Friday Night Writes (& Is It All Bad News All the Time?)

Scott Henson reporting on a police officer sentenced to federal prison for extortion (accepting a $5000 bribe from undercover federal agents to protect a phony shipment of cocaine) notes that the local paper ‘bragged’ about the new and improved police force:

Describing the sentence, the McAllen Monitor optimistically concluded, without apparent irony, "Elsa’s police department has had considerable turnover since the men’s arrests; however, none of its officers has faced drug-related charges this year."

So, I clicked the article, and the ‘Most Viewed Stories’ caught my eye. I assume these change daily or even more frequently, but when I looked there were 10 most viewed stories listed.

 Most Viewed Stories

One story about high school football (of course), and one about the Mexican consulate in McAllen, Texas.

The other eight? In order: murder, murder, possible Intoxication Manslaughter – but at least criminally negligent homicide, possible non criminal but fatal collision, arson, murder, Canadian/Texans being harassed by rude border agents, and finally two sisters that hate each other and run competing pizzerias virtually across the street.

During the Soviet Union’s perestroika period, didn’t the crime rate increase? Or don’t I remember reading that, no, indeed it didn’t increase, but people thought it did, because it was now being reported?

It’s Friday night, I’m tired. Not sure what the point of all this was, but feel free to add comments if you can help me finish this off into something that makes more sense…

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The 'Alleged Suspect'

Driving home listening to NPR, they’re talking about the Hillary Clinton hostage crisis on the radio, and they say something like

…the alleged suspect was reported to have…

I know there’s a fear of lawyers coming after the media for not using the word ‘alleged,’ but let’s get real here.

#1) The suspect is the suspect, whoever did it.

#2) They are not even naming the fellow – they didn’t yet have a name.

Alleged perpetrator, alleged hostage taker – maybe. Not necessary, because I assume the news had confirmed that there were indeed hostages, and those phrases don’t accuse any specific person.

But using ‘alleged suspect’ means you don’t even understand the point of the ‘get yourself off the hook by saying alleged’ rule in the first place. 

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What to Look For in Your Prosecutor

You Don’t Make Friends With Salad writes about an Oklahoma District Attorney who has sued John Grisham and a wrongfully imprisoned man for, well apparently, for writing a book that hurt his feelings. 

Grisham’s non-fiction best seller The Innocent Man chronicled the wrongful prosecution of 2 men charged and convicted of

From Friend’s cleverly titled post “Innocent After All These Years? Well, Time to Lawyer Up”:

An Oklahoma prosecutor and former DA investigator have sued both author John Grisham and Dennis Fritz, one of the men recently exonerated for the 1982 murder of Debbie Sue Carter. The parties claim that the defendants engaged in a civil conspiracy "to commit libel, publicity placing a person in false light and intentional infliction of emotion distress."

You know, you put someone in prison for 11 years based on shoddy work and I think you waive any right to complain about the names they call you when they get out.

I didn’t know much – OK, didn’t know anything- about the Fritz case, so I surfed around for info. In doing so, I came across an article about the plaintiff and now the former District Attorney who complains so mightily that he is the one that has been wronged.

"I've tried to conduct myself in an honorable way for 27 years. I was what I was. I was a prosecutor, a passionate prosecutor. I went after them. I was convinced they killed Debbie Carter. If that was your mother, your sister or your daddy who was killed, you wouldn't want a pansy prosecutor. You would want someone passionate,” Peterson [said].

Of course, a prosecutor’s job is (supposed to be) to seek justice, not ‘just’ to convict. When you hear a criminal defense attorney saying things like…

I am a defense lawyer. I defend people. I am convinced my clients all have the right to a fair trial. If your mother, your sister, your daddy was accused of a crime, you wouldn’t want a pansy defense attorney. You would want someone passionate.

…well, then you’ve found a lawyer who at least has the right attitude. 

