The litigation however speaks about what is wrong with the system. Innocence should be enough. If we convict an innocent defendant, then we should be prepared to compensate him for the portion of their life that was destroyed. It is incredibly difficult to reestablish your life once you have been incarcerated (wrongfully or correctly). Most people lose all their assets while incarcerated. What the state doesn’t take directly is lost because the person’s incarceration stops them from paying mortgages, car payments, etc. All personal possessions (except what a kind relative may hold as a favor) get tossed out on the street. When society makes a mistake and convicts an innocent person, the issue should not be about whether the officer or the prosecutor set out to convict an innocent man, but whether an innocent man was convicted. States should create a compensation fund which is the equivalent of a crime victim’s fund designed to compensate these individuals.
In Michigan, executive clemency has been rarely granted. Between 1969 and present, only 58 pardons have been granted. I find the number a disgrace, but have not been able to figure out why everyone has reset the clock in 1969.
Clearly, Michigan used to be more generous with pardons. In doing some research, I found this turn of the last century book on pardons granted by Michigan Governor Hazen S. Pingree between 1897 and 1900. He signed more pardons than Governors Milliken, Blanchard, Engler, Granholm, and Snyders combined! It is even more interesting because Governor Pingree gave a long statement of reasons in support of these pardons.
One of the more interesting federal applications was from Serena Nunn. Ms. Nunn was convicted of a non-violent drug offense at age 19. She subsequently had her sentenced commuted by President Clinton. She attended Arizona State University and graduated. She then went to the University of Michigan Law School. She needs a pardon to be admitted to the practice of law in Georgia.
Update #1 What confuses me is that the National Conference of Bar Examiners says that a felony should not bar her admission. Further, the Georgia Supreme Court ruled in September of 2011 that an applicant with a felony conviction can be admitted if he/she proves by “clear and convincing evidence” that he/she has been rehabilitated. In re Yunker, 289 Ga 636; 715 SE2d 92 (2011). See also In re Payne, 289 Ga. 746, 715 S.E.2d 139 (2011),
Update #2 According to this FAMM press release, Ms. Nunn apparently was approved to be an attorney and will be sworn in.
Updated #3. Here is an interesting NPR article on President Obama and pardons.
Williams - Miller retroactivty
Meanwhile the Legislature has taken action to try and fix things as well. According to this news article, Michigan has proposed a new bipartisan package of bills on JLWOP in response to Miller. News coverage is here: . Here a legislative summary.
Thankfully, this does not seem to be the case in this election. While there are general references to “protecting Michigan families,” the economy rather than getting tough on crime seems to be the main theme of this election.
People think that having an “aggressive attorney,” a “pit bull attorney,” etc. is the best thing without giving much thought to whether an aggressive strategy is a good thing on the facts of their case. Naked aggression is rarely a good thing. It needs to be part of your tool kit, but this article on “‘Aggressive’ Lawyers Often Finish Last” on the blog “the Lawyerist” makes a good case why aggressive attorneys often finish last. The author (Attorney Andy Mergendahl) makes the case why being calm, analytical, and persistent is the best strategy to winning people over. He cites several examples where being likable, persistent, analytical, and not relenting worked where aggressiveness does not.
Attorney Mark Hermann on his blog “Above the Law.” You want an attorney who can handle a difficult issue and who can hold people’s attention, but a “blow heart,” is rarely the person people want. Unfortunately, the myth seems to continue and lawyers like politicians are remaking themselves to get people’s vote (checks).
One of my closest friends and mentors taught me years ago that you rarely want to make it personal with opposing counsel. Prosecutors and Attorney Generals have too many cases. You don’t let them walk all over you and you certainly fight back, but you need to resist the strategy of jumping into the mud and starting a wrestling match. Sometimes you have to show that you can “give as good as you can get,” but the myth that naked aggression is a good thing just that. Having an attorney who is always mad, accusatory, and difficult to deal with does not cause people to win the case.
Oregon Family law Attorney Peter Bunch has a nice quote about how to be both aggressive and effective:
Many people assume that writing argumentative or accusatory letters and taking extreme positions is something a good, aggressive lawyer does. It is not. The hallmark of a good lawyer is sound judgment, good skills, and professionalism. In family law, it is possible for a good lawyer to predict a reasonable range of results in many circumstances. His or her job is to work diligently to obtain the best possible result for the client, not to waste the client’s time and money engaging in unproductive finger- pointing or intimidation. Being “aggressive” means being prepared, having a good knowledge of the facts and law, and being professional, while firmly advocating for the client’s best interests.
Unfortunately, some people think of aggression as being difficult, angry, and obstreperous. An attorney who practices in this fashion is like a mechanic who only owns one tool. He or she won’t be able fix many projects and if they continuously use the wrong tool, all they will do is break whatever they are trying to fix.
New York Court of Appeals Says Judge Cannot Instruct on Lesser Included Offense Over Defense Objection
I joined the ACLU when they defended the rights of Nazis to march in Skokie. I'm Jewish. My counsel took six months out of his life to take a court appointed cases defending folks who the FBI claimed were planning on overthrowing the US government (the Hutari militia). The judge found the case unfounded and acquitted his client. My old mentor James C. Thomas defended a mentally ill man the Government claimed was a terrorist. The Government dropped charges and fired the Assistant United States Attorney who was caught hiding evidence showing this man was innocent.
