I respectfully dissent

Some argue that in fighting the war on terror, we need to develop a different mindset in dealing with groups like Islamic terror cells and Iraqi insurgents. We may need a new mindset, but we can't toss out our values. Some suggest we should. They are wrong.

Traditional standards observed in battle like those adopted by the Geneva Convention were developed assuming that a soldier was just carrying out orders from his government. Because we understood that soldiers are required to fight even if they personally disagree with their government's decision to wage war, we don't hold the individual soldier responsible for carrying that decision, provided he does not cross the line into crimes against humanity. Part of the no-punishment or coercion for soldiers rationale is practical, if we treat our prisoners humanely, we are in a better position to urge that ours be treated similarly. Killing enemy soldiers is justified then because killing is a means of preventing them from achieving a goal that our government opposes.

Sometimes torturing an enemy captive might advance America's cause, but it seems wrong because it is. For example, imagine that the during World War II, the U.S. captured a German soldier who knew details of a plan to invade the United States. Learning the details of that plan would thwart the attack and save thousands of lives. Tough call, torture one man to save thousands. Torturing the information out of him seems wrong, because we expect and even admire soldiers who are loyal to their country's cause, even if the cause is wrong. An American in German hands would be duty-bound not to reveal information. Loyalty to unit and country also assumes that the soldier will cease hostile action when told to do so. When Germany surrendered, its soldiers had a duty to stop fighting. Terrorist cells are not answerable to any recognized government. Every terrorist operative is a personally accountable volunteer. Each made a choice to adopt the cause they fight for. There is no way to know when there is a formal cessation of hostilities. If an individual or group has attacked the United States our response should be to terminate the threat by incapacitating the target. Often that will require killing, sometimes though individuals will be captured alive. Once captured they have been incapacitated. Punishment for past acts seems reasonable since each captive has personal responsibility for his acts in a way that soldiers do not. But torture to extract intelligence is no more justified than it would be to torture convicted criminals into providing information about the dangerous comrades who might claim more victims.

It makes sense to treat terrorists differently than soldiers, but once incapacitated they are still humans. We did not become the country that we are by playing by other peoples' rules. Our strength comes from playing by the rules. Most of the shameful things that America has done America - slavery, Indian massacres, the Japanese internment, the Mai Lay massacre, Abu Ghraib - happened when we decided to throw out the rule book. If we adopt the tactics of our enemies just to level the playing field and feel more secure, we are abandoning our heritage and values. Surrender values for a probably illusory promise of security? Not a good trade in my book.

Back in March I got a client's conviction reversed on appeal. Opinion here. Winning the appeal was easy compared to convincing the bureacracy to actually release him. The case was tried in November, 2002. He was convicted and sentenced to 20-24 months and a 8-10 month sentence to run after that. The conviction that got him the 20-month sentence was reversed and sent back to the trial court for retrial. Since the only issue was an illegal vehicle stop, the local DA dismissed the charges on April 19. The only remaining sentence my client was under was the 8-10 month sentence and he had already spent 17 months in prison serving. That is what I thought, but I was applying the logic of real-world math that says 17 months is greater than 10 months. I should have understood that the government uses bizarro bureau math where numbers are subservient to "paperwork," "procedures," and "authorizations." I learned yesterday that the client is still in prison. Here is the play-by-play of getting this straightened out:

Call to the Department of Corrections in Raleigh where I was told that I needed to speak the the case manager at the prison where my client was located.
Call to the prison, case manager is at lunch, she is the only person who can answer any questions about the case. Call back when she is here (these calls are long-distance for me)
Call to prison an hour later, case manager not back from lunch yet.
Third call to prison, spoke with case manager. She understood that conviction had been reversed on appeal and that the only sentence left was 8-10 months. The prison could not release client until there was authorization from Combined Records (which is in Raleigh, the place I called first).
Call to Combined Records (long-distance again). Explained situation to phone answerer. Put on hold for 5-6 minutes then someone else asked if someone was helping me so I explained situation again. Was told that person who could help me was out and I should call back. I pressed, explaining that I did not quite believe that there was only one individual in that office who could handle the problem. Finally transferred and explained situation for third time to that office. That person agreed with the "big picture" that my client had now served 18 months of a 10-month sentence. But the Department of Corrections, had not gotten all of the paperwork it wanted from the local court and would continue to hold client until they got it.
Call to the Wilkes County court. Phone answerer said that client had been resentenced to 8-10 months on April 19, 2004 and that other charges had been dismissed. Answerer could not provide any further information because all of the clerks who handled that were tied up in courtrooms. Was promised a call back. Clerk called back and said that yes client had been sentenced to 8-10 months and that paperwork had been forwarded at the time to the DOC Combined Records office, however that office wanted revisions to the paperwork before it was acceptable. A new judgment had been prepared for the judge's signature, but he was holding court out-of-county and there was no telling when he would be able to sign it. She said that the client's trial attorney had also been checking to see why our client was still in jail.

The upshot: two lawyers, a court clerk, a DOC case manager, and a supervisor of Combined Records all agree that the man should be set free, but until some paper makes its way from Wilkes County to Raleigh and then to a prison in Avery County he will remain locked up.

It seems to me there ought to be a claim for false imprisonment. The state can detain someone only if there is a legal basis to do so. The legal basis for holding my client ended on April 19, 2004. After that the detention became unlawful. Unfortunately anyone trying to sue the state faces formidable obstacles.

Update: Spoke today with Legal Counsel's Office for the DOC. Told that until Combined Records gets all paperwork they will not authorize the release because "what if they released someone without the right paperwork and then they went out and did something?" Apparently holding someone for far longer than the authorized sentence is not really a problem.

