Chapter 1 — Fetal finance

There isn’t much of this. How­ever, this is where most of the finan­cial know-how and entre­pre­neur­ship comes from. That’s right, it’s genetic. As proof, allow me to use a well-known exam­ple from all of our child­hoods:
When you were a child there were the kids who were like me – lazy. I never tried to mow the lawn for money, I never tried to shovel the dri­ve­way for money, hell, I never even tried to sell lemonade.

Then there were the kids who did try to make some money by doing what we nor­mal peo­ple call chores. These kids can be split up into two, eas­ily iden­ti­fi­able groups. The first group is not very large and is mainly pop­u­lated by future accoun­tants and Bill Gates. These were the kids who would trawl the entire neigh­bor­hood, sub­tly insult­ing and sab­o­tag­ing all the other kids’ attempts at mak­ing money. You know what I’m talk­ing about. The lit­tle snot would walk up to the door of a big house that’s at least 12 blocks away from where he lived and when the well-to-do-but-elderly-and-infirm-silver-haired-lady opened the door, he would almost bow.
“Good morn­ing, Mrs. Liv­er­spleen! I see that your lawn/walk is cov­ered in grass/snow. Now, either, “he would con­tinue, half-sniggering in a way that would seem obscene and pos­si­bly ille­gal if he was any older, or Mrs. Liv­er­spleen any younger, “either you were kind enough to allow lit­tle Joel Hic­cup­schmit to mow/shovel your lawn/walk, or nobody has been kind enough to offer to do so. Please, allow me to take care of it for you.”

Of course, Mrs. Liv­er­spleen would let him and he would do a fab­u­lous job, since that’s the kind of job a kid like that does, and Mrs. Liv­er­spleen would never even think of let­ting a bright, tal­ented and dar­ling young man like that do such a fab­u­lous job with­out some sort of com­pen­sa­tion. You or I would get lemon­ade and speech about her child­hood, but this lit­tle snot ends up mak­ing $17.50 an hour. And a shot of whiskey.
Of course, should poor lit­tle Joel Hic­cup­schmit ever come knock­ing to try and do a few chores, he’ll be chased away (albeit, at a slow speed) with a broom.

How­ever, there is another group. This group is pop­u­lated by poor, lit­tle Joel Hic­cup­schmit, and by Rex Luzer, and many, many other kids. This is the group that sucks. They don’t mean to, but they do. It shouldn’t even reflect badly on them. They have won­der­ful inten­tions; they try their hard­est. They just end up half done and some­thing hor­ri­ble hap­pens. Like the elec­tric lawnmower’s cord gets unplugged and they think it’s out of gas so they try refill­ing it, and the owner of the house sees the loose cord and plugs it back in and the poor sod ends up send­ing curse words via smoke sig­nals that are vis­i­ble from outer space.
Or they do a superb job shov­el­ing the walk, and then the tree that over­hangs the walk spon­ta­neously com­busts and the melted ice lands on the walk which, being cold, imme­di­ately freezes the water. Of course the poor kid went inside to get the owner and when the owner comes out to view their freshly shov­eled walk, they end up going on a very short and single-manned luge into the street, just when the snow plow is dri­ving by in the government’s effort to insure that every dri­ve­way in the state is blocked.

Yes, I am refer­ring to you and me. (Okay, not me; since we already estab­lished that I was too lazy to even bother try­ing in the first place. But I didn’t want you to feel lonely.) The key here is that you’re try­ing. You may not be suc­ceed­ing, but you’re try­ing. And that is why you bought this book. (Unless you bought this book because you needed a last minute gift and you were about to get the Best of SNL: The Knock-Knock Jokes when the guy behind you who reminded you of the nerd in 7th grade every­one beat up told you that it was his sec­ond favorite book, just after the Lord of the Sword of the Chron­i­cles of the Lion, the Ring and Flame series of 43 books and 12 appen­dixes. At that point you picked up the clos­est book at hand and bought that instead. Of course, since you gave it as a gift instead of read­ing it, I shouldn’t be blab­bing this all over town. Oops.)
Where were we… Oh yes, we were about to discuss…

Dis­cus­sion Questions

  1. Do you think this first chap­ter is a load of crock? Explain and bring proofs. (10 pts.)
  2. Do you think you will get graded on the dis­cus­sion ques­tions? (10 pts. if you answered “No”, –746 pts. if you answered “Yes”.)

