The Professor vs. the Practitioner on the Fourth Amendment

George Washington University Law School professor Orin Kerr, who is probably most renowned for his contributions to the Volokh Conspiracy, is publishing a paper in the upcoming Stanford Law Review titled “Applying the Fourth Amendment to the Internet: A General Approach”. The article’s general conceit appears to be that the Fourth Amendment should apply to the internet in the same way that it applies to the “physical world”:

Thus, the goal is "technology neutrality": Ideally, The Fourth Amendment should play the same role regardless of whether a criminal investigation occurs via an investigation in the physical world or whether it occurs via an investigation over the Internet.

Over at Simple Justice, Scott Greenfield asks whether this is the right approach, and concludes that it is not:

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One Man's Indictment Is Another's Job Opportunity

White Collar Crime Prof blogger Ellen Podgor noted a recent article in her round up of news around the web, “A Help-Wanted Sign for Fraud Investigators”:

Recently, the Federal Bureau of Investigation announced that the number of open mortgage-fraud investigations was more than 1,600 at the end of fiscal 2008, which ended Sept. 30, compared with 881 two years earlier. In addition, 530 corporate-fraud investigations were open, it said.

The bureau is recruiting people to help with these investigations, including those with experience in computer science and accounting… Certification is a credential offered by the Association of Certified Fraud Examiners that notes proficiency and experience in fraud prevention, detection and deterrence…

The number of certified examiners is up 10 percent compared with last year, according to the association, a trade group based in Austin, Tex. Median compensation for full-time certified fraud examiners in 2008 was just over $90,000 a year, the association says.

I read the New York Times semi-religiously, but had missed the article entirely, probably because it was in the Jobs Section.

In related news, FBI Director Robert Mueller testified in front of Congress Wednesday. From USA Today:

Lawmakers prodded Mueller to move faster to bring charges against suspected swindlers in the wake of the global economic collapse.

"I get the question all the time, 'What's going on? Where's the accountability? Who's going to jail?'," Sen. Arlen Specter, R-Pa., said at a hearing of the Senate Judiciary Committee.

Mueller had just finished explaining that the bureau has seen its mortgage fraud cases balloon to more than 2,000, in addition to more than 566 open corporate fraud investigations.

Lawmakers urged him to hurry up and act to show that the government is aggressively policing Wall Street.

"What can we do to expedite the investigations, prosecutions?" asked Specter.

Agents are working with federal prosecutors "for what we call fast-track prosecutions in a number of areas," Mueller answered.

Any thought being given to the kind of careful investigation that only roots out the truly culpable?

Let’s see. Inexperienced investigators, fast track prosecutions and a politician’s insatiable desire to jail someone, anyone, so he can keep his job… sounds more like a recipe for reasonable doubt. At least they are going on record beforehand.
 

Guilty Judges Say Thanks But No Thanks To The Guidelines

Other criminal law bloggers already weighed in last month when the news reported that two juvenile court judges in Pennsylvania took millions of dollars in bribes to automatically send juvenile offenders to private detention centers, in other words, to prison.

In a fit of disgust combined with blogging laziness I refrained from writing about the story at that time. (Blog envy may have had something to do with it as well. Fellow Austin criminal lawyer Lance Stott had already summed it up best with the succinct comment: “You know, there’s really got to be a special place in the afterlife for taking kickbacks to send kids to jail.” Once someone hits the nail on the head, there’s no need to continue.)

Then yesterday, Ian Urbina’s article “Despite Red Flags About Judges, a Kickback Scheme Flourished” was published in the Times. Urbina reported that in this particular juvenile courtroom:

Proceedings on average took less than two minutes. Detention center workers were told in advance how many juveniles to expect at the end of each day — even before hearings to determine their innocence or guilt.

Two minutes. Seems like a long time considering you know in advance you are going to max the kid out. But I guess you’ve got to keep up appearances.

Lawyers told families not to bother hiring them. They would not be allowed to speak anyway.

My first thought was to blog about a concept I encountered twenty years ago in some undergrad cognitive psychology class: learned helplessness. Honest lawyers told parents not to hire them because there was nothing they could do in that court to help improve the child’s outcome. And unlike the animal psychology experiments by Seligman and Maier, no one ever could or did turn off the shock collars. Everyone really did go to prison. What’s the use of getting a lawyer?

