Out of court

Monday, December 13, 2010

The Advantage of the Well Connected Snitch.

Recently I had a client go before a federal judge for sentencing on a mortgage fraud case. He was sentenced to 15 months in prison. Here was a guy who had no prior record whatsoever. Everyone who knew him liked and trusted him. Since the crime was completed several years ago, he found a new job and his boss loved him. And yet, despite my best effort to save him from prison, and to save his job, the judge sent him away. The judge relied on the seriousness of the crime to deny a lesser sentence. No question it was serious: he may have to pay back as much as $915,000 to the original lenders for his involvement.

The fraud worked this way: the con artist/businessman leader of the fraud originally convinced his friends and relatives he had a way to make money in the exploding real estate market of the early part of this decade. He would have them 'invest' in real estate by agreeing to sign loan papers indicating they were going to buy and occupy a home. This would enable them to get the lowest possible loan rate, as banks historically believed that owner/occupants were the safest borrowers. The catch (and the big lie on all the loan applications) was that they were not really owner/occupants. Instead the con artist would actually pay them to just use their name and good credit. They were "straw buyers." Then the con artist would pay more than the asking price to the seller, claiming it went to a fund to improve the property and pay the mortgage. But he actually siphoned off the money for his own use.

When this 'fund' began to dwindle, he would recruit another person to "buy" the property at a higher price. Up to 2008, the spiralling market permitted such quick flips. Many people made a lot of money this way. And the banks and lenders never seemed to scrutinize the borrowers or their applications much. Since real estate prices were always going up, it was all about the property and not the borrower. And anyway, the lenders did not hold onto the loans, but sold them off to other investors. These were then sold in bulk as collaterized debt obligations to other investors. So the lenders were recklessly indifferent. (Hence a lot of bank and mortgage company failures.)

Originally my client loaned money to the con artist and was initially paid back. Then he was asked to be a buyer for two properties, knowing full well that he was lying on the loan applications because he was not occupying the property. And then he recruited two more people to be "straw buyers." He helped one "straw buyer" lie on the application form by agreeing to corroborate falsely inflated income. This was probably his worst sin. Later, when he was confronted by the feds, he confessed and told the truth.

Now many of you may say that this type of fraud has hurt our economy. And people who engage in this should be punished hard. Examples must be made and messages sent to the community that this type of fraud cannot go unpunished. This is all true but. . . why does prison have to be the answer for a serious crime? Particularly where the individual involved is remorseful, rehabilitated and has been positively contributing to society for nearly three years since the crime? We proposed a combination of community service work, 6 months of home detention and 30 days in jail. The judge rejected this for a 15 month prison sentence. Aren't we punishing ourselves by locking up positive contributors? And anyway, don't we have too many people in prison already?

Even more galling, and typical of the 'logic' of federal sentencing is the 8 month sentence of a codefendant. A codefendant the government lawyer told the judge was equally culpable with my client. That codefendant worked for a lender, was an insider and betrayed that trust. And yet because he was able to cooperate and name names at his bank (whom the government will probably charge separately) he got a lighter sentence.

That is the ultimate 'message' the court sends: If you're caught and you are sufficiently intertwined with other lawbreakers, you can optimize your position by turning on them. You will do better than less knowledgeable but equally culpable lawbreakers. Sometimes people higher up in the criminal hierarchy get lower sentences than people near the bottom who aren't as involved.

What does that have to do with punishment and rehabilitation? Actually, it has more to do with law enforcement. Since the Supreme Court reinstated judicial discretion and did away with mandatory guideline sentences, the courts look to the "purposes" of sentencing. Helping the government prosecute other people is not a "purpose" of sentencing but it is a goal of law enforcement. So in this instance, the federal judge gave the ability to help law enforcement a greater reward than rehabilitation.

Is that justice?

Thursday, November 18, 2010

A Trip to a Police State

I just returned from four weeks of travel in Egypt. It was fantastic--the temples, pyramids and other sites were magnificent. The people were warm and welcoming--the mere mention of President Obama would bring high fives and fist pumps. They seem to love Americans. I say "seem" because Egypt is run by an all powerful, modern "pharoah." His family and cronies literally own the country and you have to wonder if everyone has been indoctrinated. After all, the U.S. government is a huge contributer to their military budget, not to mention nonmilitary aid.

It is also a police state. The 'Tourist and Antiquaties' (T & A) police are everywhere. Outside all but one of our hotels, the white uniformed and armed cops were stationed. All monuments had varying levels of security. Some had airport style security; others had X-ray machines; and others just had the T & A police eyeballing all of those who entered. At virtually all junctions on roads outside the cities, there were checkpoints with gates, guards and guns--big ones! Egypt has had 3 major terrorist actions since 1997: one at Luxor, one at Sharm el Sheikh and one at Taba--the latter two are on the Sinai peninsula. These were all directed at tourists. Since Egypt is dependent on tourism, their security is essential. In fact, when we travelled overland from Mt. Sinai to Sharm el Sheikh we had a plainclothes bodyguard in our van--at no expense to us. He wore a dark wool suit and carried a submachine gun on his hip. He was muscular and resembled actor, Eric Estrada. When we flattered him with his resemblence, he began smiling. Turned out to be a likable fellow.

Other T & A police would attempt to direct you to the 'good' parts of monuments. Then they would hold their palms out for some 'baksheesh.' (That's a tip or a bribe, depending on circumstances.) While we were at the Citadel--Saladin's famous walled compound on a hill overlooking central Cairo--one white uniformed fellow offered to take us on a personal tour of the old British prison where Anwar Sadat was once held. Since it was not open to the public, we paid him the 5 pound baksheesh. All too often, they wanted baksheesh just for pointing at a picture spot. We were free to decline. Locals, however, such as taxicab drivers, complained to me about police who demanded baksheesh just to let them pull over and pick up tourists.

The obvious downside is that civil liberties are not protected here. I imagine the local newspapers don't criticize the government much. To be sure, the English language ones did not. Our guides were always very defensive about their government much less their heritage. To such a degree that when I asked a guide about the possibility of human sacrifice at the Abydos monument (as reported in National Geographic) some 4,000 years ago, she denied it and replied that all sorts of misinformation is out there.

I shudder to think what political dissidents must go through. Given the fragile balance of freedom v. terrorism, it would too easy for the government to label critics as terrorists and then treat them accordingly. The U.S. government has enough trouble with that equation. In private moments with educated people such as guides, now and then they would bemoan the current regime. But it was hard to imagine a truly free, contested election in the near future there.

One advantage of a police state is that the crime rate is very low. According to the State Department site, violent crime is rare in Egypt. This is consistent with my experience there. Early in our trip I met an Egyptian who lived (ironically) in Alexandria, VA, but was visiting his mother in Cairo. He told me tourists are gold. The government protects them and people do not want to fall into disfavor with tourists. Thus he said it was safe to walk virtually anywhere--as long as you could resist the incessant attempts to sell you something.

Selling and touting can be irritants, but they are not threatening. Although every price is negotiable, except restaurant prices, once you reach an agreement on price it is respected. Of course tourists are vulnerable to overpaying, as I did in my first taxi ride. The lesson was to learn the right price for the trip and tell the driver BEFORE GETTING IN THE CAB that is what you'll pay. Even then, one time I said the 4 of us would pay 15 Egyptian pounds (~3$). The driver nodded. At the end of the ride the cabbie tried to claim 15 pounds per person. I shook my head no, gave him the agreed price and walked away. Nice try, but I felt safe in standing up for myself.

