Things I’m tired of saying to my clients

“No, I cannot get the charges thrown out simply because the cop said your car was blue when it’s really maroon.”

“No, I can’t get the charges thrown out simply because the cop didn’t read you your rights when he arrested you. They only have to do that when you’re being interrogated. Yes, I know it’s different on television.”

“So you want to believe one of the other inmates at the jail as to what should be done in your case over me? After all, what do I know with my eight years of degrees and my 35 years of practice?”

“I am not your employee. You hired me for my knowledge and experience, not for me to file whatever frivolous motion you think you need.”

“Why did you hire me and pay me all this money if you’re just going to ignore every bit of advice I give you?”

“No, you can’t sue the cops if you’re found not guilty.”

“The fact that things are bad for you right now and people should understand what you’re going through is, amazingly enough, not a defense against the charges.”

“No, I am not interested in taking a case where you are claiming that the government doesn’t have jurisdiction over you because you’re a sovereign citizen.”

“Yes, I know I told you that this was what the law said and I know the judge ruled against me anyway. The judge is wrong.”

Why the Chauvin verdict is both surprising and not surprising

“It should not take nine minutes of damning video to get some accountability. There’s a reason the Pledge of Allegiance doesn’t say, ‘With liberty and justice for all who are being filmed on an iPhone. Otherwise, sucks to be you!’” — Stephen Colbert

Come on, let’s face it — if this wasn’t involving a police officer, this would have been the easiest trial ever for the prosecution. Someone kneeled on someone’s neck until they died. Seriously, what’s your defense?

Now the thing to do is to imagine what the trial may have been like had there not been a video made. Do you think the cop would still be found guilty?

For that matter, would the prosecution even have brought the case in the first place?

Let’s review other similar cases.

Remember Eric Gardner, the guy who was selling cigarettes and was choked to death on camera? Charges weren’t even brought.

Michael Brown, shot by police in broad daylight in Ferguson? No charges.

Sandra Bland, who was arrested without cause (the cop admitted he lied about it) who was mysteriously found dead in her cell over a traffic ticket? No charges.

Breanna Taylor, shot in her bed by officers who broke into the wrong home? No charges.

And then I could name a bunch of cases where they actually went to trial but the results were hung juries or acquittals.

There are plenty of cases where it is clear the police abused their power and people died yet the worst consequence they may have faced was in losing their job.

This is the reason there is a Black Lives Matter movement. This is why it is needed.

So this verdict is not surprising in that it’s so blatantly obvious the murderer was guilty, but at the same time, surprising because a cop finally faced justice for killing someone.

If you’re pretending that this guy was actually not guilty, you’re either willfully ignoring facts or are just a racist who believes it’s perfectly fine for police to murder black people without cause.

Answering your questions about the Chauvin verdict

An hour or so after the guilty verdict came down, I was being interviewed on Gynesis radio about it, and some questions came up there and elsewhere… so here are some quick answers.

Will there be an appeal, and if so, what does that mean? There will absolutely be an appeal. I’ve never heard of a murder conviction where there wouldn’t be one. That doesn’t mean if he wins the appeal, he goes free — that’s not how it works.

To win an appeal, you have to convince the appellate court that there were mistakes made in your trial that affected the outcome. It’s not a brand new trial in an appeal — the lawyers file briefs, and then only the lawyers show up and argue the law with the appellate court, which then can take months to file its Opinion. These Opinions are published and can be used as precedent for other cases in the future.

In this case, his lawyers may argue that the judge denied some pre-trial motion that we know nothing about and had the judge not done that, certain evidence would have been excluded or things would have gone different in the trial and therefore the result would have been different. Or maybe they’ll argue that the jury should have been sequestered, but given all the pre-trial publicity (along with the difficulty of keeping the jurors from looking at their phones at night even if sequestered) that may not be a winning argument. Maybe they’ll say the comments by Representative Waters swayed the jury (which kind of goes along with the sequestering argument). Or perhaps they’ll argue that a jury instruction should have been given that wasn’t, or an objection should have been granted that was denied, or something else happened that was significant enough to challenge the outcome.

