Thursday, August 11, 2011

TSA Searches Constitutionally Suspect

Anyone unfortunate enough to have traveled by air over the last few years has experienced the intrusive and invasive pat-downs, screens, questioning, waiting and other searching by TSA employees. 

Quickly, to all you jumping up and down arguing these searches are necessary to protect us either don't know or forgot that everyone of the 9-11 hijackers was pulled by equally intrusive screeners then and ultimately allowed to board.  Such security measures simply do not prevent creative, determined and especially suicidal evil doers.

The 4th Amendment prohibits unreasonable searches.  How reasonable can a search be if it fails to further the goal behind the search?  When then does such a search become unreasonable - when perhaps we are all forced to wear hospital gowns and slippers in order to shuffle onto an airplane?

Have not the terrorists won if our liberties give way to pat-downs approaching gropings?  Moreover, is not the false sense of security instilled by these bogus searches counterproductive to the vigilance and common-sense needed to deter and prevent attacks?

It is time to get real about TSA's efforts.  After all, since when do government operated security screenings supplant common sense?

Thursday, July 14, 2011

Thought for the day...

Most of the problems we face today are there because the people who work for a living are outnumbered by those who vote for a living.

Monday, July 11, 2011

Casey Anthony case proves the system works.

Like the infamous OJ criminal case, Casey Anthony's acquittal has disappointed many and led to calls for changes in the justice system.  These people miss the point.

Disappointment is when reality exceeds expectations.  Disappointment can lead to frustration, which can lead to rash decisions.  Anyone who expected a conviction expected too much of our system.  It is not geared towards readily convicting the accused. 

Following centuries of experience, Western criminal justice systems are designed to limit the power of government prosecutors from obtaining automatic convictions, primarily by allowing for jury trials.  Also, the prospect of having to convince a jury deters over-zealous police and prosecutors from bringing and pursuing potentially bogus yet damaging criminal charges.  That prospect also leads to most cases being resolved via plea agreements, without which the over-crowded criminal justice system would cease to function.

Casey Anthony elected to have a jury trial, a constitutional right at least.  The jury heard the case and made its decision.  Appellate courts are built to make sure the rules were followed, not to second guess acquittals.  Experienced criminal defense lawyers know that juries are impossible to predict.  We've all won cases we "should have" lost, and lost cases we "should have" won.

When people know the outcome of a trial ahead of time, it is called a show trial, and many countries still put on show trials.  Rather than lament the lack of a conviction in Ms. Anthony's case, we should appreciate the fact that our time-tested justice system worked exactly the way it was designed.

Thursday, June 9, 2011

What to do if stopped for DUI.

     Based on over 25 years defending people accused of all sorts of crimes, here are my top 5 suggestions if you are stopped for DUI (or any similar offense):

1.  Be polite but consent to nothing. 

2.  Give your name, required paperwork, address and the like if asked, but politely decline to answer any other questions or do anything "voluntary" unless the officer says you must.

3.  Politely decline any so-called roadside tests (including the portable breath test sometimes given during the roadsides) then ask if you are free to leave and if so, be on your way. 

4.  If you are arrested and requested to submit to a breath or blood test, you could lose your driving privileges for a while if you "refuse."  That decision is up to you, knowing otherwise that lack of a test makes it much harder for the prosecution later to get a conviction for DUI.  If you decide to submit, choose the breath test (though it is easier for the prosecution to prove compared to the blood test, it is easier for the defense to attack).

5.  Do not admit to drinking, to driving, or answer any voluntary questions about where you have been, what time etc.  If you try to explain, you are only needlessly giving away information.  Silence on these issues is your right, and silence is golden.

     Not all lawyers would agree with the above and of course every situation is different.  However, often when you read about a judge or police officer or prosecutor arrested for DUI while not on duty, these are the very suggestions they follow (although they seemingly almost always refuse to submit to a test).  In my experience, not following the suggestions above makes it much harder to defend against a DUI charge that may be bogus to begin with.

Monday, June 6, 2011

Domestic violence in Colorado.

“Domestic violence,” or DV, is not actually a separate crime in Colorado.  Rather, it is a sentence enchancer: it makes the underlying offense more serious.  Assault (causing bodily injury), harassment (e.g. touching a person, threatening him, repeated telephone calling), false imprisonment (restricting one’s freedom of movement), criminal mischief (damaging another’s property) and criminal trespass (being or remaining where you have no right to be) seem to be the usual acts underlying DV cases. 

