinking more than the law allows.

When the judge sentenced Howard to life in prison, he was not punishing him only for his bad act—driving a car after drinking too much—but also for the unintended and random consequences of that bad act. The difference between DWI and intoxicated manslaughter is nothing more than lousy luck; Jim Howard didn’t get life in prison because of his act, but because of the unforeseen consequence of that act, out of his control once he committed the act. His act would have been the same, and his culpability no less, if he had made it home safe.

But we have this impulse toward retribution.  And it gets in the way of making punishment actually relevant to conduct.  (Here we go back, although Mark doesn't reference it, to Jacqueline Goodman's brilliant punishment argument).  Nobody who drives drunk intends to kill by doing it.  And it almost never happens.  We can't deter people from things they don't intend to do by increasing the punishment for random consequences of conduct.
Then, it turns out that a prosecutor who argued for especially harsh sentences for those convicted of DUIs - on the theory that such sentences would deter others from the same offense - gets busted for a DUI.  And while it's almost instinctive, unless perhaps the arrestee is a friend or relative, to feel a frisson of pleasure in the irony. 

Schadenfreude, don't you know.  And blawger Murray Newman, a former prosecutor and friend of the newly arrested prosecutor, doesn't like it.

But Murray's missing the point.  Human emotions, like schadenfreude, simply aren't relevant to our work as criminal defense lawyers,  And the presumption of innocence isn't a mantra to apply at all moments and in every context.  Defending isn't about sharing our clients' emotional baggage or necessarily believing that they didn't do what they've been charged with.  We separate out the personal reactions we might have and defend.

That's not an altogether fair summary, certainly not as eloquent as what Mark wrote.  But it'll do for my purposes here.

So, First, I don't know any of the players.  I've never met Mark or Murray or (as far as I know) the arrested prosecutor.  I don't think that matters.  Maybe the distance even helps.

Second, the presumption of innocence, insofar as it exists at all, is a legal presumption that has to do with burdens of proof at trial (and is tied to why there's a right to bail/bond in most cases).  It is dangerously naive for a criminal defense lawyer (or a lawyer engaging in criminal defense - not necessarily the same thing) to equate the presumption of legal innocence with an assumption of factual innocence.

I cringe when I hear some wheezing civil lawyer suggest that he'd happily do a bit of pro bono criminal defense just as long as he knew the defendant was factually innocent, as if it would violate some noble principle to take on the defense of one who just might have done something akin to what was charged.

Most of my clients have, in fact, done something within hailing distance of the offense charged.   I've represented the factually innocent; it's not something I much like doing.  I don't know any criminal defense lawyer who does.  And I'm damn sure I'd rather live in a society where most of the folks who are arrested did, in fact, do something like what they are charged with.  I don't know anyone who'd prefer a world in which the cops mostly arrest factually innocent people.

Third, schadenfreude may not be the noblest of sentiments, but it's pretty well ingrained in the human psyche.  It strikes me as a lousy basis for moral judgment, but that's why it's not part of the so-called criminal justice system.  Still, pretending that we're immune to it - or being offended that others feel it too - is a whole different sort of problem.  There's a reason we wonder who watches the watchers, who spies on the spies, who polices the police.  The hypocrisy of the righteous nailed violating precisely the rules they would impose on others (think Eliot Spitzer or Larry Craig or Mark Foley, just to focus on politicians and sex) gives a hint of pleasure to those who appreciate irony and have no personal stake in the case.

Fourth, and this is really the point, neither schadenfreude nor retribution serves as much of a template for how any scheme of criminal "justice" should be employed.

I understand the desire for retribution.  I wrote before about being a crime victim.  I expressed my personal desire then.

And I'd like to see the bastard who did this spend a few years behind bars doing very hard time in the company of folks who are eager, willing, and able to inflict maximum pain and humiliation on him.

I have friends who've been raped, who've been sexually abused by family members, who've been victims of burglary and robbery.  I've known a couple of people who were murdered.  I get it why Michael Dukakis gave perhaps the worst presidential debate answer of all time to Bernard Shaw's question about the hypothetical rape and murder of Kitty Dukakis.

