I want defend cops - I'll never lose

Maybe if I get tired of representing of losing trials at some point, I'll stop representing the poor people who did not choose to go the police academy when they were 19. It is apparent that it is close to impossible to convict a police officer.

Let this be a message to any client I represent in the future who says to me "the cops are lying, I want to go to trial!" that jurors, like the courts, and the rest of the government, tends to give blanket immunity for police misconduct.

How a jury could completely acquit Mr. Love, who shot an unarmed man who was lying on the ground and only began to get up at his specific command - and then lied about it in a police report, only to change his story when he saw the video of the incident, is beyond me. However, it's clear to me, the message to other officers is clear - shoot, kill, do whatever you want, just keep the hoard away from me. Laws, justice, the Constitution, all fine and well, as long as it is not followed in MY neighborhood by MY police men.

Oh, I really need a new job. I can work for the police union, and when I say to the opposing counsel "we'll go to trial," they will really be afraid, and I really may win the vast majority of my cases.

Has Libby's sentence created a new group of Right-wing civil libertarians?

I know it grows old, my harping on the right wing's constant attempt to be tougher and tougher on crime, to put as many people in jail as possible, to run campaigns on anger and fear, resulting in a 25 year growth of the prison industrial complex that is unprecedented in our history. And I know that Dems now do it as well (they learned their lessons from Dukakis, after all, that being against the death penalty, for instance, wins them no elections). The question I have is whether the Libby conviction and sentence will be a watershed, or if the words we are hearing spoken from leading conservatives in this country are principled objections, or two-faced political blather designed to back up the notion that conservatives can never be guilty of a crime (if they were doing those crimes to further conservative causes).

So I have to ask, will the Libby situation change anything? Will the constant calls to pardon him right now mean anything? Will the comments that he was the victim of an overzealous prosecutor have any spillover to the overzealous prosecutions of people like John Walker Lindh (the "American Taliban"), Martha Stewart, or the numerous other attempts to criminalize what is otherwise non-criminal behavior.

Or, will this create a change in the really absurd law that it is against the law to lie to a federal agent. Think about it, they come to you, ask you questions, and the law requires (not under oath, mind you), that you have to tell them the truth? So if they come up to you and ask if you have pot on you, you have to answer yes or go to jail? Give me a break. But that is another law that pushes jail for things that really should not have people locked up.

So, as the jails fill with people like Scooter Libby (and I fully admit that if this wasn't a general in the war on America launched by the right wing, I would normally oppose his incarceration for an offense like this - but hey, you reap what you sow), will this begin to change the sentiments of the nation by changing the sentiments of the right wing?

Will the numerous briefs submitted by right wingers like Robert Bork (who has probably never seen a prison sentence - of non-conservatives - that he didn't like) challenging the conviction and sentence cause a ripple in the rest of the criminal justice system to finally begin toning things down?

Don't bet on it. This is not principle we're dealing with here, this is bare knuckled politics. There is no disagreement with the basic conservative doctrine of running on fear and vilification, and combating obstacle with as much brute force as possible. There is only the problem that it hit a high profile conservative this time. Rest assured, Bork, Gingrich, and the other cast of characters now calling this sentence unconscionable will be standing front and center vilifying "liberal, activist" judges the next time a sentence is reduced against someone who's not a card carrying member of the conservative movement. And they will do it with a straight face in the manner that only a true hypocrite can.

Bet on that.

Bye, bye, Nifong

Astounding as it is, the state bar of North Carolina has disbarred a prosecutor for ethical violations in prosecuting a case. Suffice it to say, getting a prosecutor disbarred for doing their core duties (as opposed to doing something unethical outside their duties, such as committing a crime on their own time) in an unethical manner is an unusual occurrence. North Carolina has a pretty tepid history of punishing prosecutors who withhold evidence. In the case of Alan Gell, prosecutors withheld important exculpatory evidence and gained a conviction putting Gell on death row for 9 years. He was lucky enough to get a new trial and get off death row in an unusual manner - through exoneration. Consider him lucky. In that case, and another, prosecutors got off with barely a slap on the wrist for wrongly putting someone on death row. You can read more about those cases here.

It is hard not to be a little cynical about this whole thing. As I've discussed previously, one of the main reasons this case has made the press, and that Nifong is getting the book thrown at him, has to do with race and class. Obviously, we all know that the defendants in this case were white and relatively well-off (playing an "upper middle class" sport lacrosse no less) and that the victim was African American and poorer. I don't think that it's a straight race or class issue, but both work hand in hand to create a very dynamic for these defendants and prosecutor than you'd see in your typical case (typical cases involve poorer people and higher percentages of minorities).

This is why prosecutors can withhold evidence on poor minorities (or even poor white people - Gell was white), and generally escape serious punishment. Now let's be clear, Nifong did some serious digging here, putting himself front and center of this absurd prosecution -probably in order to ensure his re-election. So, he was not your typical prosecutor withholding evidence, but it does bear some scrutiny that Nifong did things that prosecutors everywhere have done (I'm not saying that all prosecutors, or even that a large percentage of them, do this. Far from it, it's a small minority, at least where I practice), yet most prosecutors face little or no sanction for doing these things.

