Wednesday, March 31, 2004
Wed, March 31, 2004 | link
The windmills of my mind
Wed, March 31, 2004 | link
Please don't whine to me about the things my clients ask you to do. Clients don't
ask us to do unreasonable things-- they ask us to do things that they pay us for, which is how we make money. When you complain
about these things to me-- or when I overhear you say things like "They don't pay us enough to...." I get very worried that
there is some seepage of your attitude in your communications with the client, and that is not cool. Clients are very hard
to get. I worked hard to get the client you are bitching about, and right now, as I am writing this, someone else is working
to steal the client from me. I know-- that's how I got the client in the first place. When you are anything short of enthusiastic
about the most mundane thing that the client has asked for, what the client hears is that we do not want to do his work. Trust
me, there are not enough clients, and there is not enough legal work in the world to be feeling this way about something that
one of our clients asks.
I'm not sure what "things" the writer means. I decline to do things all the time that clients request. I
can't allow a client to commit perjury or advise someone how to conceal illegal conduct. Sometimes clients want to acheive
a goal that the law makes impossible, such as avoiding income tax by diverting income to an offshore account or terminating
their parental rights to avoid child support.
A few years ago "thinking outside the box" was the going catch-phrase. Enron and Worldcom accounting methods were
outside the box and look where they left those companies. Sometimes the best advice a lawyer can give a client are things
like "stop being a damn fool and let it go" or "no way."
One place this issue often crops up for me is criminal appeals. From time to time I get assigned to handle an appeal
for a criminal defendant. Sometimes the client has pled guilty and then decided to appeal the conviction. It is
very difficult to find a colorable argument when appealing a guilty plea. In those cases I have the option of filing
" brief. Anders (the name comes from a case) are briefs in which an attorney tells the court that there is no non-frivolous
argument to raise on appeal. Anders briefs are sometimes a tough call and reasonable attorneys disagree on just how
hopeless a particular issue has to be before an attorney should invoke Anders. Anders seems to go against the general
obligation to zealously defend a client.
I have also learned to avoid clients who seem unreasonably litigious or contentious. There are times when I know
that a potential client wants to tilt at windmills. There is a time and place for windmill tilting, but I have become
more reluctant over the years to take on such cases. Primarily because the client is frequently unhappy even though
I warned him that a win was highly improbable. I want clients who I can help and who will be better off for my work,
not clients who think they just paid a fortune to lose their case.
Unreasonable, unhappy clients are no fun. Unless I feel there is a good chance that the client will be better off
and appreciate my work, I am likely to decline to take the case. Of course as a solo, that is my call.
Wednesday, March 24, 2004
Wed, March 24, 2004 | link
I have represented many people who would be free today if they had followed this advice
About time for a crime
Wed, March 24, 2004 | link Student of political scientist and award-winning teacher Joe's take on Hiibel:
How can we sanction actions by the police that are conducted under the premise
that a suspect is about to commit a crime? I don't want to bring out "penumbra" reasoning here, but it does seem reasonable to
me that the ideas behind our presumption of innocence should radiate to proximate legal areas, here, state action
based on unfounded suspicion.
Yes, I understand that we allow the courts to issue restraining orders against
those persons they suspect are capable and likely to commit crimes; but, in those instances, they have seen evidence,
heard arguments, and recognized the threats and suspicions of the parties seeking aid as legitimate.
That's not the case here. Here, all we have is a cop--granted, a cop
operating on a tip from a witness--acting within the boundaries of his regular duties.
He should not be allowed to jail someone for simply refusing to identify
My name is Sue, how do you do?
Wed, March 24, 2004 | link
Fundamental to a democratic society is the ability to wander freely and anonymously, if we so choose, without being compelled
to divulge information to the government about who we are or what we are doing. This "right to be let alone" -- to simply
live in privacy -- is a right protected by the Fourth Amendment and sacred to us all.
