United States v. Jones

http://www.supremecourt.gov/opinions/11pdf/10–1259.pdf

SCOTUS ruled today that placing a GPS tracking device on a defendant’s vehicle is a search within the meaning of the 4th Amendment.

This is a 5–4 opinion, split between whether the act of placing a GPS tracking device is a search or whether the long-term surveillance that the defendant was subjected to by way of the GPS tracker violated his reasonable expectation of privacy.

The one thing I want to add is that J. Sotomayor’s concurrence was a surprisingly refreshing bonus. Here is a Supreme Court justice who seems to have at least a basic grasp of technology and technology’s implications on the 4th Amendment.
Having her and J. Scalia (who has his own encouraging views on technology’s impact on the 4th Amendment) on the bench, I’m ever so sightly optimistic about the future of our rights.

UPDATE

After reading numerous commentaries on the case, my feelings about this decision have not changed. The majority, drawing fire from critics of the modern take on the 4th Amendment, strictly adheres to the traditional 4th Amendment jurisprudence. Meanwhile, the minority wants a new test to determine when
4th Amendment rights have been violated, a stance championed by many.
However, as things stand, I believe that the majority’s opinion is the better option for protecting our individual rights.
Short-term surveillance isn’t too intrusive? Call me a cynic but I don’t like any option that let’s the State start without a warrant.

UPDATE AGAIN

After thinking about this decision some more, and after discussing it with some people, I’m no longer so sure of my position.

The decision is still an excellent one in terms of placing GPS trackers on vehicles. According to the majority, placing any GPS tracker, even for an afternoon, is a search and would require a warrant or exigent circumstances. Alito’s minority might be willing to allow that without a warrant since such short-term surveillance is not too intrusive of a person’s reasonable expectation of privacy.

However, in terms of the farther reaching impact of 4th Amendment law, Alito’s test could very well be much more helpful.
In Baltimore, there are police surveillance cameras on almost every corner of the “dangerous neighborhoods.” According to US v. Jones, an argument could be made that such long-term surveillance would require a warrant before… using the video footage? I’m not entirely clear on how this would play out, but it does make for some interesting ideas.

I sat down with my law school’s career development alumni liaison (or whatever fancy title they use) this past week. She was friendly, she tried to be as helpful as possible, and (to be fair) she did give me some good ideas about my job search.

This post is not about that.

During the course of our conversation she asked me why I enrolled in law school, why I wanted to become a lawyer. I was reminded of a similar question Brian Tannebaum had asked on his blog that I tried answering while still in school.

Back then, I really didn’t know why, other than having some vague notion of wanting to help people. I saw friends and family get screwed over in ways that could easily have been avoided with the help of someone with legal knowledge and experience, and I thought that I’d like to be that someone for them.
Fortunately, all of these situations were civil matters, so I was thinking solely of practicing civilly.

Since then, however, I have become more and more interested in criminal defense work. Scott Greenfield, Mark Bennett, and Brian Tannebaum were probably the initial catalysts for this change when I started following them on twitter and reading their blawgs.

Every so often news items like these come up and highlight exactly how crucial criminal defense lawyers are in our judiciary.

Then I started interning at the Office of the Public Defenders and I have been loving the hell out of that.

When I gave the career development woman my bland answer about helping people, she called me on it; there are many ways to help people, why a lawyer?
It sounded cheesy in my mind when I said it and it sounds even cheesier now that I’m writing it down, but my answer to her was that I believe in criminal defense.

That’s why.

Working at the Office of the Public Defender is incredible.

I’m learning so much about the practice of criminal law, it’s actually pretty pathetic. I mean, you’d like to imagine that after law school and the bar you know something about the reality of criminal law.
Something.
Anything at all.

But at least I have the opportunity to actually learn. I’ve been prepping cases, interviewing clients, taking witness statements and sitting in court through the daily dockets. Once I get sworn in they’re going to give me a case, training me and working with me so I can actually stand in front of a judge and represent a client. They’ll gradually give me more cases as I get more experience and confidence.

This all with me coming in one day a week.

Over at the Unwashed Advocate (formerly the “Military Underdog”), Eric Mayer wrote a list about lessons he has learned in his private practice.
That got me thinking about things that I have learned already in my time at the OPD.

This list is by no means complete and I mean to update it as my time with the OPD goes on.

• Preliminary Hearings are a joke.
• If the client is on the street, there’s a good chance bail will be raised or revoked, so you’re usually better off waiving it.
• Even if your client is in jail and there’s no bail to lose, the hearings have become nothing more than a rote ceremony performed by the court to fulfill the requirement of having one. As far as I can tell, once the officer has read his report out loud testified, anything and everything else is no longer relevant.
• To quote House: Everybody lies.
  • Your client lies.
  • The police officers lie.
  • Witnesses lie.
• Allowing some defendants from lock up to sit at their own preliminary hearings with their hands cuffed in front of them instead of behind them is a terrible security hazard that the Assistant State’s Attorney and the judge simply can’t risk.

Like I said, I’m sure there’s a lot more I can’t think of now, so I’ll update this as it goes on.

- UPDATE — 12/14/11

Since I am constantly learning, it comes as no surprise to me that my view of the preliminary hearing is pathetically limited.
Jeff Gamso mentioned the potential importance of a preliminary hearing:

A prelim would provide discovery.  It would trap in transcript today’s version of the stories told by the witnesses.  It would provide material for cross-examination.  That’s no small thing.

I remember when he was arrested.

An orthodox man who brokered deals between people who needed organ transplants but had years to wait on the official list and people who were willing to donate the needed organs.

Now Levy Izhak Rosenbaum has pled guilty to organ trafficking.

He tried to do something he thought would help people. He, quite obviously, broke the law in doing so.

My only question about this case is how the crime is being depicted. Art Caplan, a co-chairman of a United Nations task force on organ trafficking, stated that it’s one of the “most heinous crimes against another human being.”

Really? What exactly has he done that is “against another human being”?
Why are the media outlets using the term “organ theft”?

I know nothing of Rosenbaum, it’s possible that he is every inch the shadowy underworld character that the U.S Attorney and the media is making him out to be. But he might not be.

Agree or disagree with the law, Rosenbaum broke it. But why does the fact that he is guilty of a crime instantly transmute his actions into something evil and his motivations into something sinister?
There are plenty of crimes that people commit with the best of intentions.

Troy Davis was executed last night.

I can’t explain the details surrounding his case better than Jeff Gamso has; I can’t argue with Mark Osler’s article on cnn.com explaining why we should err on the side of not murdering someone. It almost seems like there is nothing left to say… but I can’t sit now and say nothing.

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has been construed in Williams v. Taylor, 529 U.S. 362 (2000) and Duncan v. Walker, 533 U.S. 167 (2001) as furthering the principles of finality of judgment, comity and federalism. Which is to say that the law tries to prevent people convicted of state crimes to be able to supplant the state issue with a federal issue in an effort to avoid dealing with the state issue. For example, someone who has been convicted of murder and sentenced to death in Georgia can try to raise the federal constitutional issue that he may, in fact, be innocent. If we allow this purely hypothetical person to continue living based on his federal claim, we are allowing him to supplant the state issue with a federal issue.
So the courts have the difficult job of balancing the interests of federalism with the interests of maybe not murdering an innocent man.

You might be inclined to argue that this law furthering federalism is a general one, and the pesky issue of innocent people being killed is an unfortunate side effect. Wrong! The name of the law has “Effective Death Penalty” in it.

I’m not really being fair, you hardly ever hear federalism as the reason why federal appeals of death sentences are rejected. (After the state level avenues for “relief” are exhausted, that is. Federalism is the excuse used for all federal appeals to be ignored until then, so it does play a large role in this farce.)

The phrase that’s all the rage, though, is “finality of judgment.” What does that mean? Is it simply a way to tell society, to paraphrase Raymond Chandler, “When we screw up a judgment, god damn it, it stays screwed up.”?
Most articles I’ve read about this concept focus on the victim’s family; they need closure, they need satisfaction, they need to know that there is a finality to the judgment. That’s special.
I don’t mean to disparage those people who have had their whole lives ripped apart by a horrific crime; I have nothing but sympathy for them. However, why are we making the victim’s family’s feelings a higher priority than discovering the truth and saving a possibly innocent man’s life? Do they need closure and a sense of finality? There is therapy to help with that, they don’t need laws.

Let’s save our laws for those who need it. Like potentially innocent people who are murdered in the interest of finality.

Like Troy Davis.

Yesterday I interned at the Office of the Public Defender in district court. This was the first day of my new schedule, working my 40 hours in 4 days and taking Tuesdays off to intern at the OPD. It was frigging fantastic.

Since I’m still waiting on my bar results the most I can do is act as a law clerk, but that’s still much more than I’ve had the chance to do before now.

The more I find out about the court and its procedures (not civil, not criminal, but administrative) the more ignorant I feel. But at least it’s tempered with the knowledge that I’m in the right place to learn.
Turns out that the district court I’m working at splits up the courtrooms by district. I was assigned to one courtroom and I shadow the attorneys who work that room.

Utter chaos started the day; people all over the place, lawyers snatching conversations with clients and their families beforehand and running out of the courtroom for minutes at a time to follow up with clients afterward.
Between the two attorneys I shadowed, there were about 20 cases during the morning docket, but only 5 or so during the afternoon.

When the afternoon docket was finished, one of the attorneys asked me if I found it boring or exciting. I told him that I’m still at the point where it’s all exciting, no matter how boring it is.

DANIEL A. McNEAL

 v.

STATE OF MARYLAND

http://www.mdcourts.gov/opinions/cosa/2011/1992s09.pdf

This opinion by the Court of Special Appeals addresses several issues. The one I want to highlight is the second question presented to the court.

2. Did the trial court err in admitting extrinsic evidence of a prior inconsistent statement made by the Appellant when the Appellant admitted having made the statement and explained why he had made it?

The court explains, in detail, how the evidence is admissible for impeachment purposes under the prior inconsistent statements rule (Maryland Rule 5–613(b)). The court then explains how the evidence is not admissible because it is a collateral matter.

The important lesson from this is the court’s final word on this matter:

This contention is waived because at trial appellant’s counsel volunteered his ground for the objection and that ground had nothing to do with whether impeachment was as to a collateral matter.

(emphasis added)

I can’t remember which professor mentioned this idea, almost in passing, back in my first year of law school. In Maryland, there is no requirement to give a basis for an objection unless the judge asks for one.

Volunteering a basis could ruin your chances of an effective appeal.

This was supposed to have been easier.

When I first starting working, years before I started law school, I ran into the same problem everyone runs into when trying to find an entry-level position anywhere — how do you get work experience without already having work experience?
I was fortunate enough to get an interview with SSA back when they were still hiring anyone with a pulse. Now, nearly seven years later when I’m looking for a job in the legal profession, I was hoping that having seven years of work experience would count for something.

I will now allow you to wipe up whatever it was you were drinking that you spewed all over your keyboard after reading that.

I know… how naive could I be?

So, after the initial flurry of job applications and the resultant responses of silence and apathy, I am left to face the sad reality that I am starting over with no experience.
I can’t possibly take a full-time job that pays less than my current job, and, strangely enough, employers seem loathe to pay greater than entry-level salaries to pathetically inexperienced recent grads. Which led me to my current plan.

Starting in October (thank you federal government bureaucracy with your byzantine paperwork procedures) I’ll be working 10-hour days 4 days a week at my full-time IT job, and with the one day off that gives me I’ll be interning at the Public Defender’s Office in Baltimore City.

Fortunately, these will be shorter days than I dealt with while in law school, but I was enjoying actually seeing my kids before leaving to work in the morning.
Oh well, at least I’ll be home for dinner and evenings; that’s my work-life balance right there.

Much has been said about Rachel Rodgers’ rant about older attorneys supposedly using ethics as a weapon against younger attorneys.

I’ll be honest, I’m not entirely sure what her point was, but I can totally understand someone wanting to write just to blow off steam. Although it might be a good idea to wait until you calm down before posting it; but that’s another issue, entirely.

I’m not here to decide whether she is violating any ethics rules, even though she is. My reason for writing about this is that I took a few minutes yesterday to peruse my state’s Attorney Grievance Commission website. Listed are the names of sanctioned attorneys next to the sanctions against them and the reason for the sanctions.
There are a lot of names. Several names appear multiple times over the course of a few years.
Some sanctions are for criminal conduct, but a large amount are sanctions against young attorneys who screwed up the fundamental aspects of practicing law.

Trust accounts. Competence. Timely filing. Communication with a client.

A slightly smaller number of attorneys are sanctioned for failure to satisfactorily supervise junior associates. That tells me that those junior associates would have been sanctioned had they been going solo, without the supervising attorney as a safety net. The issues were the same — fundamental tenets of the practice of law.

Is it wrong for an older attorney to use ethics as a weapon against younger attorneys? If by that you mean to beat somebody with a bound Rules of Professional Responsibilty, then yes.
If you mean to increase awareness of the potential pitfalls for a newly barred attorney going solo, then no.

I wasn’t going to write about this. I really wasn’t.

People have already said most of what I wanted to say. They’ve said it better than I can.

Then I saw that Maryland Senator Nancy Jacobs is proposing a bill that makes it a felony if a parent fails to notify the police within a short period of time after the death of the child is discovered.

What possible purpose would this serve? Other than making people who are upset over Casey Anthony’s acquittal feel a little better, what can this do? How does this help the (already dead) child, the parents, or the public?

There is the practical matter that there are reasons calling the police may not be the best idea.

Even assuming that there is nothing to worry about on that front, why on Earth would anyone want to burden an already grieving parent with a potential felony charge?