"Legal Technicalities"

Last Friday, the New York Times' front page, under the headline "Guantánamo Detainees? Not in My State," featured this description of criticism of Obama's plan to close Gitmo:

"One day after President Obama ordered that the military detention center at Guantánamo Bay, Cuba, be shuttered, lawmakers in Washington wrestled with the implications of bringing dozens of the 245 remaining inmates onto American soil.

Republican lawmakers, who oppose Mr. Obama’s plan, found a talking point with political appeal. They said closing Guantánamo could allow dangerous terrorists to get off on legal technicalities and be released into quiet neighborhoods across the United States. If the detainees were convicted, the Republicans continued, American prisons housing terrorism suspects could become magnets for attacks."

Describing governmental violations of the Constitution or the law as "legal technicalities" is not a new tactic, but it remains a dangerous characterization. For example, couldn't we similarly characterize the Constitutional problems of Brown v. Mississippi as "legal technicalities?" Couldn't we frame the issue this case presented as "whether a convicted murderer's confession can be used against them in court after the police used "enhanced interrogation techniques" against them?"

In that case, the "enhanced interrogation techniques" (or the "legal technicalities") at issue were whether the State of Mississippi could introduce "confessions" that were signed only after the defendants were whipped and beaten by the police:

On 30 March 1934 Raymond Stewart, a white farmer from Mississippi, was murdered. Law enforcement authorities thought they knew the perpetrator, and arrested a Mr. Ellington, a local man of African descent. They also detained Ed Brown and Henry Shields, two other African American men who would become petitioners in this case. Ellington was taken to the scene of the murder and asked to confess to the crime, but he professed his innocence.

Upon hearing this, a group of white men who had gathered at the crime scene joined the police to encourage Ellington to confess. They threw a rope over a nearby tree limb, made a noose,seized Ellington, and hung him until his neck bore distinct rope marks that lasted for several days. After being let down Ellington still refused to confess, whereupon he was hung once again. When Ellington continued to maintain his innocence after his second hanging, he was savagely whipped by Deputy Sheriff Dial. Ellington still would not confess, and the mob allowed him to return home.

Brown and Shields were taken to the county jail and detained overnight. The following morning Dial and several white citizens returned to Ellington'shome and arrested him. They then took him to the county jail after first making a detour through Alabama. While in Alabama, Dial and his colleagues whipped Ellington yet again, whereupon he agreed at last to confess to whatever his tormentors accused him.

On the night of 1 April 1934 deputy Dial and a number of white citizens returned to the county jail. Shields and Brown were forced to disrobe and lie over chairs. They were then beaten with a leather strap bearing metal buckles. During the beating deputy Dial made the men understand that, if they would confess involvement in Stewart's murder, the whipping would stop. Eventually both men confessed, and agreed to every detail of the scenario for the murder concocted by the local police and the mob.

Wasting no time, the authorities convened a grand jury comprising two sheriffs and eight white citizens to hear the "free and voluntary" confessions of Brown, Ellington, and Shields to the murder of Stewart. The suspects duly confessed. Although the accused still bore many visible marks of their ordeals and many of those present had knowledge of their treatment, three of the men watching this charade agreed to testify to the voluntary nature of the confessions in the upcoming trial.

The men's appellate counsel had the nerve to disagree with the Mississippi Supreme Court which held that the failure to the Defendants' trial counsel to move to suppress the "confessions" was, well, tough luck.

The U.S. Supreme Court unanimously reversed, holding that the Due Process Clause prohibited the government from utilizing testimony procured through torture. In short, a "legal technicality" was created that said you couldn't beat a confession out of a suspect and use it against them in court in a civilized nation.

The issue for Guantanamo Bay detainees is likely similar: whether confessions procured through "enhanced interrogation" techniques, such as waterboarding, can be used by the government (which intentionally held them offshore in an attempt to prevent them from utilizing the protections inherent in U.S. law) against them at trial.

So when you hear the term "legal technicality" used to describe any person's defense, remember that another description for this is likely "the Constitution," the document our political leaders swear an oath to support but don't always carry out.