And that’s important — if they can’t convince the appeal panel that the defect was significant, then the appellate court could say it’s just “harmless error.”

But if they do agree it was enough, then they don’t throw out the verdict — they send it back for a new trial with orders to do it right this time.

What happens if the appeal is granted? Well, most likely the defense attorney will say to the prosecutor, “Look, you don’t want to try this again, and I don’t want to try this again, so let’s do a deal to a plea to a lesser charge instead.”

What exactly is Second Degree and Third Degree Murder, anyway? Well, First is the worst: That’s a planned murder, like if you hire a hitman or stalk someone with plans to kill them. Second is when the murder is done either in the heat of passion (like you get so mad you kill someone without thinking about it) OR (as here) when you are so reckless in your conduct that you case a death and don’t even care. Only three states have Third Degree Murder (Minnesota and Pennsylvania, where I practice, among them). Here in PA, it’s when there may not have been an intent to murder but there was malice in your action and a death occurred, even if you did not intend it to happen.

These definitions vary from state to state, however, and I am not admitted in Minnesota so don’t hold me to these basic definitions.

Can he serve consecutive sentences on all three charges? Well, I’m no expert on Minnesota law, but generally speaking, the lesser charges are included in the greater charge. In other words, these are all basically the same thing, just different degrees of them, so you pretty much just serve the sentence of the more serious one.

Why is the sentencing two months from now? In order to decide on a sentence, the judge needs information. The probation department prepares a long memo which discusses the facts of the case, the criminal’s prior record, and the options available based on the law. In this report, both sides are allowed to include letters from family, friends, victims, and others who want to give their opinions on what the sentence should be.

The lawyers are also given a chance to file a pre-sentence memorandum, where they can present their arguments as to why the sentence should be what they want, which could include cites to similar cases that are relevant.

You don’t want to rush this process. It’s important. And it’s not like the defendant is going anywhere.

Why Trump-appointed judges have ruled against him

Donald Trump knows nothing about how government works, and was clearly under the impression that all the judges he appointed would be loyal to him.

But now his lawsuits have had more than fifty losses and only one procedural win early on (having to do with forcing Pennsylvania to do something it was already doing, so it’s kind of moot). Judges from every state have ruled against the GOP’s attempt to destroy democracy. The Supreme Court twice (and swiftly) refused to hear the appeals and not one Justice filed a dissent.

And many of these judges were Trump-appointed.

And here’s why that happened:

The GOP has been filling the courts for years with right-wing ideologues, many of whom are deemed “unqualified” by the American Bar Association. These radical judges have done a great job in destroying many of our basic civil liberties and bending over backwards to give corporations wins.

But these people were nominated in the first place because they are (what I call in my Constitution book) “Constitutional Fundamentalists.” Like religious fundamentalists, they believe there is only one interpretation of their holy document and lo and behold, they know exactly what it is and it matches their own views perfectly.

Justice Scalia was one of the prime movers of this idea on the Supreme Court, believing not only that his view of what the Constitution was correct, but that everyone who disagreed with him was not only wrong but very likely evil as well. Fortunately, he no longer does this, primarily because he is dead, but his views live on.

These fundamentalist judges honestly believe that they are being fair in their decisions and are fanatics to the fantasy document that exists in their head. They don’t think they are interpreting the Constitution in any way, ignoring the fact that every decision a court ever makes about the Constitution is an interpretation. (If the Constitution was as clear as they believe, there would never be a need for a judge at all.)

This mindless refusal to acknowledge that other people’s views may be valid is typical of conservatives who are not known for their tolerance of anyone different, but it’s important to consider now — because these judges think they are doing the will of the founders in the same way religious fundamentalists believe they are doing the will of their god.

And that’s why these judges are never going to ignore that Constitution like the Trump lawsuits require. These suits have no basis in our laws, are completely frivolous, and ask the courts to ignore democracy and our system of elections completely and just hand over the presidency to the loser who wants to be a dictator.