Egypt has a history that goes back about 5000 years. After about 30 centuries of rule by local Egyptians or Nubians, it was conquered or occupied by a who's who list of nations: Assyrians, Persians, Greeks, Romans, Arabs, Mamlukes, Turks, French and British, to name some. All of these people literally left their mark. Despite being a police state, it is a fascinating place to visit. Go see Egypt for yourself.

Friday, October 1, 2010

Can I Get My Rights Back?

After a person is convicted of a felony they automatically lose these civil rights: to vote, to serve on a jury, to hold public office, and to possess a firearm. Several misdemeanors that involve domestic violence also cause a person to lose the right to possess a firearm. The good news is that many people convicted of various nonviolent crimes can get their civil rights reinstated, including the right to possess a firearm..

Under Washington law, RCW 9.94A.637, if a person completes all requirements of a sentence, they are entitled to a certificate of discharge that will restore all civil rights except the right to possess a firearm. To restore the right to possess a firearm, a person must petition a court under RCW 9.41.040. And to be eligible, the crime must not be a "serious felony," as defined by RCW 9.41.010(16). That means if the person was convicted of a violent crime, various sex crimes, or a crime with a deadly weapon, the person is not eligible. So most property crimes, including theft, possession of stolen property, burglary, and drug offenses qualify..

Recently a former client of mine who was convicted of mail fraud in federal court asked if he could get his civil rights including his right to possess a firearm restored. If you have a federal conviction for a felony the short answer is "FHUGGETABOUTIT!" In truth, there is no mechanism short of a presidential pardon to get your civil rights restored following a federal felony conviction..

The U.S. Supreme Court in a convoluted way has said this much: "We express no opinion on whether a federal felon cannot have his civil rights restored under federal law. This is a complicated question, one which involves the interpretation of the federal law relating to federal civil rights, see U.S. Const., Art. I, § 2, cl. 1 (right to vote for Representatives); U.S. Const., Amdt. XVII (right to vote for Senators); 28 U.S.C. § 1865 (right to serve on a jury); consideration of the possible relevance of 18 U.S.C. § 925(c) (1988 ed., Supp. IV), which allows the Secretary of the Treasury to grant relief from the disability imposed by § 922(g); and the determination whether civil rights must be restored by an affirmative act of a Government official, . . ." Beecham v. United States, 511 U.S. 368, 373 (1994)..

In Beecham, the defendants had prior federal felony convictions, and then had their residential states "restore their civil rights, including the right to possess a firearm." They were later prosecuted under federal law for possessing firearms as convicted felons. They argued that since there was no mechanism for restoration of civil rights in federal court, the state court restorations immunized them from prosecution for being felons in possession of a firearm. The U.S. Supreme Court ruled that only the federal government could restore their civil rights since they had federal convictions. Their convictions were upheld. Conversely, if their underlying convictions were state crimes, then the restoration of gun rights by the state court would have immunized them from prosecution for felon in possession of a firearm..

Based on that case, the only hope, short of the Pres pardoning a federal felon, is to write the Sec'y of the Treasury, Tim Geithner, and see what happens. I suspect nothing..

State law not only restores rights, but certain convicted felons can have their records vacated as well under RCW 9.94A.640. The crimes have to be nonviolent and nonsex, and must be either class B (ten year maximum) or class C (5 year max) to qualify. For a class B crime, a person must be crime-free for 10 years following the date they are discharged from their sentence; for class C crimes, 5 years of crime free conduct. Similarly for certain misdemeanors, it takes a 3 year crime free period to qualify. Misdemeanors involving violence, domestic violence or driving under the influence are not eligible for vacation..

One caveat: people who receive 'deferred sentences' on misdemeanors are often told by the judge that if they comply with the sentence just imposed, their record will be clear. Wrong! Although it is true that if they successfully complete probation following a deferred sentence the case will be "dismissed," that does not mean the record will be "cleared." Without an order vacating the conviction, the Washington State Patrol (WSP) will still show a "record." The WSP "record" will show the crime and its disposition as: "dismissed." But if you get the case vacated, then a WSP record check, will come back as: "no record." And that is what you want when you apply for a job..

Friday, August 6, 2010

When Lawyers Get Arrested. . .

The arrest of a prominent attorney for DUI and her claim that she had a concussion and was not intoxicated reminds me of other attorneys or judges who have been arrested. You'd think, lawyers would know the drill: be nice, don't talk, ask for a lawyer.

More often than not, lawyers forget their training when arrested. That is, they try to talk their way out of trouble instead of shutting up and asking for a lawyer. In fact I heard of one lawyer, on his second DUI arrest, not only talked but he refused the breath test as well. Very dumb, as refusal is the worst option. It carries a one year revocation of license and juries later hear about and hold it against the accused.

Personally I have represented lawyers who were busted, most commonly for DUI. One lawyer was a perfect gentleman with a drinking problem. He was a public defender and had two separate DUI cases. For one we set up the treatment option, known as a deferred prosecution. This allows the case to remain pending for five years, and if the treatment is completed with no other arrests or alcohol violations, the case is dismissed. He was successful. On his other case, I managed to get it dismissed due to a speedy trial violation. He was quiet, unassuming and followed my advice.

Then there are the lawyers who talk themselves into trouble. I teach criminal trial advocacy at a local law school, and one of my former students hired me. He got arrested when a friend of his was being investigated for DUI. He had walked over to the scene of his friend's arrest and tried to intervene. He kept pushing his card into the officer's hand and tried to engage him in a conversation. The officer kept telling him to leave the scene of the investigation. Finally, after several warnings to leave, the officer arrested him for obstruction. This was a valid arrest, since for safety and other reasons, the police are entitled to be left alone when they are working a case. I had to beg the prosecutor for a dispositional continuance (good behavior, etc., and then case dismissed) by pointing out that he was still an over-exuberant law student.

A much less typical but amazing case was that of another law student. He was studying for a final exam and was disturbed by some teenagers riding dirt bikes in a vacant lot next to his apartment. He asked them to be quiet and they wouldn't. So he went back to his apartment and came down with a tiny keyring gun, that actually fired a real, but very small bullet. He pointed it in the air at the bike riders and they, being delinquents themselves, began yelling "felony, felony!" Within a few minutes he was arrested and booked for assault with a firearm. After I worked the case a bit, he pled to a misdemeanor assault and eventually had his record cleared.

Another time I represented an out of state lawyer on a hit and run charge. He told the police he never hit anyone and that is why he left the scene of the accident. Unfortunately there were matching dents on both cars, so he decided to pay for the damages. Foolishly I trusted this lawyer and used part of the trust account (my fees) to pay off the claim. He never paid me back. I never sued him on the debt because he was the type who would have counter sued me on some trumped up claim just to cause trouble.