Larry Hiibel was cantankerous, cranky, uncooperative, impolite and possibly drunk when a deputy
sheriff pulled up behind the pickup truck he was standing next to on a rural Nevada road. A concerned citizen reported
someone striking a female passenger in the truck. Hiibel's daughter was in the truck and the two were not fighting
when the deputy arrived. (Video from deputy's car here
Hiibel told the deputy that he was parked legally and had done nothing wrong. The deputy asked Hiibel repeatedly
for identification. Hiibel stubbornly refused to provide any identification and repeatedly suggested that the deputy
to take him to jail. After the 11th or so refusal to produce identification, the deputy cuffed Hiibel and arrested him
for violating a Nevada statute that requires any person whom the police reasonably believe has committed, is committing or
is about to commit a crime to identify himself.
Although the Nevada Supreme court acknowledged a right to be anonymous, it held that Hiibel can be convicted
of a crime for refusing to identify himself upon request.
The U.S. Supreme Court is now considering whether a person can be compelled to reveal his identity during a Terry
stop. A "Terry stop" is a situation where an officer has a reasonable articulable suspicion that a crime has been or
is about to be committed. During a Terry stop the officer may briefly detain a person, pat him down for weapons and
ask questions. A Terry stop is not an arrest and if probable cause to arrest does not arise during the stop, the person
must be released.
The Nevada Supreme Court said that Hiibel's right to be anonymous had to be balanced against society's interests.
If you like civil liberties, you can usually be sure you have lost when the court says your right must balanced against a
government interest. The Nevada Supreme Court reached into the red herring barrel and released them to swim freely through
51 police officers killed in the line of duty
Sex offenders loitering outside schools and daycares
Terrorism has changed the way we live and think
Snipers randomly gun down people
Anonymous people mail anthrax
High school students go on shooting rampages.
How any of those incidents could possibly have been altered by a requirement that an individual identify himself to the
police is unclear. What is shows that in balancing tests the government interests will nearly always outweigh an
individual's. It is always "community safety," "war on terrorism," Columbine, sniper's versus Hiibel's right to be a
law abiding but cantankerous old coot. While the government is busy doing useful things like protecting the borders,
building highways, and promoting abstinence, citizens are constantly engaged in less noble activities like drinking, pot smoking
and being a cantankerous old coot.
Under the rules for a Terry stop an officer may pat down a suspect to determine if he is carrying a weapon. An officer's
safety is greatly increased when he is able to disarm an individual he is dealing with. The officer is no safer simply
because he knows the individual's name.
The real reason to demand identification is to enable the officer to determine if the person has outstanding warrants.
It is interesting that the deputy in Hiibel's arrest did not pat him down at any point before arresting him. If he was
concerned about a weapon or danger, why not frisk him? He also requested that Hiibel "produce identification" rather
than just what his name was. I've never run across a law that requires a person to carry identification at all times.
Terry stops make sense. An officer has the right to briefly detain a person based on observations to determine whether
the law is being violated. During that encounter the officer is entitled to frisk the person and ask questions, but
the refusal to answer questions should not be grounds for arrest. Requring the person to identify themselves does reduce
the risk of terrorism, sex offenses, shooting rampages or anthrax. It is not a crime to be a cantankerous old coot,
yet. If it is becomes illegal to be a cantankerous old coot, you might as well turn every barbershop in America into
I'll bet the Supreme Court will let this pass though. Scalia, Rehquist, Thomas are nearly certain to side with the
government. Breyer, O'Connor and Kennedy are swing votes, but two of the three will probably vote with the government
as well, for five votes.
Tuesday, March 23, 2004
A question from the studio audience
Tue, March 23, 2004 | link
From an e-mail: I'm working on a school project in which I got stuck defending a guy who claims New
York's bigamy statute is unconstitutional and violates his due process rights ....
My question to you is, even in after Lawrence v. Texas
, what can you argue as to how laws banning bigamy are unconstitutional? I really don't see any correlation (other than
privacy, singling out a group, etc) between the anti-sodomy laws and bigamy. Any insight into this would be greatly appreciated.
