Scott Greenfield’s post notes that people believe the economy must be good for criminal defense attorneys, since they believe more people will commit crimes.  Scott not only debunks this myth, but notes the negative impact the Internet generally has had on hard-fighting criminal defense lawyers trying to feed their families.

Today, I was reminded of another perspective on this: the client who believes that since you successfully represented him in the past, he owns you for life.

Today’s incident is not the first time I’ve had difficulties with a client over my fees.  Issues with clients over fees are just part of the territory.  It boggles my mind, though, how far some clients, former clients, potential clients and people who never will be clients are willing to go to insult, try to “guilt-trip,” or otherwise argue with me over my right to make a living.

Or just disappear after the successful resolution of their cases without paying me.

Some months ago, I was contacted by an attorney who wanted to ask me about a current client of his.  The individual he asked about had been a client of mine less than a year before.  In fact, I successfully represented that client three times over about a two-year period after his first girlfriend somehow heard about me and hired me to defend him on charges that he had abused her.

As new cases were filed, my client had less available cash.  But he had a (new) girlfriend who was willing to foot his bills.  He wanted me — because I kept winning for him — and she agreed to pay.  Since they’d previously paid my fees, I foolishly agreed to a payment plan.  The day I won a dismissal on his third case, they stopped paying and I never heard from them again.  Until the new attorney contacted me and I learned that he had new charges.

Yesterday, I heard he was going to prison.

Now I’m not saying I could have won for him four times in a row, but I certainly think after I won the first three, he might have wanted to make sure he could come back to me again.

I tell this story not to show what a great lawyer I am, but to show that I’ve learned — the hard way — that no matter how good a job I do, this doesn’t mean I will get paid.  If I don’t have the money by the time the case is finished, I’m probably not getting it.

Before I learned this lesson, I did a lot of what I call accidental pro bono work.  It took a long time before I learned that no matter how much I feel sorry for someone, no matter how much I want to help them, unless I’m willing to starve my family, lose my house and find myself unable to put gas in my car so I can travel to a client’s hearing in another county, a practice built on taking payments isn’t going to fly.

And then there’s the guy who contacted me again today.  For more than a month now, he’s been trying to convince me that because I helped clean up some cases for him in Fresno and got him a result that made him and his family happy there, I “need” to clear up some cases for him in another county.  For free.  Because he’s out of money.  Because he spent his money paying another attorney (who was unable to do the job) and me (for successfully completing the job) on the Fresno cases.

When I explained that I could not represent him — in another county, no less! — for free, he was polite enough about asking, but his persistence makes it clear (as do his words) that he thinks I should feel the necessity to do him this “favor.”

Let me say something here: I care very much about my clients.  Perhaps too much sometimes.  I take calls from my clients at all hours of the day or night, sometimes just to listen to them talk because they’re scared.  There’s not much I can do, but I listen.  When a client needs a jail visit, I go.  If the visit keeps me 10 minutes, or 3 hours, it doesn’t matter: as long as I don’t have to be somewhere else, I give them whatever time they need.

But I cannot work for free.  I cannot help everyone in the world, no matter how much I agree that they need help.  As I’ve explained to some of them, that’s why we have public defenders.

Sidenote: There is nothing wrong with having a public defender.  They won’t be able to spend the time with you that I can.  They are sometimes usually overworked.  But I don’t think I’ve personally ever met a public defender who was not a good attorney — although I’ve heard of some.  I cannot say the same thing about private attorneys: I know plenty who are a complete waste of money.

When my wife is sick, neither the hospital nor the doctor will treat her for free.  There have been times when her asthma nearly killed her.  I still have to pay to have her treated.  And I can’t do that if my clients don’t pay me, because as sad as it is, this is how I make my living.  Being the best criminal defense attorney I know how to be is the way I pay my bills.

Vincent Hallinan (1896-1992) once said:

Lawyers make a good living off the misery of others and any lawyer not willing to go to jail for his client has no damned right being in the courtroom.

I can’t exactly say I’ve been making a good living, but that’s my own fault.  For too long, I’ve bought into my clients’ views and promises regarding payment.  I’ve remembered what Hallinan said about lawyers who aren’t willing to go to jail — in other words to fight hard regardless of the costs — for their clients.  I’ve fought and I’ve won often enough.  But I’ve confused a willingness to go to jail for my clients with a willingness to go to the poorhouse.

That can’t keep happening.  I can’t keep my office open that way.  I can’t feed my family.  I’ve had to “harden up” a little regarding fees.

If you want a lawyer who will fight hard for you, I’m your lawyer.

But you’re going to have to pay me.  For every case.

The article’s focus on the evidentiary ruling is puzzling.

I’m not at all sure why the author of the blog article chose the case he did to discuss the issue he appeared to want to discuss.  Frankly, I found the dissent — on an entirely different issue — to be much more interesting.   But the fact that the opinion is an unpublished opinion makes it pretty much valueless in California anyway.  As with all unpublished cases, California’s Rules of Court make the case uncitable; it does not count as precedent.  And the argument on this issue was unremarkable, to say the least.

The only thing I can figure is that there aren’t any published California criminal cases involving the use of social networking evidence and the author wanted to reference such a case, rather than any of my articles on the topic.

I myself would not bother to write about this unpublished case if it were not for the fact that the author of the article, who is licensed as an attorney in the State of California, but who may not actually practice criminal law decided to do so, made a couple of mistakes and I thought I would both fix those and springboard off his post to talk about how social networking does get used in actual criminal cases in California.

(Side note: I do not know “Joshua Gilliland, Esq.,” who “is the blogger for ‘Bow Tie Law.’”  I form my opinion that he may not actually practice criminal law on a few relatively minor details.  First, the State Bar website shows that he is a member, but he lists his address as being with “D4 Discovery.”  The “About” page for his website mentions nothing about actual lawyering, but only discusses his creating and teaching CLE courses, especially regarding e-discovery.  And the article itself contains a few — again, fairly minor — errors that I don’t think a practicing attorney would make.  My pointing this out is not intended to disparage Mr. Gilliland.  Not everyone with a law license wants to, or should be required to, practice law.  Even if my assessment is correct, if Mr. Gilliland does a good job teaching e-discovery and doesn’t do criminal trials, I see nothing at all wrong with that.  Besides, much of what he said, he got right.)