These judges are fanatics for the Constitution, not for Trump. And that’s why he keeps losing.

No, Oklahoma is not giving half the state back

The Supreme Court yesterday, in the decision of McGirt v Oklahoma, held that, when trying “[a]ny Indian” in “the Indian country” (as the old treaty stated), Oklahoma did not have jurisdiction and the person would have to be tried in federal court.

justiceThat’s it.

Despite sensationalist headlines, this decision did not return land to the natives; it only upheld a treaty that provided that federal law would apply to certain serious crimes.

Jimcy McGirt, who is an enrolled member of the Seminole Nation of Oklahoma, cannot be tried under Oklahoma law for his offenses (which involve serious sexual offenses).  He has to be tried in a federal court.

The good news is that it affirmed a treaty that had long been ignored, so it is still a very good decision. The treaty “solemnly guarantied” the land to the tribe, “forever set apart as a home for said Creek Nation,” “no portion [of which] shall ever be embraced or included within … any Territory or State.”

The dissenters, Republican appointees all, basically said, “Yeah, well, we’ve been ignoring that for so long it doesn’t really matter any more” and things along those lines.

Anyway, the point is that the decision did not just hand all that land back, but it did acknowledge that at least in one respect, the treaty should be followed. Hopefully, it will lead to more power given back to the natives in the future.

For a more detailed analysis, click here.

 

Please don’t say “Defund the Police”

Words matter.

Yes, the goal of “defund the police” — as anyone who is knowledgeable is aware — is to shift resources so police aren’t handling every single problem, many of which do not require a gun. It’s about getting rid of the military gear they don’t need and which, to be honest, is exactly what we’re protesting. It’s about retraining them and reorganizing them.

It’s the exact same thing that has been proposed for the past 100 years or so every time there is a major riot but which, for some reason, never seems to happen.defund-the-police

But the words — the words are the problem.

People hear “defund the police” and they think “And replace it with anarchy?  And have no police at all?”  And that’s not what it means.

But now we have to explain it. And words matter.

Politics is as much about advertising as anything else. You need to sell your product to the public.

Having a slogan that can be misinterpreted and abused by your opponent is not the way to sell your product.

There was a poll done a while ago where people were asked whether they supported Obamacare. A large percentage said no. The exact same people were then asked if they liked the Affordable Care Act, and the exact same people were in favor of it.

Words matter.

Note: This is NOT the same thing as watering down your policy to appease moderates. If you’ve read my blog over the past eight years or so, you know I do not believe in that — I think our views are the majority ones and we should stand by them.

This is only about the words used to accomplish those goals.

Do I like the fact that you can sell politics like you do toothpaste? No, of course not. But dammit, when I got my Political Science degree, and when I worked on campaigns as a campaign manager and also as a media contact for campaigns, I knew this was the case. Image is more important than reality. What you say is often more important than what you do. If you refuse to acknowledge that, you lose.

You will note that Biden and other politicians know this too, which is why they are avoiding the phrase “defund the police” while still agreeing with everything we’re saying about reforming the police.

We’re not giving anything up by using terms to help us win while avoiding words that could cause us to lose. Being stubborn about using the term “defund” (no matter how correct it may be) might hurt our cause.

EDIT to clarify (based on comments made on my Facebook page):  I am talking about political candidates and their operatives, not protesters. Protesters bringing this to everyone’s attention is a good thing. Protesters can also chant “Fuck Trump” all they want, but I would also advise any candidate to not use that slogan, either.

Pennsylvania: Vote no on question 5 (victim rights)

Look, we’re all in favor of victim rights — District Attorneys now do what the can to help victims, and there are already laws that protect victims in many ways.

Marsy’s Law is on the ballot as a Constitutional amendment here in Pennsylvania on Tuesday, and everyone should vote “no.”  Voting “no” doesn’t mean you’re against victim rights; it means you’re against bad law.  And especially bad law that shouldn’t be in the Constitution in the first place.