The first thing that lawyers are taught in law school is that appellate cases they read apply
and announce a holding
. The rule in Lawrence
comes from the 14th amendment
, that no state shall "deprive any person of life, liberty, or property, without due process of law ... ". Applying
that rule, the Supreme Court held that a state may not make it illegal for same-sex couples to engage in sex acts in private.
Cases before Lawrence
established that people have the right to conduct personal affairs in areas of marriage, procreation,
contraception, family relationships, child rearing, and education without interference by the government. In Lawrence
a majority (five, plus one concurring) agreed that sex acts by same-sex couples are the kind of personal affairs that
the government must stay out of. The exact holding of Lawrence
will not be clear until other cases apply that
rule to new fact situations.
Think of possible ways to state the Lawrence holding:
- Adult same sex partners have the can engage in sex acts in private without government interference. (narrow holding, confining
case to its precise facts)
- As long as sex activity is conducted in private and no money is exchanged the government cannot interfere. (broader)
- The government cannot interfere with the private sex acts of consenting adults (very broad)
- The government has no say in who, what, or how many one engages in sex or matrimony with. ("parade of horribles" broad).
An attorney trying to convince a court that anti-bigamy laws were unconstitutional would have to argue that the Lawrence
holding was something close to #4. Your client would lose if the holding is 1 or 2 and probably 3. The
#4 scenario was brought up in the Lawrence dissent, that if private sexual acts are something the government can't regulate then "fornication, bigamy, adultery, adult incest,
bestiality, and obscenity" would all be OK. In law school we learn to call this the "parade of horribles" gambit.
The dissent writer (Scalia) is arguing that if the government can't regulate sexual mores, then it cannot prohibit bigamy,
incest or bestiality (although legalized bestiality probably does not have much of a following in the public at large, including
that term on a blog sends the hit counter spinning). In addition, the dissent argues that same-sex marriage is practically
inevitable after Lawrence.
I am not a constitutional scholar looking out over the quad from my ivy-covered tower, and I can't spell out a grand constitutional
theory. I predict that laws against prostititon, adult incest and bigamy, will withstand constitutional challenge.
A majority would likely say that there is enough potential harm (or bad secondary effects) from bigamy and prostitution to
justify state interference in those otherwise private sexual activities. Incest has too much of an ick factor to be
constitutionally protected. Anti-adultery laws (adultery is still a crime in NC) are a close call, but I think they
would survive a challenge.
But if a bigamist is your client you are stuck with that fact. You need a broad reading of Lawrence to win.
If the bigamist is open and neither wife objects you need to convince the court that the government has no good reason
to prosecute your client for having two wives. Read Lawrence as well as other cases that stand for the principle
that the government needs a good justification before regulating sex and relationships.
Do you have a difficult argument to make, sure. If this stuff was easy we lawyers would not be able to charge so
Monday, March 22, 2004
Five minutes in the life of a defense attorney
Mon, March 22, 2004 | link
I got a call about from the DA's office about a case that has been pending for some time. It is the kind of a case
that might get resolved with a plea bargain, depending on the offer. The case has been hanging around because the DA's
office won't resolve it with a plea (even guilty as charged) until a committee OK's whether this will be a habitual felon
prosecution, a federal indictment or OK's a plea bargain. Here is the gist of the conversation:
DA's office: The XXX case has been continued several times and I wanted to make sure you would be ready
for court next time.
Me: If you make an offer before court I can talk to my client at the jail and get an answer. The
previous continuances were yours because you had not gotten clearance from the ZAP committee.
DA: I can't get back to you before court because the ZAP committee does not meet until the day
before court so I can't make a definite plea offer before court.
Me: (thinking to self) This means I have have to meet my client in the courthouse holding cell and discuss
the plea bargain with him. He will have to make his decision right then while court is going on. With the charge
pending this long why has it taken until now to get a ruling from the ZAP committee? Why does the ZAP committee meet
on Wednesday to discuss Thursday's docket? Is that my problem?
Me: (out loud) If I get a offer a day or so before court I can get to the jail to talk to my client.
It puts him in a bind that I have to take the offer to him right before court.
DA: Most people are just thankful their cases aren't going federal.