One thing Gilliland got right were the facts, so I won’t rehash it all here.  Basically, the defendant was tried and convicted for murder after a confrontation with rival gang members in which a gang member was shot.  Apparently, one of his defenses was that the person shot was the aggressor and part of the evidence he wanted to have admitted to support his theory came from the MySpace page of the dead gang member’s sister (who was also present for the incident and testified about the shooting).

Gilliland seems to make a big deal of the fact the opinion is not clear if the evidence — a videotape — was a videotape of the MySpace page (i.e., someone videotaping the page while viewing it), or was a video that was embedded in, or part of, the page itself.  I don’t know why that matters.  He afterward mentions that the prosecution objected on “foundational” and “relevancy” grounds.  His comments about this ambiguity made me wonder if that’s what he thought created a foundational issue.  The court, however, was not unclear about that: the foundational objection was because the prosecutor claimed you could not tell who was in the video just by viewing it.

Gilliland, however, completely missed the point when he stated,

The Trial Court excluded the MySpace evidence pursuant to California Rule of Evidence Code section 352 (no evidence is admissible except relevant evidence).  Williams, at *24.

Gilliland’s mistake is that Evidence Code section 352 deals with evidence that typically is relevant, but where the probative value is outweighed by concerns of undue prejudice, confusion or consumption of time.  It is Evidence Code section 350 that states no evidence is admissible except relevant evidence.

But this mistake — one of the things that made me think Gilliland doesn’t do many trials — probably occurred because of another ambiguity in the opinion.  (I have argued elsewhere that sloppy opinion-writing is one of the things that make unpublished opinions problematic.)  The opinion itself states:

[T]he court ruled that it would be excluded under Evidence Code section 352.  The court ruled that if the page had shown an actual crime of violence, the evidence would have been admitted, but that “this is playacting.  It is no different than Marlon Brando shooting the Godfather or something.  Would that show a propensity to commit violence?  No.  So I am not going to allow it.  I think it is irrelevant.”

The appellate opinion then went on to argue that the evidence was repetitive, as there was already significant other (presumably relevant) evidence making the same point.  In other words, it was a 352 issue.  And besides, the court noted, the defendant-appellant’s claim that his constitutional due process rights were violated by not admitting the evidence was wrong: the videotape “clearly involved a minor point” and exclusion of this minor piece of evidence did not rise to the level of a constitutional violation.

So much for those relatively minor quibbles.  As you can see, the issue of “e-discovery” had almost no role to play here; nor was the attempted use of MySpace evidence all that significant.

As I noted, however, MySpace evidence does have some importance in gang cases, particularly when it comes in through gang experts cops.  And speaking of gang cops, I particularly liked the dissenting comment of Justice Mosk in the case:

It is a stretch to assert that defendant Harvey somehow committed or aided and abetted a violation of Penal Code section 415 — a misdemeanor — and that a killing is a natural and probable consequence of that target offense.  Are the words, “where are you from?” “offensive words in a public place which are inherently likely to provoke an immediate violent reaction”? (Pen.Code § 415, subd. (3).)  Here, it was Williams that shot first.  There was no violent reaction from the words.  It was only after the victim taunted Williams that the latter started shooting.  To leap from this series of events to the killing being a natural and probable consequence of the “where are you from?” statement does not seem to comport with the purpose of the doctrine.  If the expert testimony can supply the evidence necessary for the target offense, the natural and probable consequence, and the gang enhancement, we are getting to the point where the expert is providing all the evidence to support the guilty verdicts.

It may well be that Harvey is an aider and abettor, but I question the use of the natural and probable consequence instruction.  I would reverse Harvey’s conviction on the basis of the instruction.

The italics there are mine.

I’m confused about Justice Mosk’s point, though.  Technically, he is correct that we’re only “getting to the point where the expert is providing all the evidence to support the guilty verdicts.”  But under the law in California, gang experts cops can provide all or nearly-all the evidence to support guilty verdicts relating to gang charges or enhancements.  (Pen. Code § 186.22(a), (b).)  In those cases, they not only provide the evidence, they actually tell the jury that the defendant is guilty.  Under California law, it is perfectly acceptable for the expert cop to say, “The defendant is guilty of this crime.”  Arguments that this is something for the jury to decide and not for an armed officer in full battle gear to decide for them repeatedly fall on deaf ears.

To be fair — something you don’t necessarily get from the prosecution or judge at trial when these points are argued — the appellate courts have insisted on something more than a mere opinion of the ultimate issue.  For example, in cases where the opinion is based merely on the fact that the accused person is a gang member and the gang commits crimes similar to the one the accused person has committed, appellate courts have lately not found that to be sufficient evidence.  However, in many of these cases, the problem is that the gang expert cop simply did not talk long enough.  If he had spit out some litany of “facts” — which can be based on hearsay — that would provide a more solid basis than just “he’s one of them, they do this,” the courts have upheld convictions based only on evidence provided by the expert cop.

Now I also promised above to discuss how MySpace — or social networking evidence generally — is commonly used in gang cases.  I’ve already noted that the refusal of the court to admit the videotape in the unpublished Williams case was not an indication of any problems with the way it was collected, as Gilliland appears to think.  The problem was some mix of relevancy and the 352 appraisal.

I also think if the prosecution, instead of the defense, had sought to have the evidence admitted, it would have been.  This is not just because the courts typically exhibit a pro-prosecution bias on evidentiary matters.  (The San Jose Mercury News has a story on its own review of five-years of criminal jury trial appeals which “establish a pattern of judicial conduct that favored prosecutors,” but I can’t link it because it requires registration, which I refuse to do.)  It’s also because prosecutor’s often advance social-networking evidence to show that someone is a gang member.  Pictures on MySpace accounts showing accused persons or witnesses “throwing gang signs,” or wearing “gang” uniforms clothing and/or “associating” — either in pictures, or by writing on MySpace “walls” — with people the gang expert cop will identify as gang members are all potential sources of evidence as far as the prosecution is concerned.  The courts usually agree.  Forget the fact that, to paraphrase Freud, “sometimes a red shirt is just a red shirt.”

