Law Blog

on January 7, 2009

. 0 Comments

simpsonprison The Juice is no longer loose. But if he’d taken a last minute deal offered by prosecutors, he would have been loose a lot sooner. OJ’s friend Thomas Scotto is talking to reporters, telling them that OJ was adamant that he would not serve time and refused a variety of deals. According to OJ’s lawyers, none of the offers “were very palatable to us or OJ.” According to a public defender however, OJ turned down a plea deal towards the end of the trial that would have given him only 3 years instead of the 33 he now faces.

Oops.

Why the hell was OJ so confident? The judge crucified him during sentencing, calling him “ignorant and arrogant.” This is the same case where OJ was caught on tape holding up people in a hotel room at gunpoint. The crimes he was charged with had possible sentences of life in prison, and the entire robbery and kidnapping was on tape. I don’t know how many times I can highlight that fact. And the plea deal came towards the end of the trial when the damning evidence had survived evidentiary challenges and was already admitted. And his attorneys did not find 3 years palatable?

OJ pleaded with the judge that he didn’t know what he was doing was wrong, because it was “his stuff” and he was just trying to “confront friends.” Right, just like that time my friend and I had a disagreement, and in order to solve things I broke into his hotel room with a loaded handgun and demanded that he give me all of his personal belongings. That sure solved that dilemma!

His attorneys also downplayed things, claiming this was not your usual kidnapping. “This isn’t one of those kidnappings where you have people egregiously detained, tied up, pushed into a safe,” said his attorney Gabe Grasso. Of course, I mean this was just your standard hotel room robbery where you are ordering someone around with a loaded gun in their face. Just one of those kidnappings. Ho hum.

Of course, all attorneys sometimes have to make statements that make outside observers raise an objective eyebrow. And factoring in parole, OJ’s actual time in jail could amount to only 9 years. But where was the zealous advocacy when OJ was offered a seemingly sweetheart plea deal in the face of a potential life sentence?

Even though taking the deal is the defendant’s ultimate decision, sometimes as an attorney you need to be a little realistic with your client. Was that the case here? Or was OJ really that cocky? I just cannot truly believe that an attorney in this case would be very confident in securing a not guilty verdict, or even a light sentence. This is OJ Simpson on trial for an armed robbery and kidnapping that is on tape. I am therefore assuming that OJ’s arrogance was the real determining factor. Maybe because OJ got away with murder, he thought that he could get away with anything?

Hit It, Judge! Colorado Judge Turns Up The Volume On Repeat Offenders

Published

on January 6, 2009

. 0 Comments

barney Recently, Fort Lupton, Colorado Municipal Court Judge Paul Sacco gained notoriety for imposing some unusual-and highly amusing-alternative punishments. After determining that young noise offenders often dismissed the standard punishment of a fine as negligible, Sacco began implementing a different sentence-Time Out with Barney. Sacco sentences repeat noise offenders to listen for one hour to music from various artists known to be unpopular with teens, including Barney the Purple Dinosaur, Joni Mitchell, and Barry Manilow.

While certainly creative, Sacco is not alone in his tactics. Judges across the country are increasingly using alternative methods to enforce their messages. San Francisco’s U.S. District Court Judge Vaughn R. Walker, for example, sentenced a San Francisco teen who stole letters from mailboxes to stand outside a post office wearing a sign that read: “I stole mail. This is my punishment.”

The constitutionality of alternative punishments has been questioned by individual lawyers, as well as civil rights groups such as the ACLU and The Sentencing Project. The U.S. Court of Appeals for the 9th Circuit upheld Judge Walker’s sign-bearing punishment as unusual, but not cruel. It’s less clear, however, whether other practices, such as displaying shoplifters’ mug shots on electronic displays around malls will be upheld as well. The efficacy of alternative punishments has also been questioned by a number of groups who criticize these methods as unfairly targeting youth offenders.

It wouldn’t hurt to provide some oversight of these maverick judges to ensure that alternative sentences remain within constitutional bounds. However, given the dismal success rates of traditional punishments, overflowing prisons, and corrections budget shortfalls, judges should be granted some leeway in crafting more effective brands of justice.

The Hypocrisy of Unethical Prosecutors

Published

on January 5, 2009

. 0 Comments

It is long standing precedent that prosecutors must release evidence to the defense that is exculpatory or relevant to punishment. If they don’t, however, they are rarely disciplined. Why should prosecutors get away with this when they are the ones supposedly charged with upholding the law?

