May 2008

You are browsing the site archives for May 2008.

A few days ago, I lamented the poor state of Chicago-based criminal defense blogs. As I hoped, a few local lawyers spotted it and spoke up.

The first one was Chicago divorce lawyer Maria Fahnert. Not what I’m looking for, but since she was nice enough to leave a comment—and wasn’t obviously just marketing herself—I thought I’d mention her.

The second response came out of a law office I mentioned in my previous post. I had poked fun at the criminal defense blog of Anthony W. Hill because the most recent post read, in it’s entirety,

Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text

This brought an email from David Hill, who’s helping Anthony set up his web site. As I suspected when I wrote my original post, I caught him testing the blogging engine and template layout.

Most of the website for the law office already existed, so David set up a WordPress blog template that mimics the main website look-and-feel, then tucked it right into the site. You can see the template change when you know to look for it, but it doesn’t disrupt user navigation. David and Anthony expect the blog to make it easier to update site content regularly, which they hope will attract visitors and search bots.

I’m not usually too excited about blogs that are obviously designed as marketing tools, but it’s a good sign that the website and blog are homebrewed. It suggests that the lawyer believes in the idea and didn’t simply purchase a blog from a company that’s selling lawyers on the idea of blogging as a marketing tool. I’ll be checking them out when they go live.

David himself just graduated law school himself, and he’s got his own blog where he talks about legal stuff.

Finally, I drew a comment from Rob Deters, a genuine Chicago criminal defense blawger…who let his blog die out last December. He says he’s going to post more. We’ve all been there.

Rob apparently reads my blog (it’s always a little disturbing to encounter people who read my work regularly) and he says he does criminal defense work for pretty much all the same reasons it scares me: He loves thinking fast on his feet in court, and he likes a lot of his clients.

Rob’s a second-generation criminal defense lawyer who came to Chicago a few years ago and ended up at one of the small law firms near the Cook County Criminal Courthouse and county lockup at 26th and California. (The top of his blog has a picture of the top of the courthouse.) Rob does about 80% criminal work including DUI, resisting, possession, and one homicide trial.

In addition to blogging, Rob has also published a few opinion pieces in newspapers. For example, I’m pretty sure he’s the same Rob Deters who wrote this piece on congressional disregard for judges, so you can see what he looks like.

I just noticed that as I was writing this, Rob posted some new stuff on his blog, the 26th St. Bar Association. I wonder if my post goaded him into it. Maybe I’m inspiring our nation’s youth.

Scott Greenfield has a terrific article about the troubles prosecutors have with victims and defense lawyers have with clients. Be sure to read the whole thing, as the final paragraph wraps it up nicely.

Those of us in the software business sometimes have a similar, though much less emotional, relationship with our clients. Unless you’re being hired to assist someone who does the same thing you do—another lawyer, another developer—it’s an important part of the concept that your clients are hiring you because they don’t know how to handle the situation themselves.

If you can’t handle that, your options for employment are going to be limited.

Well, today is Memorial Day. It’s also my birthday. And my dad’s birthday is in a few days. To celebrate, the paramedics took my father to the emergency room at Hines Veteran’s Hospital.

He had trouble breathing this morning and asked my mother to call 911. By the time the paramedics showed up, my dad was feeling better, and didn’t think he needed to go to the hospital. So the paramedics gave him a yes-or-no choice: Sign a refusal to be transported, or go to the hospital. My father decided to play it safe and go to the hospital.

By the time my wife and I got to the emergency room, the doctors had decided he was in no immediate danger and sent him up to the wards for observation. We stayed with him for a little while, but now we’re at their home, checking up on my mom.

It’s not exactly how we planned to spend the day…

Last August I started a series of posts about troublesome features of laws that were absurdly complicated or that prescribed disproportionately heavy punishment, usually as a result of legislators trying to show they were “tough on crime.”

In a homage to Gideon’s post on the “most evil legal principle,” I called my series “Evil Lawmaking.” Unfortunately, that kind of hyperbole makes it hard to come up with a title when I want to talk about a genuinely evil law.

After I posted my first entry on the evils of free punishment, Scott Greenfield commented on his blog that he was troubled by the free punishment of civil forfeiture. I responded:

I’m doing a series of posts on “Evil Lawmaking.” I didn’t mention forfeiture as one of the free punishments because (a) it really falls into the category of profitable punishments, and (b) forfeiture is so evil it will be getting a post all to itself.

I never got around to writing that post.

In part, it was because I had been writing about relatively minor issues like profitable punishment, over-use of license suspensionpiling on the punishments, administrative punishment, and the ridiculous state of DUI laws. To include forfeiture in that list is to trivialize it, and it’s not a trivial thing.

