Category: Criminal Law


Is Litigating While Drunk A Crime? I Say Yes

Dave’s video link about the drunk criminal defense lawyer has generated some interesting comments. Folks seem to feel that the judge (and presumably the state) have little criminal recourse against a defense attorney who attempts to represent a client (facing life in prison, no less) while intoxicated. I’m not sure I agree.

I think there were several possibilities here. First, the judge could probably have charged him with contempt of court. Under Nevada law (NRS 199.340) criminal contempt consists (among other things) of “disorderly, contemptuous or insolent behavior committed during the sitting of the court, in its immediate view and presence, and directly tending to interrupt its proceedings or to impair the respect due to its authority.” Litigating while drunk seems to qualify. And in Nevada, a judge may be able to charge the crime herself – there may be no need for a DA to bring the charges.

The DA would probably be responsible for lodging other charges. The obvious one is public intoxication. I don’t know for sure, but I would not assume that the lawyer’s failure to blow a .08 in court has any particular signficance under a public intox statute. First off, this numeric standard relates to drunk driving; I doubt that it has any explicit relationsihp to public intoxication. Second, since he’d been in court for two hours before blowing the breathalyzer, it’s possible to infer that he was intoxicated under the DUI standard for at least part of the time. (An expert can support that claim.)

Another possibility is DUI. Based on his own admission, he drove a motor vehicle earlier. Based on his breathalyzer, as well as his statements (and an accident where he left before police arrived), there is arguably probable cause to believe he committed DUI. Will the DA win at trial? Will his statements be suppressed? Interesting questions – but not ones that necessarily need an answer at the charging stage.

But I’d like to think about a final charge – some version of an attempted assault. In Nevada, assault consists of “intentionally placing another person in reasonable apprehension of immediate bodily harm.” By intentionally attempting to represent a defendant while drunk, might the state argue that he made the defendant fear unjust incarceration, and its related harms? I know this is a stretch. (He would probably argue, for example, that he did not intend to put the defendant at risk.) And I am hesitant about criminalizing lawyer conduct like this for fear that it will deter lawyers from taking serious criminal cases. But it strikes me that the choice to represent people facing life – or worse, death – while drunk is more than a courtroom management problem. It’s more than an “appearance of justice” problem.

It’s definitely more than an uncomfortable moment for a lawyer. It’s a crime.


Jon Benet Ramsey And The Commodification Of Fear

There’s no real shock here. Since John Karr’s DNA didn’t match the DNA found at the scene of Jon Benet Ramsey’s murder, he won’t be charged with the offense. But this story shows us the intensity of public curiosity and anxiety that bubbles just beneath the surface. It’s almost possible to imagine a near-bankrupt media magnate, desperate to raise advertising revenue, creating a John Karr character simply to milk an existing story for a little more cash. (Smell a movie script here?) The Jon Benet narrative is like a natural resource. It was stored in our memory,virtually inert, until John Karr unleashed the expolosive power of our pent-up curiousity and anxiety. How many other stories are just waiting for re-ignition?

I suppose it seems strange to commodify crime and other horrors, but one thing’s for sure: somebody made money off John Karr this past week, and it’s not hard to figure out who. The same people who dread, yet will thrive upon, the next terrorist attack. Why wait, though? Pent up anxiety spells pent up revenue. No surprise, then, that outlets like CNN and Fox News routinely try to tap into our latent fears in order to immediately access some of the advertising dollars that would otherwise flow to the 195 other networks on our digital dial.

Since you can’t count on the likes of John Karr every day, a good media business will facilitate a more routine release of fear. Fear music, fear voice, fear font. Jon Stewart got that right. (Video link.)


The Pleasure Of Transgression: Foie Gras And Other Crimes

Two things people seem to like: duck liver and lawbreaking. Yesterday, in Chicago, diners and restauranteurs revelled in the transgressive pleasure of eating foie gras. They ate it on Connie’s pizza (and let me confess a profound soft spot for Connie’s, where my dad used to take me before White Sox games); they enjoyed it at Harry Caray’s; and they even chowed down at BJ’s Market & Bakery, a soul food joint on Stony Island (on the South Side, where I grew up.) But Chicago recently adopted an ordinance banning the sale of this fatty food product on the grounds that the ducks and geese that provide the delicacy are abused. The restaurants serving foie gras yesterday were breaking the law.

