Reasonable Doubts

How Many Angels Can Dance on the Head of a Pin?

2008-04-14T09:45:00.000-07:00

Via QuizLaw.

Diebold Accidentally Leaks Results Of 2008 Election Early

2008-04-01T13:40:00.000-07:00

Super Obama Girl to the Rescue!

2008-03-30T18:05:00.001-07:00

Huckabee & Rev. Jeremiah Wright

2008-03-27T12:30:00.000-07:00

It's very easy to be cynical about politics in this age of sound-bites and spin. But it's also important to remember that integrity, character and fair-play still matter.

While I don't agree with a lot of his positions, former Arkansas Governor Mike Huckabee has impressed me with his erudition and intelligence. His discussion of controversial, complicated issues can often be nuanced and sophisticated. It's refreshing to see a candidate refuse to take easy pot shots at an opponent and to risk alienating some of his core support by challenging the majority to remember the experience of the minority.

Holy Blawgphoria, Batman!

2008-03-21T10:01:00.000-07:00

I'm still swooning from a raging case of blawgphoria caught from this post at Above the Law.

It's official. Reasonable Doubts has made the Big Time. I'm making all necessary preparations to quit my day-job and enter the exciting, super-sexy (and lucrative) world of the professional blawger. Soon David Lat & I will be sitting in some Capitol Hill bar with our laptops, talking shop and wryly riffing on some legal buffoon's latest public gaffe, meanwhile collecting thousands every hour from all those Google ad hits.

Or maybe not.

So, what if I still have to slog it out as a Small Town Criminal Defense Lawyer (Who Also Handles Divorces to Make Ends Meet)? I'll just have to console myself knowing this blog has now entered the ranks of Technorati's TOP 1,000,000.

Plus, I just got one of those "H/T" thingies I see on other people's blogs from the Big Kahuna himself--the Head Honcho, the VIP of BlawgLand. I mean, the guy's a legend and Above the Law a shrine to all that is holy and sacred in this here blawgosphere. The only other guy close to David Lat is Howard Bashman, and I don't even believe that guy exists. I mean, c'mon, how can any real, normal human being possibly post, like, a gajillion times a day?

I'm not too ashamed to admit it. Above the Law is my guilty pleasure--a virtual Us Magazine for nerdy lawyers and other wannabe's, all clinging to a glimmer of hope that this profession is sexier and more interesting than we truly fear. I've followed David for years, starting back when he was a girl. I once almost wrote a strongly worded op-ed to the New Yorker about that nasty Jeffrey Toobin for outing David and ruining Underneath Their Robes. But David is soooo much better off not wasting his life as a Federal Prosecutor, who we all know end up publicly disgracing themselves and schtupping expensive whores.

Thank you, David. (If you link me to again, I might break Technorati's Top 500,000. I would really appreciate it.)

Two Excellent Posts for Rumpole

2008-03-19T23:36:00.000-07:00

1. From Omaha criminal defense lawyer David Tarrell at In The Moment comes Every Father's Worst Nightmare. In the aftermath of the Eliot Spitzer scandal, David encounters his 14-year-daughter in the kitchen. Suddenly, she announces that she wants to be ... a ... a ... (gulp) ... PROSECUTOR.

Oh, the horror. Well, before you start accepting too many condolences from your colleagues, David, remember that even Rumpole had a (short) stint as a prosecutor. (Of course, Rumpole ended up proving the defendant was innocent and then reaffirmed, "From now on, Rumpole only defends.") Even so, you still have plenty of time to steer your daughter from the Dark Side. (Good luck.)

2. From Texas criminal defense lawyer Stephen Gustitis at The Defense Perspective comes The Juror's Perspective. Stephen chronicles some communication between him and a juror for a case Stephen recently tried (which he unfortunately lost). Stephen sets a noble example for all trial lawyers to follow:

After the jury convicted my client they were discharged from the case since the judge was to assess punishment. When I went back to the courthouse on Friday afternoon for the hearing about six of the jurors were there to observe. I made eye contact with several of them. I could see they were a bit unsure how to react to me. Maybe they thought I was angry at them for convicting my client?
Despite their trepidation I approached each of them and thanked them for their service. I wanted each to know I wasn't angry and I respected their week of hard work. When the hearing was about to begin I noticed one more juror had arrived to watch. I made eye contact with her and I pressed her for a smile. Her eyes widened, her face brightened with a smile, and I knew she and I were OK.
Criminal defense lawyers must learn to love those who decide the fate of our clients. They are good people. They have good intentions. They want to be fair. And every once in a while? One of them pays you a compliment.