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Love of justice

This post is some­thing I have been think­ing on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.

I went into law school with a gut feel­ing that I could never defend crim­i­nals, and that if I went into Crim­i­nal Law it would be as a prosecutor.

Then I was intro­duced, through the eyes of cases skimmed dur­ing class and through the per­spec­tive of the Crim­i­nal Defense attor­neys I “met” through twit­ter, to the Crim­i­nal Injus­tice sys­tem of our country.

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Scott Greenfield

Today is Scott Green­field Day.

I know it is because the blawgers I enjoy fol­low­ing have told me it is.

I have quoted Mr. Green­field exten­sively (or what counts as exten­sively for this blog) here, and it’s not a coincidence.

It’s also not a coin­ci­dence that he is one of the main rea­sons I have become so incred­i­bly inter­ested in crim­i­nal defense.

That will be all.

Berghuis v. Thompkins

The Supreme Court issued Berghuis v. Thomp­kins today. In it they held that a defen­dant must make an affir­ma­tive invo­ca­tion of his or her right to remain silent and to an attorney.

Thomp­kins, the defen­dant, was sub­ject to a 3 hour inter­ro­ga­tion in an 8 x 10 foot room. dur­ing the entire inter­view, Thomp­kins remained silent — exer­cis­ing his right to remain so. SCOTUS decided that remain­ing silent isn’t enough, a defen­dant must make a “sim­ple, unam­bigu­ous” state­ment such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the major­ity opin­ion) and that fail­ing to make such a state­ment meant that he did not invoke his right. To remain silent. By remain­ing silent.

The court then decides that remain­ing silent for nearly 3 hours and finally giv­ing a mono­syl­labic response is “suf­fi­cient to show a course of con­duct indi­cat­ing waiver.” (page 14 of the major­ity opinion)

Among the ridicu­lous­ness of this deci­sion — and I believe it is ridicu­lous — the thing that strikes me the most is the way the court ana­lyzes the issues. The Miranda warn­ings exist to inform defen­dants of their rights, and the options open to them. They are asked whether they under­stand the rights, so the warn­ing is obvi­ously for the defen­dant. So why does the court (and I’m not lim­it­ing this to Berghuis, it applies equally to ear­lier cases such as Davis, which this opin­ion relied upon) assume that the defen­dant knows he must break his silence imme­di­ately after being told that he has the right to remain silent?! Change the #$!@#& word­ing of the warn­ing! Every­thing else in the opin­ion stems from that sim­ple idi­otic assump­tion. Waiver only comes up since the court found that Thomp­kins never invoked his right to remain silent.

I know I’m not adding any new or bril­liant analy­sis, but I had to get that off of my chest.

One man’s anal retentiveness is another man’s freedom

In my Mary­land Crim­i­nal Prac­tice class this evening, the pro­fes­sor men­tioned an unre­ported opin­ion of the MD Court of Spe­cial Appeals that was issued on Tues­day, May 24th.

Par­en­thet­i­cally, this is an incred­i­bly inter­est­ing and seem­ingly prac­ti­cal class that is taught by Judge Dana Levitz, a for­mer State’s Attor­ney and head of the trial divi­sion for Bal­ti­more County and for­mer Md. Cir­cuit Court judge who is now the judge who deals with the ini­tial incom­ing prayers for jury cases from the Bal­ti­more County Dis­trict Courts. I plan on devot­ing an entire post to Judge Levitz and his phi­los­o­phy regard­ing his cur­rent position.

The opin­ion, Clark, Dar­rell Mau­rice Jr. v. State, Docket 1393/08, was issued by Judge Davis. To (very briefly) sum­ma­rize, a first-degree bur­glary con­vic­tion which car­ried with it a 20 year prison sen­tence was vacated as a result of a slight, but incred­i­bly impor­tant, defect in Bal­ti­more County’s form first-degree bur­glary charge lan­guage.
The form lan­guage uses a short-form cita­tion to estab­lish the ele­ments of the crime, which I just learnt is per­fectly accept­able. How­ever, instead of cit­ing the statute within the charge, the cita­tion is recorded after the required con­clud­ing phrase of “against the peace, gov­ern­ment, and dig­nity of the State.”
The defense attor­ney moved to dis­miss the charg­ing doc­u­ment as defec­tive on this ground in pre­trial but the trial court refused, ask­ing how that could make any difference.