Fortunately for all of us, Scott Greenfield hasn’t forgotten about the forfeiture issues, as he proves with a terrific post that illustrates the issue with the sad story of one forfeiture incident as described on Law.com:

The K____s set aside about $1 million to pay attorneys by taking out a second home mortgage and cashing certificates of deposit. But prosecutors claimed the money was ill-gotten gains. They charged Kerri K____ stored the medical equipment in the family’s garage. Her husband was indicted after she refused a plea deal. Prosecutors said he knew about the conspiracy and managed the illegal profits.

Even after being stripped of the money, the K____s didn’t qualify for a federal public defender. U.S. Magistrate Judge James M. Hopkins in West Palm Beach concluded the couple could liquidate their 401(k) retirement accounts and their children’s tax-deferred college funds — at a cost of a $200,000 tax penalty — to pay for a cut-rate lawyer.

[The defendant’s name has been obscured at her request.]

The second reason I didn’t write about forfeiture is because it’s a very complicated issue. Actually, part of it is very simple: Law enforcement agencies accuse you of a crime and send men with guns to take all your stuff.

What makes it complicated is the legal explanation of why the courts don’t think it’s unconstitutional. Much legal fiction is involved, as Scott Greenfield explains: 

The assets usually aren’t forfeited before trial, but seized and held pending the forfeiture proceeding.  This gets a little technical, as forfeiture is an in rem proceeding against the property, rather than an in personam proceeding against the owner of the property. But since it has a lesser standard of proof, probable cause, the outcome of a criminal proceeding, with the higher burden of beyond a reasonable doubt, has no effect. 

Got that? When the government takes your property, they’re not after you, just your property. So it’s all OK. Even better, if you win the criminal case, the government still doesn’t have to give your stuff back.

I’m not making this up. It really is totally legal for the government—our government, here in America—to do this to you.

Which brings me to the third reason I didn’t get around to writing about forfeiture: The subject enrages me, which makes it hard to pay attention and think clearly.

I first heard about civil forfeiture back it the late 1980s. It grew out of what was arguably a misuse of the RICO laws, and I naively thought that if enough people knew what was going on, Congress would feel pressure to amend the law to prevent further abuse.

Then the Pittsburgh Press published their excellent “Presumed Guilty” series in 1991, which blew the story wide open, and it was even worse than most of us knew. Law enforcement agencies were taking people’s stuff and keeping it for themselves, using the proceeds of forfeiture to buy new equipment and pay for more personnel. This was a deep conflict of interest that distorted police priorities and rewarded them for all kinds of abuses.

Even more disturbingly, informants who tipped police off to big forfeiture opportunities could sometimes expect a cut of the action. So, for example, an airport employee who spotted a bunch of cash in somebody’s luggage might get to keep 10 percent. (Remember, no one has to prove a crime occurred, so the government gets to take the money right away.) This sounds like something out of Stalinist Russia. I thought for sure that major reform was coming.

That was seventeen years ago, and there’s been no real improvement. Civil forfeiture has worked its way from drug crimes to white collar crimes to seizing the cars of drunk drivers, all without proof of guilt.

I don’t understand it. We’ve had protests about the Rodney King verdict, immigration, and the World Trade Organization. The Million Man March advanced on Washington to protest Republican social policies. But hardly anybody seems to care about this massive totalitarian abuse that’s going on all the time.

Well, some of us do. One of Greenfield’s commenters had this to say about it:

I cannot believe a human being can graduate from college, graduate from law school, pass a bar exam, and say with a straight face that pre-conviction asset forfeiture is constitutional. I only hope the federal and state prosecutors who are this dishonest will rethink their positions after their deaths, when their skins are on fire and one of Beezlebub’s tentacles is affixed where their genitals used to be.

He sounds a bit crazy, but I can’t fault the sentiment.

Houston Criminal Defense Lawyer Mark Bennett wrote about reporter Jennifer Latson’s attempt to interview an accused criminal without approval from his lawyer. The suspect’s lawyer was not amused.

The lawyer wrote to the reporter requesting that she not talk to his client without first asking him.

Her response was “I’d refer you to the United States Constitution, Amendment I. I can attempt to interview your client until I’m blue in the face; he doesn’t have to agree to see me.”

I’m sure Latson is right about the basics, but that’s kind of a silly response. There’s no need to go all First Amendment on the lawyer. Everybody knows about the First Amendment, but it cuts both ways: The reporter can try to interview the suspect, but the lawyer can try to convince the reporter to knock it off. It seems like everybody’s just doing their jobs.