Me: (thinking to self) Last time this person told me to be ready for court I was over there
for two hours before I was told that there had been a decision bring habitual felon charges and therefore there was the client
could not even plead guilty as charged that day.
Me: (out loud) I don't think it is right for you to act like I've been dragging my feet on this.
If the DA's can decide what it wants to do I can get a yes or no from my client.
DA's office: I'm sorry I even called. I was just trying to help you out.
Cogitations after hanging up the phone:
- I don't have to be "thankful" the case does not go federal. I know the feds are not going take most cases.
That decision is not in my hands and usually there is not much I can do to influence where the case is tried. That is
largely an empty threat. The feds cannot handle more than 30-40 criminal cases per month for the whole district (1/3
of North Carolina).
- I hate taking plea offers to a client in the courthouse holding cell (the bullpen). I have to explain everything
to them in a room the size of a shower stall, while other inmates pound on the door asking me what time it is. The client
has to make up his mind right then and there. No time to talk to family. Little time to think it over. A
good chance he will later blame me for not giving him enough time to make up his mind.
- It is not my problem that the DA's office has set up a cumbersome bureacracy to screen its cases. Make an offer
you have the authority to make so I can discuss it with the only person who can make the decision. It is pointless to
tell me to be ready for court if you can't tell me what to be ready for.
- No one is trying to help me out, but I am sorry you called too.
By the numbers
Mon, March 22, 2004 | link
Places sniffed: 35,282
Places urinated on: 74
Miles walked: 5 or 6
Skirmishes with other dogs: 4
Crushed rock distributed: 2.5 tons
Waterbars and check dams built: 28
Turnpike completed: 120 feet
Stream crossings cleaned: 4
Helpings at dinner: 2
My dogs (Stella and Molly) took their first AT trip this weekend, with PATH
, a trail maintenance group. At this moment they are still sleeping it off. Although while I was in the Mt. Rogers,
Va. area on Saturday the temperatures were in the 60's, I hear that it snowed up there Sunday afternoon.
New fact I learned: pizza delivery is available at the Partnership Shelter along the Appalachian Trail
Friday, March 19, 2004
Next time use a sipping sack
Fri, March 19, 2004 | link
An Ohio County (West Virginia) Circuit judge declared a mistrial in a drug case after a juror was seen drinking a
beer during a lunch break.
Judge James Mazzone said Tuesday he would schedule a new trial for William "Willie" Mayfield, 20, of Wheeling, who is charged
with possession with intent to distribute both marijuana and crack cocaine, obstructing an officer and battery.
Mazzone said the juror, whom he did not identify, had been seen drinking a beer during the lunch recess at a local establishment.
The matter was reported to Mazzone's bailiff, Lt. Melvin Cunningham of the Ohio County Sheriff's Department, who in turn informed
No charges are expected to be filed against the juror.
From the Associated Press.
Thursday, March 18, 2004
Thu, March 18, 2004 | link
I have contributed to a post on Ken Lammer's CrimLaw
, about indigent defense in Virginia. I predict that for better or worse (there will be some of both), full-time public
defenders will become the main way poor defendants will be represented.
Wake County, which resisted the establishment of public defender office, may be having second thoughts. The News & Observer reports
that only 25 attorneys in that county (Raleigh is the county seat) are accepting court-appointed work.
Well recuuuuuuse me!
Thu, March 18, 2004 | link
Justice Scalia decides against recusing himself in the Cheney case. His opinion here
. His reasons for deciding against recusal:
- Cheney has been sued in his official capacity only. The narrow question presented in the Cheney case is whether
the law permits the committee Cheney headed to withhold the documents the plaintiffs are seeking. Cheney is not personally
accused of any wrongdoing. Anyone who headed that committee would be sued. If someone else succeeded Cheney as
Veep, that person would be automatically substituted as a party.
- He was not that chummy with Cheney during the hunting trip. They were never alone together and never occupied the
same blind. Cheney and Scalia were at the camp together only for 48 hours.