When it comes to evidence that someone is a gang member, or to prove something about the gang (like “how violent it is”) you can never have too much.  (I’m currently handling an appeal on a case where something like 10,000 pages of discovery was provided regarding the gang my client was allegedly trying to promote or benefit by getting into a fist fight.  Several — not just one — gang experts cops, including a Royal Canadian Mounted Police Officer, testified to almost everything in those pages, too.  So you see how much 352 means when it’s the prosecutor proffering the evidence.)  And, trust me, you don’t need much of a “foundation.”  Gang experts cops are allowed to rely on hearsay, so “someone told me it was the defendant in the video” probably provides all the foundation needed.

All in all, Gilliland is at least correct about this one important point: social networking evidence can be important in court.

Oh, my title?  As they say, “Meh….”  It comes from a quote attributed in Williams to a co-defendant.  He was apparently inviting the rival gang members to follow him to an area where no one would be able to see what was about to go down.  I liked it for the title because when it comes to social networking, it’s getting harder to find such places.

That’s not what this post is about.

This post is about the growing movement to legislate a moral code and the concomitant view that if it’s not illegal, it’s not immoral.  I say “concomitant,” because I believe that the movement and the view are currently part of a nasty feedback loop that benefits neither the law, nor morality.

From what I see in the newspapers and occasionally hear about or see happening with my own eyes in Fresno, more of us are willing to ignore what is wrong.  I don’t know if it’s because we’re inculcated with that tendency by judges and court personnel who repeatedly do what is wrong and/or wink at police officers who do what is wrong, or if the officers and judges behaving this way are simply a reflection of the wider societal view.  I don’t know, that is, which came first, the chickens or the eggs.  But everyone seems to think that doing the right thing is someone else’s job and that as long as what they’re doing is “legal,” it’s moral; as long as it’s not illegal, it’s not immoral.

Maybe it’s just a function of the fact that I work in a setting that brings me into contact with the government more often, but I see this as particularly a problem when it comes to how government agents, including clerks, law enforcement officers, prosecutors and judges perform their duties.

The problem, as I said, may be societally-driven.  But with the law-as-the-only-moral-code paradigm growing, it is particularly irksome to see it in those responsible for the enforcement of laws, since law-as-the-only-moral-code gives them quite a lot of discretion in who gets punished for what, and how severely, and who gets a pass.  With the average American committing up to three felonies per day, officers who don’t like someone can always find a reason today to arrest people.  When almost everything is a crime meets the law-as-morality trend, prosecutors see themselves as saviors of society, high priests of the new moral code.  “Dismiss because your client had a simple lapse of judgment?  We can’t do that!  All of society would come crumbling down!”

And don’t get me started on prosecution-oriented judges.  The law-as-morality movement, combined with the tough-on-crime movement, has guaranteed that most judges today are prosecution-oriented, with disastrous results not just for criminals, but for those who merely sin.  This is seen most clearly in California’s prison-crowding problem.

Even defense attorneys fall into the trap of passing the buck instead of doing what’s right, opting for the easy way out because they aren’t doing anything illegal by not fighting back against “minor” wrongs like the routine shackling of juveniles. Despite inflation, if I only had a nickel for every time another attorney told me, in response to my complaint about something that’s “just wrong,” that I have to learn to pick my battles, I wouldn’t have to fight for a living; I could retire.

Okay.  Maybe not.  But I could definitely go out to dinner a few times.

At any rate, if we don’t have to do something — if it’s not required by law — we don’t.  And there’s nothing wrong with that.  After all, if there was something wrong with that, it would be illegal.

“So what?,” you may ask.  “With all the differing views on morality today, we have to pass laws to ensure a minimal moral code is adhered to by all.”  That would be fine, if we were talking about a minimal moral code.  But we aren’t: increasingly, we’re legislating an entire moral code.  We’re creating a society where an independent moral system no longer exists: only what’s illegal is immoral.

This attitude, taken to an extreme, has unpleasant consequences.  People stand around and gawk after an old man is hit by a car, for example, without reporting it or trying to help.  Another young man sees his friend molesting and murdering a seven-year-old and doesn’t stop him.

Last fall, in Richmond, California, numerous disgustingly sick people stood by and watched for nearly two hours while a 16-year-old girl was gang-raped right outside a high school homecoming dance.  As you can tell by my choice of adjectives to describe these borderline “human beings,” I’m not favorably inclined towards them.  I can only hope and pray none of them are fertile.

These things — horrible as they are — are not illegal.  These things — horrible as they are — should not be illegal.

But various members of the California legislature — always quick to pander to the public outrage over public safety failures — have proposed a cure that is worse than the disease: they want to make it a crime to fail to report a crime.

If I’m as right as I think I am, this can only make the situation worse, because it endorses the view that only what’s illegal is wrong, dragging along the corollary via a false application of De Morgan’s, that what’s not illegal isn’t wrong.

I don’t know if it’s possible to turn back.  Maybe, even if I’m right, we’ve no choice now but to continue to legislate morality.  Maybe we’ve already reached the point where, without doing so, there is no morality.  If so, then we’re lost.

We’re lost because a personal, familial, or community-based and personal, familial, or community-fed moral system has something critical that a law-as-morality system does not, particularly the one we’re building in places like California.  Communities help inculcate their values; the law merely punishes violators, leading to an increase in criminal behaviors.  This is particularly problematic because most people don’t know what’s illegal until they’ve been arrested and charged with violating the law.

This is a terrible and hopeless combination: a culture that believes anything goes except that which is illegal, but which does not teach what is illegal.

So now what?  I’ve talked myself into a hole here.  I don’t know what the answer is.  I don’t know if there is an answer.  Maybe an emphasis on rehabilitation — at least giving people some kind of moral compass after the fact — would help.

The only thing I think I really know is that it seems clear a system of law-as-morality, focused only on punishment and being tough on “crime,” is only going to make things worse.  And I think it’s up to those of us who work within the legal system to try to reverse the trend and fix this, if we can.