The Judge Judys of the world are not the "tough judges." They are the bullies. The lawyer who risks having his house fire bombed to represent the unpopular individual is like this pathetic woman's soldier-son. They are carrying out their vow to uphold the constitution. They should be applauded, not condemned. The tragedy is the type of person who extends themselves in this way is precisely the type of person who would make the best judge. They are driven to these acts for concern for the system, rather than personal gain. For example, I'm reasonably good friends with Judy Clarke, the attorney who defended Timothy McVeigh (Oklahoma City), Susan Smith (accused of drowning her two children in North Carolina), Ted Kaczynski (the uni-bomber) and Jared Loughner (the nut job who shot Gabrielle Giffords). She is one of the most decent persons I know, a retired public defender, and the exact opposite of "money grubbing." She is certainly not in favor of blowing up people, courthouses, shooting elected officials, or drowning children. These individuals are the type of person who will rule the way the case law takes them even if it is politically unpopular. It is a shame if this type of attack strategy drives the people most capable of being the best judges out of the running.
A friend of mine reminded me that our second President of the United States (John Adams) defended British Regulars accused of killing civilians during the Boston Massacre. This is what lawyers do. I know all the jokes made about us, but most of us work twice as hard as the average joe to earn an ordinary pay check. We are not Geoff Feiger, we are folks who are slugging it out to make sure the system is fair. The more society hates our client, the bigger the chance that people will cut corners to get a conviction. Many of the folks arrested on suspicion of terrorism are ultimately freed because even the Government isn't sure they are guilty. As Shakespeare recognized , if you want to destroy a society “first kill all the lawyers."
The sad thing is that they are so focused on winning individual cases that they have stopped thinking like institutional litigators. Everyone cleans themselves up for trial. People who never wear suits wear a suit to court. Woman wear more conservative makeup and jewelry to court. Everyone wants to put their best foot forward. Prosecutors have recently sought the right to argue this change of appearance to the jury. When the Defendant gets a haircut, upgrades his glasses, etc. prosecutors have been making the argument that they should be able to tell the jury that this isn't what the Defendant looks like. They've been winning with this argument. My question is how will they stop up from making the same argument when they do that with their complainants. I've regularly seen complainants (child and adult) dress provocatively in the real world and show up in court looking like they were regulars on the church choir. I can't wait to use the prosecutor's new doctrine against them. It should be interesting.
Lyle Denniston over at SCOTUS Blog has an interesting article on Monday’s oral arguments in Clapper v Amnesty International, Supreme Court No. 11-1025. Clapper is a challenge to the Government’s very broad wiretapping operations that they are carrying out in the name of terrorism prevention. The Government has been successfully defending these suits by arguing that the people bringing suit can’t prove they were the victims of illegal eavesdropping and therefore the suits shouldn’t go forward. In one case where the Government accidentally admitted the eavesdropping, they were able to claw evidence back stating the attorney could not use the evidence accidentally released. Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury, 660 F.3d 1019 (9th Cir. 2011). Here is another interesting article covering this case and the history of the line of litigation generally.
After a two delay because of Hurricane Sandy, the U.S. Supreme Court heard oral arguments in Chaidez v United States, No. 11-820. In Chaidez, the Court will decide whether its 2010 ruling in Padilla v Kentucky, __ U.S. ___, 130 S.Ct. 1473 (2010) is retroactive. Padilla stated that counsel has a duty to inform a non-citizen client about deportation consequences of the plea. SCOTUS blog has a nice summary of the case.Update: Here is a link to the oral argument transcript. Here is a link to the audio transcript. I’ve read the transcript on this one and it is going to be close.
Criminal defendants are frequently charged and convicted for drunk driving for sitting behind the wheel of a parked but running car trying to keep warm. The least sympathetic case happens when the Defendant’s car is stuck in a ditch with fresh tire tracks. Courts will infer the Defendant drove the car into the ditch while being drunk. A more sympathetic situation happens when the Defendant is using the vehicle as a means of temporary shelter and has no intention to move the vehicle.In R. v. Boudreault 2012 SCC 56, there was no question that the Defendant was too drunk to drive -- he asked a friend to call a cab to take him home for precisely this reason. His friend called twice and the cab didn’t come. At that point, the Defendant had to wait outside for the cab on a bitterly cold evening. According to the trial testimony, the temperature outside was -15C (5F). Eventually, the Defendant went to his trunk, started the truck, and waited for the cab. He made no attempt to move the vehicle. He eventually either passed out or fell asleep. When the cab finally showed, the cabbie didn’t try to wake the Defendant; he called the police. When the police arrived, they woke the Defendant and arrested him for drunk driving. The Quebec trial court dismissed the charges against the Defendant (2010 QCCQ 11443 (CanLII)) and the Crown appealed. The Quebec Court of Appeals reversed the dismissal stating that the Defendant had control and dominion over the vehicle (2011 QCCA 2071 (CanLII)). The opinion is in French. Click here for a Google translation of the ruling. The trial court made an express finding of fact that the Defendant had no intent to move the vehicle and did not move the vehicle. The Quebec Court of Appeals stated an intent to move or drive the car was not required.The Canadian Supreme Court disagreed. The Court accepted the trial court’s premise that the Defendant did not have an intent to move the car and that the statute needed to be interpreted in light of the statute’s purpose -- to keep drunk driver’s off the road and to protect the public. “Parliament’s objective in enacting s. 253 of the Code was to prevent a risk of danger to public safety: Toews at p. 126, citing R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.), at p. 384. Accordingly, conduct that presents no such risk falls outside the intended reach of the offence.