Update: Finally spoke to right person in the DOC's Legal Counsel section and they agreed there was sufficient already in hand to release my client.

Whoever, except as authorized under rules and regulations issued by the Secretary of Agriculture ... knowingly and for profit manufactures, reproduces, or uses the character "Smokey Bear", ... or any facsimile thereof, or the name "Smokey Bear" shall be fined under this title or imprisoned not more than six months, or both.

18 U.S. Code Sec. 711

If any person shall take and carry away, or shall aid in taking or carrying away, any pine needles or pine straw being produced on the land of another person upon which land notices, signs, or posters prohibiting the raking or removal of pine needles or pine straw have been placed in ... with the intent to steal the pine needles or pine straw, that person shall be guilty of a Class H felony.

N.C. Gen. Stat. Sec. 14-79.1

There are at approximately 4,000 federal crimes according a Federalist Society paper. No one has been able to come up with an exact figure, because the U.S. Code has more than 27,000 pages and statutes that impose fines or imprisonment for violation are scattered all over the volumes. Some sections create multiple offenses. There are all kinds of obscure criminal statutes such as the ones above just waiting to be dusted off.

4,000 federal crimes. Then there is the Code of Federal Regulations another layer of regulations that can result in criminal sanction. The scary thing is that with that many crimes, everyone must be guilty of something. So when the government wants to take someone out, all it need do is investigate. Look hard enough and long enough and there is bound to be a crime somewhere.

Link from Ken Lammers at CrimLaw

Basic internet familarity can give lawyers an edge, so I agree with Ernie the Attorney. Check his post for how to use Google to discredit an unfriendly expert witness. Here is my example:

In a domestic case I had information that a husband was having an affair with someone he met in a scuba diving class. I "Googled" her name and a found that a dive shop had posted lists of who was going on various trips the shop sponsored. I found out what trips they both took and whether they were staying in the same dive lodge. I had names of other attendees who would have seen them together. There were photos from the trips posted (none of the two of them together though). At her deposition I was able to catch her off-guard with questions that showed that I already knew the trips they had been on together and the names of others who were there.

None of that required any hacking or advanced skills, just typing in a name at Google. I've tried it in other cases and come up empty mostly.

A few other examples of judge's comments following a criminal defendant's notice of appeal:

And do you understand that by giving notice of appeal, you're going to remain in custody, post no appeal bond, you're going to the Department of Corrections, and because your case is on appeal, you'll be in close custody, and you will not have the opportunity of any of the programs that they have? Do you understand that? (Note: the DOC does not take appeals into account in its programs)
Now, even though your counsel has entered notice of appeal, you do not have

to continue with that notice of appeal. The only thing that you can appeal, I think, is this jury's verdict. I don't think you can appeal the sentence I've given you. If you are successful on appeal, then, of course, that sentence would be wiped out, and you'd be brought back for another trial, in which I believe you could get more time. (Note: a defendant generally cannot be given a longer sentence following appeal)

Both come from transcripts, but they were not my cases. Years ago at a hearing on violation of pretrial release hearing a judge, before hearing any argument from me about whether my client should go to jail, said this: "I'm offended that the taxpayers have to pay a court-appointed attorney to represent someone who has violated pretrial release conditions, what do you have to say to that?" I was so surprised that a judge would say that in open court that all I could say was "I don't know what that has to do with anything." Not a very diplomatic response, but the best I could do.

I'm not sure what the motive is in trying to talk defendants out of appealing their convictions. It's not like the trial judge has to work any harder or foot the bill for an appeal. It's not a judge's role to be the guardian of the public purse either, that is a legislative responsibility.

Mike Klinkosum, a local attorney is complaining about the district attorney's "open file" policy which allows reading of the prosecution file but not photocopies. He has filed a motion asking the judge to order that he be allowed to photocopy rather than read and take notes on an 800-page report. (Story in Winston-Salem Journal).

The DA's office rounded up the usual suspect responses: too expensive in tight budget times, old copy machines, staff stretched thin, copies can be used to intimidate witnesses (maybe the defense attorneys would attempt to throw the document at a witness).

I've always thought the no-copies rule was pretty bogus. Some ADA's go ahead and give out copies of anything, but others enforce the rule with sadistic glee. I can usually get copies of things that I am statutorily entitled to, but sometimes I have to make noise to get even that. For the rest (usually police reports, or statements from witnesses to the police) I usually take notes on paper or a PDA. As for the cost, 98% of my criminal cases are court appointed, so the taxpayers are not saving any money by having me take notes rather than making copies. Also Klinkosum is on the state payroll full-time, so the taxpayers pay for his longhand copying hours.

Another annoying thing is having to go to the DA's office to get the files. About 1 out of 3 times when I go to look at a file, it can't be located or is not available so the 1/2 hour going over to get the MIA file is wasted.

I was reading the opinion in an appeal I have been working on yesterday and I had one of those "ah-had" moments over a logical inconsistency. Appellate courts defer to trial judges in many cases reasoning that because the trial judge hears the testimony he or she is in the best position to make factual findings. Sensible rule: be careful about second-guessing the one who was there. However appellate courts frequently rule that error is "harmless" because it could not have any effect on the jury's verdict. Essentially the appeals court is saying by reading a transcript we can predict what a group of people we have never met and know nothing about would have done if they had been able to consider that evidence. Less sensible rule: always second guess the jurors because lawyers can predict what juries would do. The "harmless error" is a convenient legal fiction and all lawyers know it. If you have never been surprised by a jury verdict, you have not tried many cases.