Criminal defense
Summer in France…..
Remember Manuel Noriega? The former Panamanian dictator is back in the
headlines again: The U.S. reportedly extradited the disgraced leader
from his federal prison just outside Miami to France, via an overnight
Air France flight, as he prepares to stand trial there on money
laundering charges. The French claim he laundered around $3 million in
drug proceeds through luxury apartment purchases in Paris and could face
up to 10 years in prison if convicted. Meanwhile, Secretary of State
Hillary Clinton signed a surrender warrant for Noriega after all court
challenges to his extradition were resolved. Noriega was dethroned as
Panama’s leader after a 1989 U.S. military invasion and put on trial for
drug racketeering.
He didn’t laugh at lawyer jokes
He didn’t laugh at lawyer jokes
By Peter S. Stamatis
Last month, this column lamented the current state of American politics, a blood-sport that seems to attract mostly people who are not qualified for positions of public trust, characters oftentimes more interested in celebrity or power rather than self-sacrifice and service.
When the wrong people, again and again, are put into leadership positions and make the decisions and policies the rest of us are bound to live by, bad things inevitably happen — taxes go up to pay for pet projects used to ensure re-election; kickbacks are paid; bribes are accepted; contracts are rigged; nepotism becomes the norm; etc.
In other words, it’s garbage in, garbage out. So it’s no surprise that politicians today enjoy some of the lowest approval ratings ever. This week alone, RealClearPolitics.com, which averages the country’s major political polls, showed a national congressional disapproval rating of just over 76 percent.
So what really are the effects of, time and time again, putting the wrong people into such important positions? Generally speaking, it is the consistent directing of our society towards its fall.
Merely by way of example, consider for a moment our nation’s financial mess. With the exception of several years during the Clinton administration (Democrat President, Republican Congress), our elected officials have consistently spent more than they have taken in each year. And those deficits have added, year after year, to the national debt, a number which currently sits just shy of $13 trillion, a staggering and incomprehensible figure. How long can we go on like this?
Another way our society is harmed is through relentless swipes at the legal profession. We have all heard these people claim again and again, and in one lame platitude after another, how lawyers are a scourge upon our society. In recent years, lawyers have been blamed for everything from doctors leaving the practice of medicine, to excessive insurance premiums, to high jury verdicts (as if the defendants who have been ordered to pay them were unrepresented and blameless victims). One of the more popular and offensive canards is that lawyers clog our courts day in day out with “frivolous lawsuits.” Is a “frivolous lawsuit practice” really a popular and profitable business model?
All too often, we lawyers stand by and allow these prevarications to be emitted into the public consciousness. And while it certainly harms our reputations, it harms our nation’s legal system even more, the indispensable place where over disputes are peacefully resolved. Our inaction amounts to what Cicero called in his “De Officiis, On Moral Duties,” the great fault of “passive injustice,” remaining silent because of our own interests or inattention.
So we shrug off lawyer jokes when what we should be doing is getting more involved, using our skills and training to boil down problems and direct our fellow-citizens towards solutions. I recently heard one caller on a talk show say that lawyers were the “problem” with government, that because we bill by the hour, we have been trained to perpetuate problems, not to solve them. A ridiculous statement to which no one responded.
So it’s time to step it up. We should treat over-reaching attacks upon attorneys as what they are, attacks upon our judicial system. Consider the late Francis A. Nolan. I had the privilege, for a time, to be Frank’s mentee. He was one of the best criminal trial attorneys to grace the courtrooms of Illinois. A former Cook County state’s attorney and the son of a courtroom clerk in Brooklyn, Frank was the gentleman’s gentleman. He was eloquent in a 1940s sort of way; he cared about his clients and he loved, I mean loved, our profession.
Frank wasn’t a litigator — he was a trial lawyer. And boy, he was as brilliant at it as he was proud of it. He tried more cases than he could count. He could pick a jury, deliver an opening statement, conduct direct and cross examinations, and then close like no one else. Clients and their families came to him when they were in trouble, real trouble. And he gave them comfort and then he gave it his all. He cared for his clients in a way that showed only the utmost esteem for our profession.