Peterson, however, seems to want credit where it isn’t due. From the same article, “Peterson is quick to point out that he requested DNA evidence be reviewed in the cases against Fritz.” So… you want extra points because you didn’t object to DNA testing. Yes, some D.A.’s offices fight tooth and nail to prevent the truth from coming out, but that doesn’t mean we applaud you.

You have immunity from civil prosecution for your ‘little mistake’. The least you can be expected to put up with is that you might face a little criticism for imprisoning, and in one case seeking and getting the death penalty for an innocent man.

Grisham, meanwhile, has recently petitioned the Federal Court hearing the case to dismiss the libel lawsuit

Grisham’s book, just like each of the other books about which the plaintiffs complain, is core political speech protected by the First Amendment and representing the highest order of public service by raising awareness about important social and political issues – the criminal justice system – and bringing to light issues of public concern about the performance by government officials of their public duties,” their brief states…

[The plaintiff’s] suggestion that The Innocent Man portrays them generally as ‘bad guys’ for their roles in the controversial convictions discussed in the book does not state a claim against Grisham and Doubleday,” the author’s attorneys stated to the court.

Makes sense to me.

Jail Time Instead of Probation For Possession of Marijuana

I have a specific question regarding a recent arrest in [XXX] Texas.

My boyfriend was arrested for possession of marijuana (less than two grams) during a traffic stop - he had recently had body work done on his car and the front license plate was missing.

This is his first offense and he was very compliant and was released on a PR bond (after the magistrate had made fun of him first and said he looked like a girl about a half dozen times - quite unprofessional in my opinion).

Anyways, he travels out of the country quite a bit for his job and he's worried that if he is given a long probation sentence it would cause him to lose his job.

Another friend of mine got a DUI and elected to pay a hefty fine and do a little jail time in lieu of probation so that he too could leave the country.

Would this be possible in my boyfriend's case (I know you can't predict what will happen, but I'm wondering if that is even a possibility or if probation is mandatory for a class b misdemeanor first offense)?

He is currently in the process of finding a defense attorney with experience in possession cases.

[Anonymous – via email]

Answer:

Class B Misdemeanor Possession of Marijuana is punishable by ‘up to’ 180 days in jail and ‘up to’ a $2000 fine. This means a sentence, after conviction, of as low as 1 day in jail with credit for the time he spent in jail already with a $0 fine is a possibility. 

Unfortunately, it’s only possible to do this if convicted, and while I don’t practice in [XXX] Texas, I imagine that some form of deferred probation without a conviction is a very reasonable possibility.

The local probation department will want him to be employed, so traveling may have to be pre-arranged, but will not likely be prohibited.  If we knew in advance that only a final conviction with jail time, or a deferred probation withou a conviction were possible, he still might need to at least consider the deferred to avoid the conviction - and to set himself up to eventually file a motion for non disclosure to seal the records.

Finally, with no prior arrests of any sort, a good defense lawyer will possibly be able to get your boyfriend a reduction to a Class C (traffic ticket level) offense, or perhaps even a dismissal, with counseling and/or community service done up front. Obviously, either of these outcomes are within the range of best case scenario, and I appreciate your realizing up front I can’t predict a particular result.

However, to answer the question directly, there is no mandatory probation for possession of marijuana in Texas – as is there is, for example, for 3rd offense enhanced Class B public intoxication.

Government Admits Marijuana Use Does Not Cause Violence

So someone googled “marijuana is associated with other crimes” and this blog came up on the eighth page of the results. I’m tempted to say the searcher had a hard time finding good solid scientific support for his thesis, if Google couldn’t legitimize the theory in the first few pages.

Anyway, I clicked the search button to see what links came up first. Lo and behold, it’s from the Department of Justice’s website, a paper written by the National Drug Intelligence Center called the Connecticut Drug Threat Assessment from July of 2002.

It’s full of the regular propaganda we have come to know, as well as the other usual suspects: faulty logic, scare tactics and inconsistency. The paper is broken down into sections about Abuse, Availability, Violence, Production, Transportation and Distribution.