The lawyers and judges who get arrested, plead and take their medicine like everyone else can be admirable. I know of a former prosecutor who had gone to a sporting event. Upon his return to his parked car, he discovered a tow truck driver had it jacked up and ready to go. He lost it with the tow truck driver and ended up punching him in the nose. He was arrested and charged with misdemeanor assault. He pled guilty at arraignment and then tendered his resignation as a prosecutor. The elected prosecutor refused to accept the resignation. I don't blame him--why fire a mensch?

Wednesday, July 21, 2010

Shoplifters, Beware!

If you have a notion to take something from a store without paying, don't do it! Even if you feel that the big box, corporate store would not feel it, you will. For starters, they are watching. They have hidden cameras, security personnel dressed like shoppers, and detection devices at the doors..

And once you are caught, not only will you be prosecuted, but the store can sue you for damages under RCW 4.24.230. That provides: " An adult or emancipated minor who . . . [steals]is liable in addition to actual damages, for a penalty to the owner or seller in the amount of the retail value thereof not to exceed two thousand eight hundred fifty dollars, plus an additional penalty of not less than one hundred dollars nor more than six hundred fifty dollars, plus all reasonable attorney's fees and court costs expended by the owner or seller.."

This liability is in addition to potential criminal proscution. Frequently, people get notices after being caught by security from distant lawyers practicing in states like Florida. The letter demands anywhere from $100 to $650 for the petty cases. The letter must contain this notice: "IMPORTANT NOTICE: The payment of any penalty demanded of you does not prevent criminal prosecution under a related criminal provision." If you receive such a notice, don't just pay right away. It may be worth consulting a lawyer..

One way to mitigate the inevitable criminal prosecution is to try to work out a 'compromise of the misdemeanor.' This compromise is described in another Washington law, RCW 10.22.010. It grants a court discretion to dismiss an eligible charge (where the charge was not committed upon an officer, or done “riotously,” or with intent to commit a felony or involve domestic violence.) The key requirement is that the injured party must “acknowledge in writing that he or she has received satisfaction for the injury.” So if you want to pay the civil fine, it may be worth negotiating with the victim of the theft to get them to agree to sign off on a compromise of the misdemeanor..

One irony for shoplifters: the big corporate chains--Sears, KMART, Fry's Electronics, etc. are the most likely to catch you, the most likely to make a civil demand, and the least likely to agree to a compromise of the misdemeanor when you are charged with a crime. "It's against corporate policy" or some such rubbish is their reasoning. They want your purchases but they don't really care about you: the no mercy rule. In contrast, the poorer, solo shopowners who can't afford the fancy security are more likely to sign off on a compromise. One more reason to stay away from chain stores..

These rules apply to juveniles as well. That is, the custodial parent can be sued on the civil side. Of course that may give the parent a right to collect that debt from their young loved one.
For example there is a case where the juvenile shoplifted a $20 shirt and his father paid a civil penalty of $175 to the store, the court required the son to pay his father $100 back in restitution. State v. T.A.D., 122 Wn. App. 290, (2004)..

So caveat emptor: buyer and shoplifter, beware..!

Friday, July 2, 2010

How Could the Jury Let That Cop Off?

King County deputy sheriff punches and kicks a juvenile on videotape, lies on his reports, gets fired, and yet two juries have failed to convict him for a misdemeanor assault on the 15 year old girl! Even stranger--the first jury votes 11-1 to convict and the second 11-1 to acquit, a total reversal.. What is going on?

To begin with, when a case is re-tried to a new set of 12 jurors, it is a fresh start even if the evidence comes out exactly the same. People can view the evidence in different ways, depending on their background and other characteristics. Here, the first case was tried in downtown Seattle and the second case was tried in Kent--the two locales for King County Superior Court. The Kent site jurors are from south King County. In the same manner, downtown Seattle cases draw only city residents and north enders. It is well known that north King County residents (including Seattle) are richer and better educated on average than south end residents. So it is likely the two jury panels had different socio-economic averages, which explains one difference in how they act as jurors and perceived the case..

Another difference is that the evidence usually does not come out exactly the same in the second trial. So it is like a fresh shake of the dice if the evidence differs enough. And certain subtleties such as impeachment with prior testimony from the first trial can effect the perceptions in the second trial. Another strong possibility is the arrogance of the prosecutor. Since he won the first 11-1, he probably did nothing to improve his hand and just replayed what he did the first time. I question whether he vigorously cross-examined the defendant, especially using the lies he told about the incident..

In fact, a big factor in the second trial, according to some jurors, is that the prosecutor "didn't prove if the force was unlawful or lawful." That is, the jury was no doubt instructed on lawful force, which sets out the law on 'self defense.' That instruction defines what is lawful force and specifically requires the prosecutor to prove beyond a reasonable doubt that the defendant was not employing reasonable force. This is a high hurdle for the prosecutor. To begin with, jurors are going to give police officers a lot of leeway in employing force on their jobs. To be sure, if the officer had simply grabbed the girl and forcibly cuffed her after she kicked the shoe at him, he wouldn't even have been charged. So he could legally use force to restrain her. It also probably helped the defense that young people (recent jaywalking incident) may be perceived as not respecting police. That is a subject a creative defense lawyer might have used in jury selection or closing argument..

And yet, the officer seemed to punch and kick her unnecessarily. So the issue was really whether his use of force was "excessive." The standard jury instruction uses the phrase: "when the force is not more than is necessary." That phrase is further explained to the jury this way: "The person using or attempting the force may employ such force and means as a reasonably prudent person would use under the same or similar conditions as they appeared to the person, taking into consideration all of the facts and circumstances known to the person at the time of and prior to the incident." So the officer's training, experience and background with similar offenders is relevant. And the jury noted this when one remarked: "It was a very strong show of force, but the fact she was not injured during the process shows he followed the techniques he was trained to use." In other words, they bought the defense argument that the state had not proved that the force was excessive beyond a reasonable doubt. Again, I wonder if the state produced sufficient expert testimony to rebut this claim..

There is no question that the cop's attorney, Peter Offenbecker, did a great job, especially dealing with the negative publicity and the preconceptions a jury would harbor. In contrast, the prosecutor should question his trial skills. Results like this always baffle anyone who did not sit throughout the entire trial and hear all of the testimony and arguments. At this point, this is a case that the state should not and probably will not re-try. And I doubt the federal prosecutor will take the case. The only 'justice' is that the County did settle a civil suit by the 15 year old girl. Except. . . we, the taxpayers, footed that bill..

Thursday, June 24, 2010

Sign a petition and stand by your position.

Today the U.S. Supreme Court ruled that Washington's Public Disclosure Law does not violate the First Amendment rights of people who sign petitions to change the law. Doe v. Reed involved the referendum to repeal the law giving same-sex couples some of the same rights and benefits heterosexual couples get. That referendum was later rejected by 53% of the voters; i.e., the same-sex couples law was upheld..

Before that election when the referendum supporters had enough signatures to get the issue on the ballot, opponents of the referendum filed for disclosure of the names of the referendum signers. Under state law, the signers' names and addresses on successful petitions are considered state documents and subject to public disclosure. The signers objected, arguing their right to freedom of expression would be chilled by the potential for harassment for their position. A federal district judge in Tacoma agreed and issued an injunction barring release of the names. In an 8-1 decision the court reversed, and Chief Justice Roberts wrote: "disclosure requirements may burden the ability to speak, but they do not prevent anyone from speaking .."

