It Can Happen To You

Shredded Constitution

Just about a year-and-a-half ago, I wrote a post titled “It Can’t Happen To Me.” In it, I talked about the attitude I run into repeatedly, one that seems to be now as ingrained as the idea that people gotta breathe, which is that constitutional rights protect criminals. Nobody else needs them.

Because if you haven’t done anything wrong, then you’ve nothing to hide, nothing to fear.

Nevermind that non-white people have known pretty much forever that cops don’t just go after criminals. What white people believe runs this country. And white people haven’t suffered these problems of being stopped repeatedly, harassed, or killed for driving while black, kissing while black, or, increasingly, just being black, so they believe it doesn’t happen…very often.

Sure, they’ve heard of it happening, but they’ve never really borne the brunt of it. And they don’t really believe what some black people say about how bad it is. I mean, most cops are good, right? Most cops — so they say — won’t beat you at the drop of a hat, even if they stand around and do nothing while their brothers in blue beat the living shit out of people when the hat drops. Those good cops, though, will indeed not just stand there — they’ll cover for their homies when asked what happened, even if they have to lie under oath to do it.

They just won’t join in the beating. Because, they’re good cops.

The upshot is that as long as white people aren’t subject to being stopped repeatedly, harassed, or killed, we don’t really need constitutional rights.

Constitutional rights just protect criminals. And black people.

But why am I being redundant?

Anyway, like I said, white people got nothing to worry about, so it’s all cool.

The problem is — and anyone who has ignored the “Do Not Feed the Bears” signs for long enough knows this — once an animal gets a taste for humans, it will eventually be impossible to get it to stop eating them.

We — and our judicial system (which is to say, judges) — have allowed cops to feed on humans for too long now.

And the thing is, the chickens are coming home to roost.

You might think I’m mixing metaphors here, but, actually, I’m not — and not just because most cops really are cowardly, if carnivorous, animals. I could, in fact, throw in a few more metaphors for good measure. “Give them an inch, and they’ll take a mile” is another that seems to fit pretty well.

Anyway, that’s just what has happened. Cops have been allowed to feast on other humans, without repercussions, for too long. They’ve gotten a taste for it. The judiciary condones it. Some Americans — reminding us of the barbarous audiences of the Colosseum — even encourage it. Some of those because they, too, are sadistic animals; others because it’s good for ratings.

And, somehow, somewhere along the way, we discovered that we really don’t have any unalienable rights. As I noted in “It Can’t Happen To Me,” quoting the great American philosopher, George Carlin:

Image with quote from George Carlin regarding rights versus privileges

The List of our “Rights of Temporary Privileges” is getting shorter and shorter

Our Founders thought they were writing a Bill of Rights, pointedly intended to remind United States government authorities that there are certain lines which cannot be crossed in dealing with individuals with whom they might come into contact. “Criminals,” or not.

The problem is that cops can’t read; judges don’t read; and the Bill of Rights is just words on musty old paper.

Now, it’s not just dark meat that the carnivores are after. They’re developing a taste for white meat. In fact, it doesn’t even matter anymore whether it’s scrawny-ass white meat from you, or the potentially meatier (more worthy) meat of another cop’s kid. The modern police force realizes that their meat tenderizers, cooking prods, and bulletized aerators work just as well on it all.

And if you think it can’t happen to you, well, then, you’re just not thinking.

Let’s Make a Deal: the Joy of the Old “In-and-Out”

Prisoner in cuffs signing paper

I’ve said before that I hate plea bargains. I think they should be illegal. They have become little more than a bludgeon that puts too many innocent people in jail, or prison, and imprisons even too many guilty people for longer than they might be if the case were properly litigated.

Nevertheless, plea bargains are sometimes the best option, and when they are, I have been known to concur with my clients when they decide to accept one. I’ve also been known to argue with clients, when I thought that accepting a plea agreement was not in their best interests. When asked by the court if I concur in my client’s plea, I’ve gone so far as to put it on the record — and just did so again as recently as a couple of weeks ago — that the client was taking the plea against my advice, but that doing so was my client’s option under the law, and not mine to abrogate.

In juvenile cases, I have more than once simply refused to concur. Juvenile cases are different. My express job is to look out for the best interests of my kid, and not just rubber-stamp the immature decision which is too-often based on a usually-false belief that it will get them out of custody quicker.

Despite these tendencies on my part, I still often feel that too many of my cases result in plea agreements. No small part of some people’s calculus is that they don’t want to have to pay more money — sometimes cannot pay more money — for trial. I mean, why not just go with the public defender, then? At least you have a shot. But if you take a plea, you’ve caved, without even a fight. And so, lately, I tinker with my fee schedules to try to encourage more people to fight.