The ACLU has stated its reasons for opposing this law and just won an injunction against it (which they filed along with the League of Women Voters). An injunction means that even if it passes, it will not go into effect until there is a hearing on its constitutionality. The reason the injunction was granted is because Pennsylvania requires that any addition to the constitution must have only one provision, and this has many parts. We are supposed to vote for each part individually.

But let me explain in simpler language why this is a bad idea, and why even the District Attorneys and judges I know are against it:

This would give victims rights equal to if not greater than the rights we give defendants in criminal cases. Victims, of course, do not face the entire power of the government against them like defendants do and victims have no chance of going to jail. There is a reason we give defendants many rights. This amendment would give victims the right to refuse to present evidence prior to a trial, to refuse to attend a deposition, to demand that trials not be continued, and to basically dictate to the District Attorney how to proceed in the case.

In other words, it takes the discretion away from the prosecutor to decide how — and even if — to proceed in a case.

It’s not often you get defense attorneys and prosecutors agreeing, but this time, they pretty much do.

Here’s the thing: I’ve dealt with victims, and the DAs and judges have dealt with victims and — stay with me here — sometimes the victim is wrong. Sometimes the victim is even lying.

Sometimes victims are like “My neighbor’s dog keeps crapping on my lawn, and you won’t arrest him and throw him in jail!” Sometimes they’re angry wives and husbands who exaggerate fights and even lie to get even with someone they’re mad at. Sometimes they’re crazy.

Thanks to this new law, these victims can demand that the DA take action, taking away the DA’s power to decide which cases to prosecute. This amendment apparently allows them to demand that a case be heard quickly when sometimes that is not the way to achieve justice, especially if there are preliminary motions that must be filed and investigations that have to be completed.

Should victims be heard? Absolutely. Should they dictate to everyone else how the system of justice should operate? Of course not.

Vote no.justice

We can have double standards for certain jobs

“Well, big deal. He had blackface on when he was in college. He’s not the same man, so he should be governor.”

“So what if he drank a lot of beer back then? He’s not the same guy, so he should be on the Supreme Court without a problem. People can change.”

I certainly am one who thinks people should be forgiven for past behavior if they have changed and realized their mistakes. I, for instance, made a lot of anti-gay jokes when I was younger when that was common, and I cringe at that when I consider it now.

But here’s the thing: I’m not trying to get elected or be on the Supreme Court.

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We can and should hold certain positions to a higher standard. Lawyers should be held to higher standards than, say, garbage collectors — not because garbage collectors don’t deserve respect for what they do, but because we lawyers represent others. How can we provide competent legal services to all if we are prejudiced against some? Our daily job requires us to treat everyone fairly (unlike garbage collectors who don’t actually deal with people on a day to day basis).

And don’t get me started about police officers who show bias.

We should set especially high standards for those who literally are our representatives. We should have people in our government who are of the highest ethics and show no prejudices.

It’s not like the governor of Virginia is the only qualified guy to hold that position. It’s not like Kavanaugh is the only lawyer who could fill the Supreme Court’s spot. We can do better, and we should demand better.

Let’s not lower our standards to meet whatever qualifications they have — let’s raise it and find someone who can meet it.

This is a job application, not a criminal trial

This is not about guilt or innocence. It’s a job application. We’re allowed to take into consideration references from people who knew you in the past.

The fact that Supreme Court nominee Brett Kavanaugh may have attempted to rape someone when he was younger is indeed relevant.

Yes, people can change. But this is the friggin’ Supreme Court. Let’s have higher standards! It’s not like there aren’t thousands of other highly qualified judges and lawyers out there  that have very clean backgrounds.

But the GOP apologists are bending over backwards to try to slander the victim, while presenting the most ludicrous conspiracy theories to explain away the facts.