Things I Wish I Would Have Done Right Away When I Started My Own Practice

1. Bought a Mac

- Mark Bennett told me to, but I didn’t listen, until my Lenovo broke down twice and, after doing without it for two one-week stretches, I realized I couldn’t afford the “savings” the windows-based machines (Vista) seemed to promise at first. Best business move ever. 


2. Gotten a Good Billing Program

- I stayed caught up on billing for most of the first year, but when I got busier I fell behind. A good billing program would have made staying caught up a breeze. This is another great reason to buy a Mac: I found the billing software much cheaper than what was available for the PC. (I chose Billings)


3. Gotten a Good Accounting Program

- I am trying to implement Quickbooks on a PC I have at home. I thought saving the $200 was worth keeping this separate from my macbook, (my brother gave me a copy) but now wished I would have sprung for the Mac version. I had plans to come home and input the data every day, but have learned that the “distance” between my office and the PC in my basement is too far to be workable. Besides, who wants to go down to the dark basement after a long day for data input! 


4. Stayed Caught Up on Billing

- As I said before, I stayed caught up for awhile, but haven’t done well lately. The problem is that so many tasks are urgent that I tend to take care of my own tasks last. For example, it’s hard to tell a client you haven’t worked on their case because you needed to get caught up on billing, so I put it off until “later” which always seems like next week but ends up being next month. 


5. Networked With More Lawyers for New Clients

- Jay Foonberg is right: Lawyers brought me a lot of clients. I wish I would have sent announcements to local lawyers about starting a practice. It likely would have meant those early months wouldn’t have been so “lean.” 



6. Not Taken Business I Had No Business Doing

- I took a lot of cases “for the experience” and ended up spending a lot of time in a “learning curve.” For example, if someone would call me about a will, I would quote them a low price and think I would learn a valuable lesson. But by the time I became “refamiliarized” with statutes and recreated the forms, I ended up regretting the decision to step so far out of my “element.” Next time, I think I’ll refer them to an attorney with expertise and hope for a referral in return. 


7. Gotten More Money Upfront

- I heard this advice thousands of times, but felt like I had to ignore it to stay busy. But a lot of promises, even from people I thought would surely pay, didn’t come through, even after good resolutions to their cases. 


8. Set Up a Meeting with Other Solos

- I should have set up a set time for other solos to meet for lunch to share “hard lessons.” I might not be writing this if I had! I also probably should have taken some people out for lunch, bought their lunch and heard the lessons they learned the hard way. 


9. Implemented G.T.D. Sooner

- I love David Allen's system, but need to do it much better. I heard about it from several people, but was finally convinced to take the plunge after James Fallows wrote about being assigned to write about it and then getting hooked. I bought the book, made some big changes to the way I organize things, but wish I would have done it sooner and better! Just this weekend I reorganized my basement and created better “buckets” and updated my filing system. I even used a hipster PDA for awhile before going with a paper-based system that works well for me, as long as I stay true to the process!


10. Bought an Ipod / Iphone Sooner

- I used an outlook calendar at first, but sometimes forgot to update it when I would get a court date when I was away from my computer. After missing a court date, and making a judge who I was relying on for court appointments understandably upset, I had to get a reliable calendar, especially when I started getting busy and needing to have access to my calendar everywhere. I bought an Ipod touch which syncs to my Ical through the cloud on Mobile Me and I love it. If I don’t have my Macbook, I can pull up my calendar from my ipod. I like having a separate cell phone rather than an Iphone as there are a lot of times I need a phone but not an ipod, such as on the weekends. I also like being able to pull up my calendar when I’m on the phone without putting it on speakerphone.

I love working for myself but learned a lot of hard lessons during my first 18 months. Looking back, I should have read Foonberg’s book three times, bought a mac right off, and made a vow to stay on a monthly schedule of billing and organization no matter what. David Allen has a saying about dealing with something when it “shows up rather than when it blows up.” I let too many things blow up when a system to process tasks would likely have given me enough time to take care of my own business without sacrificing the job I did for other people. The challenge is finding enough time, through organization, to keep clients happy and keep your own personal tasks form piling up and holding you back.

Easier said than done, but these things would have helped.