But that only goes so far. After all, I’m (almost never) going to take a case to trial without being paid anything at all.

So it was that I read, with more than my usual amount of interest, a recent blog post by Scott Greenfield.

A civil attorney wanted him to take the case, and plead the client out without any consideration of whether or not that was the right move, without making his own assessment.

If he had done so, that would constitute ineffective assistance of counsel in my state. Here, the failure to investigate constitutes ineffective assistance of counsel. I know this is also true in other states. Without turning this into a law review article, failure to consult with experts can also constitute ineffective assistance of counsel, as can the failure to obtain discovery.

A defense attorney’s work requires more than simply taking a case in order to plead someone out. Even if I thought there might be a reason to consider plea negotiations — and Scott, and others, might castigate me for saying this, but sometimes after an initial investigation, such reasons do surface — doing what a criminal defense attorney is supposed to do will make that process more likely to inure to a client’s benefit. This remains true even when it comes to plea bargaining.

And note that I did say that one at least needed to do an initial investigation, so I’m reiterating that I agree with Scott that agreeing to take the case in order to plead someone out is something a defense attorney does not do. If you think differently, perhaps you should have been an art history major.

Too often, people — potential clients — who consult with me want a reduced fee because, like the attorney who called Scott said, the case is easy peasy… “in and out.” Sometimes it’s because they think their case is such a slam-dunk win that all I have to do is show up in court, and we’re done. Just as often, it’s because they “just want you to get the best plea possible.”

But when someone pulls the old “in and out” move on  you, you’re usually getting fucked.

Max Kennerly, lending his immense lack of experience and wisdom to Scott’s blog, doesn’t get this.

Kennerly is not a criminal defense lawyer. He’s been practicing law about as long as I have, although so far as I can tell, his experience is in personal injury, and possibly wrongful death; not criminal defense. I have practiced only criminal defense, which I began doing after having served internships for two years prior to being sworn in — again only with criminal defense attorneys. My cases seldom are small matters, and I’m seldom happy when they settle “out of court.”

My experience in criminal defense teaches me (at least) two things:

1) You must do your own evaluation, even when (especially when?) it’s a referral, because frequently the referrer has done a poor evaluation based on too-limited facts, usually based on nothing more than a quick consultation with the referring attorney, who may, or may not, be a criminal defense attorney.

Surprisingly, clients frequently misapprehend their own culpability. In relaying “the facts” to the attorney, they often come out looking better than they should. But they just as often come out looking worse than they should. They believe they committed a crime when — due to overcharging — they often did not commit the crime with which they are charged. But if you fail to investigate, you won’t know that.

And if you’ve agreed to take a client’s case because it was easy peasy, and you’re going to give him the old “in and out,” then why would he pay you for an investigation? A client insistent on accepting a plea agreement out of the gate is not going to want to spend “unnecessary” money just because you are guilty of providing ineffective assistance of counsel if you don’t do the investigation.

2) There’s no such thing as easy peasy.

So true is this that when a potential client brings it up, I immediately start tacking on extra dollars to my quote. A potential client telling me this not only is almost always not right — and by “almost always” I mean 99-point-999999999 99999999999999999999999999 percent of the time — but it also tells me that the potential client is by a nearly equal percentage going to turn out to be a difficult client. Clients who know they are “guilty” can be harder to deal with because they don’t want a defense attorney to do his job. They’re scared. They want things over with. They want the old “in-and-out.”

Again, why not just go with the public defender? It’s not like private attorneys are, on average, more handsome than public defenders, although some do dress more nicely. Plus, a public defender tends to be a cheaper — and not infrequently better — date.

And if you’re so eager for an offer, the prosecutor is going to realize this. Having a private attorney isn’t going to result in a better offer than you would get with a public defender. I recently had a client who — in court; in front of the judge, the DA, and everyone else who was there — loudly argued and was angry with me because he wanted to take the offer, made before I’d even received any police reports, or any other discovery, and I had told him to “wait until I can at least read the police reports.”

Not that that would have been enough. But, hey…at least!

Kennerly would argue argues that this isn’t in the client’s best interest. He chastises Scott, saying,

You knew what you wanted to do, despite having never spoken with the client about what he wanted to do….

Not being a criminal defense attorney — nor a criminal law attorney at all — Kennerly doesn’t realize that what Scott wants to do is what Scott is required to do. By law.