Both the Trib and the NY Times featured the story of the outlaws who ate the evil liver. (Curiously, these two stories covered remarkably similar ground. I’m thinking that either these reporters are copycats or someone put out a press release directing eager reporters to the same dining establishments.) It’s clear that restaurant owners and customers were downright happy to break the law. But wait a minute. This is the law here! That incredible institution that must be respected, lest the entire society be put at risk. Or not.

Law-breaking is a powerful source of pleasure for many people. We elect representatives to set speed limits, and routinely violate them. Those same legislators create open liquor ordinances which we flout at outdoor concerts, parades, and other festive occassions. They ban gambling, and we ignore them. Even Justice Rehnquist got into law breaking; his chambers sponsored the NCAA pool at the courthouse and he even he hosted an election night pool involving the ’92 Bush-Clinton race.

Crime isn’t the only transgressive pleasure. Take the briefest detour down the path of the Internet Porn Machine – or save yourself the effort, and read your spam folder – and you’ll soon discover a smorgasbord of socially-proscribed delights. Smoking cigarettes has become much cooler now that it’s prohibited everywhere. And let’s face it. Eating super-fatty meat products like foie gras has become a social violation in many quarters. But the truth is, people love actual lawbreaking. Sure, if nothing else is on the tube, we’ll watch the CSI team fight crime. But true TV pleasure comes when we root for Tony Soprano, cheer for the Hendrickson family on Big Love, or laugh with the 420-ready housewife on Showtime’s Weeds.

Many criminal laws are designed to protect society from serious harm. Others are less essential, and reflect the preferences of particular powerful groups. And in many respects, the best way to show opposition to the ruling majority – to take a public stand against the regulators and with our nation’s wild past – is to break a few laws. Or perhaps less dramatically, lawbreaking is one small way to assert one’s individuality against the rigidity of state regulation.

Over the years, I’ve met my share of self-described rule-followers. But scratch the surface and you’ll usually find these people have identified at least one offense that they deem unworthy of respect. Or simply well-suited to producing the pleasure of transgression.


Street Level Bureaucrats And The Revival Of Rehabilitation

OK, it is self-promotion, but since my article (co-written with Austin Smith) is now officially out in volume 91 of the Iowa Law Review I’ll take the chance to flog it here. The New Rehabilitation, available for free! free! free! in an earlier version from SSRN, challenges the received wisdom that rehabilitation is dead in American criminal justice. It also challenges the underlying assumption of most commentators that punishment policy is created from the top down – prinicipally by legislators. Pointing to the rise of specialty juvenile tribunals – like drug and mental health courts – it argues that street level bureaucrats (to use the language of political scientist Michael Lipsky) actually have a substantial role in shaping punishment policy. These local officials – judges, DA’s, probation officers, and others – crafted local courts that manage to avoid, or subvert, legisliative efforts to convert juvenile justice to a more punitive model. This new rehabilition isn’t available to all defendants, however. The specialty courts cream the less worrisome defendants and redirect them to alternative procedures while relegating the tougher kids to harsher juvenile or adult processes. I hear that this issue of the Iowa Law Review includes a limited edition Fountains of Wayne CD, but haven’t yet received confirmation.


Evidence Against Moussaui Availabe Online

According to the NY Times, the U.S. District Court that tried Zacarias Moussaoui has posted all trial exhibits online here. (Right now, perhaps due to traffic, I cannot access the site.) Among the exhibits, apparently, are tape recorded 911 calls from victims.

This transparency may be a good thing, but it will also have the effect of producing substantial traffic (and, probably,revenue) for various news and entertainment outlets. As I have written elsewhere, the media is always hungry for salacious, uncopyrighted content. The Starr Report was a boon for publishers and websites. This new release will probably also be very valuable. I wonder whether any publishers will repackage this stuff for sale. I feel confident it will drive traffic to various sites – CNN, the New York Times, and no doubt many blogs – as people look for access to the juiciest pieces of evidence.


Teaching Criminal Law

handcuffs.jpg.bmpThere are some great discussions over at PrawfsBlawg about teaching criminal law. Russell Covey wonders why so many professors bother to teach the Model Penal Code (MPC):

Well, guys, I’m here to say that the MPC-era is as yesterday as tie-dye and the VW van. Peel off those bumper stickers and put away the MPC. What do our casebooks have to say about, say, drug crimes? Usually very little, even though 21% of state prisoners and 55% of all federal prisoners were convicted of drug crimes.