Let’s take the Supreme Court case of Cone v. Bell as an example. Gary Cone was found guilty of a brutal double homicide in 1980. For more than a quarter century the case has maneuvered through the courts, (typical of capital punishment cases), with the latest installment coming today in Washington D.C. Memphis prosecutors failed to release evidence to the defense that Cone was high on amphetamines at the time of the murder. The defense’s main argument was insanity, something that would have spared their client the death penalty. (And prevented 25 years of appeals and millions of dollars in court fees, paid by taxpayers.)

Being high on amphetamines would have lent credence to their claim, but Prosecutors today told the High Court such evidence was irrelevant. Some of the justices fervently disagreed, with Souter going so far as to call the respondent’s argument “utterly irrational.” Justice Stevens commented on the record that he worried about the ethics of the profession.

If the court rules against the state here, Cone might get spared the death penalty. But what about the prosecutors? Don’t let the Duke Lacrosse case and what happened to disgraced prosecutor Mike Nifong fool you-not every defendant is a wealthy white Duke Lacrosse player with money and clout to get a prosecutor disbarred. In fact, cases such as this usually go silently into the night-or silently into the court’s archives-without anything happening to prosecutors.

Something needs to be done. Prosecutors have an ethical and legal duty to uphold the law; releasing exculpatory evidence to the defense is the law. If they fail to uphold this important constitutional safeguard, they must face discipline. This is a serious transgression-by failing to release evidence they are obligated to give up, they are being dishonest not only to defense counsel, but to the court hearing the case.

Although criminal sanctions may be going too far, some sort of mandatory bar disciplinary action is necessary here. Prosecutors should be motivated to err on the side of disclosure in deciding whether to release evidence to the defense. As things currently stand, some prosecutors seem preoccupied with winning the case, not upholding the law and the principles of the Constitution.

Through The Looking Glass: OJ Faces Up To 33 Years In Prison

Published

on January 2, 2009

. 0 Comments

Recently, OJ Simpson was found guilty of 12 criminal charges, including armed robbery and kidnapping, committed in a failed attempt to retrieve sports memorabilia from two collectibles dealers in a Las Vegas hotel room. Sixty-one-year-old Simpson faces up to 33 years in prison, and will be eligible for parole after nine years.

Simpson claimed that he was merely taking back his belongings that had been stolen, and his lawyer urged the court to consider the minimum sentence of six years because Simpson does not have a criminal record.

Clark County District Judge Jackie Glass, however, focused on the violent and premeditated nature of the crimes, along with the overwhelming evidence against Simpson. Glass expressed dismay with Simpson during the trial, accusing him of “arrogance or ignorance or both,” and doubling his bail after he violated his release terms.

Glass has been both heralded for her “tough on crime” approach, as well as criticized for sacrificing defendants’ constitutional rights in the name of courtroom efficiency. Specifically, critics allege that Glass has dismissed challenges to her rulings and has failed to furnish defense attorneys with complete reports of defendants with mental troubles. The judge is currently under review by the Nevada Supreme Court for preventing defense attorneys from entering their clients’ psychological evaluations.

Although there has been some speculation that the harsh sentence was in part motivated by a desire to punish Simpson for infamously beating murder charges 13 years ago, so far, few (besides Simpson’s lawyer) have objected to the sentence. Also, there have not been widespread accusations that his conviction was racially tainted. Under law, Simpson’s acquittals for the murder of his ex-wife, Nicole Brown Simpson and her friend Ron Goldman, should not be used against him in subsequent trials.

Judges can, however, impose harsher sentences based on a felon’s prior record or for bad behavior. Here, Simpson’s courtroom behavior did not constitute legal grounds for imposing a harsher sentence. Yet, unless it is proven that Glass’ sentence was driven by improper motive, or that she violated another guideline, Simpson’s sentence will stand. Is this justice? I suppose the appeals court will have the chance to determine that. . . . Recent reports indicate that nearly half of the jury thought Simpson should have been convicted for the murders of Nicole Brown and Ron Goldman, and Simpson’s lawyer has stated that jury bias will form the basis of their appeal.

Proposition 9: Disaster in Sheeps Clothing?

Published

on December 31, 2008

. 0 Comments

nine

With so many controversial propositions on the ballot in California’s November election, it was easy to overlook Proposition 9, also known as the Victims’ Bill of Rights Act of 2008 or Marsy’s Law. Prop 9 was passed by just over 50% of voters, despite wide opposition from many groups, including the ACLU, the Democrat Party, the teacher and firefighter unions, all major state newspapers, and even the Los Angeles District Attorney’s Office.