Frank never laughed at lawyer jokes. He didn’t think they were funny, but even more so, he didn’t want to dignify them. Frank used to talk about how after he was diagnosed with Hodgkin’s lymphoma, the lawyers in his life answered the call. When he was undergoing chemo and radiation therapies and was too tired to work and said he “looked like something from outer space,” he proudly told me about how his landlords, lawyers mind you, waived his rent; and how his friends, lawyers as well, not only covered his cases and court appearances, but continued referring him cases, kept him in the loop, took control of the wheel when he couldn’t. “Lawyers are some of the best people I know. I love being a lawyer. I’m proud to be a lawyer.” He said these kinds of things over and over.
So what about us? Should we lawyers continue to remain quiet pawns to the self-serving ends of others? Should we continue to allow politicians to transform the term “trial lawyer” into an epithet, as if lawyers who try cases are the cause of society’s ills? On the contrary, perhaps we should follow Frank’s example and remember what a privilege it is to be a lawyer, to eschew mocking it and to respond when an unjustified criticism is launched.
After all, as the judicial systems’ caretakers, isn’t it our job to protect it?
Cyber crime….
The Minneapolis Star Tribune:
William Melchert-Dinkel, 47 …. was charged … with two counts of aiding suicide…. [He] allegedly used Internet correspondence to prod [two people] into killing themselves…. Like most other states, Minnesota has a law that punishes anyone who “intentionally advises, encourages, or assists” others with suicide….
According to authorities, Melchert-Dinkel advised and encouraged Mark Drybrough, 32, of Britain, and Nadia Kajouji, 18, of Ottawa, before they took their own lives….
Melchert-Dinkel used online aliases “Li Dao” and “Falcon Girl” and presented himself as an expert in suicide techniques.
He suggested to others in the chat rooms that he could die at the same time they did, and he twice watched through his webcam as they took their own lives….
Good Article on Difficult subject…
Stephen I. Vladeck (American University – Washington College of Law) has posted Terrorism Trials and the Article III Courts after Abu Ali (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:
To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian – rather than military – jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule – what we might characterize as either a “distortion effect” or a “seepage problem.”
Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article – the trial of Ahmed Omar Abu Ali.
As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal – especially where the defendant is a U.S. citizen.
To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation – including its triumphs and its shortcomings – will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.
Hit the delete button…..because….
Ari B. Fontecchio has posted Suspicionless Laptop Searches Under the Border Search Doctrine: The Fourth Amendment Exception that Swallows Your Laptop on SSRN. Here is the abstract:
The Department of Homeland Security recently set forth a new policy allowing suspicionless searches of the data inside the laptops of international travelers upon entry into the United States. The government has justified these searches under the border search and special needs doctrines, which render constitutional any “routine” search performed at the international border. The logic behind the special needs doctrine is that the government can operate outside the traditional confines of the Fourth Amendment because there is something “special” about the border. However, where data is concerned, the special needs and border search doctrines do not apply, because data travels electronically via cyberspace, not through the United States’ physical borders such as airports and highways. Therefore, the government has no special need to search data at these physical borders separate and apart from searching data in computers already inside the country. In fact, suspicionless data searches compromise border security by allowing officers to engage in time-consuming data searches instead of preventing the entry of weapons that can cause immediate harm. Since such data searches hurt rather than help to achieve border security, the government’s interest in performing suspicionless data searches at the border does not outweigh an individual’s interest in privacy. On balance, an individual’s privacy interests should prevail. Consequently, the Policy allowing suspicionless searches of laptop data violates the Fourth Amendment.
April 20, 2010 | Permalink
Only in America…
This issue will be argued this week in Supreme Court…..
City of Ontario v. Quon: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.
Illinois Appeals & Post Convictions 
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