Ultimately, as I said, I don’t know the answer.  I started writing this entry partly to see if I could figure out what I think and why the concept of passing so-called “Bad Samaritan” laws bothers me, even while bad samaritans also bother me.  (My discontent is even more acute thinking about what happens when Bad Samaritan laws collide with Good Samaritan laws, as they ultimately will, but that’s going to have to be a topic for another article.)  One reason I write is to see what I think.  In the end, the only thing I really know is that it still feels wrong to attempt to legislate morality beyond the very basic level.

Maybe the real question, then, is “what is the basic level?”

Don’t get me wrong.  From what I’m told, I’m a fine lawyer, even if it doesn’t always feel that way to me.  And yesterday, with numerous families surrounding me as I exited a courtroom, all asking for my card and whether or not I could represent their family member, I started to think Year Four as a lawyer might actually be fun.  But these guys are like gods to me.  They are what I aspire to be.

In some ways.

One thing, though, that I’ve never completely understood — and I’ve remained silent about it until now partly so as not to offend the gods — is their treatment of other lawyers who utilize the Internet differently than they think should be done.  My Pantheon frequently castigates others who choose to blog either under their law firm name, or anonymously, for example.

Frankly, I just don’t get it — especially the anti-anonymity thing.

The posting of opinions anonymously has a long and quite remarkable history, particularly (or maybe this is my own provincialism speaking) in the United States of America.  In fact, a good argument could be made that the United States would not have existed without anonymous opinion writers and publishers.

Maybe blogging anonymously doesn’t bother me as much because I unfortunately do not possess the photographic memory of some of those I admire.  I tend to read things and remember much of what I read, but, for some reason, I don’t usually remember where I read something, who wrote it, or the names of any people who might have been involved in what was being written about.  Possibly, then, I don’t care about the anonymity because I won’t remember the names anyway, unless, of course, I encounter them again and again.  (I think it took me about a month to remember Scott Greenfield’s name, but that’s because I read his blog more than others; pretty much daily now.)

Scott surprised me the other day, by the way — and first started me thinking about writing this post — when, in a footnote, he criticized a blogging attorney for naming his blog the “Koehler Law Blog,” just because his name happens to be “Koehler” and the blog is a “Law Blog.”

But what finally makes me speak out is Norm Pattis, one of the few bloggers who compares (in my mind) favorably to Scott Greenfield, taking yet another great blogger to task because a) he blogs anonymously and b) he disagrees with Norm about something.  Norm normally “agree[s] with what is written there [on the anonymous blogger's blog]“ so he gives him a pass for being a coward.

Ok.  What he said was he gives him a pass for his “feet of clay.”  I take that as an accusation of cowardice.  A completely unfair and false accusation of cowardice unbefitting someone of Norm’s stature and intelligence.

Anyway, now they disagree, so Norm is apparently no longer willing to give Gideon the Pseudonymous a pass.  Hey, at least he has a principled reason for his change of heart.

Norm notes that people have various reasons for blogging anonymously.

Sometimes it is cowardice or fear of the consequences; sometimes it is a juvenile love of mystery.

Apparently blogging anonymously is always a negative thing.  You get to be juvenile or a coward.

Like James Madison or Alexander Hamilton, neither of whom were much known for courage and bravery; both of whom “blogged” anonymously and thereby assisted in the birth of our nation.  In keeping with my piss-poor memory for where I read things, I can’t recall exactly where I got this, but I recently read that Madison, at least, deliberately chose to write anonymously — pseudonymously, to be more accurate, which is how “Gideon” writes, although Norm calls it “anonymously” when he’s not painting it as cowardly — anyway, Madison deliberately chose to hide his identity so as not to have his personal reputation, whether for good or bad, overpower the arguments he made.

I can think of a number of other reasons for blogging anonymously, particularly for someone in Gideon’s position.  Increasingly, employers — particularly and ironically employers who happen to be governments — do not approve of employees blogging.  There is a fear that something will be said that will have blowback for the government employer.  Simple disclaimers are not enough for these employers; if you work for one of them and you blog, you’re anonymous, pseudonymous, or fired.

What would happen to all the good Gideon does if he were fired for expressing his opinions online?

Norm and the other attorneys who blast anonymous or pseudonymous bloggers can’t be blamed much, however.  They’re simply unable to break out of the piss-poor training they received in law school, perpetuated by the actual practice of law, where everything is, in the end, actually based on a political game wrapped in a logical fallacy: a kind of “argument from authority.”

As the law is normally practiced, logical arguments are secondary; knowing who stated the rules one hopes to rely upon is primary.

Actually, I’m being a bit simplistic with that characterization — though certainly no more simplistic — and a whole lot less disingenuous — than Norm is with his attack on Gideon.  The practice of citing, rather than simply stating one’s argument, carries the additional burden, allegedly, of keeping the law somewhat consistent.  It doesn’t really work that way, but stare decisis is the alleged rationale behind requiring citations — names of courts and opinions –  to back up one’s argument.

Other than that, though, who really gives a damn for the name of the person who makes a particular argument.  The argument should stand or fall on the logic and factual foundation of the argument itself.

But back when Madison and Hamilton — and numerous others involved in the founding of this nation — were writing anonymously, their arguments were irksome to their opponents, as Gideon’s are to Norm.  A great deal of time was spent trying to figure out who was who.

Because, in the end, when you’re worried that your own arguments are not sound enough to withstand criticism, it helps if you can engage in a little argumentum ad hominem.

And that’s just a little more fun if you know who the hominem is.

“Justice” Thomas — you know, the dude who was appointed to the United States Supreme Court notwithstanding allegations of repeated sexual harassment of a young woman who worked for him when he was a mere judge — says that criticizing judges decision-making is a bad thing.

“Justice” Scalia tells us that we’ve come a long way, baby, to get where we got to today, where the people involved in capturing and convicting “criminals” — with the average American committing three felonies per day, that would be most of us under the new regime — are so professional that we don’t need the exclusionary rule anymore.