But I also get it that his answer was exactly right in substance.  The law is at its worst when it tries to satisfy our visceral reactions or our fears.  Megan's Law, the Adam Walsh Act, the death penalty, LWOP for kids.  Prohibition.  Censorship. Scope or grope.  Much as we might delude ourselves into believing otherwise, these don't make us safer.  They sure as hell don't make us more free.

We do what we do, we who are criminal defense lawyers, not because we don't have human emotions - fear, love, schadenfreude - and not because we believe that everyone charged with a crime is an innocent victim of police error (intentional or reckless or negligent or whatever).  We do what we do in spite of those things.

I wouldn't defend the guy who broke into my car (aside from that whole thing about being a witness against my client) precisely because I couldn't set my own feelings aside.  Beyond that, setting them aside is what we do.

If we can't do that, we're in the wrong business.

If we don't understand that, we may defend the criminally accused, but we're not criminal defense lawyers.

 

Don't Tase My Nephew

I've told this story before. Many years ago, a judge told me that when young people come to him and explain that they want to go to law school so that they can become lawyers and protect people's constitutional rights (and he suggested that this happened rather a lot), he would respond this way.

Don't go to law school.  Go to D.C. and become a cop.  Then roust Rehnquist and Scalia for no reason.  There's nothing you can do that would be better for the Fourth Amendment.

Actually, he may have said "that would be better for the Constitution."  The point would be the same.  It's the old mantra.

A liberal is a conservative who's been arrested.  A conservative is a liberal who's been mugged.

Make them see the world from the other guy's perspective.  Don't dis someone until you've walked a mile in his shoes.*

It's all sound in principle.  We're products of our experience.  But it's also a bit too easy.  So when we hear the news from New Orleans, we can hope it leads to greater compassion, but we'd be fools to bet on it.

Oh, the news.  Yeah.

Seems that 24-year-old Derek Thomas, perhaps suicidal, certainly epileptic, was taken to West Jefferson Hospital in New Orleans.  For whatever reason, he wouldn't put on a hospital gown.  So, because hospitals have rules and rules must be followed by god, the hospital folk charged with seeing to his well-being called security.  

You know what happened next. Thomas was punched in the face.  Then they pulled out a handful of his hair.  Then they tased him. Taser, Inc. might deny any causal relationship, but Thomas then had a massive seizure.  (Did I mention that he was epileptic?  Did I mention that it said so right on his chart?  That it said that on his chart before he was tased?)

Derek Thomas is, of course, black. What happened to him happens, with trivial variation, every day.  Mostly we don't hear about it.  But then, most people don't have a sister like Kimberly Thomas.

See, when Kimberly heard what happened, she called her uncle: Supreme Court Justice Clarence Thomas. He was, they say, "shocked."  He was, they say, "outraged."  He is heading for the Big Easy to investigate.

Clarence Thomas. Avenging Justice.

Except, you know, Thomas doesn't think people should be able to sue.  He doesn't think law enforcement types are liable for the harm they cause.  He doesn't think they actually cause any harm.  

Or maybe now he'll know better.  Now that the conservative's nephew got tased.  And maybe he'll reconsider.

Sure.  Maybe.

But like I said, we'd be fools to bet on it.

via Turley and abc 26

--------------------

*Then you've got a headstart - and he's barefoot since you've got his shoes.  Sorry.  (Hey, I did put it in a footnote.)

Criminal Defense Lawyer and Crime Victim

It was 1989, a sunny spring day in Lubbock, Texas when a neighbor saw someone breake into my home. She called the cops and then my office. I went home and stood around outside, chatting with a police officer while he waited for backup. After about 45 minutes, word came that another officer was a couple of blocks away, so the cop went in. As he went in one door, my burglar went out another. The burglar was around the corner, running along, holding my boom box (the only thing he took) on his shoulder, when he was tackled by the back-up officer.

