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You know how that sentence ends.

• Lori Drew moves to dismiss the “Myspace indictment”. [Prior coverage]
• Prof. Berman breaks down the chances of a rehearing in Kennedy.
• Constitutional right of access to DNA evidence for clemency.
• Are honor killings that foreign to Americans?
• The legality of NYT’s McCain op-ed snub.
• Catastrophic effects of stress on eyewitness ID.
• Is plea bargaining a “science“?
• SCOTUSblog’s preview of Bell v. Kelly.
• Here’s one for the DUI lawyers: a man was arrested in Rhode Island with a BAC of .491. Yes, that’s .491
• Avvo comes to CT and people are getting sucked in.

That’s all. I got more posts to write!

A different face

Everyone who practices law will be familiar with the concept of “cover”. No, it is not a legal principle, but means exactly what the verb form suggests: cover your cases.

Lawyers (especially those in private practice) will have multiple cases on for any given day. If you’re in a small-ish state like Connecticut, where you can practice throughout the State, these multiple cases will appear on the dockets of multiple courts. Since you can’t be in two places at once (well, you can, if you’re a particle), you might have to get someone to cover for you in one court or the other.

Until now, “covering” (not to be confused with cowering - which you might have to do depending on the judge you’re in front of) was sought by way of impassioned pleas to fellow defense attorneys via the local listserve - or if you had a partner in your law office, promising them lunch. (This concept would seem to be a subset of the bank that apparently has shut its doors.)

But then it gets tedious. If you have a particularly busy solo practice, people might start getting annoyed if you keeping asking them to cover for you.

Never fear, though. In this age of innovation and niche marketing comes attorney Steve Levy - apparently of Los Angeles, CA. I say apparently because he has launched a service: “Appear Anywhere“, with the tagline “Court Appearance Professionals”. The gist of the service is described thusly:

Your time is valuable.  Increase your productivity by sending us the appearances you don’t have time to cover and have confidence knowing that you’ll receive accurate and reliable results on the same day.

Among the various types of appearances this service purports to cover includes trials. Yes, they will cover your trial for you.

The services and about us page do not seem to restrict this geographically, so it would seem that when that trial comes up next week that I really don’t want to go to Court for, I will be calling this company you could get them to try your case for you, even if it is in Maine.

Judges and lawyers both should salivate at this idea. No more worries about problems clients, troublesome clients, difficult clients, annoying clients. Client starts getting uppity, ship him to Appear Anywhere! No more motions to withdraw appearance, no more continuance motions, no more Anders briefs. The system works like a well-oiled machine and everyone is happy (except the client, perhaps, but who cares about them anyway).

It’s like having an associate without having to pay the hefty yearly salary! An ingenious idea, if I ever saw one.

(In all seriousness, the idea isn’t half bad, but only if you restrict its use to mundane appearances where you are only getting a continuance and the client doesn’t need to be present. If you ever have a court date where your client needs to be present, you better get your butt in gear and show up and it would behoove the lawyer to also be personally present at any court appearance where something substantive will be discussed. But this goes without saying, which is why I’m mentioning it as an aside in parenthesis.)

Just another reason why this might be the funniest show on television.

DNA helix

The biggest story of this past weekend is this L.A. Times piece on the accuracy of the DNA identifications and the statistics used to come up with the probabilities of a random match. Much has been said in the blawgosphere (all of it worth reading) by the Greenfield, the Underdog Mark Katz, the public defender dude and an engrossing lesson in statistics by the Windypundit. They’ve done a wonderful job, so I won’t dwell on it much.

The gist is this: A DNA “match” is when the two pieces of biological evidence share the same markers (loci) at 9 random locations (or 11 or 13 or 15…) The odds of that happening, the State usually contends, is one in 6 billion (and they use that number arbitrarily because it is the population of the world). So in essence, they argue that the only person in the world who could be the source of that piece of DNA is the defendant.

The problem should be evident. Of the millions and billions of loci in the human DNA, 9 or 11 or 15 is an infinitesimal fraction. So, it is possible that if we start looking for matches at 20 or 30 or 100 or 1000 loci, the probabilities will drop. Then we might be talking about 1 in 100,000 or 1 in 20,000. Not bad odds, given the populations of cities and countries.