And Scott Greenfield, a criminal defense attorney in New York, tells us about a case of a judge who was having an extramarital affair with the prosecutor during a murder trial which resulted in — surprise! — a conviction.

Now, okay, maybe the case would have resulted in a conviction anyway, even if the prosecutor was not screwing the judge.  And maybe the judge wasn’t screwing the defense just because the prosecutor was screwing her.

Fact is, I don’t know.

What I do know is that it’s increasingly hard to imagine how “Justices” like Thomas and Scalia make the arguments they make about the professionalism of those involved in our “modern” legal system with a straight face.

Even more embarrassing than this, though, as Scott notes, is the attempt of the Texas Court of Criminal Appeals to whitewash — Scott’s term, but one which seems indisputable — the behavior of the judge f**cking the prosecutor and attempting to argue that the accused man convicted during that trial was f**cked because he didn’t learn about the affair fast enough.

As Scott quotes the appellate judges — who “conceded that the phrase [intimate sexual relationship] was ‘literally true’” — this illicit act of adultery between a judge and prosecutor during a trial is no big deal.

“Theirs was hardly the torrid relationship of romance novels,” Judge Cochran clarified. It was, rather, “a close personal relationship that, on a few rare occasions, dipped into intimacy.”

Yes, no big deal.  The prosecutor dipped his penis into the judge.  Their relationship thereby dipped into intimacy.  But the conviction was, fortunately, not even dipped into the well of apparent unfairness.

For her part, rather than be ashamed of what she’s done, the judge has asked the attorney general’s office to help her fight back.  (Why not?  Maybe he can get some lovin’, too!)

She was “tired of laying over,” she said, and “getting licked without any input.”  (Adam Liptak, “Questions of an Affair Tainting a Trial” (February 22, 2010) The New York Times.)

Okay.  That’s just too easy.  I’m not going to go there.  I’m tempted.  But I won’t.

Perhaps this is why “Justice” Thomas doesn’t want the rest of us looking too closely into the decision-making processes of judges.

I tell you, it’s like they don’t even try anymore.

Two things should be noted before I “get into it.”  First, whether the court or anyone else believes me on this, I’m writing this because a driving force in my life is the Jewish concept of tikkun olam. In other words, I want to work cooperatively to leave the world a better place than it was when I arrived.  If I can’t do it cooperatively, though, I will nevertheless work to do it.

The second thing is the corollary to that desire: I’m not writing this to further anger the judge (though given the court’s refusal to give serious consideration to this issue, that may be a sadly unavoidable side effect of my comments).  Rather, I wish to explain what I was unable to say due to the chilling effect of the court’s reaction to my off-the-record comment — and to the fact that others had started to filter into the courtroom.  I’m hopeful — since I know some judges read my blog — that this post might help explain why it is the right for the court to change its position on this one issue, and why it should be ashamed if it does not.

So what were we talking about?  And what did I say that so enraged one of the few judges I would love to be able to call my friend?

In a word: “Shackles.”

Okay, maybe you need more of an explanation than that.

One of my “pet peeves” has to do with the practice of shackling juveniles in court.  There’s no other way to put this, so I’m just going to come right out and say it here:  It’s illegal; it’s unnecessary; it’s shameful.

Now I don’t know if other attorneys have pet peeves — things that just set them off — but this one is mine.  It’s not necessarily because I agree with the United States Supreme Court or the Second District California Appellate Court, either, when they said:

[T]he use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.  (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1355-1356 [59 Cal.Rptr.3d 363], quoting the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 344 [90 S.Ct. 1057, 25 L.Ed.2d 353].)

No, the reason it’s a pet peeve of mine has more to do with the fact that unlike most of the judges in the Juvenile Court system, I have some training and experience — which following the rules applied to gang cops testifying in gang cases, should make me an expert — in the psychology of children and adolescents.  Plus, I’ve read innumerable reports of child psychologists concerning the impact of shackles on the children the court unflinchingly places in them.

Shackles have no place in the courtroom, particularly in the juvenile courtroom.  If we paid more than lip service to the law, I would not even need to write this post.  For the law clearly states:

No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. (California Penal Code section 688.)

So how much restraint is necessary for the detention of juveniles in the Fresno County Superior Court?

Consider this:

• While the waiting areas for families of juveniles at the court are quite small and uncomfortable, the courtrooms are massive and architected for intimidation.
• There is an armed bailiff in the courtroom.  I know they carry guns.  I believe they also have tasers.  There is not infrequently more than one such bailiff.
• The kids enter the courtroom — usually in full shackles — from a holding cell the door for which connects directly to the side of the courtroom.
• It is impossible to enter or exit a juvenile courtroom in Fresno County through any door without a special key.
• To get to the door connecting the courtroom to the outside hall, a juvenile would have to get up from his chair, run through or jump over the swinging door that separates the “gallery” from the counsel table, push open a heavy solid (unlocked) door, and run to the next door which, as already noted, he could not open without having first acquired a special key.  All while being pursued by at least one armed bailiff, as noted above.
• Even ordinary defense attorneys such as myself do not have access to these special keys.
• Even with a key, the door cannot be opened from the outside, so no one could assist the juvenile in escaping.
• Even if the juvenile could somehow get out that door, the kid would have to get down to the first floor and past several other armed deputies before he would be outside the courthouse.
• Fresno law enforcement officers are not afraid to shoot people.

In this situation, it is impossible to argue — with a straight face and an honest heart, anyway — that shackles are “necessary for [the] detention” of any juvenile in the Fresno County Juvenile Court.

So why are juveniles shackled?  Because that’s how the Sheriff’s Department wants it.  Oh, I know.  I know.  The law clearly states that

the requirement that the record must show a “need” for shackles “also presupposes that it is the trial court, not law enforcement personnel, that must make the decision an accused be physically restrained in the courtroom. A trial court abuses its discretion if it abdicates this decision-making responsibility to security personnel or law enforcement.”  (Tiffany A., supra, 150 Cal.App.4th at 1357, quoting the California Supreme Court case of People v. Hill (1998) 17 Cal.4th 800, 841 [72 Cal.Rptr.2d 656].)