- Since no one can take Scalia's place in the event of recusal, his absence from the case creates the potential for a 4-4
tie with no resolution of the issue. Only in the case of a real conflict (rather than the appearance of a conflict)
should a Supreme Court Justice step aside.
- The fact that major newspapers have called for recusal is not a reason to do so.
After reading the opinion (I predicted he would not recuse himself), I think Scalia made a reasoned decision against recusal. I especially agree that if recusal
is not warranted under the facts or the law, what newspaper editorials call for is irrelevant. If Scalia correctly described
the trip, many newspapers got the facts badly wrong.
Tuesday, March 16, 2004
Why I hate paying taxes
Tue, March 16, 2004 | link
The federal government will spend the following amounts as part of Medicare (according to the New York Times)
- $12.6 million for advertising this winter,
- $18.5 million to publicize drug discount cards this spring,
- $18.5 million this summer,
- $30 million for a year of beneficiary education starting this fall
- $44 million starting in the fall of 2005
That is $123 million spent (over 2 years) on things like video news releases in which the government hires actors
to interview government officials while posing as reporters. $123 million spent not on pills, capsules, creams, or other
pharmaceutical products but on puffery.
This reminds me of a story I heard years ago:
The federal government used to park surplus planes out in the desert where the risk of corrosion was minimal. One
day a congressperson toured the site and noticed that there were $100 million dollars worth of aircraft with no one watching
them. The legislator get Congress to authorize hiring a security guard. Later another congressperson got concerned
about whether the guard was really watching the planes rather than sitting around or dozing. The legislator got Congress
to agree to hire a supervisor to make sure the guard was making his rounds. The supervisor soon got a secretary to answer
his phone so that he was able to supervise the guard as well as show legislators the parked planes. The office then
needed a payroll clerk. One day a legislator then noticed that the security operation was costing $250,000 per year
just to watch planes. Irate, the legislator demanded budget cuts, so the office decided to lay off the security guard.
Friday, March 12, 2004
Fri, March 12, 2004 | link
I get messages like the one quoted below fairly often because I do a fair amount of court-appointed work, but less than
I used to. North Carolina pays attorneys $65 per hour to represent indigent defendants in non-capital cases and appeals.
This is one-half to one-third of the hourly rate you would expect to pay an attorney handling a re-zoning or boundary dispute.
The system is voluntary, no attorney has to accept+ court appointed work, although the courts have suggested that they have
the power to draft attorneys for court-appointed cases without any pay. I've never heard of this actually happening.
There are nearly 1,000 lawyers in Forsyth County, which is where I practice. There are fewer than 50 attorneys who accept
court-appointed cases. There is a public defender office with about 12 attorneys as well.
I get discouraged every time I see one of these messages because it shows how little value the state places on our work.
My cynical side (which by volume is 3/4 of my body) says that the state responds quickest to crises. When our legislature
was concerned that a tobacco lawsuit would bankrupt R.J. Reynolds, it took about three days for legislation to pass protecting
the company. Delaying payments to attorneys creates a real hardship. Most attorneys who do court-appointed
work are "kill what you eat" or "street lawyers" who have overhead (phone, rent, salary and library costs). Ken Lammers,
, gives a pretty picture of a typical practice (he is in Virginia and I think he has it worse than N.C. attorneys).
Those expenses don't take a two-month hiatus at the end of the fiscal year. Some attorneys have suggested a boycott
or filing a lawsuit. Certainly a boycott would cause a crisis, the jails would fill up and the courts would be unable
to handle cases for the indigent without attorneys. Judges might threaten to begin requiring attorneys to work without
pay and when large firms see associates earning six-figures making jail visits and stuck in district court for hours on a
shoplifting case, partners would be on the phone to legislators pdq. A boycott is unlikely though because there is a
lot of ambivilance among attorneys about whether that is the right response. But as long as attorneys continue to show
up for work, I don't think the state will see any urgency in paying what it owes. How many people would keep paying
the electric bill if you knew that the power company would never shut off your power?