But then for some reason, this part of the article struck me as odd:

On Thursday, the State Supreme Court ordered that the records be cleaned for hundreds of the 2,500 or so juveniles sentenced by Judge Ciavarella, and in the coming weeks, the two judges will be sentenced, under a plea agreement, to more than seven years in prison.

Other reports had very specifically said 87 months.

This was a federal case. The article stated that the defendants plead to “tax evasion and wire fraud”. A quick check on PACER confirmed that, yes, the information charged them with violations of federal law: 18 USC § 1343 (wire fraud), § 1346 (honest services), and § 371 (conspiracy to defraud the United States – that is, the “tax evasion”).

Federal crimes and a guilty plea = guessing game when it comes to the guidelines, right? Heck, Doug Berman makes a pretty good blog-living just from his frequent “everyone weigh in to guess what sentence So-and-So will get” posts.

And yet the papers were predicting the sentence exactly. Usually you’ll see some sort of namby-pamby mumbo-jumbo about “could get up to 20 years in prison”. Or whatever the maximum sentence could be. Ubiquitous background check availability on the internet still can’t guarantee that a journalist will accurately predict criminal history category.

And I’d bet even the best federal criminal defense lawyers are occasionally caught off guard by increases to the base offense level suggested by Probation in the Pre-Sentence Report. And even if you know the criminal history and the offense level, there’s still a range. Predicting an exact sentence in a federal criminal case is impossible.

With one exception. Federal Rules of Criminal Procedure 11 (c) (1) (C). Eliding, we get:

Rule 11. Pleas

(c) Plea Agreement Procedure.

(1) In General.

…If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will…

(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).

Another few clicks on PACER and my suspicions were confirmed. The defendants had entered into an 11 (c) (1) (C) agreement. They aren’t going to face the vagaries of the Federal Sentencing Guidelines; assuming the judge will approve the plea bargain, they already know exactly what they are getting.

The usual course of business when representing a lawyer, a doctor, a professor, a “professional” in a criminal sentencing matter is to beef up that “boy-scout packet” and argue to the judge that your client had always been an upstanding and contributing member of society. Except for this one little hiccup. Can’t you use your discretion to ignore those no-longer-mandatory guidelines and sentence us below them?

Of course, the flip side of Booker is that the judge is also free to “tailor the sentence” above the guidelines. And who is a judge going to hammer, if not some scumbag whose actions disgrace his own profession?

Still, it’s ironic, isn’t? These men who held the fate of thousands in their hands being afraid to leave their own sentences “up to the judge”. I find myself thinking like a victim’s rights advocate.

Wouldn’t it have been more appropriate if they had to walk into court, like their victims did, shaking in their boots and not knowing what their own fate would be?
 

"I Object to These Proceedings In Their Entirety!"

Some time last year I was in federal court watching a sentencing hearing in a multi-defendant conspiracy to possess with intent to distribute more than a kilogram of heroin case. By multi-defendant I mean a case with thirty seven defendants.

My client’s case was one of the many, but he had already plead in front of the magistrate to a misdemeanor probation. I was only there partly out of curiosity - what would the other guys get? - and partly because I primarily practice in state court. Most criminal cases are state cases, so my experience in federal court pales in comparison. But it never hurts to sit around, watch other lawyers, and soak in the proceedings. Who knows when you might learn something? Heck, for that matter, I stick around in state district court whenever something interesting is going on, if I don’t have to be anywhere else.

By the way… how do you end up with a misdemeanor plea bargain agreement in a ten year mandatory minimum federal drug conspiracy? In this particular case, it was because the DEA agents misunderstood the code words my client (#34 in the indictment) and the big bad drug dealer (#2) used when setting up times for him to buy a small amount of dope for personal use.

Basically, when #2 said something like “One of those things” to his suppliers, he meant one ounce of heroin. When my guy asked for “One of those things” from #2 he was trying to buy a one fifth gram baggie of heroin. There are 28-ish grams in an ounce, and when you’re a DEA agent sorting through fourteen thousand wiretapped phone calls, and you accidently start believing that the drug transaction is for somewhere between 28 and 140 times (remember the one fifth of one gram baggies? So you have to multiply 28 by 5) the amount of heroin than is actually exchanging hands… tada! You think my guy is involved in the conspiracy to distribute as well.