But now matter how much trial courts pretend to follow the dictates of the legislature and the California Supreme Court, the truth of the matter is that the Sheriff’s Department decides who gets shackled and who does not.  Any defense attorney — which, right now in Fresno means me — who challenges this decision will find that although everyone knows the reason is “policy,” the court will then give the deputies at least an hour after a challenge to come up with an excuse why “the court deems shackles to be required” in any particular case.  Tell me, judge, if the law says that shackling requires a particularized reason and that the court cannot abdicate responsibility for this decision to law enforcement, then why does it take an hour after a challenge to find out the reason for the shackles?

I’ll tell you why: because we’re lying when we say that the real reason for shackles has anything to do with an individualized case-by-case decision of the court.  It is the Sheriff’s Department who decides which child is shackled and which child is not.

And the Sheriff’s Department wants to shackle these children for the very reason that

placing the criminal defendant in shackles “‘imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense….’ “  (Tiffany A., supra, 150 Cal.App.4th at 1355, quoting People v. Duran (1976) 16 Cal.3d 282, 288 [127 Cal.Rptr. 618].)

In other words, it cows them, makes it harder for them to think of anything — particularly anything the deputies don’t want them to think about — and thus makes them easier to control.  But, as the full context of the quote shows, this is the very reason the California legislature made it illegal to shackle accused adults — let alone juveniles! — way back in 1872.  I might add that it was a lot easier for prisoners to disrupt proceedings and escape in 1872 than it is today!

Most criminal defense attorneys do not protest when their clients — the kids — are brought to the courtroom in shackles.  In fact, I do not believe there is one criminal defense attorney other than myself who regularly comments upon, or objects to, the shackles.  If I am involved in a co-participant case, so that there is another attorney present on the same case, they will sometimes join my objection.  (For various reasons, I have not objected in every case.  However, that, I can assure you, is about to change.)  So to the shame of the courts, we should add the shame of defense counsel.

“Pick your battles,” these defense attorneys tell me.  In other words, the shackling of children is not an important issue in their eyes.  We have other fish to fry.  But this isn’t just any battle.  This is a battle that goes to the core of our rehabilitative efforts for these kids.  If the courts won’t see it, we must help them.

The use of shackles in a courtroom absent a case-by-case, individual showing of need creates the very tone of criminality juvenile proceedings were intended to avoid.  (Tiffany A., supra, 150 Cal.App.4th at 1362.)

Shackling our kids teaches them that they are criminals.  Don’t be surprised that when they come to see themselves this way, they become harder to rehabilitate.  We aren’t just shackling their bodies; we’re shackling their self-image.

Our kids are routinely brought in in shackles because it is the policy of the Sheriff’s Department that they be shackled.  No matter how much we — the court, defense attorneys, prosecutors, probation officers — pretend otherwise, it is the Sheriff’s Department which makes the decision.  And that decision is based upon policy, although the judges, prosecutors and deputies are quick to collude in the lie that it is not if and when they are challenged.  (I’m sorry, judges — especially the one who “inspired” this post — but I’m calling it a lie because a lie is just what it is.  And you all know it.)

Off the record and in unguarded moments, this is readily admitted.  When I first started objecting, I even got statements about this on the record.  The more challenges I bring, though, the more careful everyone becomes with the way they couch their explanations.

Frankly, that’s a further reason the court should be ashamed.

Now, ultimately, this post boils down to this.  The court very much to its credit started this off-the-record conversation by explaining as this particular judge is very kind and good about doing that it’s good to explain things to families, because when they hear phrases like “602″ and other statutorily-required language by the court, they get the impression their kids are just being processed like so much bad meat.  (This isn’t exactly how the court worded it; this is what the court correctly recognized.  The court usually uses nicer words than I do.)  The court noted this can breed disrespect for the court.

As we were talking off the record — and as I already said this is a pet peeve of mine — I chimed in that bringing all the kids into court in shackles does the same thing.  This, as the court itself said, upset the court very much.  In fact, the court stated that it found my comment to be “disrespectful to the court.”  (Oh, the irony.)

Judge, if you do in fact read this, I want you to know something.  I actually have a great deal of respect for you.  As I already said, you’re one of the few judges I’d be pleased to call a friend, if that ever becomes possible.  But you’ve misplaced your anger and concern over the question of disrespect.

As the California Supreme Court so succinctly put it: “the disrespect for the entire judicial system…is incident to the unjustifiable use of physical restraints….”  (Duran, supra, 16 Cal.3d at 290.)

The article itself was basically just a reprint of one that was supposed to appear in the Wall Street Journal on June 6, 2008.  It was a user comment that struck me more and inspired this post.

I don’t normally write about non-criminal law issues, but since this involved a sheriff picking and choosing what duties to perform, it seemed an acceptable fit here.

The commenter praised the sheriff because even though what the sheriff did was “against the law,” it was the morally right thing to do.  At least, it was the morally right thing to do in that commenter’s opinion.

I disagree.  At least I think I disagree.  (Keep reading!)

So when I read the comment praising the sheriff, I started to post the following comment in response, but then decided that since my comment was getting a little long, and since that post was so old, and since my current briefing schedule has temporarily interfered with my completing a blog article for this blog, I’d post it here instead.  Hopefully, it will inspire some fresh commentary, because (when I stop and think about it), I’m not 100% sure how I feel about this myself!

This is what concerned me and what I started to post:

Does that mean you think the law does not matter?

I agree that it would be great to find a way to help people keep their homes.  However, approving of the sheriff’s refusal to enforce existing law just because you like the result is bad precedent.

What will you do when he decides — based on his own moral code — to refuse to enforce laws that you think are good?  What will you do if he decides to take away some of your rights, because they get in the way of what he wants to do?

Because that’s exactly what he’s done here: he’s taken away the rights of those who paid for the property.  Remember, when you buy a house, the bank actually pays for it.  You then pay the bank back.  If you don’t pay the bank back, you’ve taken their money.  If the sheriff refuses to evict you and sell the property, he’s a government agent endorsing an improper taking contrary to the Fifth Amendment.