Here’s what caught my eye. Check out the entire section on ‘Violence’:

Although marijuana abusers generally do not commit violent crimes, the distribution of marijuana occasionally is associated with violent crime in Connecticut.

Most violent crime associated with marijuana distribution in the state occurs between rival criminal groups and gangs.

Some marijuana distributors commit violent crimes to protect or expand their markets.

Law enforcement officials arrested two males in Connecticut in 1998 for killing a female Jamaican flight attendant and stealing 29 pounds of marijuana that she had stored in her home.

So, let’s see… DOJ admits marijuana use does not even correlate well with violence, and certainly doesn’t cause it, but that the criminalization of marijuana does. Absolutely 100% correct.

I assume the writer felt compelled to throw in that last sentence as a scare tactic, but doesn’t the whole thing, including the ‘example’ actually reinforce the obvious conclusion that marijuana use should be legal? 

Retroactivity for Crack Cocaine Offenders: NBC News

Brian Williams had a scare piece on NBC Nightly News last night about the current ‘debate’ at the U.S. Sentencing Commission regarding making the new Federal Sentencing Guidelines for crack cocaine retroactive. (Apologies: the only link I could find to the piece forces you to watch a 15 to 30 second commercial first.)

Williams starts off with:

We learned today that thousands of serious drug offenders who are right now in federal prisons could soon be returned to the streets despite serious objections by the U.S. Justice Department.

Sounds bad – downright scary doesn’t it? But maybe they are serious drug offenders because they received outrageously long sentences along the lines of the 100 to 1 ratio for crack vs. powder cocaine in the first place. The report acknowledged that the Sentencing Commission saw this as

…a way to reduce the wide disparity that produces harsher sentences for crack offenders, over 80% of whom are black, than for powder cocaine offenders…

NBC mentions that there is a ‘disparity’ but doesn’t mention the actual ratio. Time for some more scare tactics:

…but so many would be out in such a short period of time that the Justice Department warns it could drive up violent crime.

Who can NBC find to back this claim? Let’s try Deborah Rhodes, U.S. Attorney for the Southern District of Alabama, whose previous claim to fame was being touted by Kyle Sampson as a possible replacement for Carol Lam, one of the U.S. Attorneys targeted by Karl Rove/Alberto Gonzales/Harriet Myers.

What is Ms. Rhodes take on the subject?

“Crack defendants as a whole generally have a higher criminal history and a greater use of guns and violence in the manner that they distribute their cocaine.”

Than whom? Than powder cocaine defendants? Got any stats to back that up? And why not just convict and sentence them for their violent acts?

Certainly not a higher level of violence than, say, murderers. Or anyone convicted of a violent crime (who presumable have a 100% use of violence associated with their offense). 

…supporters of the plan, including many federal judges, say it would simply make retroactive a change the commission made two weeks ago for sentencing future federal drug offenders.

NBC puts on Marc Mauer, executive director of the Sentencing Project, and we finally get a dose of common sense:

“It’s difficult to explain to anyone why somebody convicted a month ago should have a stiffer sentence than somebody convicted today of exactly the same offense.”

I don’t know that it’s difficult to explain. But then again, absurdity, arbitrariness and capriciousness are accurate but not good explanations.

The piece mentions that ‘many of those getting out will have served ten to fifteen years’ and that they will be getting an average reduction of 27 months from their sentence. How about some talk about the economics of the situation?

An extremely low estimate, of $25,000 per year per federal inmate, would result in a cost savings to the public of over a billion dollars. That would have been worth throwing in the report.

And how about comparing their 10-15 year sentences with the average federal sentence for murder? (19 years.)  Think more folks dragged down by the law of parties and the law of ‘conspiracy’ were ‘on average’ more violent than all those murderers? Seems unlikely.

