I respectfully dissent

boat

Law, exciting and new,

Come aboard,

But we won’t accommodate you.

Sue, life’s sweetest reward,

File a suit,

The judge rules against you.

The Law Boat,

Soon will be coming to port,

But if you can’t walk, you’re not the right sort.

Get a course in indifference,

Denial of access, there are no ramps.

Law won’t cause pain anymore,

‘Cause the ADA, stops at the shore!

It’s Laaaawww,

Welcome to court, it’s laaaaaw.

Spector v. Norwegian Cruise Line will be argued today at the Supreme Court.

Is a client better off with a salaried public defender or court-appointed private counsel? My answer (one that clients hate to hear) it depends. I expect that most states will shift to public defender dominated systems fairly soon. My county had no public defenders when I began practicing here. All criminal defendants who could not afford an attorney (about 90%) got an assigned attorney in private practice. Most of the "street lawyers" in town were on the list. The quality of those on the list reflected the same range of skill as the local private bar.

We were generally hostile to the idea of changing the status quo. The amount of the fee was totally within the discretion of the trial judge. I did occasionally get screwed when a judge felt a $50 fee was sufficient for the trial of misdemeanor trespass, even it took 6 hours to handle. Those cases were the exception though. I think our local judges understood that if they were too stingy with fees, lawyers would stop taking court-appointed cases. Pro se defendants take a lot more time to get through the system. Most attorneys on the court-appointed list thought we had a fairly good thing going. We figured that any changes would not benefit us.

Politically though that system's days were numbered. The fiscal camp was outraged at the amount of money being spent and the increases every year. Essentially individual judges decided how much would be paid and just handed the bill to the government. Each new prosecution brought an incremental increase because the state would have to pay a private lawyer for that particular case. It was politically unpopular for millions to be handed over to lawyers.

There was also the quality camp. That group was concerned about whether defendants were getting competent counsel. While most counties had a method of screening lawyers for the court-appointed list, the most heavily weighted factor was length of experience. There was anecdotal evidence of egregious incompetence, but it was not really possible to systematically evaluate just how well or badly court-appointed counsel were doing. However the anecdotes were persuasive.

The fiscal camp likes public defender's offices because the cost is fairly predictable from year to year. The pay is comparable to what prosecutors and other government attorneys earn. There is less political fallout because less money is going into the hands of "greedy attorneys." A mostly private appointed counsel system is not sustainable politically because legislators will always see it as a giveaway to lawyers (not a popular group) and criminals (only group more vilified than lawyers). It took about 10 years of intense lobbying by federal judges to get fees in federal cases raised. Hourly pay to attorneys in private practice will always be a politically poisonous issue. Since the state is paying the public defenders the same as the thousands of other lawyers who work full-time for the government, there is less a sense lawyers at the trough.

The quality camp likes public defenders because there is a mechanism for getting rid of poor performing lawyers. The chief public defender can supervise the work of assistants and remove anyone he believes is incompetent. Whether this will actually happen in practice remains to be seen. All government enterprises are notoriously slow to drop dead wood. We have a public defenders office here now that has 1 public defender, about 12 other attorneys and support staff. They are motivated and talented and several members of the private bar moved to the PD's office after it opened. I considered it. Our PD's office now handles about 70% of the criminal cases. We still have court-appointed lawyers who take cases when the PD's office has a conflict. I am still on that list.

Whether public defenders are better can be argued forever, but the shift driven by the fiscal camp and quality camp is inevitable.

My excitement about Blakely's impact on the Federal Sentencing Guidelines was tamped down by my sense that the federal judges in my district seemed to like the guidelines most of the time. Departures were rare except for "substantial assistance" situations and it often felt as though upward departures were more common.

In a sentencing this week, a client received a non-guideline "reasonable" sentence that would have been reversible when the guidelines were not advisory. There were solid named grounds for departure under the Guidelines for aberrant behavior and lesser harms. Without considering any departures though the guideline range for my client was 24-30 months. The judge sentenced him to one year and a day.

My first clue that this was an unusual case was when one of the Deputy Marshals in the courtroom at an early hearing thought that my client should never have been charged. The sentence was firm but fair, a year in prison is a lot for someone who has never had a real brush with the law before. Even though I think guideline sentences will be the norm here, it is good to have a safety valve.