In fact, it’s even worse, because he’s not really taking private property for public use; he’s merely endorsing your theft of property.  One can argue he’s taking private property from one party (the bank) for private use by another (you).

Frankly, I believe banks need to be better regulated so that they cannot take advantage of people who don’t always understand the long-term consequences of their acceptance of the kinds of loans the banks give them.

But a sheriff who decides which laws to enforce and which not to enforce is no sheriff at all.  He is, in essence, no better than a criminal, ignoring the rule of law.

When the law is “wrong” and hurts people, the law should be changed by the legislature; not because the sheriff decided to ignore it.

Now, mind you, I’m not unaware — as I believe I pointed out above — that it’s a real shame what’s happening to people in the current market, with the economy and housing going the way it is right now.  My own house is “upside-down,” as they say.

I’m also aware that the Adjustable Mortgage Rate (ARM) type of loan that many people (including me, by the way) bought into is the cause of many a default when the rates zoom skyward.

Something should be done about this.  From what I understand, the last run of defaults is about to be repeated in a new wave this coming year when several people (myself included!) will see their ARMs kick in.

But that “something” is not for a sheriff to take it upon himself to decide that he won’t perform his duties — to decide that it’s okay for banks to be stiffed — because homeowners are suffering.

I hope banks do end up losing out for their refusal to help fix a mess they helped create.  (People like me who made misjudgments about how these loans would play out helped, too.  And we are losing out, believe me!)

But, again, I’m not at all sure that the answer is a sheriff who refuses to do what his job requires.

Now that I’ve said that, though, let me throw this out there:  What if sheriffs throughout the land had refused to endorse “Jim Crow” laws in the last century?  That would have been a moral thing, right?  But it would also have been contrary to law, right?  And it’s the duty of sheriffs — as with all law enforcement officers — to uphold the law, right?

The water is a little murkier now.

I can’t even completely argue that the situation is different here because the foreclosure problem just has to do with people losing their homes — it’s a property question — and “Jim Crow” laws weren’t.  But weren’t they, to some extent at least, property laws?  White bigots wanted to bar African-Americans from access to their property.  White bigots wanted to choose to whom they would provide services.  White bigots, having power, wanted to use the power to their own advantage and to the disadvantage of non-whites.

How is that different from what the banks want to do now?

But if — as I do strongly believe — it would have been acceptable for sheriffs to refuse to enforce “Jim Crow” laws, why is it not acceptable for sheriffs to refuse to force people from “their” homes and sell them on behalf of the banks who actually own them?

I don’t have an answer.  It’s definitely something for me to mull over.  My fear is that saying it’s alright for a sheriff to pick and choose which laws to follow — and how — is contrary to the rule of law and ultimately hurtful to us.  The Benevolent Fascist is no more welcome in my world than The Nasty Fascist.  Today, the duty the sheriff refuses to perform is enforcing laws pertaining to mortgage contracts, foreclosures and sales of foreclosed homes.  Tomorrow, might not it be our civil rights?

Or is this just a cloaked slippery slope argument?

First, let me be clear about something, because every time I write about police abusing their authority, it seems the police supporters come crawling out of the woodwork.  In Fresno, as with much of the Central San Joaquin Valley, the police can do no wrong, even when they do.  Having said that, this post is not my own personal pronouncement that the jury screwed up and let a guilty man go free.  I actually don’t know if that’s true. 

I am, however, going to talk about what the newspaper has reported, throw in a few comments from things I’ve heard from attorneys who are more familiar with the facts, and express my opinion.

Well, okay, I’ve already started expressing my opinion: In Fresno, as with much of the Central San Joaquin Valley, the police can do no wrong, even when they do. 

As I said, though, I wasn’t involved with this case.  I didn’t attend the trial.  I only read what was in The Fresno Bee.  And I know full well that The Fresno Bee seldom gets the story right when it comes to our courts.

Yet it is worth noting that the failure of a jury to convict does not an innocent man make.  Juries are not called on to decide innocence: they’re called on to decide guilt.  So when they decide someone is not guilty, they are saying only that guilt was not proven beyond a reasonable doubt.   They are not saying someone is innocent.  That is not something within their power to do.

As Michael Idiart, a well-respected local criminal defense attorney has noted:

[J]uries read about violent crime in Fresno and are inclined to believe police officers over people portrayed by the defense as gang members.

“A lot of jurors just believe police have a difficult job and criminals have it coming to them.”  (Pablo Lopez, “Jury acquits former Fresno officer” (January 26, 2010) p. A6, col. 4, quoting Michael Idiart.)

Marshall Hodgkins, speaking like the good criminal defense lawyer that he is, felt his client had been vindicated — although, remember, he was only found not guilty — and said that a half-courtroom filled with police officers had no impact on the jury:

This was one of the most analytical juries I have ever seen.  (Jim Guy, Pablo Lopez and George Hostetter, “Police chief orders two reviews” (January 26, 2010) p. A6, col. 2, quoting Marshall Hodgkins.)

In an attempt to thwart the jury’s analytical skills, the judge in the case ordered that the police officers filling the courtroom in support of their accused comrade could not wear uniforms or carry guns, except when testifying.  (The uniforms and guns are necessary when testilying to give the officers’ words extra authority, just in case a Fresno jury was inclined to doubt their veracity.)  The jurors were therefore incapable of linking the large number of broad shoulders, short haircuts, their demeanor and the fact that they sat behind the accused officer to a strong police presence.

The truth is, though, that this episode is not just good news for the modern police man (and woman).  It’s good news for all of us. 

With officers no doubt feeling emboldened by the refusal of Fresno County’s submitizens to ever convict an officer for wrongdoing — this is the second officer acquitted despite fairly strong evidence that something isn’t quite right here — the day may be almost upon us when officers will commit their crimes more openly.

Because what this acquittal convinces me of — whether this officer is factually culpable or not — is that until the abuse reaches “ordinary” submitizens and not just those the police can convincingly argue are ‘gang members,” police misconduct will continue to be a fact of life in Fresno.