Kavanugh

cartoon by Darrin Bell

Apparently, according to the GOP, the victim in this matter knew years ago that Kavanaugh was going to be nominated 35 years into the future, so she made a record by telling other people, going into therapy for it, and notifying her friends. Then, clever woman she is, she defeated a lie detector test and demanded an FBI investigation, promising to cooperate fully with the police. Because, of course, that’s what all people who bring false claims (and have their lives ruined because of it) do. (No, wait, I remember now: She doesn’t fit the profile of a false accuser at all.)

Anyway, back to the conspiracy: Kavanuagh, being completely innocent, then got 65 women to claim he had never raped them and had that letter sitting around waiting for a false allegation to be filed against him so he could produce the record instantly. (Come on guys, who doesn’t have that kind of letter on their desk just waiting for the right moment?) I’m going to use this in my next trial: “I know my client is accused of robbing the victim, but I have here a list of 65 people he didn’t rob!”  “Impeccable logic, counselor. Not guilty.”

Kavanaugh’s buddy had written a book about how he and Kavanaugh would get so drunk in High School that they would black out and forget everything. So it is certainly possible that Kavanaugh could just not remember this. (Notice how I didn’t mention that they belonged to a frat that regularly debased women, and who would chant “No means yes, yes means anal” and who eventually had to be removed from campus because of their Animal-House antics.  Oops, I guess I did mention that after all.)

The GOP, seeing that the majority of the population is against this appointment, and realizing their conspiracy theories weren’t being bought, has now turned to even more outlandish defenses, such as “boys will be boys“, “hey, it was a long time ago” and “maybe she’s confused and it’s actually someone else who looks like him.” My favorite is the one where Kavanugh denies having been at that party when the victim has never once said exactly when and where the party was.

If only Kavanaugh was an immigrant. Then the GOP would gladly demand a vetting process! But no, let’s not kid ourselves. This is a party that nominated and supported someone for President who bragged about sexual assault. Why, being a sexual assaulter is practically a requirement for power in that party.

The GOP may lose the Senate as well as the House in the next election if they continue to support Kavanaugh, but they don’t care, because they know having Kavanaugh on the Supreme Court will push their agenda for many years to come.

It’s a Trap!

I jokingly posted on Facebook right after New Years the following:  “I wonder how many calls I’ll get in the next few days from potential clients saying ‘Those DUI checkpoints are entrapment!'”

This led to many questions. Let’s see if can address some here.itsatrap

Entrapment is when the police lure you into doing something you wouldn’t normally do, usually coercing or bribing you into committing a crime (usually with codefendants). It doesn’t happen that often.

If the police sit near a bar and then start following cars to pull them over when they show signs of intoxication, that’s not entrapment. The police officer did not coerce you to drink and drive.

If there is a sobriety check point, that is not entrapment. (It may be illegal for other reasons, such as the police did not get approval from a judge first, or they are not checking drivers in a random fashion but instead are targeting people). Once more, they didn’t coerce you into committing a crime; they just caught you at it when you didn’t expect them to.

If an undercover cop is posing as a prostitute and you engage her services and then she arrests you, that is not entrapment. You could have said no to her offer.

“Entrapment” requires the police getting you to do something you wouldn’t have done absent their involvement and encouragement. If you say no and the cop insists and insists and finally convinces you, then your case is stronger for entrapment.

Just putting a prostitute out there and having someone take advantage of it is no more entrapment than having a bank there. “They entrapped me into robbing the bank by having it just sitting there!”

Here’s an extreme example to show what entrapment is:

“Hey, would you do me a favor and go buy some drugs for me? Here’s $100, you can keep $50 of it.”

“No, I’m not going to do that.”

“Okay, here’s $200, you can keep $150 of it.”

“No!”

“Okay, here’s $500, you can keep $450 of it.”

“Ooh, I could really use that money. Okay, just this once.”

“Caught you! You’re under arrest!”

Most cases where entrapment is used as a defense aren’t as obvious as that example but you can see the basic point. There is no bright line test. It’s up to a defendant to convince a judge or jury that he wouldn’t have done the act absent the cop coercing him to do it.