Justice Sotomayor concurred with that reasoning: "for persons with the "civic courage" to participate in this process, the State’s decision to make accessible what they voluntarily place in the public sphere should not deter them from engaging in the expressive act of petition signing." Although the Court threw out the First Amendment challenge, it left open the possibility that the referendum signers might still prevent disclosure if they could qualify for an exemption under the Public Disclosure Law. As Justice Stevens in his concurring opinion noted: "there would have to be a significant threat of harassment directed at those who sign the petition that cannot be mitigated by law enforcement measures" for disclosure to be granted..

The referendum signers wanted to remain anonymous because they 'feared' harassment from the other side. I'm not sure that's what was really going on. I think they wanted to hide their biases and prejudices against same-sex couples from ridicule. Because their attempt to 'protect marriage' is narrow minded and stupid. The fact that some adults wish to spend their domestic, private lives with the same sex has no effect upon others who choose to spend their private lives with the opposite sex. The argument that a marriage's only purpose is to sanctify the procreation and raising of children is to miss the point of love and marriage. Just because only opposite sex marriages can result in biologicial children, it does not mean others should not enjoy marriage and have an equal right to the benefits the law confers. And in any event, I know many same sex couples who are much better parents than opposite sex couples..

Of greater concern is this notion of anonymity. In the era of the internet it is much easier to express opinions anonymously behind some username. That permits the most extreme, irresponsible positions, arguing nonsense such as death panels. The notion that anonymity is sacred is wrong. Even the supposed right to a secret ballot is not that old. As Justice Scalia pointed out: "Voting was public until 1888 when the States began to adopt the Australian secret ballot. . . We have acknowledged the existence of a First Amendment interest in voting, but we have never said that it includes the right to vote anonymously." Opinions about the public policy must be openly discussed. On this I agree with Justice Scalia when he writes: "For my part, I do not look forward to a society which campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.."

If you don't have the courage to stand by your convictions, then you shouldn't sign petitions or take positions that others can hear or read in any medium. Having to withstand criticism and defending your position is part of the process. Otherwise, there is no marketplace of ideas, but just a jeering crowd of anonymous hecklers and bigots..

Wednesday, June 16, 2010

Are the Police Getting More Violent?

The recent posting of the video of a police officer punching a 17 year old girl in the face revives this question. In that particular case, the officer was trying to control or handcuff another woman who allegedly jaywalked. The 17 year old intervened (even though you can see a male trying to pull her away from the confrontation) and began preventing the arrest of the other female. She was tussling with the officer when he punched her once in the face, which backed her off and allowed him to try to regain control of the person he wanted to arrest..

The first questions that come to my mind are: why was this patrol officer making a jaywalking arrest and couldn't he have used less force to gain control of the situation? Jaywalking is one of those offenses that officers can use to harass people or to see if they have warrants. On the other hand, this officer may always stop jaywalkers because it is an infraction. The fact is people should not openly break the law--even jaywalking--in front of police officers as it may challenge their authority. As to the force used, there may have been better ways to gain control of the situation, but most police officers do not tolerate disrepect or any disobedience. They will react to situtations that appear threatening to them, especially in light of all the violence directed toward the police lately..

Several other recent videos show police conduct that is far more violent and lawless. One was where the arrested man was cuffed and face down on the street and the police kicked and stomped him. He appeared helpless and the officer's insulting words involving Mexicans seemed to indicate an unlawful motive. The most egregious was the 15 year old girl who was beaten by an officer after she ostensibly disrespected him by lightly kicking her shoe at him. In these two cases the police clearly went over the line. Of course, years ago the Rodney King beating remains the most famous example of police violence. Do these instances reflect greater violence, or is it that more video cameras are just capturing what has always gone on? It's hard to say, but I have had plenty of clients tell me over the years about police violence..

Prosecutors have charged police with crimes in recent years for their excessive or unlawful use of force. In Everett, a police officer was tried for murder when a DUI suspect allegedly tried to leave the scene or run him over, depending on whose version was believed. The officer raised self defense and the jury acquitted him. Notably, the jury did not award him costs because they did not find by a preponderance of the evidence that he was using lawful force. Here in Seattle, the office who beat the 15 year old was tried for assault and also raised self defense. The first jury to hear that case hung. Reportedly, one juror held out against 11 others who voted to convict. That case will be re-tried. However, even where the video seems to prove the officer lost it and beat the girl, there are jurors who won't convict. But the mere fact that there have been several prosecutions lately makes me think that police violence could be on the uptick..

So returning to our 17 year old who was punched in the face, even if the officer used excessive force, what is to be done? To begin with, it will probably not be a defense to her potential charges of assault on the officer or for obstructing the arrest of the other woman. Generally, a person may use force to aid another in resisting an arrest by a police officer only if the person being arrested is in actual and imminent danger of serious injury from an officer's use of excessive force. The video does not show that the officer was using much force on the woman he was first trying to arrest. Similarly, a person being arrested has no right to resist even an unlawful arrest. They can only resist when there is actual and imminent danger of serious injury..

If a person is subject to an unlawful arrest, then the remedy is to sue the officer, not to resist the arrest. The 17 year old who was punched in the video may have a civil suit, although I doubt it will have much merit given that she had no right to intervene. On the other hand, the 15 year old who was beaten and the man face down on the street may have very good civil cases to pursue..

Thursday, June 10, 2010


Traditionally American courts have been more independent from politics than the other two branches of government. This is so despite judges having to run for office in many states. Although in all federal courts and in some states judges are appointed, in a number of other states, such as Washington, judges at all levels—municipal on up to the state’s Supreme Court—are elected..

Over the years in Washington state, judges’ elections have become more expensive and a bit more political. Some of our Supreme Court races are shaping up to be more of a left v. right type than previously. On the other hand, voters tend not to be well informed about judges’ politics, so that candidates with common last names, such a Johnson, have been able to exploit that..

But that’s nothing compared to the threat to judicial independence that San Diego County in California went through recently. There, a slate of four Christian lawyers, who vowed to be God’s ambassadors, ran against four sitting and well-respected judges. This slate was backed by a group of pastors, gun enthusiasts, and opponents of abortion and same sex marriage. (Can anyone explain why gun lovers and devout Christians band together? Does the NRA contribute to churches?) Luckily, the voters of San Diego County saw through this assault on the judiciary and voted to keep their independent judges in office just this week..

This may not be the last we see of such electoral politics. Such tactics might succeed better in more rural counties or even in Spokane County, where such interest groups might see this as a way of electing judges more inclined to their way of thinking. And that’s what is most disturbing. I am avowed liberal, but I would oppose the ACLU putting together a slate of judges. As a lawyer, I don’t want to be in any judge’s court who appealed to any interest group’s ‘way of thinking..

To be effective, fair and impartial, judges have to be open minded and not beholden to a special interest’s ‘way of thinking.’ Now that the U.S. Supreme Court has thrown out laws limiting how much corporations can give to political candidates, another threat is for a corporate slates of judges to emerge. What if Boeing or Microsoft put together such a slate? Their 'way of thinking' is mostly governed by dollars and cents. Imagine trying to get a fair trial if you sue them!