Opponents take issue with many of Pro 9’s provisions. First, by requiring prosecutors to notify crime victims’ families at each stage of proceedings, it may create huge new public liability. Specifically, under Prop 9, the District Attorney and sometimes judges must seek victims’ opinions prior to deciding which charges to file, whether or not to let a defendant post bail, which plea agreements the prosecution may accept, and what probation conditions to impose.

Prop 9 allows crime victims’ families, who are often (understandably) filled with a desire for vengeance, to impact a system that strives to be impartial. Should these biased individuals who usually lack a firm knowledge of police, court, and prison procedure really be allowed to exert such a strong influence on the criminal justice system? Prop 9 may also cause the District Attorney to more vigorously pursue those cases involving the most tenacious families, leaving victims with less vocal or connected families to endure a lesser standard of justice.

Additionally, Prop 9 may be a waste of time - and money. First, some say it merely reiterates laws already in place. For example, judges regularly slap victims’ attackers with restraining orders. And California already passed a “Victims Bill of Rights Act,” which guarantees people the right to notification of and the right to present at sentencing and parole hearings; the Act also orders offenders to pay victims restitution. Moreover, opponents claim that the California Supreme Court will likely strike down Prop 9 because it fundamentally overhauls the prosecutor’s role within the criminal justice system by making the D.A. represent crime victims rather than the state. By doing so, Prop 9 could muddy criminal prosecutions by converting victims into independent parties who can oppose sentences and refuse to comply with defense attorneys’ requests.

Finally, implementing Prop 9 is simply not feasible during this time of financial crisis. Not only is California’s budget strained, the state prison system is in crises. Recently, the feds ordered California to spend $8 billion to fix its ailing prison medical facilities to conform to federal standards. By imposing tougher parole eligibility requirements and severely limiting early releases while California prisons are at 200% capacity, Prop 9 just doesn’t make sense.

While Prop 9 was enacted with good intentions, California cannot afford to implement a measure which will ultimately fail to serve its intended purpose while unfairly burdening an already over-stressed budget.

Supreme Court to Oregon: Play Time is Over

Published

on December 30, 2008

in Personal Injury

. 0 Comments

Remember all those huge tobacco settlements? Those were the days… oh wait they’re still around! The Supreme Court recently heard arguments-for the third time-in a tobacco case stemming all the way from a 10 year old $79.5 million jury verdict against Philip Morris in Oregon. A lot has happened since then-Phillip Morris has changed its name, we’ve had three presidents, and the Oregon Supreme Court has twice thumbed its nose at United States Supreme Court rulings instructing Oregon to overturn the verdict. Naturally this doesn’t sit well with The Brethren.

The original $79.5 million in punitive damages was awarded in 1999 to the widow of a man who died from lung cancer. The suit alleged the usual cigarette company shenanigans: Phillip Morris denied smoking caused cancer, denied that it was addictive, and denied that the sky was blue. Since then, new punitive damage guidelines have been handed down and the Supreme Court has twice told the Oregon court to overturn the ruling. Oregon’s response? “Thanks for your concern but take a hike.”

Well that wasn’t exactly what they said, but it was close. The Oregon Supreme Court’s runaround is an exercise in what I see as classic judicial decision making; coming up with a ruling and then justifying it after the fact. Whether one agrees with a $79.5 million punitive damages award (most of which is interest), all too often I read cases where the argument is clearly tailored to satisfy the conclusion, not vice versa.

In this instance, the Supreme Court’s first argument that the damages award was excessive was ignored; the court said that the award met the limited criteria for exceeding Supreme Court standards and essentially ignored the ruling. The second time around when the ruling was challenged due to faulty jury instructions, Oregon said that the issue was state law and that the Supreme Court had no business sticking its nose where it didn’t belong. In both instances the Oregon Supreme Court could have made these things clear when it first heard the case, but of course didn’t bring them up until they were necessary to deflect the Supreme Court’s influence. At least that’s what Chief Justice Roberts thinks.

The third time is a charm (or so hopes Phillip Morris). The Supreme Court (the one that Oregon has to listen to) is now considering how to be a responsible parent and tell its children how to behave. The latest tactic would be re-examining the issue that got us here in the first place: excessive punitive damages that grossly outweigh actual damages. Chief Justice Roberts advanced the option as a way of avoiding making up a rule to ensure that state courts behave in the future, which would also operate as a very public rebuke of the Oregon justices.