In sum, if you are charged with committing bad acts against someone you have had or are having an intimate relationship with, it could be domestic violence as very broadly defined by Colorado law.  If convicted - which includes a plea agreement amounting to an admission of guilt - your sentence could be that provided for the underlying crime(s) (jail, probation, therapy, fines, costs, etc.) plus the sentence provided for domestic violence crimes (usually lengthy domestic violence “treatment,” possible loss of your right to possess weapons, and other restrictions and punishments).

For most DV suspects, the biggest issues they face - at least early on- are the no contact and/or restraining orders, together referred to as protection orders, which begin to go into effect once charges are formalized. 

“Restraining orders” automatically go into effect once you are charged, preventing you from harassing, threatening, intimidating, etc. witnesses and the alleged victim(s).  “No contact orders” must be imposed by a judge, and they routinely are in DV cases, preventing you from contacting the alleged victim.  No contact means just that: no telephone calls, no emails, no letters, no visits, no communication.  Generally, having someone else contact the alleged victim is prohibited.  Accepting contact from the alleged victim is prohibited, even if he or she wants contact.

Violation of a protection order is a separate crime.  It also can be a bond violation resulting in jail if a bond securing your release from jail is in effect at the time of violation.

Can no contact orders be lifted (canceled) or modified (usually to allow telephone contact only)?  Yes, but be patient.  First, the alleged victim or victims usually have to request it (repeatedly) of the district attorney’s office.  That office then may prepare a written motion to the judge conveying the request.  The DA’s office may be for or against modification or lifting of the order.  In effect, the no contact order amounts to a great deal of leverage over the defendant to take a plea (well over 90% of criminal cases in Colorado plea “bargain” without trial) and resolve the case quickly just to try to get the order lifted.  Meanwhile no contact orders remain in place, and are strictly enforced, unless and until lifted or modified by a judge, which can take weeks or months if ever (in some plea agreements, the DA’s office will insist on a permanent no contact order).

While the protection orders are in place, you must defend against the charges.  Domestic violence charges can be misdemeanor or felony level.  Most are misdemeanors prosecuted in county court (felony cases end up in district court and involve different procedures and stiffer penalties). 

The DV prosecution process is long and deliberative.  For the accused it is frustrating, emotionally trying, and devastating to the family structure and finances (especially if a no contact order is in place requiring couples to live apart).  Sometimes the cure is worse than the disease, and some families and relationships never recover.  Of course the process can be equally hard on the alleged victim or victims, if not more so.

If you believe you are innocent, don’t give up.  Just because you were arrested doesn’t mean a crime was committed, especially in DV cases, where many well-intentioned peace officers believe they are required to make an arrest regardless of circumstances.  Many times self-defense and other defenses are available.  Let the equally deliberative defense process work its way, and understand that defending yourself is your right (especially before you consider a plea).

Friday, June 3, 2011

What makes a good lawyer?

I graduated from law school (Fordham U. in New York City) in 1988 and have been practicing since.  I've been in every kind of court, seen every kind of judge, and opposed every kind of lawyer.  A "good lawyer" is someone who understands what it means to be a professional.

A professional cares about his client.  He or she follows up.  He thinks alot about ways to help his client and his case.  He is punctual.  He returns phone calls.  He keeps his client and everyone else involved updated, advised and in the loop.  He explains, describes, seeks input from others, and has a plan.  He is mindful about what has happened, what is happening, and what is going to happen, and from time to time updates his client accordingly.  He is responsible and accountable.  He is not content to do the minimum.

From my first boss I learned three key rules of practice:  1.  Universality (look at your actions as affecting the whole of the case); 2.  Be active (not reactive); 3.  Titles mean nothing (don't assume that just because so-and-so is a "learned judge" or "famous lawyer" or president of his company that they know what they are doing any more than anyone else).

The type of case does not change the need for professionalism.  In civil cases the issues usually boil down to what is reasonable; in criminal cases what is alleged; in divorce cases what is equitable.  A good lawyer is able to apply his work ethic to whatever issue comes up so to maximize his client's chances of a good result. 

Too many times in criminal cases I've seen defense lawyers barely do the minimum - they are just choreographers dancing their client's way through a bad plea and sentencing.  Prosecutors and judges rely on these type of lawyers to smooth the process, knowing they won't fight.  In civil and divorce cases I've seen too many lawyers lose focus of or ignore what matters, racking up fees and costs, delaying the case, and causing more harm than good.

The joke says that 99% of lawyers give the rest a bad name.  Professionalism in the law is not dead; you just need to know what to look for.

Thursday, May 26, 2011

Solving prison overcrowding.