The only ‘way of thinking’ a judge must follow is to uphold the Constitution and to interpret the laws passed by the legislature and enforced by the executive. Perhaps I am being a bit unrealistic to think that judge's decisions are apolitical. Yet, if some other ‘way of thinking’ intruded, any decision by that judge would be suspect, and certainly not better..

Wednesday, June 2, 2010

Do You Have the Right to Remain Silent?

For many years in nearly all TV cop shows, the police read the Miranda warnings to the people they arrest. Despite the warnings, they talk. After all, it wouldn't make for very good TV if the suspects asserted their rights much. So usually they talk or provide absurd alibis or excuses that lead to the next scene. But in real life, after the police read the Miranda warnings ("You have the right to remain silent. Anything you say can be used against you . .") what does a person need to do to assert his or her rights? If they just remain silent, is that enough? Recently the U.S. Supreme Court ruled that refusing to talk is not a sufficient assertion of the right to remain silent..

It seems absurd. For what must a person do to exercise his right to remain silent beyond actually remaining silent? But lets look at the facts of the case--Berghuis v. Thompkins. The defendant, Van Thompkins, was arrested for murder at 1:30 p.m., taken to an 8x10 interrogation room and properly read all his Miranda rights. During the next three hours, Thompkins was mostly silent in the face of police questioning, answering some questions 'yes' or 'no' or nodding his head. At no time did he request a lawyer or say anything such as 'I wish to remain silent.' In the last 15 minutes, the police asked him: Do you believe in God?” He said “Yes,” as his eyes “welled up with tears.” Eventually he was asked, “Do you pray to God to forgive you for shooting that boy down?” He answered, "Yes." Which was all the prosecution needed..

Before the U.S. Supremes accepted this case, a federal Court of Appeals ruled that: “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers" that he did not wish to waive his rights. Moreover, the police never asked for an express waiver of the Miranda rights. In a close 5-4 decision, the Supremes reversed, holding that: "Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent." The clear message is that an arrested person must say something such as, "I don't want to talk," or "I wish to remain silent." After such an assertion, then the law protects a person from repeated interrogation or other attempts to get around his constitutional rights..

Requesting a lawyer provides even more protection of the arrested person's rights. Unless and until the police get an attorney to the scene of the interrogation, they cannot resume questioning. Yet, with the Court's latest decision, the door to police persistence is further opened. The newest Justice--Sotomayor--writing the dissenting opinion, notes that the majority decision: "invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response." Silence alone, then, does not prevent the police from trying every interrogation trick in the book, from appealing to religion (as with Thompkins), or to motherhood, or perhaps using a ruse or a lie such as your pal says 'you did it..'

Our constitutional rights not to incriminate ourselves (5th Amendment) and to counsel (6th Amendment) are precious, but they do not protect us when they lie dormant. If you wish to assert your rights, you must say it. And you must say it loudly and in no uncertain terms. If you ask a question like "Do I need a lawyer?" it will not necessarily be answered by the police because they don't have to. If you are in doubt, you probably do need a lawyer, so make your demand loud and clear..


Monday, May 24, 2010

What causes crime rates to go up or down?

Crime statistics show that both violent and property crimes dropped from 2008 to 2009, despite higher unemployment and a sinking economy. http://www.nytimes.com/2010/05/25/us/25crime.html?hp This is contrary to what many people believe. In the last year or so, friends and acquaintances would constantly ask me if my business was picking up due to the recession. The short answer is no..

Obviously with crime rates dropping, 'business' would be slower. But even more so, prosecution rates are dropping not only due to the dip in crime but also because state and local governments are cutting back on police, prosecutor and court budgets. My 'business' is far more dependent on prosecution rates than on crime rates. With the cuts in state and local budgets, another effect is felt: more lawyers without work. And when more lawyers are not employed by others, that means there are more of them competing to defend the shrinking pie of cases prosecuted..

But the bigger question is why are crime rates dropping in a recession? You'd think more unemployed people would mean more theft, robbery and other economic crimes plus more frustration, and perhaps more violent crime as well. Yet crime statistics from the 20th century show that the Prohibition era of the 1920's was far more violent than the Depression in the 30's. Experts do not have many well accepted theories on what causes crime rates to rise and fall. Some scholars have suggested such theories as: greater numbers of immigrants, who tend to keep a low profile; as opposed to this, others assert more illegal immigration increases crime rates; public housing policy dispersing the poor may decrease rates; legalized abortion (so fewer unwanted children are born) may decrease; the crack epidemic in the 1980's was thought to increase crime ; and changes in age distribution--e.g., the baby boom in the late 60's and 70's and the boomlet in the late 80's and 90's effect rates of crime..

The age distribution theory is probably the one most accepted. That is, crime rates tend to flow with the number of young males at a given time; the higher the proportion of young men in the population, the higher the crime rates since young men are by and large the biggest group of offenders. In fact, there is no strong statistical correlation between stricter law enforcement and longer sentences and the rise and fall of crime rates. See: http://www.psychologytoday.com/blog/the-scientific-fundamentalist/200808/when-crime-rates-go-down-recidivism-rates-go This just serves to show that politicians who emphasize 'law and order' as an issue may be just blowing smoke..

One interesting theory on why crimes rates might decline during a recession is it pulls families together, and this cohesion inhibits crime. More young people may move back home and are less influenced by their impulsive peers as well. There is also less economic activity in a recession so there is less interaction and opportunity for crime. Ironically, crime rates went up during the prosperity of the 1960's and one theory is that with rising wealth, the havenots and the people left out are more bitter and turn to crime. In contrast, when everyone's boat is sinking with the economic tide, there is more empathy, less jealousy and hence less crime. Of course none of this has been proven..

Finally, there are theories that smarter, better policing may reduce crime rates. For example, declining crime rates in New York City and Los Angeles are often ascribed to increases in the number of police on the streets, better computers for tracking crime, making precinct commanders accountable for managing crime in their districts, and an aggressive policy of searching people on the streets for guns. To be sure, the latter policy may deter crime, but makes it harder to obtain convictions if the Fourth Amendment is violated. Like many other factors, these claims of improved policing are unproven. Another possibility is that the increased use of very long 3 strikes sentences and federal mandatory sentences have cut back on the recdivist population. But that would not necessarily explain the drop from 2008-2009..

At this point, there is no final answer on what causes crime rates to go up or down..

Tuesday, May 18, 2010

What is Cruel and Unusual?

Recently the U.S. Supreme Court found that a life without parole sentence for a 17 year old who was found guilty of two very violent robberies was a cruel and unusual punishment in violation of the 8th Amendment. The question: what constitutes 'cruel and unusual punishment?' has been answered by the Supreme Court this way: "courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society." In other words, an acceptable punishment in one era (death penalty for rape) might become cruel and unusual in another era..

100 years ago, the Court said "that punishment for crime should be graduated and proportioned to the offense." 20 years ago the Court upheld a life without parole sentence for possessing a large quantity of cocaine and narrowed this by finding that 'cruel and unusual' "forbids only extreme sentences that are 'grossly disproportionate' to the crime." And just 7 years ago, the Court upheld a sentence of 25 years to life for the theft of a few golf clubs under California's three-strikes scheme. However, parole was still possible there..