Likewise, Doug Berman argues that it is time to stop “obsessing” over the MPC.

For those unfamiliar with criminal law courses, they often consist of teaching two things — the common law of crimes and the MPC. The MPC is a complete criminal statutory code developed around the middle of the twentieth century by a group of judges, academics, lawyers, and others to be a selection of the best approaches in the various states. Many states have based some of their criminal statutes on the MPC. The common law is for the most part no longer in use. States have replaced the common law of crimes with statutes. Nevertheless, most criminal law courses still focus significantly on the common law.

I teach my criminal law class as a statutory course since most of criminal law involves working with statutes. I therefore spend a lot of time teaching students how to interpret and apply statutes. These skills are also useful for students who don’t go on to work in the criminal law field (most students won’t practice criminal law). And these skills are absolutely essential for those practicing criminal law.

The problem isn’t with the MPC; it is the fact that most casebooks and courses are still obsessed with the common law. True, the common law is on the Bar Exam, but this is one of the (many) unfortunate stupidities of the Bar Exam. The common law definitions of crimes have been replaced by statutes, and many of the traditional common law elements no longer exist in the majority of states. As I’ve said before, if you practice the criminal law on the Bar Exam, you’ll be disbarred.

Although the MPC is a bit dated, its great strength is its mens rea provisions, which are a big advance from the common law’s cacaphony of mens rea (mental state) terms (there are hundreds of mens rea terms in the common law which the MPC simplifies to four). So although not perfect and in need of a rewrite, the MPC is still useful as a basis for a criminal statutory code. Since hardly any casebooks have a statutory focus, the MPC is the most handy thing for professors to turn to when teaching the statutory side of criminal law.

So while the MPC has its problems, it isn’t the problem. Instead, blame the excessive focus on the common law.

Kim Ferzan at PrawfsBlawg also weighs in, not to bash the MPC, but to point out that “if you spend all your time on the building blocks of crimes (e.g., the general part), you never get to the crimes that folks are actually prosecuted for.”

I’m not sure we serve students well by running through the definitions of a litany of different crimes. It’s easy for students to memorize elements of various crimes, but the hard part is internalizing the key concepts. Once students learn the basics of criminal law (actus reus, mens rea, causation, and statutory interpretation), they can apply them to nearly any criminal statute under the sun.


When Do Judges Get to Use Judgement in Interpreting a Statute?

Via How Appealing comes an interesting statutory interpretation issue: in reading a statute, what does a court do with outcomes that are required by the plain language of the statute, but that Congress may not have intended? According to Judge Boudin on behalf of a unanimous First Circuit panel ten years ago, the answer is that the court should intervene when it “is patent that Congress as a whole did not appreciate the great variety and complexity of state provisions that would have to be meshed with the new federal statute or the odd results that would follow.” But according to a decision written by Judge Easterbrook and issued yesterday by a unanimous Seventh Circuit panel, the answer is that the court should intervene only when the “statute is … absurd as written;” that is, if its text does not “parse[ ]” or there is “linguistic garble.” “The canon [of absurdity] is limited to solving problems in exposition, as opposed to the harshness that a well-written but poorly conceived statute may produce.”

The statute at issue in both cases is the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

Read More


Strict Liability For Parents

Alabama’s most affluent suburb, Mountain Brook (home of Natalee Holloway, whose apparent abduction and murder in Aruba was a Greta Van Susteren / Nancy Grace panic-TV staple), is considering adopting a new “open house party” ordinance. It would fine homeowners when two or more underage people drink alcohol in the house. On the third offense, the law provides that the homeowners would be guilty of a misdemeanor. Homeowners, by which we really mean parents, would be criminally liable even if they were unaware that kids were drinking in their homes. They are strictly liable – guilty even if they had no intent to break the law, had no knowledge it was being broken, and were not even negligent in allowing the infraction to occur.

In my juvenile justice class, I ask whether it is really possible for parents to control their kids’ behavior. Inevitably, most people say no. “You can’t control what kids will do.” I then ask about the efficacy of a statute holding parents financially liable for all damage caused by their children. Most students think this would provide only a limited incentive to control children. In the end, my students insist, kids are out of parents’ control. Then I push a step further: what if the parents are held criminally liable for whatever crimes the child commits. If a child commits a burglary, the parent is guilty. When little Eddie Jr. robs and kills an old lady walking down the street, Eddie Sr. spends the rest of his life in the pokey. At this point, students see that parents probably can significantly control a child’s conduct. Unfortunately, with such high stakes, they may resort to abusive behavior, such as beating their children or imprisoning them in their bedrooms.