And what is the message to other zealous, or especially overzealous, prosecutors? The message is that you can continue to do this without real fear of sanction. Think about it. You're a prosecutor in a heinous case with a defendant you despise. You believe he did it, but you know you probably can't prove it. You can withhold a little evidence, plead ignorance, and have the person go away for a decade or two before his case gets reversed (which is a longshot anyways, since 90% or more of all appeals are denied anyways - even for likely innocent people - think "harmless error"), if it gets reversed at all. Or you can be ethical and watch him get acquitted right now, possibly hurting your chances at advancement within your office. Moreover, it's a blow to you personally.

Most prosecutors won't care, they'll do the right thing. However, there are a number of overzealous ones out there, aware of the manner in which the courts and state bars enable this activity, that will do the wrong thing - just because they can.

It's nice that Nifong got nailed, and got nailed the way he did. I rather think it has more to do with the type of person he dragged down rather than what he did. He went after otherwise really good people whom he dragged way down in contrast to otherwise unremarkable, or even bad people, who didn't fall far from where they already were when ensnared by unethical prosecutors. I'd like the punishment to prosecutors to be the same regardless. Remember, Nifong felt like he could act with impunity towards these otherwise good, law abiding, people only because of the well-trod path laid out before him by his predecessors. That should scare everyone.

Paris Hilton - Political Prisoner?

Alright, I have no sympathy for Paris Hilton. I think that she has spent a life of absolute debauchery brought upon by her extreme wealth, where nothing has ever been asked of her, only that she have a pulse. By her good looks and her money, she has become, to some, a celebrity. To me, she represents much that is lamentable about our society and its love of wealth and celebrity, and our willingness to lionize people for pretty much no reason at all.

When these otherwise worthless people commit crimes and get treated better than my clients, by virtue of their wealth or celebrity, it pisses me off. First of all, it gives us Public Defenders a bad rap - people assume that the reason we can't get them the same results as the Paris Hiltons in the world is because they don't have the money to hire a high priced group of lawyers like she can, and they're stuck with worthless lawyers like us. In reality, the reason they don't get the same deals as the celebrities is because they don't have enough money to hire the publicists that the celebrities do. You think many of those lawyers know the ins and outs of the criminal justice system better than those of us in court every day do? Not a chance. Some do, but not most.

That being said, Paris is clearly bearing the brunt of the backlash to her ephemeral celebrity status, the fact that she's well known for being well known, and being vacuous at that. I disagree with those who contend that no one gets long jail sentences like she did (long?) for driving on a suspended license and violating probation. I haven't done misdemeanors in over a decade, but when I did them, people regularly got long sentences - longer than this - for driving without a license while on probation for DUI. It was not unusual at all, and the fact that Paris got her 45 days was, frankly, not a huge surprise.

The area that she was mistreated was in the judge going out of his way to ensure that she spent her time in county jail, rather than on house arrest or, more likely, in a city jail (ie - private jail, or a much more cush jail). Like I said, I haven't done misdemeanors in a while, but when I did, I almost never saw a judge deny someone city jail when they requested it. I have even seen judges allow it for felonies, although most local jails will not accept felons in most situations. The jails cost about $100 per day, although they have deals for longer stays, and sometimes will waive some costs for poorer people (although that's rare). The stays are usually not that long, but I had a client do it for 90 days or so in a possession of marijuana for sale case (a felony). I have even appeared in front of this judge before and never heard him expressly deny someone city jail if they requested it (although I don't remember anyone requesting it).

However, the judge went out of his way to ensure that nothing of the sort would happen in this case. He (rightly) reckoned that if she was allowed to go to a city jail, it would have almost no deterrent effect on her, and it would be a drop in the bucket financially. But, the only reason that he knew this was because of who she was. If she was some other wealthy (but unknown) person who appeared in court on a case, he would probably have let her do the city jail, or house arrest.

And most certainly, if the person in this case was not Paris Hilton, the Judge would have never known that she had been released early (something that happens all the time in Los Angeles County due to overcrowding or other reasons). The fact that she was well known and an international firestorm took place when she was released alerted him to this fact that happens every day in his court. I could almost guarantee you that if you look up all of the booking numbers of people sentenced to jail for similar sentences by this judge on this day for similar offenses (and he handles almost no other kind of case), you would find that many of them have also been released by now as well. The judge probably has no clue about this, nor would he ever care or find out, because none of those people are Paris Hilton.

So, I think, on balance, that Paris got screwed. I have no sympathy for her, and it's probably time she got the short end of the stick for once, considering that she has gotten the long end of the stick her whole life. However, it's nice that I can point to all of our clients in the future when hey complain about me and say "hey, it could be worse, you could have Paris Hilton's lawyers, look what they did for her!"

UPDATE - I've already found 2 instances of women sentenced at the same courthouse the day after Paris who did dramatically less time in jail than Paris is slated to do. Poor Paris.