Also see:

Meth Gun and 'Good Enough for Probable Cause'

Kiran Chetry interviewed a Sheriff’s Deputy on CNN’s American Morning news program about the new methamphetamine detection ‘gun’ being tested in Arizona and Missouri.

First citing the National Association of Counties survey that found meth the ‘number one drug problem,’ Chetry defines the device as “[helping] police detect trace amounts of meth on any surface including skin,” and asks her guest about any legal issues that might be raised.

His response:

I hear the Fourth Amendment issues come up on several occasions and, you know, we’re here to protect or defend that constitutional right and so we’re here to use this device to determine if something is methamphetamine or not.

So, the right to be secure in your person (house, papers or effects) from unreasonable search and seizure is basically, well, the same as the ‘right’ of the police to determine if you have trace amounts of methamphetamine on you?

And what about trace amounts? Any way you could get trace amounts of methamphetamine on you and not be a dealer/user? Chetry continued:

…one of the other concerns… because this can test for a microgram of meth, how do you insure that innocent people wouldn’t get in trouble for inadvertently touching something that someone else touched, or hugging a person who had traces of meth?

No problem replies the Sheriff. In Arizona, the possession of controlled substance statute requires that a person have a ‘usable amount’ of meth. Well, there’s no such requirement in Texas. For marijuana, yes; for all other controlled substances, no (which is a separate problem in and of itself).

The Sheriff continued:

…if we determine that there’s a trace amount, we’re going to [go on] to determine

  • How did you get that?
  • Why do you have a trace amount on your clothes or person?

Well, let’s see here. Everyone will say “I have no idea”. Since we know that drug dealers/drug users will deny knowing where it comes from, that won’t be a very good excuse now will it? If you actually have no idea where it came from, better not get caught using the same excuse as all those junkies.

I found the part of the segment interesting. Chetry interrupts and rephrases the Sheriff’s last response to say that it’s ‘good enough then for probable cause’. But he actually says:

It wouldn’t be probable cause in itself… until the courts determine that the science and technology behind it is good quality science.

An admission from police that the gizmo isn’t ‘enough for probable cause,’ and that we don’t know the quality of the science… but, of course, they’re using it anyway.

Also see, from Jonathan Turley:

The concern is not meth users but the creation of a fishbowl society where the government constantly scans and surveils its citizens. It presents a world not contemplated when the fourth amendment was written and a world quite different in terms of the feeling of freedom in public. Notably, as surveillance cameras increase and scanning devices proliferate, there is little discussion of the shrinking zone of personal privacy.

What Would Lawyers Do? (WWLD)

As lawyers in Pakistan take to the streets to protest President Musharraf’s declaration of martial law a state of emergency, Steanso wonders how American lawyers would react to the same set of circumstances:

It kind of makes me wonder what would happen in this country if the president were to suddenly implement martial law and suspend all of our civil rights. I guess it would be a fair bet that certain groups would take to the streets in protest, but I have a hard time believing that American lawyers would be amongst the people leading the charge…

[I]f the American legal system were to come under attack, American lawyers would mostly file lawsuits and write angry letters. If that wasn't effective, they'd mostly throw up their hands and start retraining themselves for some other line of white collar work.

Maybe PR, marketing, or sales. I'm not sure American lawyers would be willing to march or take a baton to the head in defense of our legal system.

First, I should thank Jason for being kind enough to exempt me from this indictment, even if it was partly (wholly?) tongue-in-cheek.

His hypothetical is somewhat hard to imagine, despite our President’s suspension of some of our most important civil rights. As bad as the prior few years have been for civil liberties, I still think it’s difficult for us to really imagine what it must be like to live in an overt dictatorship.

Ralph Nader recently addressed this issue in a piece published on CounterPunch: “Where Are the Lawyers of America?

I have been asking lawyers why they do not become directly active in challenging what they themselves believe is a reckless above-the-law Presidency and its enormous concentration of unlawful power…

It is up to the lawyers to rally for the Republic. This is deep patriotism, for without upholding our constitution, and the laws of the land, what will become of our country?