Life inside the judicial bubble much different for those on the receiving end of justice. Two cases cases prove this. In the first, Ohio Supreme Court Justice Alice Resnick was pulled over and has since plead guilty to driving while impaired. In the arrest video available on the web, she repeatedly asks the officer to let her go. She mentioned that ruled with law enforcement on drunk-driving cases. She also said that she had always believed that Supreme Court Justices should have highway patrol officers assigned as drivers. News reports say she had to be pulled over a second time after she drove off when the patrolman asked her to take a sobriety test. The patrolman kicked it up a notch by calling his supervisor. Far be it from me to suggest that if a young man had pulled away from a traffic stop, he would have gotten rougher treatment. However he would have gotten rougher treatment. Maybe much rougher if he was black or hispanic.

I don't think that the officer should have tackled or cuffed the 65-year old woman. But her experience was not what a typical DWI offender has.

The sentence she got was pretty typical for a North Carolina first-time DWI offender. But unless you write off her actions on the day of her arrest as drunken ramblings, I disagree that she is fit to return to the bench and resume business as usual, as this editorial suggests. After all she did repeatedly ask the officer to overlook the offense and suggested that she should get some consideration for the favorable rulings she made in the past.

Then there was Thomas Saylor, a Pennsylvania Supreme Court Justice who tried to sneak a small knife on a plane after it was rejected at the screening station. He tried to hide it in a carry-on bag and got caught. The feds are not pressing charges but a local prosecutor is weighing his options.

In the judicial bubble people smooth the way for you, they are deferential, you get accomodated. I wonder how life inside the bubble contributed to these two jurists thinking they could get away with something.

I recently had my first post-Booker federal sentencings. Both were immigration offenses related cases, re-entry by a deported felon and alien possession of short-barreled shotgun. Neither of the cases had any real Blakely-Booker issues because all of the elements of the offenses and aggravators were alleged in the indictment. One case had some dismissed drug offenses that might have raised a Blakely issue, but the probation officer concluded that even under the guidelines there was not sufficient evidence supporting the dismissed counts for a relevant conduct enhancement.

The judge announced that for all sentencings he would determine the guideline application and then whether the now-advisory guideline sentence was reasonable. The government adopted its usual position that the guidelines are great except when the government "feels" the punishment is not severe enough.

Defendants in alien-reentry cases often have a deer-in-the-headlights kind of fear. They speak little or no English. They don't really understand our legal system, because their own is very different. They also don't understand why it makes sense for them to have to serve three years in prison just for stepping across an imaginary line. At one point the judge asked me what I thought was an appropriate sentence. My first thought: my client knows what sentence he believes would be "fair" time served (5 months) and deportation. I knew that sentence recommendation was unrealistic. But I did not know how I could recommend anything other than that. After all I am the client's mouthpiece, I don't see how I could recommend or urge anything more than what he believed was fair. I eventually told the judge that my client thought time-served was fair (insert skeptical judicial glare here). "Is that what you are urging the court to do?" the judge asked.

I don't think that was a fair question. What else could I possibly urge? Anyway both sentences were exactly what the guidelines called for.

A Marine general said in part, "it's fun to shoot some people." The Marines later said that "he intended to reflect the harsh realities of war."

You've got to love the WHMW ("What he meant was") ploy. Maybe the Marines should send a WHMW officer to basic training, then we could get this:

What he said	What he meant
You are nothing but unorganized grabasstic pieces of amphibian shit!	Although the training has been going well, we are not as far along as we hoped.
Who's the slimy little communist shit twinkle-toed cocksucker down there, who just signed his own death warrant?	No talking in the ranks, please.
I'll P.T. you until your assholes are sucking buttermilk.	With our training methods you will soon be a better you.
Get on your feet! You had best unfuck yourself or I will unscrew your head and shit down your neck!	Please rise.
I'll bet you're the kind of guy that would fuck a person in the ass and not even have the goddam common courtesy to give him a reach-around!	Do unto others as you would have them do unto you.
I'll bet you could suck a golf ball through a garden hose!	You are not making sufficient progress
I will gouge out your eyeballs and skull-fuck you!	Please stop doing that.
Ho Chi Minh is a son-of-a-bitch! Got the blueballs, crabs and the seven-year-itch!	Regime change is United States policy.
Your days of finger-banging old Mary Jane Rottencrotch through her pretty pink panties are over!	We appreciate the sacrifices members of the armed forces make.
Your ass looks like about a hundred and fifty pounds of chewed bubble gum, Pyle.	You could use some rest.
I want you two turds to clean the head. I want that head so sanitary and squared away that the Virgin Mary herself would be proud to go in there and take a dump!	The bathroom should be clean enough for company.
God has a hard-on for marines because we kill everything we see!	The rules of engagement require the exercise of sound judgment.

A trial judge in a death penalty case was reversed for failing to provide a second court-appointed attorney for the defendant, whose family had raised enough money to hire one attorney. (Full opinion here) Death-penalty defendants in North Carolina are entitled to two appointed attorneys. I hope the state did not spend the money it saved by not having a second counsel for the first trial, because now the entire case will be tried again, with the state paying for a second prosecution, probably picking up the full tab for two defense attorneys and another appeal.

Like many things, this reminds me of a story. My dad took his rough-running car to a mechanic for repair. The mechanic removed the valve cover and saw a smoking thick coat of nearly dried varnish where the oil would normally be. The mechanic asked about oil changes and learned that my dad had not ever changed the oil on what was then a high mileage vehicle. The diagnosis: engine replacement. The cost: $2500.

The mechanic told my dad, "Look at the bright side, think of all the money you saved not paying for those oil changes."

Briefs and record here

I was fired yesterday. It was not the first time. I was in court for a routine drug possession case. Routine for me, but not for the client who was looking at a minimum of three years in prison if convicted.
There are some weird facts in the case that I will keep to myself, but the case was based on direct sales to an undercover officer. In a hand-to-hand sales case with an undercover cop only three defenses are available

the cop is mistaken,
the cop is lying,
entrapment.

The first two are a tough sell to juries and an entrapment instruction is almost impossible to get.
The ADA makes a crappy plea offer, plead to the drug charges straight up and the sentences for multiple charges run concurrently. This deal stinks because the most serious charge is trafficking cocaine by possession joined with possession with intent to sell cocaine and sale of cocaine. Non-lawyer types would think that someone who sold an ounce of cocaine to someone committed a crime. Criminal-law types know that he committed several crimes:
1. Trafficking cocaine by possession: because possession of an ounce or cocaine or more in North Carolina is trafficking, regardless of the intent of the possessor.
2. Trafficking cocaine by transportation: because moving the same ounce of cocaine is a separate offense.
3. Possession with intent to sell or deliver cocaine: because having any amount of cocaine with the intent to sell it to someone else is a separate offense.
4. Sale of cocaine: because actually carrying out the sale is a separate offense.

It is possible for a prosecutor to charge all four separately. It is possible for a judge to stack the sentences consecutively. At the jail this is called "getting boxcars." This is the result of a Supreme Court ruling in the Blockburger case.

The plea offer is crappy because I know that I could plead this defendant straight up to the charges and 95% of judges would not be inclined to boxcar the sentences. I could probably even try the case and if the verdict is guilty still face only the three-year minimum trafficking penalty. This is riskier because there is an unwritten rule that a defendant who pleads not guilty and goes to trial should get more time than someone who pleads guilty. The rule is unwritten because it would be unconstitutional if it were written down somewhere. I hate to take a plea bargain unless there is some tangible benefit. If there is no tangible benefit might as well try it, every so often somebody catches the hail Mary pass.

The final wrinkle and the reason for the crappy plea bargain. Bad blood. Opposing counsel and I do not get along. That has been true from practically day one. I don't think there is even any event that led to the bad blood, but it is bad. I think (but could never prove) that my client is being punished because the attorney for the state does not like his lawyer. The crappy plea offer is a way for opposing counsel to say "screw you." Tough for the client because I was appointed to represent him, so he has no say in who his lawyer is. Unless he hires one, which is what happened yesterday.