Still, if these “Arizona searches” (as some are trying to call them in an effort to get the name to stick) haven’t reached your State yet, a number like 1 in 300 billion trillion gazillion quadrasesquecentenellian shouldn’t faze you.

DNA cannot tell a jury when it was deposited or whether the donor actually committed a crime during the deposit. This will not change, even if the odds that it was your guy that deposited the DNA get better.

photo credit: beckita115

The call comes in.

“That was quick!”

Heading upstairs, time slows down.

The judicial marshals converge. There are 5 of them now.

The judge enters. Everyone stands. Some sit. Some remain standing.

There is a knock on the door. Six people enter. They announce their presence.

A question is asked.

My heart is pounding. I can barely hear what is being said.

I’m staring at my desk; I can’t bear to look up.

The tension is palpable; the room is silent. Time has stopped.

Firmly, a voice slices through the heavy air.

Two words.

A gasp. A stifled cry.

I don’t raise my head. There’s more to come.

Another question. Silence has been replaced by nervous energy.

Time seems even slower, if that’s possible. My heart is thundering.

Two more words.

Suddenly, time rushes forward. The judge is talking, but no one is really paying attention.

Two words never sounded sweeter.

A man is free.

[I tried to find a video of Ani Difranco doing a version of Amazing Grace - the best version out there, in my opinion, but was unable to. You can listen to the song, though, by clicking below - and I really recommend it.]

Amazing Grace by Ani DiFranco

Sorry folks, still pretty occupied here in Gideonland. Normal posting should resume tonight or tomorrow. Thanks for sticking around!

Last week, the 2nd Circuit delivered a crushing blow on the war on drugs sanity and common sense. The Second held (for the first time, it is worth nothing) that sharing drugs is “illegal distribution” of drugs.

Police raided [Wallace's] apartment and recovered from Wallace’s bedroom 1.5 grams of cocaine base, a number of ziplock bags, 91.22 grams of marijuana, an AK-47 semi-automatic assault weapon and $460 in cash.

After receiving Miranda warnings, Wallace told police the drugs were for his personal use and, sometimes, for his friends. He said the gun belonged to his father and was kept for protection. He also said the bags were for dividing up the drugs so his friends would not know how much he had and “use it all up.”

No big deal, said the Second Circuit. The act of giving it to someone else makes you a drug dealer - regardless of whether you receive something in return (such as money).

[Judge] Jacobs said the word “distribute” in the statute means “to deliver” and the word “deliver” means “the actual, constructive, or attempted transfer of a controlled substance.”

The court rationalized that Congress, in passing the statute, did not include anything about “consideration” in exchange for the drugs, therefore they meant to treat “passing a joint” differently than hoarding all that pot and smoking it yourself, dammit - I hate you.

In doing so, the Court has now lumped international drug smugglers together with the two 30-year old kids who never grew up, sitting in one of their mothers’ basement, sharing a joint*. Clearly, this is something that Congress definitely intended. I mean, those two guys are capable of causing so much mayhem - think of all the runs to the grocery store to grab all the munchies they can! Will anything be left for the rest of us!? Is nothing sacred anymore!!!?

Unintentionally, doesn’t this create more incentive for people to buy their own drugs instead of mooching off of someone else? So, perhaps, there will be more people buying drugs than before. You better believe it when I tell you that the next time you come over, you can not share my stash. BYOP.

*Yes, I’m beating a dead stereotype. Sue me.

I’ve always been fascinated with legal terms, phrases and concepts. But then again, I’m a geek. Most people that come into contact with the legal system are not (read: defendants and jurors).

So why is everything that we say in a courtroom so confusing…so obstructionist…so difficult to listen to and understand?

Over the last few years, reading transcripts, watching trials, being on trial, talking to clients, I’ve become more and more convinced that most of the things that come out of lawyers’ and judges’ mouths are superfluous.

Jury instructions are long, painful, meandering and - above all - repetitive. Plea canvasses are meaningless. Questions to witnesses are drawn out and even those on direct are often longer than the responses elicited.

Limiting instructions, in my opinion, are the worst offenders. I’ve often seen jurors’ eyes glaze over or turn quizzical when a judge tells them what for absurd limited purpose they can consider the testimony they just heard.