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Life Without The Internet

Say it ain’t so. You can’t live without that great big series of tubes, can you?

Well, I’ve just spent the better part of two weeks without internet access at home, and I managed to make it through just fine. Basically my cable modem crapped out on me, then it took me a while to get Time Warner out to check the problem, then the cable guy laughed at the old modem they themselves had installed 7 years ago, wondering out loud how technology had passed me by. And a few days after that, when I was able to tear myself away from the office for the better part of another afternoon, the Spencer family was back online.

By then I’d been offline so long (one week probably – gasp!) that I fell out of the habit of plopping myself in front of the computer for an hour or two after the kids went to bed. So a few more days passed.

Regular blogging stopped. I had to catch up on a few more emails at work instead of at home. The reduced staring-at-the-screen time meant I definitely missed some stupid people doing stupid things on YouTube. I’ll probably never catch up on that now.

So I’m back now. Tapping out some random thoughts, some of which some day now will occasionally pertain to criminal defense. Not sure I’ll be better off with the cable modem access. But I’m not going to cancel it either.
 

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She Got The Gold Mine (I Got The Shaft)

If I were a divorce lawyer who wanted to start blogging… wait, wait, wait… tangent alert:

I am not a divorce lawyer. And by the way – double tangent alert - if I were, I’d be a “divorce lawyer”, not a “family law attorney”. What the hell is that anyway? Worst euphemism ever? Divorce ain’t all that great if you’ve got a family, by which I mean children. Why kid ourselves by pretending that you need a “family lawyer”… you need a divorce lawyer.

Divorce may be necessary, or it may be the best option you have available. Ubiquitous no-fault divorce makes better public policy than “let’s go to court and make up bad stuff about each other so we can get split up” divorce law. I am not saying there’s anything wrong with you getting a divorce. This sideline diatribe isn’t about moral judgments. Just pointing out that “divorce” and “family” are closer to antonyms than synonyms.

What I am saying: please don’t call me about divorcing your wife/husband/spouse. I don’t practice that kind of law. And I’m nowhere near sure about this, but I figure if the two of you can’t go to your local bookstore, buy a $20 how-to-do-your-own-divorce book (because they all end up the same anyway: wife gets custody of kids, man pays child support based on a pre-set table depending on his income), and figure it out on your own… then there’s already a problem.

And I don’t and won’t and can’t make myself care about Great Aunt Millie’s lampshade. I don’t care that Millie was her biological aunt but she liked you better and wanted you to have the lampshade. Do not call me about a potential divorce.

OK, now that you’ve staked the soul of your first born, or your Beamer - whatever it is that's most important to you - to the promise that you will not call me about a divorce, let me get back to the topic at hand…

So, if I were a divorce lawyer who wanted to start blogging, and wanted to have an interesting title for my blog, I’d think about using the title of the 1982 Jerry Reed hit “She Got the Gold Mine (I Got the Shaft)” as the name of my blog. Not sure anyone’s going to take creative blog naming advice from someone who thought about it for about two seconds and named his blog “Austin Criminal Defense Lawyer”, but, I’m throwing it out there, for what it’s worth. Free of charge; run with it. Here’s Jerry Reed and some lyrics: 

 Well, I tried to get in, she changed the lock.
Then I found this note taped on the mailbox that said,
"Goodbye, turkey. My attorney will be in touch."
So I decided right then and there I was gonna do what's right
Give 'er her fair share but, brother,
I didn't know her share was gonna be that much.

She got the goldmine… (She got the goldmine…)
I got the shaft. (I got the shaft.)
They split it right down the middle,
And then they give her the bigger half.
Well, it all sounds mighty funny,
But it hurts too much to laugh.
She got the goldmine, I got the shaft.
 

Introducing the Offense Report

Murray Newman asks “Where’s My Offense Report?” and several commenters, including Grits, chime in.