I have been on the verge of giving up court-appointed work for the last 2 years or so. I have a moral obligation
to make the system work and do my part to provide the kind of defense due process requires. But I also have to
face the reality of paying bills. My office, apartment and electricity are not free. If I cannot pay for them,
I'll lose them. Court-appointed cases have hassles aside from the pay, there is more paperwork and pages of rules and
regulations that apply only to court-appointed cases. One day I'll probably get frustrated enough get off the court-appointed
In the long-term the state will begin to rely more on full-time employees to provide indigent defense. Within five
years all of the urban areas of North Carolina will probably have public defender offices. Whether public defender offices
are cheaper will be hotly debated, but they are easier to budget for. The cost of running the office for a year is fairly
predictable. The state farms out quite a few criminal appeals to private counsel, but that will likely change as well.
It is probably easier to get the legislature to pay for full-time employees than to pay attorneys. In the end the indigent
defense system will more closely mirror the prosecution side, which relies entirely on employees.
Dear Indigent Defense Attorneys:
As you know, due to chronic under-funding of indigent defense, payments to private
counsel and defense experts are typically delayed toward the end of each fiscal year. We are writing concerning the
anticipated shortfall in this fiscal yearís budget, and the delay it will cause in payments to attorneys and experts over
the next few months.
The indigent defense fund ended fiscal year 2001-02 approximately $7.4 million
in debt, and all of those unpaid fee awards had to be paid out of funds budgeted for fiscal year 2002-03. The IDS Commission
submitted a fiscal year 2002-03 budget request to the Governor and General Assembly that sought sufficient funding to pay
off all of fiscal year 2001-02ís debt and keep payments to attorneys timely. While the IDS Commission is extremely grateful
that the General Assembly appropriated some additional funds to indigent defense during fiscal year 2002-03, there still was
insufficient money to pay
off IDSí debt and cover the demands on the fund. As a result, the fund
ended last fiscal year approximately $8.7 million in debt, and all of those unpaid fee awards had to be paid out of funds
budgeted for this fiscal year (2003-04).
According to current projections, the indigent defense fund will again be ending
this fiscal year with at least $8 million debt, which will represent a payment delay to private attorneys and experts of at
least 8 weeks. We expect to issue checks early in April that will cover attorney and expert fee awards received at the
AOC through late March. We also expect to issue checks early in May that will cover attorney and expert fee awards received
at the AOC through late April. However, if current projections are accurate, once checks have been written in early
May, there will be no more money to pay private
attorneys or experts until the new fiscal year begins on July 1, 2004.
The IDS Commission members and IDS Office staff realize that this will create a great hardship for you, and are extremely
sorry. Unfortunately, however, there is nothing more we can do to generate additional funds this fiscal year.
The IDS Commission recently submitted to the Governor a proposed expansion budget
for fiscal year 2004-05. In that proposal, IDS requested an additional appropriation of $13 million-$8 million in non-recurring
funds to cover the anticipated debt at the end of this fiscal year, $2 million to restore next yearís funding to the same
level as this yearís, and $3 million to accommodate a small amount of growth next fiscal year. We will do everything
we can to convince the Governor and General Assembly that adequate funds must be appropriated to allow IDS to pay off last
yearís debt and maintain timely payments to appointed counsel. However, we need your help to keep your payments timely.
Please contact your legislators and the Governor about the importance of adequate funding for indigent defense, and in support
of IDSí expansion budget request. Once you have done so, please let us know about your contact and any reaction you
received. The success of our expansion budget request will depend greatly on our grassroots lobbying with our local
Thursday, March 11, 2004
Get me a geologist, fast!
Thu, March 11, 2004 | link
Two giant boulders crashed down around this house in Norway sometime before 7 a.m. The house was untouched, but
the garage was smashed.
A defense so crazy it just might work
Thu, March 11, 2004 | link
Anti-tax nut Irwin Schiff (he often claims to have discovered that the entire tax code is illegal, don't try this at
home) now contends
that he has the delusion that only he alone can properly interpret federal tax laws.
Schiff is clearly delusional, no one can properly interpret federal tax laws.
Wednesday, March 10, 2004
Notes from the Legal Underground
Wed, March 10, 2004 | link
I ran across this site
yesterday. It is worth a visit.
Tuesday, March 9, 2004
Tue, March 9, 2004 | link This take on Scalia and Crawford from Joey, a friend of mine and political scientist:
Having studied originalism and its various manifestations
for years now, ... Scalia's ruling doesn't rely on that methodology--this time.
This time, Scalia's is relying
on Blackstone and the "plain meaning of the text" guidelines for English Common law and contractual interpretation.
question to me is "Why?" Why is Scalia adjusting his methodology to advance the rights of the accused?
Cass Sunstein did
a study a few years ago of the justices' written opinions and found that none maintains a consistent constitutional interpretive
method, that each used any number of reading strategies to support his conclusions. Sunstein wrote that, in sum, the
overriding philosophy behind the opinions of the Court was pragmatism: Justices use whatever framework gets them to where
they want to go.
So I'm interested
in why Scalia wants to go here. My guess is that it advances his overall public message that the justice who interprets
least interprets best, but who knows?
Your call is important to us ...
Tue, March 9, 2004 | link
Have you ever tried to resolve a billing dispute with a large company, such as say MBNA, and felt that their customer
service amounted to the agent insisting that whatever information that was displayed on the computer screen was correct and
nothing you said would make any difference at all? You were right to feel that way.
In December 2000 Linda Johnson told MBNA that she was not responsible for the balance on her husband's MBNA account (the
husband's debt was discharged in bankruptcy). Johnson said that the account was opened in 1987, that she married her
husband in 1991 and that she was only a authorized user, not a signer on the account. Johnson disputed the account under
the Fair Credit Reporting Act, which requires a creditor to conduct a reasonable investigation into the dispute and correct
erroneous information. Here is a step-by-step account of what MBNA did to investigate Johnson's claims:
- MBNA reviewed the information in its CIS (Customer Information System) to see that the name and address was the same as
that on the complaint
- Noted that the computer file displayed a code indicating that Johnson was the sole party responsible for the account.
Johnson sued under the FCRA and a jury agreed with her that MBNA's investigation was not reasonable and awarded her $90,300
in damages. MBNA agents testified that, in investigating consumer disputes generally, they do not look beyond the information
contained in the CIS and never consult underlying documents such as account applications. In other words MBNA
would never consider the possibility that a low-wage data-entry clerk improperly entered a code in its system. The computer
is always right, the customer is always wrong. At least in "customer service" land.
MBNA had the gall to appeal and fortunately, lost.
Read the case for yourself here.
Writing from the bench
Tue, March 9, 2004 | link
A state judge e-mailed about his take on the Crawford case, decided March 8, 2004
As a state judge for more than 25 years--11 on the trial bench and 14
on the intermediate appellate court--I agree with your analysis of Crawford. Not only is it a big win for the criminal
defense bar, it is long overdue. I must admit that at times I have had to use Ohio v. Roberts and each time I did I
held my nose. I consider myself on the other end of the spectrum from Justice Scalia--on the law and ethics--but was
surprised to find myself in total agreement with his analysis. [Does this mean that I am an "original constructionist"?]
The e-mail appears genuine (it was not anonymous, the return address was a gov't domain, and there is a
judge by that name on the bench in that state). If it was a hoax, someone went to some trouble to fool me.
Monday, March 8, 2004
"Confront" means confront
Mon, March 8, 2004 | link
Every time I sit down with a client who plans to plead guilty to a felony, I have to ask a long series of questions including
"do you understand that at a trial you would have the right to confront and cross-examine the witnesses against you?"
That right is guaranteed by the 6th Amendment to the U.S. Constitution. However the right never really meant that you
could actually "confront and cross-examine" the witnesses against you because a U.S. Supreme Court decision let in all kinds
of out-of-court statements if the statement fit a list of exceptions or a judge found "particularized guarantees of trustworthiness."