It’s a hard habit to break, though. We learn all of this in law school, from our professors and from reading cases. Both those sources pride themselves in their expert use of “legalese” and, if you went to law school recently enough to remember, law students often pride themselves (in a self-deprecatory fashion) on their mastery of legalese and use of legal-sounding phrases in real life.

I catch myself talking to clients in legalese sometimes - and I know I am doing it when they start robotically nodding their heads, a sure sign they don’t understand a damn thing I’m saying.

Briefs are the same - wherefore; in the instant matter; it is of no moment, heretofore…heretofore?!? WTF is that?

Who the hell speaks like that but lawyers? Who writes like that but lawyers? So why do we keep doing it? Our lives - and our jobs - would be made so much easier if we were to dispense with the legalese and stick to plain English. Write stuff that everyone can understand. Present evidence in ways that the non-lawyer can follow. Ask questions during a canvass that a person actually has to think about and can answer truthfully, rather than respond by rote: Yes. No. Yes. Yes.

Of course, to institute such changes would shake some foundations of the system that haven’t moved in 300 years, but it’s worth a try - for your sanity, and most definitely mine. So will you swear with me, fellow bloggers, to abandon as much legalese as possible?

(That’s not to say that some people haven’t tried. Check out this list compiled by lawprof Eugene Volokh, or this website with a legalese hall of shame, or this 326-word sentence forming an adoption section of the Ohio code. For those completely confused by it all, here’s a glossary.)

Sorry folks, but it’s going to be a very busy week, so blogging will be rather slow. I’ll try to do the Jumpstart this evening, because there is a lot of good stuff going on in the ’sphere. Don’t forget to check out the links on the left if you start to experience withdrawal symptoms.

Judges do things that are disliked by either party all the time. You take it in stride and you deal with it. There are some actions, however, that leave you so dumbfounded that you don’t know what to say, let alone what to do.

Sometimes they come from so far out in left field, that the only response is .. Only in Texas..?

Take Judge Carolyn Marks Johnson, for example. She was presiding over the DUI trial of Casey Price and things seemed to be going well. Evidence was presented by both sides and the jury was given its charge.

Suddenly, though, after the jury retired to deliberate, something came over the Judge. Perhaps it was ennui, perhaps the sanity switch finally settled into the off position.

While the jury was out, according to Price and her attorney, Paul LaValle, the judge started talking about what the sentence would be when the jury came back with a guilty verdict.

Offensive certainly and undercutting the appearance of impartiality, but not unheard of. Then the crazy-meter really kicked in:

Then the judge decided she wanted Price to immediately take a drug screen urine test and ordered the bailiff to contact the Pretrial Services facility in the courthouse to arrange it.

The judge also said if Price tested positive, the results would be given to the jury, says LaValle.

To say that this was highly improper and had no basis whatsoever is an understatement. It’s bad enough that this judge decided sua sponte that she had the authority to order randon drug testing of a defendant - note that this was a DUI trial - but the bit about giving the results to the jury is preposterous.

Over the vigorous objection of defense counsel and the scared silence of a rookie prosecutor, the Judge ordered the testing.

Then something happened that must have given the defense a glimmer of hope that the Judge would come to her senses: the jury returned its verdict - not guilty.

Of course, when a Judge is far our in left field, nothing will stop him/her. Having already committed to this outrageous course of action, the Judge carried through with it.

Price was required to take the drug test, which came back negative. A further slap in the face - and indicative of the vindictive nature of this judge - was the fact that when the results finally came back a few hours later, the Judge was gone.

So what was the point of the drug test if the Judge wasn’t going to stick around to find out the results?

It seems that the Judge had made up her mind that the defendant was guilty of DUI and if the defendant was guilty of DUI, then surely the defendant must be guilty of taking other illicit substances. Such abuse of judicial power is astonishing and since judicial oversight organizations rarely do more than slap the wrist of offending judges and banish them to undesirable locations, the only thing that might get her actions noticed is a lawsuit:

[Defense counsel] has, however, filed complaints with the Texas attorney general and with the U.S. attorney accusing Johnson of the crime of official oppression, arguing that once the not-guilty verdict arrived she had no jurisdiction or right to enforce custody of Price.

He also filed a lawsuit in state district court Thursday seeking $1 million in actual and another $1 million in punitive damages — from Harris County, the sheriff, the district attorney and Flores, and Judge Johnson.