The alternative would make Oregon the kids that ruined the party for everyone else, definitely ensuring the Oregon Supremes would be very unpopular during lunchtime recess.

To Blog Or Not To Blog, What Is The Problem?

Published

on December 29, 2008

in lawyers

. 0 Comments

ziggy Recently, Wolfe Law Group brought a lawsuit in the U.S. District Court for Eastern Louisiana, asserting that Louisiana’s new advertising rules for lawyers violate the First Amendment right to commercial free speech. The new rules, which will be the most severe in the country, restrict lawyers’ communications on blogs, online bulletin boards, and other online forums. The new attorney advertising rules will also forbid lawyers from referencing past successes, forbid nicknames or slogans that imply a capacity to get results, and forbid re-enactments, endorsements from actors, and client testimonials. Additionally, the new rules designate a committee to review advertisements and authorize sanctions for lawyers found in violation of provisions.

Why did Louisiana draft these new rules? Officials say they will “protect the public from misleading ads and preserve the intergrity of the legal profession.” But was there evidence consumers were being harmed, or were the rules “motivated solely by a general distaste for certain forms of lawyer advertising and by hostility toward lawyers who assist injured consumers“?

In a previous case, the U.S. District Court for the Northern District of New York found similar advertising rules banning nicknames, mottos, client testimonials, and internet pop-up ads unconstitutional. Specifically, the court found that the state failed to show the lawyer advertising rules were necessary to assist consumers, and the rules were not narrowly tailored to effectuate the state’s asserted purpose. Furthermore, the FTC has expressed opposition to these types of restrictions on speech. Yet, the overall trend among state bars is to impose greater restrictions on lawyer advertisements. . . .

As one astute blogger pointed out, “One wonders if federal regulation of legal marketing will ever overtake the state-by-state model currently saddling the profession. So many firms have so many offices across so many state lines that the old regulatory model hardly makes sense anymore.”

If we do end up with uniform regulations, I hope they don’t unfairly restrict blogs, which provide consumers with uniquely valuable information about lawyers. Without access to blogs, consumers can still rely on referrals or choose lawyers based on their credentials; however, blogs give consumers a glimpse into prospective lawyers’ thoughts and legal reasoning. This type of information should not be censored.

Lori Drew Jury Foreman Agrees: Don’t Read Your Terms of Service? Go Directly to Jail, Do not Pass Go, Do Not Collect Constitutional Rights

Published

on December 24, 2008

. 0 Comments

terms-of-service Lori Drew’s jury is speaking to the press, and some are not happy. The forewoman of the Jury in Lori Drew’s trial gave this interesting quote to Wired’s Threat Level blog: (Thanks to Volokh for the story)

“The thing that really bothered me was that [Drew's] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable.”

Quick question: did you read the terms of service for this website? Did you read the terms of service for your email carrier? A forum or blog you just posted on? Google? And did Judge Wu not inform his jury of the difference between being “liable’ and being found “guilty?” The juror goes on to say that she was disappointed with only securing misdemeanor verdicts, noting that if more malicious sounding text messages had been offered into evidence, it would have been easier to convince the entire jury that Drew’s conduct rose to the level of a felony.

First of all, I stand by my earlier comments when this trial ended that assigning criminal culpability to private contracts is kind of, well, crazy. What you and I go to jail for should always be written by legislators, not corporate attorneys or over zealous intellectual property contract lawyers. Although what Lori Drew did was heinous, let’s not go down this road to bring her to justice.

This also adds another layer to the debate. Namely, how much emotion and back-story should be considered acceptable in these kinds of cases? The juror here stated “trust me, I was so for this woman going away for 20 years,” and throughout the article appeared very moved by the clearly tragic consequences of this online hoax. The defense, for their part, tried their best to keep evidence of the suicide out of the trial entirely, under the (reasonable) argument that it would be more prejudicial than probative to whether Lori Drew actually committed a crime.

Lori Drew was not on trial for causing a suicide or for murder, but that is what this amounted to. How much of the verdict here was retributive rather than based on the law and the facts? Time will tell, as this will be appealed to the 9^th circuit court. (And from there possibly to the Supreme Court, who are not very fond of the 9^th circuit.) Although Lori Drew’s alleged actions are outrageous and deserve contempt, are they federal crimes? If the “act” being criminalized here is not following a website’s terms of service, I have to say no. Let’s keep those violations in the realm of “liability,” not “guilt.”

Have a Fake Myspace Name? Better Get a Lawyer

Published

on December 23, 2008