Those guarantees were easy to come by. Often it seemed that anything qualified, for example
- that the witness was in custody and charged with a crime
- that the witness was not in jail and not a suspect
- the statement was given right after the event
- the statement was given two years after the event
Those days appear to be over. The U.S. Supreme Court ruled today in Crawford v. Washington, that unless a person had the right to be present and cross-examine the witness at the time the statement was offerred it
cannot be used unless the witness appears for trial and is available for cross-examination.
In Crawford, a man was charged with assault and claimed self-defense, his wife made an earlier statement to police that
undermined the self-defense claim. The wife could not testify at trial because the state where the assault occurred
(Washington) prohibits spouses from testifying against each other unless the spouse on trial consents. The state offerred
the wife's statement to police officers into evidence. The trial judge found it reliable and let it in. An appellate
court found it not reliable and threw it out. The Supreme Court of Washington found it reliable enough to let in.
Then the U.S. Supreme Court weighed in, ruling that it does not matter whether the out-of-court statement was reliable or
not, that since there was no opportunity to confront and cross-examine the witness (the wife) it cannot be used at trial.
Crawford is a huge case for criminal defense lawyers even though its premise is unremarkable: that confront means confront.
This is so because it overrules an earlier case (Roberts v. Ohio) that said there was no need to confront if the judge found
the earlier statement reliable.
Justice Scalia wrote the opinion for five other justices (Stevens, Kennedy, Souter,
Thomas, Ginsburg, and Breyer). Not the most common lineup. Justices Rehnquist and O'Connor concurred in the
Eugene Volokh points to this decision to show that Scalia does not always vote against criminal defendants. While I think
life under the constitutional scheme Scalia envisions would be nasty, poor, brutal and short, it is not true that he
rules against defendants consistently. He seems to favor clear rules and a narrow view of original intent, but will
apply them when the outcome is favorable to a defendant.
A Volokh conspirator critiques "balancing tests" such as the one overturned in Crawford.
A Bronx Public Defender gives a view of Crawford's impact on domestic violence cases where the victim refuses to testify and the prosecution offers
statements about what was said over a 911 call or to officers who respond to the call. I especially noted his comments
about sensitivity training (or indoctrination) that judges hearing domestic violence cases get. I know North Carolina
prosecutors have sponsored domestic violence summits where judges are educated on how to handle domestic violence cases.
This has made me uneasy since I look at a judge as having to decide if an episode of violence has occurred rather than having
an active role in the war on domestic violence.
Friday, March 5, 2004
White tie, white coat, but a black cane
Fri, March 5, 2004 | link
Thing I learned while looking up something else: in North Carolina it is illegal to use a white cane in public unless
you are partially or totally blind. The statute dates to 1949.
Just reboot after each stream
Fri, March 5, 2004 | link
Berkeley researchers have developed a prototype exoskeleton that makes a 100-pound load feel like five. The gadget
requires fuel and includes a computer and LAN to coordinate movement. Even with a ultralight load I think
it would make backpacking miserable. That last thing I want on a camping trip is a computer or a LAN. You'd probably
have to bring a cell phone to call tech support.
Acutally the exoskeleton primary purposes are military and fire/rescue. More here
Wednesday, March 3, 2004
State trips on anonymous tip
Wed, March 3, 2004 | link
The Fourth Amendment may have some life left -- applying pretty clear precedent the N.C. Court of Appeals ruled
that the police cannot stop a car based only on an anonymous trip. Read the opinion here
. It's nice to have one in the "W" column.
Ponder the sound of one toilet flushing
Wed, March 3, 2004 | link
Seattle reporters record the opening flush of the city's high-tech toilets. From Seattlepi.com
Monday, March 1, 2004
And it will read you your rights in stereo
Mon, March 1, 2004 | link
Toyota has a concept car
that can call in speeding violations and charge the fines to your credit card. I would not be surprised if 30 or 40
years from now technology like this was required, just like emission controls.
Maybe it can be kicked up a notch to tell on you if you smoke pot in your car or hide cocaine in the trunk. Maybe
if it detects a felony violation it could take over the steering and drive directly to the police station, locking you inside
until the police arrive. But that would be crazy, right?