I don’t know, maybe the unnamed lawyer was rude about it, and Latson just responded in kind. I think I would have just ignored the lawyer’s request, or sent back a polite “thank you for your input” response, or maybe tried to use this as an opening to bounce a few questions off the lawyer. Then again, I’m not a professional journalist.

Bennett continues,

That is certainly true: a reporter can try to interview an accused person until she’s blue in the face (or until the jailers stop letting her in to the jail).

It seems like an excellent way to make sure the criminal defense bar is reluctant to talk to you about anything else, though.

Really? I don’t think member of the defense bar talk to reporters out of affection. They talk to reporters for the same reason every other media savvy person does: They want to influence the story.

As long as the reporter writes fair and accurate articles, I have trouble believing that any defense lawyer would pass on a chance to get his client’s story out if he thought it was important to do so.

Scott Greenfield has an interesting response to the Supreme Court’s ruling on the Protect Act in U.S. v. Williams.

…The problem is that criminalizing the speech of making offer/requests for kiddie porn, but then not requiring that there actually be kiddie porn or that the porn under discussion actually involves children, disconnects the speech from the underlying bad act (child pornography).

He quotes Eugene Volokh:

That the item might not actually be obscenity or child pornography doesn’t matter because the general criminal law is that an attempt to commit a crime is punishable even if the attempt is factually impossible. Trying to buy illegal drugs, for instance, by soliciting someone to sell them to you is generally a criminal attempt even if the solicited seller was only going to deliver fake drugs rather than real ones. So the bottom line is that the prohibited conduct constitutes criminally punishable solicitation, offer, or attempt to get or give constitutionally unprotected material.

To which Scott responds:

Trying to buy illegal drugs is not a substantive state crime.  It is the possession or sale of drugs that is the crime.  If a fellow walks down Amsterdam Avenue asking if anybody knows where he can score some heroin, he has done nothing criminal.  It won’t help his sainthood application, but he’s not going to the can for it. 

Similarly, if a fellow stands on St. Nick asking passersby if they want some cheap blow, and then hands them a glassine of baby powder, he too has committed no substantive state crime, though he may have to run hard and fast to get away from some very disappointed purchasers.  There has to be real drugs involved, and there has to be an actual transfer involved, for the deal to be criminal.

Scott’s speaking some legal language here that may have a meaning that eludes me, but I think some places have a crime called “sale in lieu of a Controlled Substance” which covers things like fake drugs. I don’t know if there’s also “attempted sale in lieu of a Controlled Substance.” I kind of hope not. It seems wrong to jail somebody for a crime with two imaginary components.

That’s Scott’s point too. The Protect Act makes it a crime to offer to sell something which doesn’t exist, even if no sale occurs and there’s nothing to sell.

Honestly, I’m not entirely sure exactly what bad things will happen now that this law has passed constitutional muster, but it has the feel of one of those laws which will eventually be exploited to hurt a lot of people with very little benefit to society.

Not everyone agrees, as Scott relates:

Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts.

I have to part ways with Nino here.  If constitutionality of a law is dependent on the sound discretion of prosecutors not to be overzealous or abusive, or the oversight of district court judges to somehow stop indictments should the AUSAs get out of control, we’re in deep trouble.  History has proven that neither of these stopgaps work very well, and since when does constitutionality hinge on the government being trustworthy?

I would think at least since Hudson v. Michigan, when Scalia wrote,

Contrary to Hudson’s argument that without suppression there will be no deterrence, many forms of police misconduct are deterred by civil-rights suits, and by the consequences of increasing professionalism of police forces, including a new emphasis on internal police discipline.

It’s not that I want our justice system to be soft on child pornographers, but if we’re going to carve out an exception to the First Amendment for child pornography, shouldn’t we make sure it only applies when there’s child pornography involved?

Our unique combination of demand, location, and anti-pollution chemistry rockets Chicago to the top once again:

A national survey says the average price for regular gasoline rose about 17 cents in the last two weeks, with the highest price in Chicago at $4.07 a gallon.

I keep telling myself it wasn’t foolish of my wife and I to buy our first SUV this year because the high prices are only temporary.

Some of you who’ve tried to leave comments have probably noticed that it doesn’t work very well. The Captcha codes—those annoying strange characters you have to type—just aren’t working right. This is a bizarre and frustrating bit of misbehavior out of the Movable Type blogging engine. So much of it normally works so well.

I’ve disabled Captcha codes for now, and I’m trying a different approach to avoiding spam.

So leave a comment, and we’ll see how well it works.

No, I’m not in trouble. But I could be someday, and it would be nice to know who to call.