In comparison to those cases, you would think very violent robberies deserve a life without parole sentence. The distinction is that for someone under 18 it is currently rare to get a sentence that long where no homicide was committed. This reflects a societal judgment not to impose such harsh sentences on juveniles, suggesting that such a sentence is 'cruel and unusual.' Underlying this is the notion of hope: juveniles have a better chance of rehabilitating than adults. Juveniles' "actions are less likely to be evidence of "irretrievably depraved character" than are the actions of adults.."

Due to the violent and repetitive nature of the robberies, this juvenile deserves to be imprisoned for some time in order to protect society from his "escalating pattern of criminal conduct." Nonetheless, he also should get a shot down the road to show that he has matured, changed and is ready to re-enter society. Under the Court's decision, the state of Florida could still deny him release on parole the rest of his life. But at least he has a reason to change..

Since the 1980's, we have come down harder on young offenders because so many of their crimes were as bad as adult crimes. Until the late 1980's in Washington, anyone under 18 accused of any crime was entitled to a hearing to determine if the case should be sent to adult court. Now 16 and 17 year old offenders accused of murder and other serious violent offenses are automatically sent to adult court to face adult level punishments. This trend to punish juvenile offenders more and more like adults swept across the nation. Obviously states like Florida took it much further than Washington did. Yet maybe now the pendulum is swinging away from such harsh treatment of juveniles. Just as more and more courts are trying to treat drug offenders instead of incarcerate them, perhaps we will begin looking at those horrible choices of youth with more mercy..

Thursday, May 6, 2010

The Death Penalty Is Wrong

Just the other day a King County jury voted to impose the death penalty on a man convicted of killing two young women and two children. It was a brutal, incomprehensible crime. No one can understand how anyone can kill children, much less have mercy for the killer. Murders with quasi-rational motives are done in anger, for money, in jealous rages, to cover up another crime, or for sex. In this particular recent case, none of these motives were apparent. According to the defendant, he was in a alcohol/drug induced blackout and came to after they were dead..

This man had no previous criminal record and from what I hear, there was no evidence he had even been violent before. He had an alcohol/drug problem and probably other mental issues but nothing extreme enough to explain this crime. It is probable he did not even know or meet the victims before, as he just moved into the neighborhood. Despite this aberration in his life, the jury determined that there was not enough mitigating evidence to raise a reasonable doubt to spare him. My belief is that if you murder children, 'death qualified' juries will impose the death penalty. (A 'death-qualified' jury is made up of people who agree they can impose the death penalty if the law and the facts support it; those opposed to the death penalty cannot serve.] For the record, the last defendant from King County, who was sentenced to death by a jury, also killed a child. He is still on death row..

On its face, this does not seem unfair or wrong. Kill an adult you can spend the rest of your life behind bars, but if you kill a child, life in prison does not seem severe enough of a response. So the death penalty serves that purpose. And yet. . . the worst killer in the history of this State--the Green River Killer--did not get the death penalty. Instead he was able to trade his knowledge of where his victims were buried to get a life sentence. In other words, that case seemed to say: 'Kill enough people, you can make a deal!" Although the people involved in making the deal with the Green River Killer might disagree and say he provided 'closure' to his victims' families, it does not deal with the essential unfairness of that result..

No other criminal terrorized a community for so long, killed so many young women and girls, and collaterally harmed so many others as the Green River Killer. If that criminal does not get the death penalty, how can it be justified for someone else who did less harm? It can't. Therein lies a major flaw with the death penalty: its inconsistency. Also, recall that none of the Wah Mee killers who murdered 13 people received the death penalty as well. In our all too human and flawed legal system, this lack of uniformity and consistency defeats any righteous defense of the ultimate penalty..

And I haven't even mentioned the death penalty cases from other states that involved innocent people! For the simple reason that our legal system can never be flawless, I cannot support the death penalty. One of the fundamental maxims of our legal system as expressed by Blackstone is that 'it is better to let 10 guilty men off than to condemn one innocent man.' As we are loathe to imprison the innocent, our governments should not be putting people to death. As Justice Blackmun, a Nixon appointee, put it: our society should not "tinker with the machinery of death." It is time to stop the death penalty..

Wednesday, April 28, 2010

Why Do the Mentally Ill Get a Break in How They Are Punished for Crimes?

Recently the King County Prosecutor, Dan Satterburg, decided not to pursue the death penalty for a man who allegedly raped and tortured two women, killed one, and attempted to kill the other. Despite the heinous allegations, it was a sound decision supported by Washington law..

To convince a jury to impose the death penalty for aggravated murder, the prosecution must prove beyond a reasonable doubt that there are not "sufficient mitigating circumstances to merit leniency." Under this statute, RCW 10.95.060 and .070, there are a number of factors a jury can consider in determining whether such mitigating circumstances exist. One of them is the following: "Whether the murder was committed while the defendant was under the influence of extreme mental disturbance." In the recent case, the defendant's history of severe mental illness presented by the defense attorneys to the prosecutor was probably compelling. So the prosecutor exercised his discretion, and saved the taxpayers a lot of time, money and effort.

Some may object and argue that the alleged crimes were too severe for leniency. And, in any case, isn't a defendant who is mentally ill even more dangerous? Shouldn't society protect itself? To begin with, this defendant is facing a 'life without possibility of parole' sentence. As far as I know, no one ever sentenced to life without parole has gotten out or escaped in this state. So the societal protection issue is covered..

It is possible this defendant may not be sentenced to life without parole. He may raise an insanity defense, and if that were successful, what then? There have been cases where the insanity defense has either been successful or where the jury convicted the defendant of some lesser crime, with no life sentence. After this individual serves his sentence, and if he is deemed sufficiently dangerous, he can still be committed to Western State Hospital for an indefinite time. I was involved with one such case..

This still leaves the question: Why do the mentally ill get a break? This is a question that is a commonplace in most criminal justice courses and can often make its way into popular, political discussions of criminology and culpability. The short answer is that our laws are based in part on moral and religious principles. One of those principles is that a crime requires a willful act by a sane person. A person who does not know right from wrong as a result of mental disease or defect is not sane. For a long time in England and then in America, the law has recognized that an insane person cannot and should not be punished for the wrongdoing. Hence to this day, an acquittal on grounds of insanity does not result in a criminal punishment. The person acquitted could be civilly committed indefinitely but our society (or at least under Washington state law) does not condemn such persons as criminals..

Thursday, April 22, 2010

Sex, Jocks and the Law

Rape cases where the defense is consent can be the hardest cases to prove. The recent allegations against quarterback Ben Roethlisberger reveal this ugly truth. A close examination of the complaining witness' police statement explains why the prosecutor decided not to file a case..

She initially told the police (her handwritten statement is online at: http://www.thesmokinggun.com/archive/years/2010/0415101roethlisberger1.html) that she was at a bar and at one point Ben made "crude, sexual remarks." After these remarks, Ben asked her and her friends to go to his "VIP" area at the back of the bar. She and her friends agreed. There, she and her friends were offered free, numerous shots of booze, and presumably they drank them. After this point, she was 'escorted' to a side hallway and sometime after that, Ben allegedly forced her to have sex..

Now imagine a jury of Georgians from the small town of Milledgeville where this occurred. A defense attorney would certainly try to pick a jury that would not be sympathetic to a young woman who makes the choices she made before the alleged assault. If this were Seattle, it would be harder to pick such a jury. And yet even in Seattle, a certain part of any community, e.g, some older people, might judge her harshly..