If Nader is correct that lawyers haven’t done enough to challenge the administration’s abuse of power so far, could Steans be right that lawyers would be too apathetic to fight when martial law comes to America?

I think the real answer is that lawyers are like everyone else. Some are lazy, some hard working; some are unethical, some very principled. The range of adjectives that can be used to describe people in general can just as easily modify ‘American lawyers’.

Some lawyers would protest vigorously, while others would do little to nothing.

N.B. The League of Melbotis adds a comment to Jason’s post challenging me, “I would like to see Jamie take on "The Man" in a more direct fashion. Fight the power, Jamie.”

League! Right now, being a criminal defense lawyer is the best way I know how to fight the man. Got any better suggestions?

Do Me A Favor... (Vote for Best Law Blog)

Seriously, anyone that reads this blog on a regular basis, please head over to the 2007 Weblog Awards and vote for Scott Greenfield’s Simple Justice in the best law blog category.

#1) Scott/Simple Justice deserves it on the merits.

#2) Criminal defense lawyer blogging is still in its infancy; those of us that are interested need to promote it.

Yes, I’m attempting to stuff the ballot box. I’ll be voting once a day, as the rules allow. All I’m asking is that you log in and cast your ballot at least once.

Heck, the other finalists all are fine candidates:

Above the Law
How Appealing
Volokh Conspiracy
Sui Generis
Balkinization
Wall Street Journal Law Blog
SCOTUS Blog
Likelihood Of Confusion
Ms JD Changing the Face of the Legal Profession

Several, in fact, are on my RSS reader. But there’s a reason that Hollywood puts out TV shows and movies about criminal prosecution and defense, and ignores bankruptcy, divorce and other civil lawyers… it’s boring.

Scott writes interesting topical posts several times a day, on a subject we are all interested in, no matter what our profession. Vote now.

I'll make you a deal.  Leave me a comment (or email me) after you vote for Simple Justice, and I'll make sure to link back to your blog over the next month or so.

Retroactivity and the Federal Sentencing Guidelines

From today’s New York Times article “Rules Lower Prison Terms in Sentences for Crack”:

Crack cocaine offenders will receive shorter prison sentences under more lenient federal sentencing guidelines that went into effect yesterday.

The United States Sentencing Commission, a government panel that recommends appropriate federal prison terms, estimated that the new guidelines would reduce the federal prison population by 3,800 in 15 years.

The new guidelines will reduce the average sentence for crack cocaine possession to 8 years 10 months from 10 years 1 month. At a sentencing commission hearing in Washington on Nov. 13, members will consider whether to apply the guidelines retroactively to an estimated 19,500 crack cocaine offenders who were sentenced under the earlier, stricter guidelines.

Given that we’re talking about subtracting one year from the ‘normal’ decade in prison for a federal drug offense, it would make sense to replace the phrase “more lenient” with “less outrageous” in that first sentence. Still, this is a small step in the right direction.

Solomon Moore’s article also touches on the issue of whether or not federal prisoners sentenced under the old guidelines will be able to take advantage of the new rules. In other words, since the U.S. Sentencing Commission has decided that sentences were too long and need to be reduced, will it do you any good if you have already been sentenced unfairly/unreasonably?

The predictable response from the D.O.J. on this issue:

Department of Justice officials said yesterday that applying the new guidelines retroactively would erode federal drug enforcement efforts and undermine Congress’s role in creating sentencing policy.

“The commission is now considering applying the changes retroactively, something that Congress has not suggested in any of the pending bills,” wrote a department spokesman, Peter Carr. “As we state in a letter filed with the commission today, we believe this would be a mistake, having a serious impact on the safety of our communities and impose an unreasonable burden upon our judicial system.”

Wrong, wrong, and, well, at the end of that statement we see the real reason they oppose it.