Stephen confirms my belief that all good criminal defense lawyers instinctively appreciate and respect the jury. I agree with Stephen that it's not going to far to suggest that we must even learn to love the jury. For, as Rumpole understands, the jury has the power to do what's right:

"You're not concerned with the law, Members of the Jury," I told them, "you are concerned with justice!"
"That is a quite outrageous thing to say! On the admitted facts of this case, Mr O'Higgins is clearly guilty!"
His Honour Judge Graves had decided, but the honest twelve would have to return the verdict and I spoke to them. "A British judge has no power to direct a British jury to find a defendant guilty! I know that much at least."
"I shall tell the Jury that he is guilty in law, I warn you." Graves's warning was in vain. I carried on regardless.
"His Lordship may tell you that to his heart's content. As a great Lord Chief Justice of England, a judge superior in rank to any in this Court, once said, 'It is the duty of the Judge to tell you as a jury what to do, but you have the power to do exactly as you like.' And what you do, Members of the Jury, is a matter entirely between God and your own consciences...."
--Horace Rumpole

[John Mortimer, "Rumpole à la Carte," The Third Rumpole Omnibus, Penguin Books, 1998, p.265]

Reasonable Doubts: Media Edition

2008-03-19T22:31:00.000-07:00

The Shawna Nelson trial is in the media spotlight this week, with coverage all week on the In Session program series on TruTV (formerly CourtTV).

Here's a link to the In Session blog post at CNN.com regarding my client, Ken Nelson.

I appeared Tuesday morning on Open Court, hosted by Lisa Bloom. I'm scheduled to appear Thursday on Jami Floyd's program, Best Defense.

The Death Penalty & Child Rape

2008-03-19T15:39:00.000-07:00

In this post, Scott Greenfield analyzes Doug Berman's reaction to this editorial in the Denver Post. The editorial opposes "Senate Bill 195 by Sen. Steve Ward, R-Littleton, [which] would authorize the death penalty for people who sexually assault a child 12 years or younger if DNA evidence links them to the crime."

I've previously posted about this bill, in an earlier form first proposed by Sen. Ward. The current form of the bill adds the DNA component, which is an unusual twist. The AP reports here that "Cathryn Hazouri, executive director of the ACLU in Colorado, said she believes the bill is unconstitutional because a person convicted using DNA could face the death penalty, while another predator who did not leave DNA could avoid it." The DNA issue is important and fascinating (and I would love to hear Scott's and Doug Berman's reaction, among others), but I will leave that issue for another day.

What I would like to focus on here is essentially what Scott Greenfield focused on: the "zeal to kill."

I, like Scott, would feel most compelled to impose the death penalty in a child rape case. I spent almost five years at the beginning of my career prosecuting sex assault on children cases, and I was proud and eager to do that job. I never felt more righteous as a prosecutor than when I was doing everything in my power to convict someone who had harmed a child in one of the most reprehensible ways imaginable. The harm suffered by children in a sexual assault is horrific; this harm is often long-standing and always irreparable. Through the years I've represented several clients who were so badly damaged psychologically and emotionally by sexual abuse as a child that they were incapable of functioning in any normal and sustainable way as an adult.

In the interest of full disclosure, I've also represented alleged perpetrators of sexual abuse on children in my defense practice. (Such as in this recent case.) But my duties as defense counsel don't stop me from fully recognizing the harm that such crimes have on their victims. I have also discovered that many of my clients convicted for sexually assaulting children were similarly assaulted as children. I in no way mean to imply that prior victimization excuses a perpetrator's behavior; if anything, it's another argument as to the great harm that such crimes cause. But I do think prior victimization is one factor that helps explain why someone could even contemplate committing such a repugnant act.

However, it's also true that physical and emotional child abuse can have much of the same efffect on a child's development and functioning. Yet, most people don't have the same visceral reaction to physical and emotional child abuse as they do to sexual child abuse. I have to wonder why that is, and whether most people who feel this way could even explain it? I suspect it has something to do with the discomfort that sexuality causes in our culture generally. In any event, while I come at this issue from a different perspective than Doug Berman, I believe we're in agreement that the death penalty debate should be informed by reason, not raw emotions.

Should we put people to death solely because what they've done is repugnant to us? Or should we put people to death because of the harm they've caused? When the death penalty is imposed in a murder case, at least the harm is clear and unequivocal: a precious, human life has been destroyed. Is the harm so clear when dealing with child abuse, or is it more equivocal?

The harm inflicted upon a sexually assaulted child is the forced experience of physical intimacy out of its proper context and without the consent and maturity necessary to evaluate its meaning. Essentially, the perpetrator violates the child's boundaries and in the process violates and destroys the child's capacity to trust others, especially when abused by supposed "caregivers." This violation often causes the child to lose the ability to trust or experience either physical and emotional intimacy ever again, depriving the child of a basic and essential aspect of his or her humanity. But unless the sexual assault is accompanied by physical abuse, there's no long-lasting physical harm that would otherwise prevent the child from leading a normal life. The damage in such cases is often devastating, but the damage is hidden and psychological.

Yet, much the same can be said about physical and emotional abuse, especially if the child suffers long-term, pervasive abuse. Certainly, sexual abuse has the potential to cause substantial harm to a child even if it only happens once. Typically, a child has to suffer physical and emotional abuse more frequently before it's likely to cause substantial, long-standing harm. But many people have been incapacitated by physical and emotional abuse to the same extent as a child whose been sexually abused. Yet I know of no proposal to impose the death penalty for committing serious physical and/or emotional abuse on children; and I doubt such a measure could pass constitutional muster.

Why should someone who sexually assaults a 10-year child on one occassion be put to death while someone who shakes a baby, causing irreparable and incapacitating brain damage, or who brands their initials into a child with a red-hot poker, get only 32 years in prison? (Thirty-two years is the maximum sentence in Colorado for one count of child abuse causing serious bodily injury, but not death.)

Furthermore, the Denver Post is right. This bill would create an incentive for repeat sexual offenders to kill their child victims. Since a repeat offender (the only offenders subject to the provisions of this bill) would face the death penalty if convicted, the offender would be foolish to risk leaving the primary witness to their crime alive; and the offender would risk no greater penalty by causing the child's death. As Scott Greenfield so aptly puts it: "The pirates' mantra was 'dead men tell no tales.' Neither do dead children."

Doug Berman's protestations notwithstanding, this bill would encourage harm to children while offering no real assurance of protection. Berman complains that "we get no real evidence or data, just false assertions and excessive confidence that life sentences (but not the possibility of death penalty) provide 'the best way to protect children.'" But Berman likewise can offer no such evidence or data to support his position and he is equally guilty of failing to offer statistical support for his position.

Logically, Berman's position is precarious anyway. How could it ever be proven empirically that a sexual predator is likely to commit a sexual assault on a child, knowing a life sentence would be imposed if caught and convicted, but would decide not to commit that same crime when informed that the death penalty would be imposed instead? I don't believe the real world works that way. If Berman is willing to give sexual predators that much credit for rational thought, then Berman should also concede sexual predators could rationally conclude killing their victims to be the best way to avoid detection and successful prosecution.

I also reject some of the ideas in Doug Berman's prior post on this topic. The death penalty shouldn't be used as leverage to induce guilty pleas in offenders. I never cease to wonder that over-charging and mandatory sentences are acceptable policy in non-capital cases, let alone when the death penalty is involved. Assuming we still believe that an adversarial, public trial is the best way to reach the truth, shouldn't our sentencing policies encourage more trials, not less? Plea-bargains are bad and trials are good, right?

(I still vividly remember my criminal procedure professor, Silas Wasserstrom, drilling into my young, impressionable head the law review article by John Langbein which presents a fairly compelling argument that plea bargaining is the modern functionable equivalent of medieval torture.)

Lost in this debate, ultimately, is the fact that Colorado essentially provides the possibility of a life sentence in all sexual assaults involving a child, regardless of the severity of the abuse or the perpetrator's past criminal history. While the judge has discretion whether to impose a prison sentence or not in many of these cases, any sentence to prison automatically involves an indeterminate sentence in which the judge can only set the minimum sentence to be served. In other words, any sentence to prison means that the perpetrator can be held for the rest of his or her life--at the discretion of the director of prisons, not the judge.

In the end, imposing death on sexual perpetrators isn't about deterrence or protecting children. It's about killing people we've decided are "animals," who we hate for what they've done because it's repugnant and makes us sick to our stomachs. It's a question of whether we will let our basest instincts for revenge, rage and hate motivate us; or whether we will reject killing as a rational method for punishing even the most odious among us.

The Govs Must Be Horny

2008-03-19T13:38:00.000-07:00

Is there anybody funnier and smarter than Jon Stewart? I don't think so.

Not convinced? Then try, "St. Patty's Spitzer":

Ahhh. Brilliant.

"Listen, Dude, Do You Really Want the Sex?"

2008-03-19T13:09:00.000-07:00

Here's some fun video, discovered at Eat the Press:

Ouch.

2008-03-19T12:40:00.000-07:00

David Lat pens an essay comparing the legal profession with the "world's oldest profession." David seems to aim the thrust (oh, the puns are just so easy) of his essay at Big Law lawyers. Maybe us Small Law guys are off the hook?

Poker & Harvard Law

2008-03-18T20:38:00.000-07:00

Poker is a topic near & dear to my card-playing heart. So I hope this news turns out to be a stone-cold bluff that gets called down by the Massachusetts voters.

Robert Ambrogi at Legal Blog Watch reports in this post that Harvard Law students are rallying against a gaming bill that would criminalize online poker players.

Ambrogi quotes a Harvard Law professor, Charles R. Nesson, who said in a statement issued yesterday, "I don’t think filling our expensive jail cells with poker players is what Massachusetts voters had in mind when they elected [Massachusetts Governor] Deval Patrick," who sponsored the gaming bill. Ambrogi also reports that, if the bill becomes law, "Massachusetts residents who play online poker would face jail terms of up to two years and a maximum fine of $25,000."

Nesson is the founder of the Global Poker Strategic Thinking Society, a group of mostly law professors and other law-types who promote poker as an educational tool. I've always thought that poker tactics and strategy had some lessons trial lawyers could draw from and apply to trying cases. Nesson puts an academic gloss on this notion and connects poker to nothing less than truth:

Teaching truth leads to and through teaching poker as a skill in seeing and understanding another’s point of view. It’s for anyone who is eager to learn how the rhetorical world works and connect it to the physical.

So poker is more than just an exhilirating game; it's a crucible for truth.

(OK, maybe that's going a little far, but it's still ridiculous to outlaw the Great American Pasttime.)

I Like Cartoons Cuz' They's Funny

2008-03-18T11:01:00.000-07:00

Finally, someone explains the subprime mortgage mess in terms I can understand. Via The Volokh Conspiracy comes this "subprime cartoon primer."

Tenth Circuit Reverses Nacchio Conviction

2008-03-17T16:40:00.000-07:00

Just as predicted by a clairvoyant commentator on this blog earlier today, the Tenth Circuit has reversed Joseph Nacchio's conviction for insider trading, finding that U.S. District Court Judge Edward Nottingham improperly excluded expert testimony offered by the Defense. A copy of the decision can be found here.

If the Tenth Circuit reversed out of disgust with Nottingham, however, they did a pretty good job of disguising it. The Tenth Circuit did indicate that a different trial judge should hear the case on remand: "After reading the trial transcript, we have concluded that it would be unreasonably difficult to expect this judge to retry the case with a fresh mind." This conclusion notwithstanding, the Tenth Circuit practically had to perform a judicial handstand to avoid finding that Nottingham showed biased against Nacchio, as urged by the Defense.

There's not much reaction in the blawgosphere yet, but I'm sure there will be more to come. In one reaction, Eugene Volokh appears to approve of the Tenth Circuit's decision in this post at The Volokh Conspiracy, concluding that the Court's conclusion, "Armchair economics is not the way to decide complex securities cases," is "Absolutely right."

Jeralyn Merritt at Talk Left also has a post about the case. However, because she regularly appears before the trial judge, Jeralyn feels the need to be circumspect in her comments in order to protect her clients' interests. So I'll leave any further comment to my readers' fevered imaginations.

In this article from the Rocky Mountain News, U.S. Attorney Troy Eid commented, “This is a setback, not a defeat. . . The good news is the Circuit Court said our trial team presented sufficient evidence to convict Mr. Nacchio of insider trading." Which is probably a true enough statement to sober most of the Defense's celebrations.

But celebrate they should, as it's always difficult to convince an appellate court to reverse a conviction. Besides forcing the Government to re-try a complicated and lengthy case, the Defense has also managed to get the case re-assigned to a different trial judge. The question remains how motivated each side will be to try the case a second time and whether an acceptable plea agreement can be arranged. Stay posted.

Real Men of Law School

2008-03-17T13:46:00.000-07:00

Via this post at The Volokh Conspiracy, we find these videos at TaxProf Blog from the "Real Men of Law School series" from George Washington University.

I can only hope this "series" of videos was produced by the editors of the GWU Law Review. If so, we finally have conclusive proof that Law Review geeks are good for more than just editing articles no one ever wants to read.

Future videos I would like to see include, "Take This Bluebook and Shove It," and "Footnotes Are Fascinating & Fun, F**ker."

A Naughty Justice-Dispensing-Device

2008-03-17T09:37:00.000-07:00

In today's Denver Post, Al Lewis contributes yet another morsel to U.S. District Chief Judge Edward W. Nottingham Jr.'s tale of scandalous woe. David Lat at Above the Law has already declared Nottingham no longer eligible for his "coveted 'Judge of the Day' prize" because it wouldn't be fair to the other candidates. (For a summary of David's posts on Nottingham, click here.)

Now Al Lewis brings to our attention to this fun little exchange from the Nacchio trial:

[Jeffrey] Speiser, [attorney for former Qwest CEO Joe Nacchio] was fumbling in his effort to describe a court exhibit to a witness. Somehow, Speiser could not get the number right. Nottingham grew impatient.
Nottingham: "Are we talking about 809?"
Speiser: "Yes."
Nottingham: "Well, you said 809, the witness just said no, so you're looking at something different."
Speiser: "I'm sorry, I was looking at the numbers upside down. (It's) 608."
Nottingham: "At least it's not 69."
The court fell oddly silent.
My colleagues and I shook our heads in amused disbelief.
Did a federal judge just make a gratuitous reference to a somewhat acrobatic sexual position in the midst of otherwise mundane court proceedings? A proceeding where there would be transcripts? In a courtroom full of reporters and lawyers? And cameras that beamed video to an overflow courtroom upstairs because hundreds of
other people wanted to watch this trial, too?
It was not until I retrieved the official court transcript that I could believe it.

Sure enough, the dude said 69.
Speiser: "I should point out it's a government exhibit."
Witness: "OK. I'm there."
No wonder some people are calling him "Judge Naughty."

As justice-dispensing-devices go, "Judge Naughty" appears to be broken (and nasty). We can only hope the 10th Circuit will actually do something about this embarrassing siutation, or maybe even Congress.

I'm not holding my breath.

Eliot Spitzer's New Legal Ad

2008-03-16T15:04:00.000-07:00

I Am No Longer a "Brain-Dead Liberal"

2008-03-16T11:39:00.000-07:00

See also that most magnificent of schools, the jury system, where, again, each brings nothing into the room save his or her own prejudices, and, through the course of deliberation, comes not to a perfect solution, but a solution acceptable to the community—a solution the community can live with.

From David Mamet: Why I Am No Longer a 'Brain-Dead Liberal' (An election-season essay) in The Village Voice.

Three Strikes Laws & Unintended Consequences

2008-03-16T09:48:00.000-07:00

Todd Zywicki at the Volokh Conspiracy has started a discussion about California's Three Strikes law and its (possible) unintended consequences on offenders' behaviors. An abstract of a recent paper from a Harvard University researcher, Rahda Iyengar, claims:

Using criminal records data, I estimate that Three Strikes reduced participation in criminal activity by 20 percent for second-strike eligible offenders and a 28 percent decline for third-strike eligible offenders. However, I find two unintended consequences of the law. First, because Three Strikes flattened the penalty gradient with respect to severity, criminals were more likely to commit more violent crimes. Among third-strike eligible offenders, the probability of committing violent crimes increased by 9 percentage points. Second, because California's law was more harsh than the laws of other nearby states, Three Strikes had a beggar-thy-neighbor effect increasing the migration of criminals with second and third-strike eligibility to commit crimes in neighboring states. The high cost of incarceration combined with the high cost of violent crime relative to non-violent crime implies that Three Strikes may not be a cost-effective means of reducing crime.

Three Strikes laws are always problematic. I see them as a knee-jerk reaction to a complicated issue, a "quick fix" that requires courts to throw an offender in jail for a long time without taking the necessary time to really examine and analyze what type of sentence would best protect society and rehabilitate the defendant.

But I think it's a more than a stretch to claim the law causes an increase in violent crime. Iyengar has committed the logical fallacy of post hoc ergo propter hoc ("after this, therefore because of this"). Someone who's willing to commit a third felony has already demonstrated serious disregard for the possible consequences of their behavior. Such an offender likely will also disregard society's proscription against commiting violent acts against others. So Third Strikes laws don't cause violent crime; but they can ensnare third-strike offenders who are moving along an increasing continuum of severity in their criminal conduct.

Violent offenders getting caught in Third Strikes laws is not the troubling issue. What's always been concerning is how non-violent offenders are treated under such laws, particularly those offenders whose offense is relatively minor. Sentencing someone who has stolen a set of golf clubs or stolen videotapes worth a little over $150 to a sentence of 50 years to life is troublesome, no matter what the U.S. Supreme Court says.

Charges Against Ken Nelson Dismissed

2008-03-14T09:23:00.000-07:00

Congratulations to my client, Ken Nelson, who had charges dismissed yesterday. News reports about dismissal of the charges can be found here (or here, here and here).

It's always gratifying to have your predictions that your client will be exonerated confirmed. But the truth is that Ken's perserverance in the face of incredible pressure to plead guilty to a crime he did not commit won the day. Ken's integrity would not let him admit to something he didn't do, even under threat of a painful, lonely prison sentence and the possibility of losing his children. I'm proud to have represented such a courageous man.

I have to admit that I'm a little disappointed I didn't get to to try the case. I had some surprises in store for the prosecution and was looking forward to springing them at just the right moment. Alas, I will have to take solace knowing that I'm not alone among defense lawyers in my disappointment. I can also console myself with Sun Tzu's Art of War: "To win without fighting, is best."

Ken now will need to pick up the pieces and do his best to get on with his life. The sad reality for many clients is that their reputations are destroyed the second they are charged--even though those charges are later dismissed voluntarilty by the prosecution or after a not-guilty verdict--particularly in cases like Ken's when there is intense media coverage. There will always be those who remember the charges, not the dismissal, or those who will refuse to give any credit to the dismissal by cynically clinging to their prejudices. For law enforcement officers like Ken, it can be extremely difficult to repair a reputation after having charges dismissed.

So let the record be clear: Ken Nelson was and is a good cop. He was always regarded as a hard-working, honest homicide detective among the local defense bar, not necessarily an easy feat. He did his job well, was tough when he needed to be, but was always fair. Ken is the type of police investigator we need more of and I hope he has the opportunity to pursue his career down the road. That said, it can be hard for someone who has been at the brunt of the terrifying power of the criminal justice system and who has been so close to having their future sacrificed in the name of obtaining a murder conviction, to choose to return to a career in law enforcement.

I'm sure Ken will need some time to heal and recover from his ordeal. He has the support of a loving family and Ken has demonstrated repeatedly his priority is to provide that same sort of support and love for his own children. I wish him well and all godspeed.

Spitzergate & Strange Bedfellows

2008-03-11T16:25:00.000-07:00

Politics makes strange bedfellows.

Bartelby.com tells us this saying is adapted from a line in Shakespeare's play, The Tempest: “Misery acquaints a man with strange bedfellows,” spoken by a man who has been shipwrecked and finds himself seeking shelter beside a sleeping monster.

Eliot Spitzer's "sleeping monster" gives a new twist to this old saying, demonstrating that, "Bedfellows make strange politics."

Witness, as one example, this "XX Factor" piece from Slate.com. Rosa Brooks takes Hillary Clinton to task:

That's what's so depressing about Hillary's reaction, so far, to Spitzer: It's just more of the same. Hillary has an opportunity here to say something from the heart: about what it's like to be a woman in a world where too many of her male peers think sex is a perk of the job—about what's wrong with a society where so many powerful men, including "progressive" men, secretly think it's fine to just buy a women's body on the open market—about the factors that drive young women into prostitution—about sex and power and money and inequality—about the nasty links between these high-toned escort services and global sex trafficking, an issue she's crusaded on in the past.

But instead, she sends Spitzer her "best wishes."

Eugene Volokh at The Volokh Conspiracy is willing to give Hillary the benefit of the doubt: "Any substantive statements she makes on this topic seem likely to play into the common public image of her as schoolmarmish and scolding." As much as I've been distressed by Hillary's campaign behavior lately, I'm inclined to agree with Eugene. Give Hillary a break. She doesn't deserve to be drug into Spitzer's scandal and have her nose rubbed in Bill's peccadilloes just because Spitzer got bit by his sleeping monster: soothing his ego having sex with supposed (and expensive) supermodels.

I am intrigued, however, by Eugene's description of Hillary as schoolmarmish and scolding, images typically associated with the "shrew," as in Shakespeare's The Taming of a Shrew. I agree with Eugene's assessment of Hillary's image in the media and among many of the public, particularly her detractors. But it's interesting to note that a shrew is a woman who has to be "tamed" because she's a threat to male sexual prowess; in essence, she's not subservient enough. The danger, in other words (but my words, not Eugene Volokh's), is that Hillary will appear too powerful and threatening if she scolds Spitzer for having paid sex with a "willing" woman.

So, on one hand, Hillary is criticized for not using her power to discuss sex; yet, on the other hand, Hillary risks being criticized for using her power to discuss sex. Sex and power is a dangerous, tricky combination.

Eugene Volokh was reacting to this post at the GayPatriot, in which "GayPatriotWest" notes:

This is a “nightmare for Hillary,” as Roger Simon puts it, since “this kind of public sexual hypocrisy reminds people of one person only more than others: William Jefferson Clinton.”
She just can’t come out and say Spitzer should resign. That might come across as forced and hypocritical given how she continually stood by her man when his various indiscretions came to light.

Before coming across Eugene Volokh's post, I have to admit I was unaware of GayPatriot, "the Internet home for the American gay conservative." I also have to admit that I can't even begin to parse the political implications of what it means to be "the most reliably conservative gay blog on the Internet," nor would I even try. What I find most interesting about GayPatriot is that it's mere existence underscores the complicated intersection of sex and politics in this country--an intersection in which Eliot Spitzer has suddenly found himself crossing against the traffic with a very large bus heading his way at a high rate of speed. Sex and power is a dangerous, tricky combination.

(I can't help but point out the strange synchronicity of GayPatriot's welcome message, "Blogcasting from the worldwide headquarters of the not-so-vast gay right wing conspiracy," with Rosa Brooks's reference to Hillary's accusations of a "vast right-wing conspiracy" against her and Bill.)

But it would appear that the issue for Eliot Spitzer is hypocrisy, not sexuality. And hypocrisy is exactly what both Brooks and GayPatriot identify as Hillary's dilemma in this affair. But is it really that simple? If Spitzer had been patronizing a male prostitute, would Rosa Brooks have taken Hillary to task for failing to come out against the sexual oppression of gay men? If Spitzer wasn't married, would the comparisons to Bill & Hillary still be drawn? If Spitzer instead had an affair with a staffer would he have been labeled a hypocrite? What if Spitzer had engaged in an affair with a woman he had met at a social event? Is it better to engage in plain, old-fashioned adultery rather than hypocritical adultery?

The last big national sex scandal before Spitzer was Larry Craig. But the married Craig didn't patronize a prostitute; he was accused of trying to pick-up an undercover officer in a men's restroom. Like Spitzer, Craig was accused of sexual hypocrisy--but unlike Spitzer, Craig's hypocrisy came from the denial of his apparent sexuality in the face of his efforts to stigmatize others with the same sexual preferences. Spitzer's hypocrisy finds root in him engaging in an activity he knew to be criminalized and for which he himself had prosecuted others.

Still, it seems unlikely that either Craig or Spitzer would have escaped public humiliation had they simply engaged in behavior deemed deviant by certain segments of our society. It's the political dimension that provides the charge these men's sexual antics give to the national debate about their behavior. But underneath it all we're having a national debate about something more than just who Spitzer or Craig choose or want to have sex with. Maybe the day will come when sex is de-politicized and we tire of hearing about the latest and most sensational sex scandal. But I won't hold my breath.

Sex and power is a dangerous, tricky combination.

Eliot Spitzer Round-Up

2008-03-11T09:21:00.000-07:00

The blogosphere is buzzing with news of New York Governor Eliot Spizter's imminent demise after law enforcement officials said he was a client of a high-end prostitution ring broken up last week by federal authorities.

The overriding theme for most commentators is hypocrisy and hubris.

Daniel Gross points out, "Spitzer has been hoisted by his own petard, brought down by the same kind of investigation he pioneered as a prosecutor."

Scott Greenfield graciously notes that "Eliot Spitzer has proven himself to be a human being." Scott urges that Spitzer not be treated like Spitzer treated others in his climb to the Governor's Office:

I will not relish his fall and join in the chorus for his ouster. I will demand that he learn from this experience, to appreciate how far from perfect he is and how much he has in common with his fellow man. I will point out that he is not above others, that his lack of mercy and understanding toward others was terribly wrong, but that he can now be a better person if he recognizes his hubris.

In another demonstration that criminal defense lawyers have a keen appreciation for the human condition, Gideon expresses a similar sentiment: "It's easy to rub [Spitzer's] face in it (HAH!), given the stances he has taken in the past, but that should be no more than a moment of jest. For tomorrow it could be you."

Josh Levin offers helpful advice for those considering opening a brothel in the wake of the Spitzer scandal. Josh points out that the call-girl service that Spitzer patronized, the "Emperor's Club," provided "each of the ladies on staff [with] a detailed CV that appears to have been ghost-written by Anchorman's Ron Burgundy."

Finally, Emily Bazelon wonders, "Why Is Prostitution Illegal?" Her conclusion: "In the end, this seems like the most salient question: Forget Eliot Spitzer. Shouldn't prostitution laws come down to working conditions—and the laws that would lead to better ones for sex workers?"

Somehow, I suspect that the debate in the coming weeks over the Spitzer scandal will focus more on politics, and less on legalizing prostitution in the Empire State (or in our Nation's capital). Apparently, the proprietors of "Emperor's Club" are going to be prosecuted. If the woman with whom Spitzer allegedly paid for sex is prosecuted, and Spitzer is not, that will be the ulitmate hypocrisy.

"Arrogant, Discourteous" Judge Sanctioned

2008-03-09T18:07:00.001-07:00

Via David Feige in this post at Indefensible, we learn of a Florida justice-dispensing-device gone "wacko."

According to an article from the South Florida Sun-Sentinel, earlier this month "the [Florida]Judicial Qualifications Commission recommended the state's highest court should punish [Broward Circuit Judge Cheryl] Alemán for what it said was 'arrogant, discourteous and impatient' conduct." The article goes on to explain:

After a trial on the issue, the watchdog agency found that Alemán, 49, unfairly threatened to hold defense attorneys in contempt of court and set unreasonable time limits for lawyers to prepare important court documents.

The conduct arose in what would have been Alemán's first death penalty case. She turned down requests from the Broward Public Defender's Office to disqualify herself during jury selection and gave the attorneys, one of whom had campaigned for her election opponent, 15 minutes to write a complicated legal argument. When they missed the deadline, she threatened to hold them in contempt, the commission found.

There's nothing like a little imperiousness to insure a defendant receives due process of law, especially in a death penalty case. I mean, if you can't impose unreasonable deadlines so you can hold public defenders in contempt so that the State can kill their client, when can you?

By the way, David Feige's book looks like it might be worth checking out.

Be Careful What You Wish For

2008-03-06T19:51:00.000-08:00

Scott Greenfield at Simple Justice quips in a recent post: "I'm just waiting for the poster of [Supreme Court Antonin Scalia] in a swimsuit."

Well, Scott, while I have to question your taste in visual titillation, as a committed civil libertarian I fully support your right to fantasize about scantily-clad Supreme Court Justices in bikini briefs. So here you go:

Personally, I prefer to imagine Ruth Bader Ginsburg in a one-piece, but that's just me.

Nino's conceit as the erotic love object for the criminal defense bar can cause some to get a little giddy. It wasn't all that long ago that none other than Scott Turow was singing Nino's praises in the lofty pages of the New York Times Magazine. Still, I think it's more than a stretch to describe Scalia as a "civil libertarian," no matter how tight his six-pack may be.

(Turow does get high marks, however, for penning a best-seller which forced a prosecutor into the defendant's chair to undergo the torments of a perverse sexual assault/murder trial. He also wrote a pretty good book about the death penalty.)

On more than one occasion, I've heard Scalia described as having a brilliant 19th-century mind. And we all know how sexy the 19th century can be. (Isn't that when Victoria's Secret got its start?) But I don't normally associate the 19th century with the high-water mark for civil liberties in this country.

In any event, Nino seems to have a real need for the adulation of the criminal defense bar. For an example, first read this letter from David Lane, written in the wake of the Apprendi frenzy. (Leave it to David Lane, a much smarter criminal defense lawyer than myself, to quote Justice William O. Douglas to Scalia. I can just imagine how Scalia might eviscerate Douglas's famous dissent in Sierra Club v. Morton, in which Douglas argued that rivers and "groves of trees" should have standing to sue under the Constitution.)

Scalia's response is fascinating. Nino's zeal to upset constitutional apple-carts is almost infectious, isn't it, and seems to confirm Scott Greenfield's assessment that Scalia is the "babe of the [criminal defense] bar." Of course, Scalia's zeal really begins to wane if the issue is torture or the death penalty, for just some examples. (I can't even bring myself to mention privacy rights in general, gay & lesbian rights in particular, or freedom of speech. Oops, I just did.) So I find that I hesitate to fully embrace Scalia's babe-aliciousness.

Yes, Apprendi and Crawford are as close to an earth-shattering opinion as we will see from a Scalia-dominated Supreme Court. No, Nino is still not attractive no matter how much he tries to impress us every once-in-a-while with the flexing of his constitutional muscles. He's gonna have to work-out a whole lot more and consistently defend the rights of the accused before I'll applaud Scalia in his Speedo.

Do You Respect the Jury?

2008-03-04T18:34:00.000-08:00

This post from Mark Bennett at Defending People: The Art and Science of Criminal Defense Trial Lawyering got me thinking about how juries are perceived so differently by people both in and out of the criminal justice system.