It turns out that he must have been in the house for an hour or so. He went through the drawers and cupboards. He took a bottle of cheap wine out of the refrigerator, leaving it on top of the stove. (Perhaps unable to figure out how to use a corkscrew). The police were so delighted to have actually caught someone, that they sent the whole crime scene crew over for a few hours.

I can tell you from experience that fingerprint powder is hard to clean up.

I'd been a licensed attorney for probably 15 months then. I'd been primarily representing the criminally accused and convicted, and it was clear that was the direction I intended my career to go.

Now I was a victim. I felt violated. My home had been despoiled. First by some piss-ant crook who pawed through my underwear but couldn't find the beer or figure out how to open a bottle of wine. Then by criminalists and scientific investigators and left more damage (except for that window screen) and mess in their wake than the burglar. Bad guys and good. Didn't matter.

I moved to Ohio a couple of months later. I don't know what happened to the guy. I assume he entered a plea to something. Victim's services (I think that's what they called it) promised to let me know. I never heard from them. (I did get the boom box back.)

They say a conservative is a liberal who's been mugged and a liberal is a conservative who's been arrested. I don't think the burglary changed my attitudes, but it gave me, I think, some small bit of real world understanding of the emotional upset my clients can cause on those they harm.

Last night around 11:30, as I was leaving the office, I discovered that someone had taken a large, concrete bowl of some sort and smashed the driver's side window of my car. He (I assume a he for a number of reasons) ransacked the car. He probably stole a couple of dozen CDs. He took a satellite radio receiver. He left destruction.

I ended up at the police station, filing a report because it seemed like the right thing to do even though it was senseless.

I've been cancelling the radio, arranging for new glass, dealing with how to drive a car in this condition. I've been seriously inconvenienced, and I again feel deeply violated.

I'm not happy about any of this, of course. I'm hurt. I'm pissed. I'm kicking myself for the various things I'd done that encouraged my victimization. And I'd like to see the bastard who did this spend a few years behind bars doing very hard time in the company of folks who are eager, willing, and able to inflict maximum pain and humiliation on him. It's not a bad reminder.

I'm heading out in a few minutes to return to work on behalf of the criminally accused and convicted. Ready to continue to do that battle for everyone.

Except the sumbitch who broke into my car.

There's a moment in the 1970 film, The Kremlin Letter, when the tired, crusty, old spy (played by Richard Boone) has had enough of the annoying, arrogantly naive and cock-sure, next generation agent (played by Patrick O'Neal). "There comes a time in every young man's life," Boone says to O'Neal, "when he has to get his comeuppance." And he tries to beat the shit out of the kid - unsuccessfully, of course.

I think I feel a bit like both Boone and O'Neal today.

Maybe We Could At Least Treat It Like Rocket Science

Seven people who went to my high school, two of them my classmates, are Nobel laureates in physics. Science was just something we took seriously, even those of us with little interest in or aptitude for it. We got the idea that it was real and serious.

When folks come into court and testify as experts about how they've reviewed the evidence and applied the science and the studies and that such and such is true to a reasonable degree of scientific certainty, they're supposed to be who they say they are and testifying as independent experts, free of bias and prejudice. They're supposed to be the wise men who will go where the evidence takes them without fear or favoritism.

Excuse me while I giggle.

There are two problems.

Some of the stuff they testify about is closer to myth than science. That's the case with, say, fingerprint or ballistic or bite mark comparisons (prior post here). Maybe they're right and maybe they're not, but there are no developed reliable standards that have been tested and validated. The "experts" are no more than trained lookers who claim that they can see things we mere mortals can't and, well, those things just prove what they say they do because, darn it, they do. And we, of course, must trust them. They are, after all, the experts.

At the worst, those mountebanks and charlatans send men to prison. Well, no, at the worst, they send men to death row. Actually, still no. At the worst, the men they send to death row based on myth and fantasy get executed in reality and then the governor who signed off on the death warrant after the charlatans have been exposed squelches the investigation of what might have happened. See here and here.