Scott, exhibiting more patience than I’ve ever seen when trying to educate the seemingly-uneducable, says,

But since you’ve decided to inform me of your great PI work, consider this analogy: the birth injury cases are referred by a lawyer who has informed the parents, who are poor, hungry and desperate, that they can score a quick $10k settlement but no more because of poor liability. He sends them to you on condition that you settle the case for $10k as soon as possible, without any investigation into liability or damages.

Do you take the case on that condition? Do you settle for $10k without investigation into liability or damages? Do you take the case and do nothing more than call the carrier, ask for an offer, and take whatever they give you? Well, maybe you do.

Unsurprisingly, Max still doesn’t get it.

First, offers in tort cases don’t tend to ever go down, and certainly not in the pre-trial stages. No insurer ever lowered an offer because a complaint was filed and some discovery was taken. By your own argument, this isn’t the same in criminal defense, where your offer can get worse by way of an aggressive defense.

So, once again, experience. In my experience, offers tend to get better after a proper investigation, coupled with an aggressive defense, by the defense attorney. Let’s remember one of the primary reasons that the plea agreement came into existence in the first place. Unsurprisingly, it’s one of the benefits of America’s first experiment with Prohibition. Prosecutors, and judges, overloaded by the record number of Americans being arrested, could no longer deal with the crush. Indeed, there is today a fairly widely-held — and almost certainly correct — belief that if people suddenly quit taking plea agreements, the entire American system of “justice” would grind to a halt.

First, it’s less expensive and time-consuming than jury trials, which means prosecutors can haul more people into court and legislators can add more offenses to the criminal code. Second, by cutting the jury out of the picture, prosecutors and judges acquire more influence over case outcomes.

On the flip side?

From a defendant’s perspective, plea bargaining extorts guilty pleas. People who have never been prosecuted may think there is no way they would plead guilty to a crime they did not commit. But when the government has a “witness” who is willing to lie, and your own attorney urges you to accept one year in prison rather than risk a ten-year sentence, the decision becomes harder. As William Young, then chief judge of the U.S. District Court in Massachusetts, observed in an unusually blunt 2004 opinion, “The focus of our entire criminal justice system has shifted away from trials and juries and adjudication to a massive system of sentence bargaining that is heavily rigged against the accused.”

The best way to level the playing field? Zealous advocacy. Something that cannot be done without a clear understanding of the case, which will usually only come after some investigation, and legal research. And criminal defense attorneys don’t just poke the bear for fun — sometimes that yields information, as well. The bear wants the case the settle. If your client also wants to settle, poking the bear can help resolve the question of what to settle for. Despite my differences with prosecutors, I can’t remember ever encountering one who refused to allow me to do my job by suggesting that if I did he would increase the penalty to my client.

Kennerly’s second argument fairs no better.

[Y]ou had an investigation of some sort, plus an informed client and reasonably knowledgeable referring lawyer.

No, he didn’t. Not the way Scott told the story, anyway, and that’s the only evidence of “an investigation of some sort” that Kennerly has to which he can be responding. Let’s say, for the sake of argument, that Scott was fudging — that his non-big-law-defense-lawyer bias was getting the best of him — was the referring lawyer a criminal defense attorney? Or another Max Kennerly, albeit possibly more experienced?

I know some mighty-fine personal injury lawyers — in fact, I’m going to go one better: I know a well-respected very-experienced retired public defender — who sometimes refer cases to me. These lawyers are usually referring people to me because they believe that I have more experience than they do regarding the cases they are referring. Sometimes, during the referral, they proffer an opinion, as happened with the referral Scott received. I listen politely, make no promises, and set up a meeting to interview the potential client. Max Kennerly would be surprised — Scott Greenfield, and other criminal defense lawyers would not — at the number of times my assessment differed from that of the person who referred the potential client to me because I had more experience with such cases than they did.

The fact of the matter is that there is no decent criminal defense attorney who isn’t going to flinch at the offer to take a case offering the old in-and-out.

Unless you’re a sex worker — Maggie McNeill, to whom I would have to defer on this, might disagree — the old in-and-out is not such a great deal.

I Wanna Hold Your Hand

Lost and Confused signpost vertical

A post this morning on “Thinking Like a Lawyer” snapped me to attention. It was perfect in so many ways, but one part in particular told me what I was writing about this morning.

I write this blog for a couple of reasons. The primary reason is that I have things I’m interested in saying, about things that are important to me. So you’ll see posts like the last few which deal with crucial socio-legal issues. Police State issues like Ferguson, for example, or the somewhat related problem with the Criminalization of Everything, police state’s handmaid.