The jury would be asked in closing by the defense attorney to determine her credibility, where there is little to corroborate her version that he forced her to have sex. After all, the star quarterback would be presumed innocent, as all criminal defendants are. And the prosecutor would have to prove beyond a reasonable doubt that she did not consent. The prosecutor would have to contend with arguments like this: "Despite Ben's crude sexual remarks, this young lady and her friends agreed to accompany this celebrity quarterback to his VIP room. Were they football 'groupies' or just naive young women? Was she so drunk she doesn't remember if she consented? . . " and so on..

Careful prosecutors don't like cases without substantial proof. Here, apparently the young woman did not want to prosecute, given that her privacy and life would be picked apart not just by opposing counsel but by the media. With these difficulties in mind it is not surprising they declined to prosecute. Although our legal system is far from perfect, it does not appear to be an unreasonable decision. In the end, this whole affair is more of a cynical reflection of our culture of celebrity than an indictment of the legal system..

Friday, April 16, 2010

Do You Have a Criminal Record?

This used to be a very straightforward question because there were only two actual sources of official criminal records: the state patrol and the FBI. In fact, that has not changed. What has changed is the ease with which such records can be found..

Now, post-911 and in the internet age, that question is far more complicated. To begin with, far more employers, schools, sports teams, nonprofit organizations, clubs, and private concerns check criminal records. In our nervous times, we worry a lot more about terrorism, child molesters, thieves, and so on. So one natural response to this worry is to check out every job applicant's, prospective coach's, and volunteer's background--i.e., their criminal record, for starters. And the internet makes it easy..

Just google 'criminal records' and you get various sites such as: criminal.com. Type in a name and you could find out for free if there are records, and then get them--for a fee. The problem is that this site(like many others) may or may not reveal exactly what database it used to give you the information. And not all databases are created equal. For example, let's take court records. Virtually all criminal court records are open to viewing. They are publicly available and free to look at if you go to the originating courthouse. Before the internet, that took a bit of legwork and time. Now many court records are available on line..

Many of the criminal records search engines use court records. So what's wrong with court records as a database for research on someone's criminal record? The problem is that court records include everyone who has ever been accused of a crime, whether the case was dismissed at arraignment by the prosecutor, or later by a judge, or if a jury found the accused innocent. That is, it includes many people WHO DO NOT HAVE CRIMINAL RECORDS! So unless these search engines are actually reading the entire file to make sure, their reports are suspect..

For a criminal record should mean that the person was found or pled guilty, and was convicted and sentenced. So employers or groups who use anything but official sites, such as https://watch.wsp.wa.gov/ in Washington state, are relying on something other than official criminal records. That means anything else may be unreliable..

I have a former client whose case I got dismissed at a pretrial hearing by the judge on the prosecutor's motion. Sometime after this, he submitted a bid for a contract on a job. He was declined. The group that declined his bid told him he had a criminal record and so that disqualified him. He asked what record and they cited the very case we got dismissed. I told him that was not a 'criminal record,' but a court record..

This violated one of the precepts of our legal system: presumed innocent until guilt is proven beyond a reasonable doubt. Maybe he will sue them. Unfortunately, the damage has been done..

Thursday, April 8, 2010

Why Do We Let Them Re-Offend Again and Again?

Over the weekend there was a horrible tragedy in my neighborhood: 3 young men were killed when their car slammed into a metal pole at high speed; and a high school girl who was seriously injured is not out of the woods yet. It is unknown whether alcohol was involved, but the police have now named the driver. It turns out he had a pending DUI case, where he allegedly blew a .14 breath alcohol which is nearly twice the limit of .08 for those over 21. He was 20, so he was way over the .02 limit for those under 21..

A friend of ours called and wanted to know why his license had not been suspended yet. She also wondered why a recent public official (Washington Superintendent of Public Instruction Randy Dorn) who was arrested for DUI got his license suspended so quickly. The answer on the latter question is easy: he pled guilty in court to DUI, so his license was suspended immediately. He conceded his right to fight it and accepted his punishment. For a public official that is what a mensch would do..

In contrast, the young man had not pled guilty so his case was still pending. In our society we presume the accused innocent, no matter what the crime. (In "Alice in Wonderland" its' 'punishment first, verdict later,' a place some demagogues would enjoy.) In order for a court to suspend someone's license, there must be due process of law. That is a phrase from the Constitution. Although a driver's license is not a "right," it is a privilege with certain protections. It cannot be taken away from a person who legally possesses one without due process--some legal procedure. So in the young man's criminal case, he is accorded a variety of rights such as a jury trial, live testimony, proof beyond a reasonable doubt, and so on, before he can be punished with jail and license suspension..

In DUI cases, there is also a parallel administrative proceeding which is largely independent of the criminal case, but tends to move faster. For example, the young man with the pending DUI, would have been given a notice the night of his arrest for DUI. That notice would inform him that he had 20 days to demand a hearing before the Department of Licensing (DOL), since he blew greater than an .02 (being under 21, or, if over 21, over .08 .) If he did not demand the hearing within the 20 days, then DOL would administratively suspend his license for 90 days..

Since the police said he was arrested for his DUI in early March, even if he had not demanded a hearing, his suspension would not have gone into effect before the crash in early April. Even without a demand for a hearing, that process takes time before the DOL issues a suspension. On the other hand, if he had demanded a hearing, it would have been set about 30-60 days out from the receipt of his demand. During that time, he could still legally drive..

As a society governed by Constitutional principles, there are occasions where someone who commits one wrong can repeat it before being punished for the first wrong. The whole tragedy surrounding the man who killed four police officers is even more complicated. He was someone who was allowed to post bail before a court could review all of the facts. That, along with Arkansas' parole procedures and snafus with Washington state, led to that nightmare..

Now due to that sordid history, the Legislature has passed a bill changing Washington's Constitutional provisions on bail, which have been the same since statehood in 1889. This must be approved by the voters yet, and I suspect it will be approved. Whether this change in bail procedure will prevent future tragedies is hard to predict. As a society that values freedom, it is a challenge to deter repeat offenders and maintain due process and the presumption of innocence. It remains an evolving process..

Friday, March 26, 2010

Will the U.S. Supreme Court strike down the Health Care bill just passed?

Today columnist Linda Greenhouse wrote in the New York Times that she is hopeful that due to Chief Justice Roberts' concern with his legacy and his past voting record, he will probably vote to uphold the health care bill just passed. http://opinionator.blogs.nytimes.com/2010/03/25/which-side-of-history/?hp#preview
I can only hope her prediction comes true..

The judgment of history may motivate some people, but as a great constitutional law professor of mine (David Adamany) taught, the court is a 'delegitimating' institution. In other words, it represents an echo of past elections but not the current state of what the democratic electorate has voted for. So that throughout history, the Supreme Court has often blocked the changes demanded by the electorate. The New Deal was just one. We could be entering another such era..