I have installed an interesting application to help - BlogJet. It’s a Windows client for my blog which supposedly allows me to compose posts offline. If it works as advertised, I can write more entries even when there is no Internet connection and upload the posts when I’m able to connect. 

Maybe now I won’t have to go so long between posts!

The website for BlogJet is here: http://blogjet.com

“Computers are incredibly fast, accurate and stupid; humans are incredibly slow, inaccurate and brilliant; together they are powerful beyond imagination.” — Albert Einstein

In 2009, after Melina Benninghoff was taken to task by blogger Mark Bennett because his articles were showing up on her website under her name, Wayne Conley — who turned out to be the tech guy behind Benninghoff’s website –  decided he was going to get him a piece of Mark Bennett.  Among other things, Conley has falsely labeled him “the worst lawyer in Houston.” Later, he went after Brian Tannebaum (for this post) and Scott Greenfield (who most recently wrote about it here).

As before, Conley does not seem to know when he has tried to get a piece that’s just too much for him.

I’ve held off writing about this for a variety of reasons.  One is that I’ve been trying — really trying — to give Benninghoff, an attorney whom I’ve met and with whom I’ve discussed the situation, the benefit of the doubt.  I honestly cannot determine just how much Benninghoff understands or knows about what is going on.  I’ve never thought it made much sense to blame someone for the indiscretions of a nutcase just because they unknowingly hired the nutcase.

On the other hand, not only should Benninghoff have monitored what Conley was up to, she was alerted to the problem by me (and other attorneys who became “targets” of Conley) fairly early on.  At one point, she told me that she’s tried to talk to him, but that there was nothing she could do to stop Conley from putting up a website in her name.

That, of course, is absolutely untrue.  If he’s used her name, her law office website and her image without authorization, there’s plenty she can do.

It may be true, however, that she’s tried.  She might even think she’s actually been successful.  To those who don’t know how the technology works, her primary website appears to have returned to its normal ugly and grammar-impaired self.  But as of this writing you can still find Conley’s posts on her website about other attorneys by changing the “www” to “fresnocriminallawyer” in the URL.  (I don’t want to help boost Conley’s or Benninghoff’s ranking on Google by actually providing the link.)

At any rate, a primary reason I’ve held off on writing about this was I wanted to see what, if anything, attorney Melina Benninghoff would do to stop rapist Wayne Conley from making a bad situation worse.  And, frankly, I’d rather spend my time working on my cases, building my practice, or doing just about anything other than worrying about some sociopath who apparently does not know when to quit.

My relative lack of involvement, of course, did not stop Conley from threatening me and offering to give me some of the same type of treatment he has given others.  But then, what should anyone expect from a sociopath-turned-cyberpath who rapes unconscious women?  What should any of us really expect of a “man” who would do this and then afterward say, “Her _____ is so tight, my ____ hurts”?  Should we expect a man who rapes a woman and then argues to the court that it wasn’t really rape because she was unconscious and thus can’t remember details of it to be reasonable?

I think not.

So it’s no surprise to me that Wayne “Remorseless Gang Rapist of an Unconscious Woman” Conley has decided that my relative quiescent approach to his ongoing activities is not good enough.  I complained about him to Benninghoff.  I re-tweeted a couple things others said about him, hoping by doing so to help undo any damage he may have done to my friends.

But Wayne Conley doesn’t reserve his ire for people who try to defend themselves.  He also doesn’t like people who defend people he attacks.  If you aren’t already unconscious, he’s going to find some other way to shut you up.

As an example, the last time I checked, there was an open case out of Reedley, California, alleging that Conley repeatedly harassed another man for apparently defending a woman who had sought a restraining order against Conley.  Wayne Conley admitted to a police officer he repeatedly sent text messages and phoned the man, then called the man’s employer when the man stopped taking his calls because he was “trying to get to the bottom of what was going on with” the woman’s restraining order against him.  A warrant is pending in that case, but things being what they are, the police will leave Wayne Conley alone until he’s either actually hurts someone (again), or possibly until they run a warrant check after a traffic stop.

What all this shows is that when it comes to Wayne Conley, it seems there’s no such thing as “no,” or “leave me alone.”  In 1998 Wayne Conley showed he was willing to rape someone who was unconscious and thus couldn’t say “no” to having sex with him and his co-rapists.  In 2007, Wayne Conley was trying to prove to several people that he was willing to harass them, their friends, family and employer for saying “no” to his attempts to communicate with them.  And in 2009 and now 2010, Wayne Conley is going to show those bloggers who stand up to him for scraping content and won’t back down when he defames and harasses them online that he still doesn’t understand the meaning of the words “no” or “leave me alone.”

Wayne Conley has been using his poor website design skills and his self-proclaimed knowledge of Internet search engine optimization technology to try to trash some of my friends who stood up to his theft of blog articles.  Nevertheless, I largely laid off writing anything about Conley and limited myself to re-tweeting a couple of articles they’ve written.  After all, he is apparently a sociopath who lives in my area and I’m still uncertain exactly why Melina Benninghoff has not tried to stop him from using her website — though one comment she made about it made me think she might be afraid of him.

Apparently, though, any amount of interfering with what Wayne Conley wants is a no-no.  He can’t get me to lie down unconscious for him, so Wayne is now making mis-statements about me and threatening to try to damage me and my law practice.  Such a nice guy.

Conclusion

After his 1998-1999 trial for his part in the rape of an unconscious woman and the attempts to cover up the crime after the fact, Wayne Conley was convicted.  Appeals he filed were all denied.  The evidence against him was too strong.  Wayne Conley was busted down to the lowest possible rank of the United States Army, sentenced to 10 years and dishonorably discharged.  Did he learn anything from that?  I don’t know.

What I do know is that Wayne Conley is doing his damndest to try to prove that he’s still crazy after all these years.  The personality flaws that allowed him to complain to his co-rapists that the unexcited — did I say “unexcited”?  I meant “unconscious” — woman against whom he lead a gang rape was “so tight, my ____ hurts” are still manifesting themselves today.

Unless he gets himself a piece of help, others are eventually going to be hurt and Wayne Conley is going to learn how hard it is to build websites from the inside of a prison.