The U.S. jails more people per capita than almost every other nation.  Prisons and jails generate big business, from construction to staffing and everything in between.  The phyrric war on drugs and "getting tough on crime" provide the human fodder.

Legislators fear being labled soft, meekly passing laws mandating jail or prison, increasing sentences and adding more and more punishing laws to the already huge volume of possible crimes.  Too many judges lack the courage, conviction or sense to say no to law enforcement's never-ending demand for more power.  Prosecutors clamor for more tools.  The result of course is that the "land of the free" has become the home of the inmate.

Recently the Supreme Court issued a decision (Brown v. Plata) ordering California to release thousands of inmates on grounds that overcrowding led to cruel and unusual punishment.  Anyone who has visited a prison or jail likely would agree.

A week later the same court decided Kentucky v. King, a decision (further) eroding the 4th Amendment (the one supposedly guaranteeing against unreasonable, i.e. warrantless, searches and siezures) by empowering police to bust into a person's home if police decide its inhabitants sound like they may be destroying evidence.  Bottom line is even more people will be subject to increasingly suspect arrest, prosecution and incarceration.

The solution?  Stop destroying the 4th Amendment further to empower police.  That Amendment has been so diluted over the years that its exceptions would take thousands of pages to list, explain and justify.  For all intents and purposes the government can do whatever it wants in the name of "law enforcement."

The Founding Fathers intended the language of the Constitution to be understandable by the common person.  It was written to limit government power.  Two hundred plus years of legal meddling and sophistry have changed that.

This latest example - widening the door to let more people into prison just to have to open another to let them out - underscores how absurd the situation has become.

Wednesday, May 25, 2011

Is battered Giants fan's lawsuit against Dodgers a winner?

Adding to its list of woes on and off the field, the Los Angeles Dodgers apparently now must defend against a lawsuit brought by severely injured Bryan Stow, alleging negligence (and related claims)partially contributing to the notorious assault and battery he suffered at the hands of some Dodgers (?) fans in March.  Does the lawsuit "have legs" (borrowing a phrase many personal injury lawyers use)?  (For the story see

If you visit a house, bar, movie theater, store or any other private property, the owner and anyone else in control has a legal duty to prevent reasonably foreseeable injury.  This duty is heightened if you are more than just dropping by, say if you were invited there or bought a ticket to be there.  A classic example taught in many law schools is the person visiting an apartment complex who is attacked in an unlit stairwell.  Is it really so farfetched to foresee such an attack, or someone slipping and falling at an icy gas station, or a fan being assaulted at a stadium lacking proper security, especially if there is a history?

To be sure, there are all kinds of legal theories possibly limiting the claim or recoverable amounts, but attending a baseball game is not so inherently dangerous an activity as to prevent a negligence-based claim in an situation like Mr. Stow's (for example, certain activities are considered so dangerous that some states have expressly limited the right to bring a lawsuit, i.e. skiing, horse-back riding, rafting, sky diving etc.).

Whether Mr. Stow succeeds will of course depend on the particular circumstances and evidence of the attack and injuries, including whether it was reasonable to expect the Dodgers to have done more towards prevention.

Tuesday, May 24, 2011

Is it child-abuse to smoke marijuana in a car containing a child?

Local newspapers ( ( report the arrest by Boulder police of a young woman police say smoked pot in her car while an infant was in the back seat, presumably based on the cop's claim that she smelled pot in the car.  The woman also is now charged with possession, driving while under the influence of drugs and no having insurance.  She is innocent until proven otherwise.

It's not unusual for police and prosecutors to tack on a child-abuse charge in cases where they arrest a driver they say might be drunk while there are children in the car.  From that point of view it is no surprise police would do the same with someone supposedly high from smoking pot.  Main problems include (1) "child abuse" is a very vaguely defined crime ,and (2)  the decision to charge is highly discretionary (as are so many "crimes" these days), resting almost exclusively on the cop's word.

Look at the main Colorado statute, CRS 18-6-401.  It says a person commits child abuse "if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in" a threatening situation, "or "engages in a continued pattern of conduct that results" in "mistreatment."

Does this woman supposedly smoking marijuana in a car containing a child meet the definition or intent of that crime?  What about smoking a cigarette?  Listening to loud music?  If driving while using a cell phone increases the risk of an accident, is that child abuse too?  Where is the line drawn and who draws it?

Unfortunately, in our justice system where an increasing number of so-called social problems are dumped for lack of a better alternative, it could take a year or more and alot of money for this woman to find out.  Most likely we'll never know since most defendants will take even a bad "deal" to avoid the pain and uncertainty of defending against criminal charges, a sad fact upon which the system survives.