The Court of Spe­cial Appeals begged to differ.

Spec­u­la­tion as to how this will affect claims of inef­fec­tive assis­tance of coun­sel and whether this would or would not be counted as being charged in terms of dou­ble jeop­ardy were bandied about in class, but the most impor­tant thing Judge Levitz wanted us to get out of the case is how ripe with pos­si­bil­ity charg­ing doc­u­ments are for defense attorneys.

Like I said, this seems like a prac­ti­cal class.

Think of the children!

Sex offence is a treach­er­ous subject.

As a father, I am gripped by the slight nau­sea and imme­di­ate gut-reaction of want­ing to hurt some­one who hurts chil­dren. I’m okay with that. Child rapists are among the low­est of the low; that’s not some­thing I will change my mind about.

I feel sim­i­larly, if less vis­cer­ally, about a man who forces him­self on a woman — your stan­dard rapist.

If our laws were directed specif­i­cally at those mis­cre­ants, there wouldn’t be the (same) prob­lems we cur­rently have. Unfor­tu­nately, some­one, and I’m not sure who, decided that the only way to keep our chil­dren safe is to come down hard on sex offend­ers. Sex offend­ers has become syn­ony­mous with child rapists in the mind of the pub­lic, so any­thing done to and in pur­suit of sex offend­ers is fair game.

That by itself is wor­ry­ing, since even the low­est of the low have rights, but it just keeps get­ting worse.

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Sentencing anarchy

Sen­tenc­ing is hard.

I know, it’s an incred­i­bly dif­fi­cult line to toe; try­ing to bal­ance pub­lic safety, pub­lic opin­ion, vic­tims’ expec­ta­tions, deter­rence, reha­bil­i­ta­tion and equity. How much def­er­ence is due to any of those fac­tors? When politi­cians decide to get involved in the sen­tenc­ing, it mud­dies up the already murky pool.

There are some things, even among hard deci­sions, that should be no-brainers. If I were to ask you whether a con­victed crim­i­nal should get 5 or 15 years in prison, it’s not always an easy deci­sion to make. If I were to ask you if the leader of a vio­lent drug gang should receive a lighter or harsher sen­tence than a young woman who placed a 13-yr old boy’s hand on her “brasier-covered breast,” as Scott Green­field put it, that’s not such a hard decision.

One would think.

Yes, there is leg­is­la­tion that is in play. And yes, these are dif­fer­ent states. But this type of arbi­trary dis­par­ity occurs day in and day out.

I’m not offer­ing any solu­tions. I’m just point­ing out how bro­ken it is.

Hank Skinner

I sub­mit­ted my request at http://www.governor.state.tx. us/contact/

I am weigh­ing in on the impend­ing Hank Skin­ner exe­cu­tion. I believe it would be a shame to allow this to go for­ward for two main rea­sons.
The first rea­son is one of jus­tice. If there remains untested evi­dence that may excul­pate Mr. Skin­ner, not allow­ing it to be tested prior to his exe­cu­tion would cast a pall over all aspects of the crim­i­nal jus­tice sys­tem.
The sec­ond rea­son is one sim­ply of pub­lic rela­tions. Allow­ing a 30 day reprieve, solely for the pur­pose of test­ing the DNA, seems like such a minute ges­ture to com­bat the seri­ous pub­lic­ity issue that this has generated.

Please make the right choice, and help guide any oth­ers nec­es­sary in mak­ing that choice.

Moshe Glick­man

Abbot v. MD

Over a year ago, I helped a local attor­ney on a crim­i­nal appel­late case. I did some legal research and helped draft the argu­ments for the client’s appeal to the MD Court of Spe­cial Appeals.

In Octo­ber, I sat in the court­room after meet­ing the client and lis­tened to oral argu­ments on the case. I was still involved enough that I was mouthing answers to the court’s ques­tions from my seat against the wall.
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Thoughts on Maryland v. Shatzer

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Green­field has writ­ten about it, as has Orin Kerr.

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Wreaths over water

Scott Green­field over at Sim­ple Jus­tice posted today about the cus­tom of lay­ing wreaths on the graves of those who have made the ulti­mate sac­ri­fice for their coun­try, thanks to a pro­gram called Wreaths Across Amer­ica.
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