Because I spend so much time on legal blogs, I know a few good lawyers, just not around here.

(Actually, I don’t know that they’re good—how could I really tell?—but they sound good, which is better than some. More importantly, they seem to respect each other’s skills, and they’d be better judges of legal skill than I am.)

So, if I’m ever arrested in New York City, my first call is Scott Greenfield. If I’m arested in Austin, Texas, I’m calling Jamie Spencer, but in Houston I’m calling Mark Bennett. In Connecticut, I’m calling Norm Pattis (Sorry Gideon, I don’t think they’d let me pick my own PD), and in the D.C. area, I’m calling Jon Katz. (Whether they’ll take my call is a different matter…)

But if I ever get arrested in Chicago, I haven’t got a clue who to call. For a traffic ticket, I could just pick at random, but for something a little more serious, I might want to make an effort to choose wisely.

How come there aren’t any good criminal blawgers in Chicago? A search of blogs on Technorati for “Chicago criminal defense attorney” yields two hits. The first is Anthony W. Hill, whose most recent entry on May 14 reads, in it’s entirety,

Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text Text

[Update: The guy who’s setting it up emailed me to say that regular blogging will start soon.]

The other blog has apparently shut down.

Using a more general search on Technorati for “Chicago criminal defense lawyer” in any post, I get as the eighth result something titled “Chicago Criminal Defense Lawyer” which clicks through eSyndiCat to the law offices of Denise M. Nalley:

One of Chicago’s most respected and experienced criminal defense attorneys, Denise M. Nalley, has earned a reputation for providing high quality and aggressive legal representation in Chicago and it’s surrounding suburbs. A former Cook County Prosecutor, who understands both sides of the law well, Denise is committed to providing her clients with an aggressive and effective criminal defense. Denise understands that it is of the utmost importance to vigorously protect her clients’ Constitutional rights.

No blog there.

More generally, if I do the search on Google, I just get hits for law firms, such as Michael J. Petro:

One of Chicago’s most respected criminal defense attorneys, Michael J. Petro, has earned a reputation for providing high quality, aggressive legal representation in Chicago and around the United States. Criminal defense attorney, Michael J. Petro, earned this reputation by providing his clients with the highest standards of diligence, knowledge and professional advice, and by steadfastly protecting his client’s constitutional rights.

No blog there either, but it reminds me of something I’ve read recently…

Next in the Google list is Norris and Callahan, whose motto is apparently “We Win Cases Other Criminal Defense Lawyers Said Were Impossible”:

One of our clients came to our firm after two other attorneys told him that his case could not be won. When he contacted our law firm, he had already pleaded guilty the charge and was about to serve a 12-year prison sentence with the Illinois Department of Corrections. We took on his case, vacated (withdrew) his guilty plea, and won a not-guilty verdict at trial.

Wow, I think I gotta get these guys! They win cases.

Still no blog, though. Don’t any Chicago defense lawyers write a blog?

The New York Post seems rather proud of itself for what it claims are the first public photos of Ashley Alexandra Dupre since it was revealed that she was the “Kristen” that former New York Governor Eliot Spitzer paid $4300 to have sex with.

I’m more than a little appalled that this young lady is being hounded by the media.

At the same time, as a photographer and fledgling journalist, I have to admit I’m a little in awe of the Post‘s work ethic.

Reading between the lines, it appears that despite the two months that have elapsed since the scandal broke, when the Post got a tip that Dupre left home to take a bus into Manhattan, the paper dispatched two photographers to catch her at the Port Authority Bus Terminal and take pictures.

I went to the Agitator meet-up tonight and finally got to meet Radley Balko. I’ve been reading his stuff for a while, and I really admire the work he did on the Cory Maye case.

The meetup wasn’t exactly huge. Only a handful of people showed, and only two of us weren’t already friends of Radley’s, proving that just because someone is a star in libertarian circles doesn’t mean he’s going to draw a crowd in the real world.

There might also be another reason a libertarian star like Radley doesn’t draw a crowd in Chicago, and it’s the subject of one of his upcoming stories. He didn’t exactly swear me to secrecy, but I dare not say more.

I didn’t want to irritate too many people so I held off on my usual paparazzo-like-frenzy of photography, getting only one picture. Naturally I managed to position myself in front of one of the few reflective objects on the walls and caught my own flash.

Agitator Meet-Up
Larger ImageAgitator Meet-Up

That’s Radley Balko on the right. The nice-looking couple in the middle are friends from his attempt at law school. The gentleman on the left is the other non-friend who showed up. He’s a local blogger with an interesting-sounding music blog that had a name I couldn’t possibly forget. I gave him my card, so maybe he’ll see this and remind me what it was.