The idea that Supreme Court justices follow strict jurisprudence and legal precedent to reach their decisions is the kind of hokum they pronounce at confirmation hearings. Even the overrated Rehnquist's voting record is best predicted by looking at the parties: if it's a private business v. the government, the business wins; if it's a public interest group v. anyone, anyone wins; if it's an individual against the government (e.g., a criminal defendant or a personal injury plaintiff), the government wins. I was involved in a case in 1980: Schaumberg v. CBE, 444 U.S. 620 (1980) in which Rehnquist was the sole dissenter because we were a public interest group. He was the only judge who voted against us not only in the Supreme Court but in the northern district of Illinois and the Seventh Circuit Court of Appeals..

He was result oriented and the current crew of Justices are the same. So just as an earlier group wanted to stop the vote counting in Florida in 2000, jurisprudence notwithstanding, they cloaked their decision in legalistic hash. So now the majority can reach the result they want and then justify it with arcane references to originalism or the meaning of the word in 1789, or the 10th Amendment. If the Chief Justice wants to strike down health care, he will find a way..

To twist President Clinton's phrase, \"It's the politics, stupid!\" The Court has always been a political animal--but one that was never elected..

Thursday, February 25, 2010

Why don't more bankers get indicted?

In the previous blog I discussed identity theft cases. I will now discuss bank fraud and why it is so hard to charge the very greediest bankers at the top. Although such identity theft cases can involve hundreds of thousands of dollars, they are small beans compared to bank fraud, specifically fraud surrounding real estate loans--called mortgages.. To begin with, the average single mortgage here in Seattle is nearly a half million dollars.. If a house is flipped, that is sold quickly over and over, millions can mount up in no time..

In the last 10 years, during the housing bubble, this crime was rampant.. Since banks or lenders assumed that real estate values would continue to go up, they got lazy and failed to scrutinize the ability of the borrower to pay back the loan.. The stupid assumption was that if the loan was below the inflated 'market value' of the house, and even if the buyer could not afford it, the bank could recoup its loss by foreclosing and selling at that ever-increasing market value..

So in the frenzy to earn those fees and points, lenders, banks and mortgage companies failed to perform any due diligence in examining the borrower's assets and income.. In a fraudulent mortgage loan, the borrower's assets and income would be fictional, or confirmed by a confederate.. Instead of really examining the borrower's ability to repay the loan, too many lenders were in a rush to sell and close the loan, and then move on to the next one.. And anyway, the lender never held the paper, i.e., kept the loan to collect the monthly payments; someone else bought that as an investment (one type known as a "derivative..") And lo and behold, we are in the Great Recession of 2008-now!.

The question is then, why haven't the people at the top been charged more for making these loans or selling these terrible investments? Previously I talked about how high the proof standards are for federal charges. In most cases, at least here in Seattle, federal prosecutors do not indict people unless they have a lot of proof of wrongdoing.

Bankers who made reckless loans, stupid investments or overpaid themselves have not necessarily committed a crime. They may have been negligent or reckless with other people's money and certainly overpaid themselves. But it takes fraud to commit a crime. Fraud typically involves intentional lies that other people rely on in parting with their money. Or intentional misstatements about the health of a company or intentional omissions to investors or stockholders. The latter is what got the Enron execs in trouble..

In mortgage fraud cases, the perpetrators typically lie about the borrower's assets and income on the loan application form. That makes for an easy case. Frequently, there are many people involved in these cases and only the top people who run the scam and tell a lot of easily proven lies are charged. I know of cases where only 3 or 4 people are charged, but there may be 20 or 30 who told lies along the way but don't get charged because the proof is not strong enough..

And if you think about the top people--those who earn 10's of millions of dollars--they tend to be smart and careful. They have lawyers review what they say and write to avoid misleading statements. Right now there are investigations involving former top people at Bank of America and the now defunct Washington Mutual. Whether they are charged will depend on how much evidence there is. I constantly shake my head at the fact that many people at these companies made tons of money, even though their companies later went bankrupt or begged for government aid. But that is a flaw of our economic system since greed alone has never been a crime..

Monday, February 22, 2010

How a Federal Indictment can spoil your day

Here in Seattle, federal prosecutors have a conviction rate that easily exceeds 90%.. In simple terms if you are indicted here in federal court, don't buy bulk at Costco.. Having defended people charged in federal court for the last 20 years, which means over 200 cases, I can count on two hands the number of people who have totally walked away from a federal indictment..

By that I mean cases that were dismissed outright such as through suppression of key evidence under the Fourth Amendment, or where a jury acquitted of all charges, or where the prosecution was convinced to dismiss a case.. In the latter category, the defendant typically had to go in, tell the prosecutors her story, and hope they believe her.. I use "her" deliberately, as the usual dismissed case is the spouse or girlfriend who lives with someone who may be growing large amounts of marijuana (say 150 plants) in their basement.. Their way out was to explain exactly how they had nothing to do with the grow operation..

This is not to say I have not gotten good results in many other cases.. I have worked out very favorable plea bargains, even down to misdemeanors with no time, in many cases.. It's just hard..

This 90%+ conviction rate is as it should be.. For when the federal government uses its bottomless resources to go after someone, they don't do it lightly or cheaply.. Federal prosecutors are well trained, highly qualified and make fearsome opponents.. They work hand in glove with federal agencies such as the FBI, DEA and ICE (Immigration and Customs Enforcement) BEFORE deciding to charge someone..

And they are generally circumspect about their awesome power. In other words, they don't indict people on thin evidence--very often.. I have seen bank robbery cases (usually federal cases, as banks are federally insured) sent to state prosecutors if there was a flaw in the case.. Given the powerful party (the U.S. government!)behind an indictment, it is a good thing they are loathe to indict on anything but very strong cases.. If not, a lot more people's days (if not lives) would be spoiled..

To be indicted for a felony in federal court, the prosecutor has to take the case to the grand jury.. A grand jury is composed of 23 people who hear witnesses who testify about the case.. Their standard is "probable cause" (explained in an earlier blog entry) and only a majority, 12 or more votes, are needed to indict.. The grand jurors, the prosecutor, and any other government agents present are sworn to secrecy.. The defendant is rarely asked to testify and even in fewer cases, will take up the offer.. The defendant's lawyer cannot appear before the grand jury.. This is the Constitutional check on the federal prosecutor's power..

Fraud cases are a growing area of federal prosecution.. In the 1980's a new crime evolved: "identity theft..." Sophisticated use of computers, skimmers (electronic devices that g lean the data from the magnetic strip on a credit or debit card) and just blatant theft of key numbers to bank accounts, credit cards, and the like aided this crime.. Basically the thief would gain access to this critical data, create new cards or bank accounts, and use it to withdraw money or to buy merchandise... Very often the thief would adopt the actual identity by using the victim's real name to get the money.. Early on, banks and credit card companies were quite naive--by mailing out information that could be stolen or not checking for picture id.. To this day, banks and credit card companies are still victimized by their own liberal policies regarding access to credit and cash.. I guess it's just a cost of doing business..

Identify theft cases tend to be overwhelming in the amount of evidence garnered against the perpetrators... Such evidence includes videotape from banks and stores (such as Walmart); seized computers with evidence of card making or confidential data; all the paper from these transactions; possession of id's, credit cards, ATM cards or skimmers; and eyewitnesses, including confederates who have become 'cooperating defendants..'

If people only knew how easy they were to prosecute, they might think twice about doing it..

But then I guess the 'easy money' is too tempting..