I initially rejected the idea of writing a post on this topic because I think it’s stupid. (Although I like Bennett’s tangent on ethics.) The defense ought to get Xeroxed copies of offense reports. This whole “we can’t give it to you because your scumbag client is going to nuke us all if we do” argument is… stupid and tiresome and I’ve blogged on it before. Like Scott, I can only write the same thing so many times without boring myself.

Besides, Travis County has a decent if imperfect system where defense lawyers get ORs in most cases. Perfect, if you have to ask, would be getting it in every every every case.

So I was going to skip it, until this last comment caught my eye:

Grits, the OR never gets entered into evidence...therefore, it does not become a public record. Even if we do win a case.

Apparently this anonymous prosecutor never read Texas Rule of Evidence 614, or had it used against him:

RULE 612. WRITING USED TO REFRESH MEMORY

If a witness uses a writing to refresh memory for the purpose of testifying either

(1) while testifying;

(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or

(3) before testifying, in criminal cases;

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. [Emphasis Added]

If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto.

Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

It doesn’t happen often, but I have had occasion to introduce an offense report after a police officer used it to “refresh his memory”. The reason it doesn’t occur frequently is that it’s only the adverse party that can do this, and as you might expect, police reports don’t always contain gems for the defense.

Except sometimes they do. I’ve got a case pending right now with what Bennett likes to call the “Nasty Little Surprise”. It’s a possession of marijuana case where I can prove that at least one very important line in the OR is a complete fabrication on the part of the officer. It’s not even necessary that the witness deny making the statement; simply that he refreshes his memory with the document, which he certainly will do.

So, if you want to, have it admitted. And allow yourself an extra chuckle if the prosecutor wasted some of his voir dire on “Why you the jury aren’t allowed to see the police report”.
 

Martin Van Buren?

As far as I can remember, I haven’t laid hands on one of the new $1 coins before this week. But waiting outside the U.S. Attorney’s Office on Congress on 9th Street earlier this week, I bought a hot dog from a vending cart. (Condiments free, but if you’re curious: Spicy mustard, pickle relish and sauerkraut. It was delicious.)

I paid with a $5 bill and got two coins back. This coin in fact:

 

Martin Van Buren, I thought? There’s a Van Buren Coin? Really?

Not that much mystery to it. I had forgotten: the U.S. Mint is making its way through all the presidents.

[Update: Always remember to pay for your hot dog.]
 

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It's Not Your Home

I like to think I’m capable of understanding other people’s problems. Heck, by trade, it’s a necessity that I ask others to put themselves in the shoes of my clients. And I realize that this post will come off as being written by someone incapable of empathy.

But let me repeat it anyway:

It’s not your home.

There, I said it. If you are upside down on your note: it’s not your home that you are losing. If you lost your job, and can’t pay your mortgage: it’s not your home that you are losing.

You may be moving, voluntarily or otherwise, out of the bank’s home… but you won’t be moving out of your home.

Why the diatribe? I’m going crazy listening to newscasters and reading newspaper articles about folks “losing their homes”. That’s why they call it a “note” or a “mortgage”. Because it’s owned by someone else, most likely a bank.

Here’s a ridiculous, but absolutely true, example:

The property was purchased in January 2005 for $1,157,000. The combined first and second mortgages totaled $1,156,730 leaving a down payment of $270. Let's just call it 100% financing.

$1.1 million home: less than $300 down. Read the whole entry for details, including the refinancings (plural), but here’s the punch line:

These owners will probably just walk away. I doubt they have any assets. They never put any money into the deal, they pulled out $333,000 in cash, and they got to live in Turtle Ridge for 3 years. Not a bad deal -- for them.

Very few of the “homeowners” about to “lose their homes” started off with quite this extreme an example. But arguing from the extreme is not a logical fallacy, it’s allowed. And more to the point, this is literally just an extreme example of what folks caught up in the subprime mortgage default crisis are going through.

  • They took out a loan they couldn’t afford.
  • They got an adjustable rate mortgage which allowed them to pay less now, more later.
  • They put very little and sometimes next to nothing down.
  • They lived for X amount of time for about what they were paying in rent before.
  • They can’t make their new higher monthly mortgage now that the rate has gone up.

And now… “they” are losing “their home”.