There are really two different issues here. The first is effectiveness. Can a strict liability ordinance punishing parents really affect the conduct of a child? The answer, it seems to me, is yes – provided that the stakes are high enough. I’m not sure that Mountain Brook has raised the stakes very high and a statute that does so may generate unacceptably high collateral costs. The second question is moral. Should a parent be liable for the acts of the child even she worked hard to prevent them? This is tough for me. If a parent is not negligent – she does every single thing a reasonable person would do to keep her child in check – I think it’s hard to justify punishing her. What more can we ask of a parent? On the other hand, perhaps we want parents to go beyond mere reasonable behavior. The reasonable parent seeking to prevent open house parties will lock up the booze and perhaps install a nanny-cam to monitor the house. But maybe we want parents to go further; maybe we want parents to construct their entire lives around teaching children to behave in good ways. Perhaps a strict liability law is really trying to change overall parenting strategies. Mountain Brook wants parents to teach a different value set from early on: don’t disobey parents, follow house rules, don’t break the law.

I doubt the Mountain Brook ordinance will change behavior too much. Rational Brookies will understand that every home is entitled to two open house parties without serious consequence. And I suspect that the local judges will be loathe to burden a community leader with a criminal record, even if little Eddie got a bit wild while his folks were at the beach. But start holding parents strictly liable for the crimes of their kids, and I suspect you’d see a whole new construction of parenthood. And some interesting collateral effects. Parents would quickly give up custody of their “problem children” – burdening the state’s family protection office. On the other hand, some people might think twice about having children before they were able to properly supervise them.

Is strict liability for parents a good idea? I’m not sure that socially tolerable provisions will work, or that effective provisions are socially tolerable. But it’s certainly worth a conversation.


How A Public Defender Keeps Death (Sentences) At Bay

Some people have expressed surprise, and even doubts, that the Philly PD has managed to keep all of its clients off death row. The explanation is less grand, but perhaps more important, than one might think. The PD’s – lawyers, social workers, and others assigned to these clients – simply work these cases harder than most appointed counsel. And they don’t just do thorough investigations. They do the work that so many defense lawyers appear to dread: they spend serious time with their clients. (Let me say at the outset that, notwithstanding my broad criticisms of lawyers who handle indigent appointments, there remain many such attorneys who do good work. Many, but not nearly enough.)

Most criminal cases settle with a plea bargain. The same is true for the Philly PD. But to make a plea bargain work in a capital case, you have to do two things. First, you have to sell the DA on a deal. This means you must investigate the case thoroughly – and early on – so that you can explain to the DA why your client does not deserve death, and why you would have a good chance of getting either an acquittal on the capital charge, or a life sentence, if the case proceeded to trial. In non-capital cases, defense lawyers will often be far more secretive about some of these details, figuring that they’ll do better with a jiury than with the prosecutor. Because trying capital cases is so risky, the better approach – with a DA who will talk (i.e., one who does not use every case as an opportunity to advance his or her political fortunes) – is often to bring out many of these factual and equitable claims in the negoitation process.

Perhaps even more than doing great investigation, you have to build close relationships with your client. One might assume that every defendant would be looking for a way to plead to a life sentence, in order to avoid death. But it turns out (no surprise, really) that the prospect of voluntarily accepting lifetime incarceration is a whopper. Death penalty advocates may believe that “life doesn’t mean life”, but most defendants think it does. And particularly for the 18 or 19 or 23 year old defendant, a life sentence may feel comparable to death. So the staff of the Philly PD’s homicide unit actually create strong relationships with their clients, in order to garner the trust necessary to sell a plea bargain. It turns out that this is not only good from an instrumental view – getting a better sentence – but it’s also better for the client’s psyche. Rich or poor, most defendants are the same: they’re afraid and unsure and need a great deal of information and reassurance from their lawyers. Unfortunately, few indigent clients ever receive that kind of treatment.

Read More


Call For Papers: National Security Leak Prosecutions

The Association of American Law Schools Section on National Security Law is sponsoring a competition for papers on the topic of national security leak prosecutions in connection with its program at AALS in January. The winning piece will be published in the Journal of National Security Law and Policy and the author will be included on the panel itself. Three page abstracts are due September 5. The competition appears to be open only to law faculty. The Call for Papers is posted at: