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.

I mentioned in an earlier post that my Maryland Criminal Practice class was taught by Judge Dana Levitz. Judge Levitz was the State’s Attorney in Baltimore County for a number of years, and he has many incredibly interesting stories from his time as a prosecutor.

I think the best way I can sum up the way I feel about criminal law now is with the following story:

One particular story involved two young men who were driving in a pickup truck, on their way to rob a colored tile store. While en route, they saw an older gentleman driving a moped. The passenger of the of truck told the driver that “he was going to get that moped” and to pull up alongside the older man. When the truck caught up and was even with the moped, the passenger reached out the window with a gun and shot the older man in the head. At that point, they drove off.

An oncoming car witnessed the truck pulling even with the moped, heard a loud bang, and saw the old man fall. The witnesses called 911 and the police caught the two men in the truck, but they had no idea which of them actually shot the older man.

During interrogation, the driver gave a statement with all of the information — that they were going to rob a store, that the passenger told the driver to pull up and that he didn’t know what the passenger was going to do, and that the passenger shot the older man. It turned out that the passenger had a long history of violent crime, and it was the driver’s first offense. The driver had just graduated college, and was joining the Navy. The prosecution cut a deal with the driver; if he testified, the State would only ask for 20 years. The State asked for death for the passenger.

While hearing this horrific story from the prosecutor of the case, the first thing I felt was pity and sympathy for the victim and his family. I mean, I really felt for them; ever since I had kids, I find myself tearing up whenever family is implicated in anything — hell, cheesy cartoon movies can have me furtively wiping the corner of my eye.

The next thing I felt was outrage. But not towards the defendants. Here’s the prosecutor who recognizes that the driver is a young man with a whole life ahead of him. He graduated from college already. He went to college and graduated — you can imagine how proud his family is of him. He is already enlisted in the Navy and ships in a matter of months. Off to serve his country. The prosecutor recognizes all of this and offers a plea bargain — only 20 years instead of death. 20 years. Is there any doubt in anyone’s mind that those 20 years will completely nullify whatever positive direction his life was going previously? 20 years in jail, where his country will serve him (only in terms of the cost of incarceration, obviously).

I won’t discuss the death penalty; you might like to know that though the passenger was convicted and sentenced to death, he is still alive on Maryland’s death row.

I love justice. I truly and deeply feel for victims and their families and the suffering they are forced to endure, but they are not (or should not) be a party in a criminal case.

Laura says that life without prosecutors would be anarchy, and she is right. But life without Criminal Defense attorneys would be hell.

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.

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.

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.

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.

While hiding behind the cry of “Think of the children!” legislatures compound the problem by lumping everything they possibly can under the penumbra of sex offence. That’s why we’re left with the issues of children’s lives forever ruined by youthful indiscretion.
That’s why we’re left with people who need help, but who end up sentenced to spend the remainder of their lives in prison.

Fear mongering is an insidious evil that permeates every aspect of our culture and our nation, and the reason it’s not going away is because it works.

When we allow ourselves to be convinced that our children are not safe without the draconian and over-broad sex offence laws, we cheapen and insult victims of rapists and abuse, as well as willingly relinquishing our rights and turning a blind eye towards justice.

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.

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

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.

Finally, yesterday, the court posted their opinion — a surprise, since the Court of Special Appeals doesn’t often report decisions. Reading the decision was gratifying and instructive on many levels. Most importantly, our client’s conviction was vacated and remanded for a new trial. Sure, we would have been happier if it was simply reversed as a matter of law, but a new trial isn’t the end of the world; especially since several jurors told the attorney after the trial that they would have decided otherwise if they were given instructions that allowed it.

The process was incredibly enlightening. Aside from getting a kick out of seeing my arguments and words referenced in a court’s opinion, this crystallized my feelings that I want to practice law. Until now, the little voice that some of us have in the back of our minds has been asking me if becoming a lawyer is really something I want to do, or if it just looks like a good idea in theory.

I’m looking forward to doing this again.

The court states that:

It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

Fourteen days. Fourteen days from a run-in with the police, accusing you of a crime. Fourteen days from being stuck in an interrogation room with angry cops. Should we assume that those fourteen days are a carefree time, full of laughter and gaiety? Are those two weeks a vacation from the stress and concern over the accusation?

I understand that the police practically require a bright-line rule when they’re in the field. I respect the difficulty in formulating such a rule. I seriously question whether this rule makes any sense whatsoever.

As Scott puts it:

The politics of war bears no connection to the sacrifice of these men and women, or the loss of their families and friends. Having given their lives, the least we can do is remember them, offer comfort to their families and honor their sacrifice.
The hope is that this is the birth of a tradition that will find its way into the hearts and minds of Americans across the nation. This December 12th, there was but one ceremony held in Florida. Next year, let this ceremony be repeated across the nation. Those whose bodies were lost to the water are no less deserving of our thoughts.

No matter what people have said regarding religious ornaments being used in honoring the fallen, I agree with Justice Scalia’s view:

It’s erected as a war memorial. I assume it is erected in honor of all of the war dead…What would you have them erect?…Some conglomerate of a cross, a Star of David, and you know, a Muslim half moon and star?”

Writing as an orthodox Jew, acknowledging that a wreath and the time is Christian-centric, I have no qualms in adding my hopes to Scott’s — that this ceremony be repeated next year across the nation.