There's been some local press lately about one of our judges, and some other issues relating to criminal cases. A few of our local lawyers have been in the press about these issues.
I did my first day of service on Grand Jury today, and that prompted some thoughts that are keeping me from sleeping, which is usually a good excuse to blog.
It is common to see criminal defense lawyers in the press criticizing the prosecution system as being unduly harsh. I suspect the initial reaction of most readers/viewers is to assume that the defense lawyer is biased. But common sense says otherwise. As defense lawyers, we are more in demand when there is more and harsher prosecution. That is, the harsher the system is, the more money we make.
And yet we still speak out, against our financial interest. We should be biased in favor of more prosecution. So why do we speak out?
We speak out because the system is too harsh, and too rigid. A simple example of this is the enforcement of speed limits. As a speeding ticket lawyer in Albany, NY, most of the tickets I see are on the interstate highways. These are divided highways with limited access (i.e. few exits and entrances). They are inherently safer than regular roads. In Europe speed limits are generally not enforced and it is common for people to go 100 mph. In Germany, parts of the Autobahn have no speed limit. And the fatality rate on the Autobahn is lower than on American highways.
Meanwhile speed limits in residential neighborhoods are generally 30 mph, and are enforced less. These are among the most dangerous roads because collisions between pedestrians and cars cause very severe injuries.
I would gladly trade all of my traffic ticket revenue for the freedom to drive at speeds I consider safe and appropriate on interstate highways. I would be even happier if those highway patrols would spend their time enforcing traffic rules where they matter most - where pedestrians are present.
Along the same lines, traffic courts are not terribly fair to the defendant in my experience. Your chances of beating a speeding ticket in court are very small, even if you are actually innocent. I suspect most of my clients are probably guilty (and most of them admit it), but some are adamant that they are innocent and I have to explain the odds of success and the additional cost and difficulty for them of going to trial.
Our society's approach to DWI is also off. Police stop people with little or no reason, subject them to a variety of tests, and charge them with DWI or DWAI for blood alcohol content levels that I personally consider not dangerous. I do not blame the police for this, by the way. They have difficult jobs and they are following our orders.
Blood alcohol levels generally range from 0.00 to maybe 0.30 or a little higher. My personal view is that levels below 0.10 are not really that dangerous. At around 0.15 it starts to get bad. But current DWI law makes 0.05 a DWAI, and 0.08 a DWI (which is more severe). The major problem is that the penalty for a first-time DWAI is very, very harsh. It will probably cost the defendant as much as $5000 in total costs, including lawyer's fees, fines, surcharges, time, and particularly in increased insurance rates.
Meanwhile if you whack someone over the head with a pool cue in a bar fight, you'll probably be able to plead to a disorderly conduct violation, pay a $200 fine, and you're done. I think the bar fight is worse.
These are some fairly random thoughts. I'll hopefully come up with more in the future. I'd like to write about my Grand Jury experience, but the rules are pretty restrictive about that so I'll wait until I know more about what I can say.