There's another sort of scientific fraud, too. They're the ones who just testify to what the government wants without ever, er . . . . My introduction was Ralph Erdmann. When I went to law school and began practice in Lubbock, Texas he was the county coroner, the forensic pathologist who examined the dead bodies and gave expert testimony about how they got that way. He also served as the contract coroner in many nearby counties in the panhandle.

Coroners are supposed to be those disinterested, pure scientists. Few of them are. They work closely with police, deal with the consequences of crime, and want to help. They work in a law enforcement atmosphere and it has a subconscious impact on even the best of them. Too many aren't the best.

The criminal defense bar knew Erdmann was no good. His testimony was skewed, routinely. He'd somehow support whatever cockamamie theory the state came up with. Some of it was obvious nonsense and way beyond his area of expertise. There was, for instance, the case of the woman who had been stabbed to death. She'd also had sex. It was, Erdmann testified, rape by a stranger rather than sex with her husband. How did he know? The semen was very close to the opening of the vagina, indicating, Erdmann said, that the man ejaculated early - which could, he said, only be a consequence of the excitement of a rape.

(On cross-examination he was asked if he'd ever heard of premature ejaculation. His answer was that he didn't have that problem.)

Shortly after I left Texas, Erdmann got caught. He testified about having weighed a man's spleen after removingt it during the autopsy. Nope. Erdmann didn't know that the man had had a spleenectomy some years before. Why didn't he know? Because he'd never actually cut open the body. (Story here.)

You know, autopsies are hard work and unpleasant. Much easier just to find out what the desired testimony is and give it. Saves everyone so much trouble.

Erdmann's not alone in doing shoddy (or non-existent) autopsies. In fact, it's a virtual epidemic in Texas. (See here.) But it's elsewhere, too. There's Charles Smith of Ontario, who may have been more incompetent than dishonest. Not so Dr. Eupin Choi in Chicago who simply lied in his autopsy reports or Michael Stelter of Winnebago County, Wisconsin, lied on the witness stand. And it's not, of course, just pathologists. See here for an impressive, if incomplete list of some of the forensic "experts" who got caught.

All of which probably helps explain why criminal defense lawyers are jaded. And why we take a certain mildly guilty satisfaction from seeing some of their bad guys get burned.

So with thanks to Paul Kennedy for pointing it out, a moment of silent schadenfreud, please, in honor of Deetrice Wallace who just got sentenced to a year in prison for faking inspections of Intoxilyzers used by police in a number of districts in and around Houston. More than 1,200 DWI convictions will be set aside. According to Harris County (that's Houston, Texas folks) Assistant District Attorney Terese Buess

It's just a massive problem that is not going to go away.

She added,

It's a huge mess.

Ya think?

I'm just a criminal defense lawyer. Incompetent and dishonest government "experts" help me make a living. But I'll forgo some of that and just make a simple suggestion: Hire people with integrity rather than whores and true believers. When they tell the truth, whatever it is, everyone benefits.

SCHADENFREUDE

Hearty thanks to TalkLeft: The Politics of Crime for pointing me to this big news from the L.A.Times.

Kendall Craig Farris, who heads the Over the Wall Foundation in Marina del Rey, is arrested after an undercover Redondo Beach officer is sold fake methamphetamine and ecstasy tablets.

Naturally, the Over the Wall Foundation, of which Farris is co-founder and CEO, is a drug abuse prevention program.

Of course, Farris wasn't actually aiding drug abuse since they were counterfeit drugs he was selling. And he is according to the Foundation's website, a recovering alcoholic and addict. His life's mission, he says,

is to help youth, schools, and families prevent drug and alcohol abuse before it starts, and intervene in any drug abuse which may already have begun.

Farris is the author of "Drugs, Kids and Crime: Surviving Our Drug Obsessed Culture."

OK, we know how hard recovery is, and how recovering addicts backslide. But that's not what he did - at least, it's not what the LA Times reports. Other news reports suggest that he may have been having money trouble and that the Foundation itself was in trouble.

The good news is that mitigation talk to the judge will likely be easy.