After yesterday’s ruling from the California Supreme Court that gay marriage could not be banned, the Illinois Review posted a press release from the Alliance for Marriage Foundation. It begins:

The Alliance for Marriage Foundation urged the people of California to constitutionally protect marriage in their state, while calling upon Congress to pass AFM’s federal Marriage Protection Amendment in the aftermath of a California Supreme Court decision striking down marriage.

They almost lost me there, with the absurd idea that permitting gay marriage somehow amounts to “striking down marriage,” as if people in California couldn’t get married any more.

The metaphysical implications are baffling: How can other people’s marriages diminish mine? I really don’t get it. As far as I’m concerned, some state could legalize human-to-livestock marriages, and my own marriage would feel no less secure.

Anyway, the rest of the article goes on to make what might be a slightly better point: The courts have no business inventing a right to gay marriage. That should be left to the voters of California and their elected representatives.

Of course, those same voters and their representatives ratified the California constitution, which includes language opposing discrimination because of sexual orientation.

Over at Simple Justice, Scott Greenfield says some nice things about an article I wrote:

It’s got merit. I’ve said it before and I’ll say it again, that Mark Draughn is a smart guy.  No wonder he never became a lawyer.

Mark is the Windypundit of Windypundit fame. For some unclear reason, he finds the law curious and maybe even fascinating, in some morbid way. 

I think Scott’s being a little ironic, but there’s also a question implicit in his comments: If I’m so fascinated by this legal stuff, how come I’m not a lawyer? In particular, how come I’m not a criminal lawyer?

The short answer is that I don’t have what it takes.

For one thing, I don’t think quickly on my feet. If a witness hits me with an ugly surprise, or a judge asks me to justify something I didn’t think needed justification, I probably couldn’t come up with a good response quickly, and that seems like a fatal error during a trial.

Another problem is that I’m not really what you’d call a “people person.” I get along with people okay (as far as I know) but I’d have trouble getting strangers to accept me and open up to me. That might hurt me at trial, and it would definitely hurt with figuring out the clients.

I also don’t think I’d enjoy doing law as much as I enjoy hearing stories about it. It sounds like very stressful work. I’m not a very confrontational person by nature. I can buy a car or negotiate for a higher salary when it comes up, but I wouldn’t want a job that was like that all the time.

Another reason I’d be a bad lawyer is that I have trouble empathizing with systems of values very different from my own. For example, it dumbfounds me that anyone would want to lock a woman in jail for prostitution. I don’t understand what’s going on in the heads of people whose response to a woman selling her body is to make her life worse by throwing her in jail.

That’s not really an argument that would work in court. I’d have to find a real defense. However, it would piss me off that my client’s fate depends on a system built by people who think that way, and it would aggravate me that I couldn’t do anything about it. Maybe I’d get used to it as I gained experience, but would that be a good thing? And what if I never got used to it?

The flip side of that problem is that criminal lawyers deal with some awful people. Norm Pattis has a case where a young man is accused of a sex crime against his five-year-old step-sister. This arose in the middle of a custody fight between their parents, one of whom might be coaching the daughter to lie. I have no idea what the truth is, but someone is doing something terrible. I’m not sure I could spend so much of my life dealing with such people, let alone defending them.

I’d also have trouble getting used to…uhm…failure. Criminal defense lawyers rarely have complete victories. Even a really good lawyer at the top of his game is going to have a lot of clients going to jail—he may have shortened the sentence a lot, but it’s still jail. Having to accept such dismal results would take a lot of fun out of the job.

All these reasons are pretty negative, but there’s also a positive reason why I never tried to be a lawyer: I learned early on that I enjoy developing computer software. I find it to be a fascinating and rewarding experience.

Software development is everything lawyering is not. We’re all on the same team, and we’re working toward the same goals. There are conflicting values that arise in software development—the main one being between supported features, quick delivery, and future maintainability—but these conflicts can be resolved against a common interest in business success. Usually it’s possible to achieve engineering consensus, but if that doesn’t work you can always kick it up to the management pyramid.

Most things in software development happen on a schedule of days or weeks, so there’s little pressure to think quickly. Even if I do have to come up with a quick answer—in a meeting, say—we can always go back and revisit it later.

Finally, in most kinds of software development, failure is rare. We may not always deliver software on-time or within the budget estimate, and there are bugs to be fought along the way, but the software almost always works in the end.

Software may not pay as well as being a lawyer, but I can do it well, it’s not as stressful, and I really enjoy the work. So I’ll just sit on the sidelines and make snarky comments while the real lawyers toil away in the courtroom.