For the record, I think the idea of a "professional juror" is a hideous one, an idea that offends me to my constitutional bones. Besides, we already have "professional jurors." They're called "judges" and most criminal defense lawyers I know consider it malpractice to allow a judge to decide whether the state has proven its case beyond a reasonable doubt, except in rare situations.

Several justice-dispensing-devices I regularly appear before are some of the most reasonable, clear-thinking and compassionate people I know. But I still wouldn't let them decide whether a client is guilty or not for the very reason that they are professional justice-dispensers. The fact is if the DA's office and police decide that a justice-dispensing-device isn't working properly, they try to replace it by actively working against it's retention at the next election cycle. So judges tend to feel a subconscious pressure to find defendants guilty, and many would confess privately they'd prefer not to have the responsibility anyway.

Plus, face it, it doesn't take most justice-dispensing-devices very long on the job to become jaded about the human condition. Skepticism in a juror is usually considered a good quality for the defense; skepticism in the judge doesn't usually bode as well. While the judge's cynical attitude probably won't cause too much damage to my client's case when the judge denies the motion to suppress I didn't really have a chance of winning anyway, the judge's dubious view of my defense strategy would certainly spell disaster if she got to decide my client's guilt or not-guiltiness after the trial.

Even if we had "professional jurors" whose job was separate and distinct from that of judges, how could they not be subject to the same pressures and be influenced by the same forces? And who would decide who got to be a "professional juror"? The DA's office? The police? Maybe the victim's advocates coalition? I suppose we could just pick a "professional juror" totally at random in much the same way that we currently select juries, but I seriously doubt that's the method the proposers of this idea had in mind. I don't think most defendants would find they have much in common with the "professional juror" who could pass muster with all the groups who would want a stake in the selection process.

At its root, any debate about whether or not it's a good idea to have juries make decisions in criminal trials is a debate about process versus results. I've found that most DAs and cops are highly sensitive individuals who interpret a not-guilty verdict as a personal affront to both their integrity and self-esteem. A jury is "good" when it finds a defendant guilty; a jury is "bad" (or "misguided" or "just plain stupid") when it finds a defendant not-guilty. For most of those who work on the government's side of the case, a jury is judged by the result it produces. For criminal defense lawyers, a jury is part of a larger process for making important decisions--and while the decision is critically important to the defendant--lawyers tend to focus on the procedure used to arrive at the decison and believe the proper procedure is most likely to arrive at the right result.

The core of the jury's job is to decide whether or not the government has proven its case beyond a reasonable doubt, which means it's legally justifiable for a jury to conclude that a defendant is not-guilty although the jurors believe the defendant is likely guilty. For this reason, you will sometimes hear a defense lawyer explain to potential jurors that the Scottish legal system provides for three verdicts: guilty, not-guilty, and not-proven. A not-guilty verdict is not a judgment that a defendant is innocent--only that the government hasn't conclusively proven otherwise.

I've encountered various opinions about juries from professionals working within the criminal justice system. Most police officers don't really understand the jury's role and are mistrustful. Most DAs feel they've been mistreated by a jury at some point in their career and this thinking is usually encouraged by their colleagues.

When I first joined a DA's office about a year out of law school I was eager to try my first jury trial. One day not too long after I joined the office, I showed my inexperience and naivete by commenting what a privilege it must be to argue a case to a jury. I can still remember the guffaws of laughter from the older prosecutors who took it upon themselves to educate me on how feeble-minded most jurors were and how susceptible jurors could be to the wily seductions of defense counsel. The image I was left with was that my cases would be decided by lazy, superstitious dolts too incompetent to figure out how to get out of jury duty. I then was regaled with war stories of bad juries refusing to convict unquestionably-guilty defendants.

What I actually found when I started trying cases was that the people who showed up for jury duty by-and-large took their civic duties very seriously and desparately wanted to do the right thing. I still believe that to be true. I lost cases as a prosecutor and I always found that my losses stung and stayed with me far longer than my victories. I also discovered that, while it was hard at first to accept, upon reflection I could usually see why the jury made the decision it did. If I talked to individual jurors, I sometimes found their reasoning to be questionable. Every once in a while, a juror could be completely baffling and irritating. But I also came to realize that as a whole, making an important decision collectively, juries possess great insight and wisdom.

After leaving the DA's office for private practice, my experience with how criminal defense lawyers view the jury was very different. Almost universally, my criminal defense colleagues showed a great respect for the jury and the role it plays in the criminal justice system. I suppose this deference stands to reason when you consider that a jury is the only thing that stands between a defendant and a conviction that comes with years in a prison cell. I also believe you get what you give: if you treat jurors with dignity and respect, you tend to receive the same back. Woe to the trial lawyer who secretly harbors contempt in his heart for the jurors who will decide his client's fate.

As Mark Bennett points out, "The purpose of a jury is to be the voice of the community in a civil case and a bulwark between the government's bureaucrats and the individual in a criminal case." This dimension of the jury's role is ultimately the very reason for its existence. From the John Peter Zenger trial to Blakely v. Washington, our country has a proud tradition of respecting the collective decision of twelve "tried and true" citizens over that of a single, privileged person. I, for one, hope that's a tradition that never changes.