This was the perfect storm for Price: an overzealous judge and a mute prosecutor. (The prosecutor’s inaction here should not be overlooked. As they like to remind us, they are charged with the administration of justice. There is nothing worse than a prosecutor standing by while a judge eviscerates the judicial system and fundamental notions of justice and freedom. I certainly hope this rookie got a stern talking to.)

Lucky for her, this jury found her not guilty, otherwise who knows what sort of sentence she would have gotten from this judge.

A big battle has been going on in New Haven, CT, which I’ve been remiss in addressing. It all stems from New Haven’s handing out of city IDs to any resident who wants them. The photo IDs act as a replacement for state issued id cards and licenses, allowing residents to open bank accounts, among other things.

The problem, however, is that this ID program originated as a way to protect illegal immigrants who are residents of New Haven. Protect here doesn’t mean protect them from authorities, but rather protect them from violence. Violence against illegal immigrants had been on the rise because it had become well known that they would carry large sums of cash around, being unable to open bank accounts to deposit the cash into.

New Haven, in consideration of its residents, passed this program to permit any resident to obtain an ID. Now, anti-immigration groups and one newspaper editor want the names of those issued ID cards.

On June 25, a hearing officer of the State Freedom of Information Commission denied the request to hand over the 5000 plus names. The ruling is here.

[The hearing officer] found that “the ID Card program unleashed a level of vitriol and venom aimed at City officials and illegal immigrants that was far beyond mere political disagreement or healthy civic engagement, according to testimony.”

“We met the burden of proof and look forward to moving past this so that we can continue to grow this successful program,” said Kica Matos, the city’s Community Service Administrator, in the city press statement.

Ms. Matos herself was the subject of disturbing and threatening e-mails and postings, some advocating her murder.

The city had declined to reveal the names, citing specific threats and the fear of a rise in crime against people with Spanish sounding names, regardless of their citizenship status.

Finally, yesterday, a full panel of the FOIC considered the hearing officer’s report and voted 3-1 to uphold that decision.

In the end, commissioners expressed sympathy with the argument made by the city and its expert witnesses that threats of violence against city officials and immigrants in general warranted keeping the identities of cardholders secret. The cards are not held just by immigrants, but they are designed to help immigrants integrate into city life. The cards entitle holders to access to city services like libraries and parks, and are designed as secondary documentation to help open bank accounts.

Ironically, one of the groups opposing the disclosure of the names was the state Department of Emergency Management and Homeland Security.

It should come as no surprise to you that I support their decision. While illegal immigration is a crime, there is no need to endanger the lives of people by revealing only their names.

The story, ofcourse, is about the three yoots from Wisconsin who were charged with sexually assaulting a 20 year old girl. Problem was, she was already dead.

The Appellate Court in Wisconsin got it right (as appellate courts are wont to do) and declared that this, obviously, cannot be a crime, since the woman was not alive.

The Supreme Court of Wisconsin, in all their wisdom (as is their wont) reversed. [I guess I should be happy that this phenomenon doesn't seem limited to CT, but I ain't crackin' a smile.]

The sheer stupidity of the decision itself aside, the Supreme Court once again ignored the forest for the trees (as is their fundamental birthright). I’ll let Scott explain:

But there is a deeper failing in this decision.  While the Wisconsin Supreme Court focused on the question of whether a corpse can give consent (both an absurdity by definition and facile solution when faced with a hard choice), they failed to consider the far broader ramifications of the definition of a “person”.

If the word “person” is to include corpses, it opens a wide world of criminal conduct that no one intends.  Consider the criminal liability of the anthropologist in Wisconsin, messing around with people’s bones.  A “person” can be the victim of a homicide.  A corpse cannot, at least before this decisions.  What now?

Scott is absolutely correct. Wisconsonians (please don’t correct me if that’s wrong, I don’t give a damn), prepare to be convicted of murder for killing a dead man. Does Wisconsin have the death penalty? That would be the ultimate ironic punishment. Put to death for killing a dead man.

Sometimes I wonder if these Supreme Court judges write such opinions just to give us fodder. It has to be. There can be no other rational explanation.

As to the act of necrophilia itself…eh, I don’t have an opinion either way. I mean, aren’t vampires supposed to be sexy?