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Wednesday, November 24, 2004
We'll take it from here Santa ...
Wed, November 24, 2004 | link
Tuesday, November 23, 2004
Mailbag
From e-mail:
I was on a jury one time trying an assault and armed robbery charge. There was
a weird aspect to the case as it seemed to have gotten forgotten for a while. The crime had happened 5 or 6 years earlier
but only now was coming to trial. As it turned out, the only evidence was that the victim picked the defendant out of a lineup
and identified him in court. The defendant denied knowing anything about it.
All of this was surprising to me (since
up until this time I had had no experience with courts) for two reasons. It seemed to me that using "reasonable doubt" there
was no way this guy could be convicted. I mean, maybe the victim was mistaken...how did we on the jury know?
The first
surprise was that the DA took the case to trial. The second surprise was that about half the jury was willing to convict.
We had to sit in the jury room for days and days (after a 4 hour trial) before we reached a not guilty verdict. (Funny side
note, the DA made one slight error and let a person on the jury who had himself been arrested on a mistaken identity case...this
guy would have spent the rest of his life deliberating before convicting on that evidence)
I was then further surprised,
when I read out the verdict in front of the court. The DA seemed like he was going to come over the rail at me, he was so
mad! I would have thought this was a crapshoot at best on his part.
Anyway, I was curious how you would have rated
this case in your 1 to 4 rating system.
Eyewitness ID cases are hard to figure. Conventional wisdom says that juries find eyewitnesses very convincing.
For a while now I have felt we give eyewitnesses more credence than we should when they are identifying someone they have
seen once for a brief period. A large majority of the cases where a convicted person was cleared of any involvement
of a crime through DNA involved eyewitness testimony that turned out to be utterly wrong.
I would give a case like yours a 2 or 3. A 2 if the defendant denies having anything to do with the crime
and can testify to that without being cross-examined about prior theft convictions. A 3 if the defendant has prior theft
convictions.
Even though the prior theft convictions can't be used to show the defendant committed the charged offense there
are many ways the state can get those convictions before a jury.
Monday, November 22, 2004
Gut check
“You can talk to most detectives. They can sit right in front of a suspect. They
have a gut feeling. ‘This is the man. Now how am I going to prove it?’”
The only flaw in the "trust your gut" credo is that a gut can be wrong. The gut instinct is mythical. A search
for the truth has to follow the evidence to a suspect rather than attempt to prove a particular individual guilty. When
I read that quote my blood ran cold for a second. What hope is there for someone when an officer's gut says he
is guilty and the suspect has no alibi?
Friday, November 19, 2004
Quotable
My favorites:
Casablanca: "Round up the usual suspects"
Cool Hand Luke: "What we got here is a failure to communicate."
Dirty Harry: "You've got to ask yourself one question:'Do I feel lucky?' Well, do ya, punk?"
Erin Brockovich: "They're called boobs, Ed."
Fri, November 19, 2004 | link
Thursday, November 18, 2004
Interstate LXIX next right
Wait till the congressperson finds out that the Department of Transportation uses "Arabic" numbers.
Update: the whole thing was a hoax.
Thu, November 18, 2004 | link
Monday, November 15, 2004
Take that
Ambivalent Imbroglio takes on Antonin Scalia. I think that if Scalia were nominated Chief, his inability to get along with others, would
limit his effectiveness.
A float in the Parade of Horribles?
I'm not sure I buy the line that the Federal Courts are having a funding crisis or that the Blakely decision is going to swamp them with more work. I agree with CrimLaw that compared with
the state court, the feds are tomb-like. A straightforward Blakely application would actually cause less work in sentencing because the facts and circumstances
would be limited to those alleged in the indictment. However, if anything, presentence investigations seem to have become
more intrusive. Medical and school records are requested sometimes even going back to grade school. Extensive
financial information is required, even if the offense did not have any financial aspect.
What is it about pleading guilty to an offense that allows the government to probe every nook and cranny of someone's
life?
I suspect that the funding crisis is really a PR campaign to convince the court to apply its Blakely ruling in
a way that leaves the sentencing guidelines substantially untouched. In law school the professors called it the "parade
of horribles."
Tuesday, November 9, 2004
If the shoe doesn't fit ...
Drunk driving is a nationwide problem, as evidenced by the efforts of legislatures
to prohibit such conduct and impose appropriate penalties. But this fact does not warrant our shoehorning it into statutory
sections where it does not fit.
From Leocal v. Ashcroft, a Supreme Court case ruling that conviction for drunk driving causing serious injury is not a "crime of violence."
It's nice to see the court willing to draw lines. I've had a few federal cases lately that involved whether something
was a "crime of violence," it was starting to seem like nearly everything was a crime of violence.
Doubting Thomas
For me the toughest criminal cases are the ones where I have a strong gut instinct that reasonable doubt exists and the
client insists he or she did not do the crime. For example, client agrees to accept a package for a friend. The
cops intercept the package, determine it contains drugs and then deliver it. Addressee gets it but does not open it.
Cops make an arrest right after delivery and charge addressee with drug possession. Addressee says he thought package
was photos or other (legal ) items.
As I see it, the weakest element in the government's case is the addressee's knowledge that the package contained drugs.
On my personal evidentiary scale I give that a 2 on a 4-point scale. "4" is a slam dunk for the government. "1" is a case
that I think the government will have a serious problem making.
There is little point in trying a "4," but I have tried my share and then some. Sometimes the client refuses to
concede guilt, other times the client has nothing to lose often because even the minimum sentence is more than he can conceive
serving.
A "1" should nearly always be tried unless the government makes a great plea offer. "1's" are fairly rare because
the prosecutors don't have to bring charges in marginal cases.
I was set to try a "2" next week in federal court. We had pled guilty to the slam dunk counts. There were
the subtle expressions of annoyance that come from the prosecutor and bench when a defendant wants a trial. The
pressure is on because I know this is a winnable case, but losing was possible too. I was getting geared up and clearing
my schedule for the trial, when I get a call. The government is going to dismiss the "2's."
Great news for the client. Anti-climactic for me, but still good.
Friday, November 5, 2004
You sir are no Abe Lincoln
I spent most of the past week moving into a new place. So instead of interacting with lawyers, judges, the guilty
and the not guilty, I have interacted with cardboard boxes, packing tape, paint and spackle.
My 1/10 of an acre (more or less) was not fenced, so to keep my two dogs from wandering I needed one. After suffering
sticker shock from fence companies and put in my own split rail model (with wire to restrain the hounds). As I built
the fence I began to think about how much I have in common with Abe Lincoln, who split rails before practicing law.
I discovered that I have little or nothing in common with Lincoln. He lived in a cabin and learned to write with a charred
stick. I grew up in a ranch-style home and swear at my computer. Abe used an axe to split rails to build
fences. I used a debit card to purchase split rails at Lowes. Abe once walked miles to return a few pennies to
a customer he overcharged. I have been known to search underneath the couch cushions in my office for spare change.
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