Without specifically making my blog “just another marketing tool,” like too many other lawyers do, I also use my blog to talk to potential clients. To give them an opportunity to know something about me. Because despite over-criminalization, not everyone needing a lawyer is going to know someone who knows enough about a criminal defense lawyer to give a good recommendation. People will say, “Oh, my cousin Vinny is a lawyer,” and, well, okay that might be a good choice. But what about “my cousin Oscar”?

Maybe not so much.

My blog is an opportunity for people who are searching for a lawyer — whether they know someone with a cousin named Vinny, Oscar, or without any cousins at all — to learn a little about me; to get a clue about what type of lawyer I might be.


[Read more...]

The Sound of Silence

Officer shushing

[Read more...]

Malice in Wonderland

Pet Dinosaur in Wonderland

For a thinking, attentive person who grew up in a free and democratic republic, life in the United States lately almost daily seems like an episode of the Twilight Zone, but with cartoons. One day, you wake up, and find a seven-year-old kid being suspended from school for chewing Pop Tart into the shape of a gun. And it’s not just the school officials who think this warrants a suspension, but their lawyer — their freakin’ lawyer, for goodness sake! — pens a thirty-page opinion that supports the decision to suspend.

A seven-year-old. For eating a Pop Tart. Into a shape. The shape of a gun.

PopTart Gun

Scary, isn’t it?

Your first thought is that this makes John Yoo look almost sane.

But then the next day, it’s a sixteen-year-old, and he’s not just suspended; he’s arrested and charged with a crime.

And the gun doesn’t even have the substance of a Pop Tart. It doesn’t even actually exist, because it’s just the word “gun” in a fictional story. But….

Somebody’s pet dinosaur ends up dead.

[Read more...]

Disrespect Me, and I Will Fuck You Up (Update X2)

Police beating man

In the still-vigorous wake of The Disaster Known As Ferguson Missouri, a “professor of homeland security” — one of those Orwellian titles created after the United States decided that an act of terrorism by foreigners required the government to declare war against its own citizens in order to keep them safe — writes that

It’s not the police, but the people they stop, who can prevent a detention from turning into a tragedy.

[Read more...]

Nationalized House Arrest, the Culmination of Total Control (Updated)

Ferguson residents with hands up.

A couple of weeks or more ago, Fresno criminal defense lawyer Harry Drandel was attacked by the Fresno Sheriff’s Department while trying to enter the courthouse. Harry, who has been an respected attorney since 1983 — that’s thirty-one years — without a single negative mark on his record, was attacked in order to keep the public safe.

I didn’t write about this sooner because I’ve had so much going on, and I needed to try to focus on other things. Scott Greenfield, however, had it covered in his post, “Fresno Deputies and the Terrorists Hiding in Harry Drandel’s Wallet.”

While Fresno appears to have moved on from the incident — we’re fond of forgetting — other parts of the world have been heating up.

Ferguson, for example, where police have even teargassed reporters, and then disassembled their cameras.  [Read more...]

It Starts With The Children


Whenever someone wants to pass a bad law, the sales pitch is nearly always based on the idea that we need to “do it for the children.” I originally titled this post “Do It To The Children,” but as I thought about what I really want to say, “It Starts With The Children” seemed more apropos.

The uninformed would almost get the impression that Americans are all about the children, raising a happy, healthy, wonderful generation of progeny. They would believe that we care about nothing — nothing at all — more than securing a safe, and supportive, childhood.

The truth is a little less sublime.

[Read more...]

Eenie, Meenie, Miny, Die

Death Room

Federal District Court Judge Cormac J. Carney held, in an Order filed July 16, 2014, that California’s death penalty system was unconstitutional.  [Read more...]

You Say You Want A Revolution (Redux) (Update)

Washington Crossing the Delaware

Scott Greenfield has a post up that has had me thinking all day, even when I’m ostensibly working on something else. And I knew I wanted to try to blog today — I’ve been upset at myself for letting my blog go untended for too long — so here we are.

It’s not that I didn’t try to look elsewhere. I checked Defending People, but there was nothing new there — besides, I’ve learned Mark is frequently so far over my head that there’s probably nothing intelligent I could ever do by trying to riff off one of his posts.

Gideon was no help, either. Besides, I think Gid’s mad at me. As far as I can tell, he hasn’t come back to California since running into me at a seminar the last time he did come out here.

And Gamso. He was busy reading. Or writing about reading The True American: Murder and Mercy in Texas, to be more exact.

So then I distract myself by listening to music and….

You say you want a revolution
Well, you know
We all want to change the world
You tell me that it’s evolution
Well, you know
We all want to change the world

But when you talk about destruction
Don’t you know that you can count me out

So here we are.  [Read more...]