First, it won’t erode federal drug enforcement efforts… it will be part of the basis of those efforts.

Second, it doesn’t ‘undermine Congress’s role in creating sentencing policy’. The United States Sentencing Commission was set up by Congress. The USSC was created by the Sentencing Reform Act provisions of the Comprehensive Crime Control Act of 1984.

You can make a great argument that Congress did a terrible job when it passed those ‘reforms’; but you can’t say it wasn’t the Congress that did it.

Finally, what does D.O.J. mean when it says this will ‘impose an unreasonable burden upon our judicial system’?  Deciphering this will lead us to the real reason D.O.J. opposes making the new guidelines retroactive.

Basically the Federal prosecutor’s office is admitting that it’s too lazy to get things right. Yes, it may average out to ‘only a year’ reduction for those twenty thousand or so that are still incarcerated under the old rules, but each and every one of them has plenty of time to apply to reduce their sentence, and they will do so.

Gosh, that’s just too much work for the Department of ‘Justice’.

Even this argument fails though – I mean, it fails because it has no basis in fact, not just that it’s mean spirited and motivated by sloth. As Denise Cardman, Deputy Director of the American Bar Association wrote:

If the amendment is not made retroactive, the courts will likely be inundated with a large number of pro se filings using various vehicles, such as 28 U.S.C. §§ 2241, 2255, once the amendment goes into effect.  

The same number of motions filed under Section 3582(c) would be a far more orderly and effective manner of managing the inevitable requests for relief, creating “cleaner” and more uniform decisions. 

Indeed, 18 U.S.C. § 3582(c)(2) provides that the court may reduce the term of imprisonment “on its own motion.” Under this provision, a court could enter a blanket order reducing all sentences imposed under the former guideline. 

Moreover, post-Booker practice demonstrates that the federal criminal justice system is fully capable of revisiting many thousands of sentences when justice so requires.

A blanket order reducing all sentences retroactively will indeed be a much better use of judicial resources than, say, twenty thousand or so pro-se motions.

And, it has the added benefit of… being the right thing to do.

Would Legalizing Drugs Reduce or Increase Crime?

I don’t believe we necessarily can prove the answer to this question, but a recent CNN article written by Adam Reiss, Health clinic helps addicts shoot up, talks about a program in Canada:

Inside the Vancouver facility, I found more than a dozen people taking illegal drugs, such as heroin and cocaine, under the watchful eye of trained nurses. These drug users were among the more than 700 people who visit the facility every day, bringing their drugs with them.

Insite's goal is to reduce the risk of overdose and limit the spread of diseases like HIV by giving addicts…

Defenders of the Vancouver clinic say more than two dozen peer-reviewed studies have shown its benefits. One study found a 45 percent reduction in public drug use as a result of the clinic; another showed 33 percent of addicts are more likely to go to detox after using Insite.

Dr. Thomas Kerr, a University of British Columbia research scientist who has studied the program, believes Insite benefits the wider community.

"In the absence of such a facility, not only would [drug users] be high out on the street, but they would be leaving their syringes in school yeards, in parks and on city streets," Kerr said.

Just a week or so ago, I was having a conversation with a fellow Austin criminal defense attorney about whether ‘decriminalization/legalization’ would reduce or increase crime.

Like me, he is strongly against our current Drug War policies, especially when it comes to imprisoning and using felony enhancement provisions in the Penal Code for drug possession cases – creating ridiculously long sentences, sometimes 25 years to life.

However, he argued that even heavily regulated but legal use of cocaine and heroin would automatically increase drug use itself, and also other crimes – mostly property crimes.

I’m going to go see if I can get my hands on those peer reviewed studies the article cites, and I’ll report back on this later.

My gut instinct is that crime would be reduced, but it’s not the part of my regular anti-Drug War speech; something I need to look into. (And there are plenty of other reasons to oppose out current policies.)

Update: Pete at DrugWarRant responds.