Write Responsibly

This is the first blog post I wrote, way back in Nov. ’05. (I wrote two posts the first day, even leaving myself a comment to test it out.) Since I didn’t install sitemeter, I had no idea if anyone was reading it and it seemed like it was just me, tilting at windwills with only an occasional reader, likely similar to the guy flipping through the channels at midnight, I thought. .

One day, however, this guy left me a comment, demanding that I correct something I’d written. I’d heard of him and was a little surprised that he cared what I’d written between court hearings in a windowless room at the Public Defenders Office. So it was brought home to me that you never know who was reading, even if it still seemed like he just stumbled on my blog and would likely never be back.

Lately, however, I’ve learned how important it is to choose your words carefully, even if you attract about 15 readers a week. I once heard Angelina Jolie describe the way she approached playing the role of Danny Pearl’s widow, saying that she believed, to play it effectively, she had to assume that Pearl’s children would one day be watching the movie, viewing her role as if it were the way their mother acted at the time, before they were old enough to remember it. She took her “play” role very seriously, in other words.

What does that have to do with writing a blog? I thought it had nothing to do with it, but have learned otherwise lately. I attract less viewers per day on average than Angelina has kids, but sometimes it’s the quality of the reader that matters rather than the quantity. A better way of putting that is that you never know who will read your blog, so write for the reader that you have the most responsibility towards, and don’t assume that someone whose opinion truly matters won’t end up reading your words.

I’ll show you what I mean: When Don Fiedler, one of my heroes, passed away, I wrote about it here. Later, when I met his son, he told me he found my blog and enjoyed it. When he told me that, I wished I would have written with him in mind, considering the possibility that a son, in a lot of pain, would use google to find his dad’s blog and stumble across mine in the process. Later, I received a postcard from a friend of Don’s in Arizona, telling me he’d found my blog entries, thanking me for writing them. If I would have considered this type of reader, I would have written more carefully, in case I said the wrong thing in a rush.

Then a couple months ago, I wrote about another tragic death and received a comment I didn’t expect, that made me wish I'd written more carefully:

I am the mother of one of the 5 children Destiyon, he left behind from someone being careless and not knowing what they are doing to peoples lives. My son will be 2 on December 04 and will never grow up knowing what a great man his father was. He was the kind of man who knew how to make you smile even at your most angriest moments. He always told me Laura you're so much smarter than most of these woman our here. Thats when I decided to go to college and finish my degree. I will never forget you and everything I have of yours I will give to my son when he's much older including the diamond ring and necklace. Love you from the bottom of my soul.

Once again, I wished I would have considered this type of reader before I posted or at least edited more carefully. Angelina Jolie’s observations hit me once again.

But today this rule was really brought home. I may have had it in mind in fact, when I wrote a post talking about the tragedy of a suicide, “carefully” I thought, using a fake first name, no last name and no links. Even then, a family friend thanked me for the post today, leaving me wondering how they even found it. I even learned, for the first time, that the name I chose at random, “Dan,” wasn’t really random. I hope I chose my words carefully enough, that they were appropriate for a family in pain and likely searching for something to ease that pain on the internet. There’s a line from a Yeats poem that I often think of at sentencing, when a judge or a prosecutor is rushing through a decision that will effect a person’s life for decades: “Tread softly because you tread on my dreams.” They’re not my dreams, they’re my client’s, but they are dreams and they shouldn’t be rushed.

The same goes for writing blog posts about death: “Write carefully because you write about a person’s life, and your words might soon be found by his family.”

Suicide Is Painful

A few weeks ago I was talking to a friend on the phone when she told me about that that the teenage daughter of one of her friends had recently committed suicide. We talked about how painful it must be for the family and turned to the subject of how painful it can be to work in the criminal field, how so many clients were caught up in alcohol and drug problems and how many lawyers were as well.

She told me something that now haunts me, saying that I should keep an eye out for people who might be going down this "road." I thought about it for a second, thought of no one, and got back to work.

Yesterday, however, the lawyer "next door" stuck her head in my office and asked me if I remembered "Dan." When I told her, "of course I do," she sat down and asked me if I'd heard, that he shot himself over the weekend.

I hadn't seen him in months and had said only a few words to him over the years, but saw him frequently in the busy County (misdemeanor) courts, mostly keeping to himself, scraping out a living, like a lot of other solo criminal defense practitioners.

There's a great/sad line in J.D. Salinger's "For Esme, With Love and Squalor" that I think of all the time that describes the author being stuck in a hospital, writing home, and listening to "the uncomradely scratching of pens" from the other patients.

Why didn't I ever strike up a conversation, invite the guy to lunch, the way a very successful criminal defense lawyer asked me today, after I told him my first Eighth Circuit argument was next week?

Who else is there who might be on the verge of something like this, who I might be overlooking? I looked up the obituary on the web today and saw that a small, private service was held, just for the man's family. I started to link to it, to show how lonely even the man's obituary read, but it didn't seem right. "Let the dead bury the dead," as Sheriff Tate says in To Kill a Mockingbird.

But don't forget to talk to the living, before it's too late.

No More Plea Bargains?

When I woke up this morning and read in the Omaha World-Herald that Gage County Attorney was implementing "no more plea bargain" policy, I assumed it was another prosecutor grandstanding about being "tough on crime." But, as I frequently say to prosecutors, the truth is a little more complicated than it appeared at first glance. First, the reason for the change:

With the shadow of the "Beatrice Six" hanging over his head, Gage County Attorney Randall Ritnour announced Friday that his office would no longer offer or accept plea bargains in felony cases involving adults.

Six people were wrongfully convicted in a 1985 murder case in Beatrice, with four giving detailed statements — apparently false — confessing to their involvement in the brutal attack, rape and murder of a 68-year-old woman. Some later said they cooperated with authorities to avoid being charged with a crime that could send them to the electric chair.

The reason I'm not skeptical after reading the article? Doesn't it seem like a prosecutor who's willing to speak this frankly deserves at least a chance to demonstrate that his policy is for the benefit of the system rather than his own reelection chances?

It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn't think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.

"This prevents overcharging," Ritnour said. "You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We're going to see what we should charge people with and stick with it."

I am still very skeptical that Ritnour can make this work and drive plea bargaining out of the equation. For example, as shown in the quote below, some defendants will and should balk at the prospect of "cooperating with police and prosecutors" simply for a recommendation of lenient sentencing for a felony charge. For my clients, especially those charged with a felony for the first time, the prospect of a reduction to a misdemeanor is a significant motivator.

Before I went to law school, I worked for a company that helped ex-felons find jobs, so it was brought home to me how difficult it can be to convince an employer that the "F" on your record wasn't that serious. For most job applicants, the "F" becomes the filter that separates them from the other applicants and leaves them jobless, more likely to succomb to recidivism. Hopefully, for defense attorneys and their clients, the risk of "cooperation" (in its current definition) will be too high a price to pay when they still face an "F" on their record which could haunt them the rest of their lives.

Here's what Ritnour says that makes me skeptical, more because of knowledge about the current system than the words he chooses:

Ritnour said that if a defendant cooperates with police and prosecutors or provides testimony against a co-defendant, he will join with defense lawyers in recommending a lenient sentence, but he will not reduce charges.

I guess it depends on what Ritnour means by "cooperates with police and prosecutors." Does he mean becoming a snitch, risking ending up dead in a dumpster (as the story I heard in the P.D's office goes) or does he mean getting involved in drug treatment? The devil will be in the details.

One of the dangers of working in the "Justice System," in any role, is the potential to succomb to cynicism, to assume that any new idea will fall victim to the same old temptations and corruptions of power that taint the current system. Still, statements like this give me reason to hope that this new policy deserves a chance:

"Our point is to do the right thing, and the right thing is to charge people with the crime they actually committed, not to bounce around making deals."

There's a quote, the source of which I forget, about cross examination being the greatest engine for ferreting out the truth mankind has yet produced. The statement is true as long as the weapon is wielded effectively.

The same applies to jury trials. If Ritnour's approach is to stop overcharging and let more juries decide the outcomes of cases, I applaud his efforts. But if the abuses of the current system, such as "trial taxes," are not eliminated, this will end up being the same old wine in a new bottle.

I'm willing to give it a taste first, before I label it from a distance, however.