Thursday, November 22, 2007

Plea to the Charge

As lawyers handling traffic and criminal cases, we will generally talk to the prosecutor and see what kind of deal they're willing to do. In most cases we get some offer for our client to plead guilty to a reduced charge. Simple examples include reducing a moderate speed to a parking ticket, a high speed to a lower speed, a misdemeanor to a violation, or a felony to a misdemeanor.

Sometimes it's straightforward like that, although in many cases there are subtleties about what reduced charge is best for the client. In drug cases, it's important to get a deal for a non-drug-related charge for young clients who might go to college. Drug convictions can make a person ineligible for financial aid. The reduced charge in traffic cases can make a big difference in things like insurance rates.

There are some situations where the defense lawyer is confronted with the offer of "plea to the charge." This is not really an offer. Plea to the charge means that the defendant pleads guilty to the offense they're charged with. If you're charged with a 97 mph speed, it means pleading guilty to a 97 mph speed. If you're charged with DWI, it means pleading guilty to DWI -- you get no reduction.

I attend seminars as often as possible, and one of my favorite speakers at these seminars put it this way once: "Why would anyone plead to the charge?" The point is, if you reject this deal the worst thing that can happen is that you're convicted of the same thing. On the other hand, all sorts of things can happen to lead to either a dismissal or conviction on lesser charges.

We put this into action a lot. Certain situations make the "plea to the charge" offer more likely, and we charge more for these. A typical example is a DWI with an accident, refusal, or a high BAC. In some counties speeding in a work zone leads to this as well. We charge our clients enough to cover our time to fight the charge, rather than just making a deal.

Many lawyers walk into this situation unprepared. They come back to the client and tell them they did the best they could, but the DA wouldn't agree to a reduction, so they pled the client guilty to the charge. At this point the client is wondering why they hired a lawyer. I'd like to say we've never done this in our practice, but it has happened once or twice. In one speeding case I remember, we had not charged the client enough and said we would require an additional fee to do a trial. The client declined. I can live with that one - though I still didn't like it.

In another, we had an attorney appear for us in a distant court and he pled to the charge rather than do a trial. I got pretty mad, but restrained myself and simply explained that in the future he would have to do a trial in that situation. I'm comfortable he understands this now.

When you are prepared (and adequately paid), you fight rather than plead to charge. We have won many cases like this. Sometimes it is so simple as the police officer doesn't show up for the hearing or trial. In other cases the officer testifies poorly, reflecting that he did a poor job at the time of the incident, or in his paperwork afterward. And of course, sometimes you lose. I've been surprised at how often we win in these situations.

One of my hopes is that, over time, the "plea to the charge" prosecutors will learn that offering better deals means less work for them and also, maybe they'll decide they don't like losing. Of course, the "plea to the charge" position is not necessarily the fault of the ADA at the court that night. Especially in Albany this is the result of a policy decision by the higher-ups in the DA's office, and maybe the DA himself.

Thursday, November 15, 2007

Martial Arts in Albany

Here's a great personal story about Tai Chi and Kung Fu. The author is a fellow student at the Capital District Tai Chi & Kung Fu Association.

I was a student there years ago, but stopped around the time our first daughter was born. I'm back now, and my daughter is also doing Tae Kwon Do at the same place in the Pil-Sung Martial Arts program.

For anyone interested in martial arts, all of these programs are an excellent introduction. For many students, it becomes a way of life. I'm not there yet, but hope to get there.

Thursday, November 08, 2007

Traffic Court - 50K Visits

We hit a new milestone for our Traffic Court website. From October 8 to November 7, there were 51,000 visits. First time we broke the 50K mark.

October 8 was actually a relatively slow day, so tomorrow we will probably hit two other milestones -- 45K unique visitors (some people visit more than once) and 120,000 pageviews.

There are a lot more traffic courts in the hopper about to be added to the site, so growth will continue.

Saturday, November 03, 2007

Times Union, Privacy Policy, and the Electronics Communications Privacy Act

UPDATE (11/4/2007): The Times Union exacerbated its violations of the ECPA and their own privacy policy with a further article by Casey Seiler about Sock Puppets.
In a recent article the Times Union "outed" some blog commenters. I've been wondering if they can be sued for this, as it appears to violate both their own privacy policy and the Electronics Communications Privacy Act (18 US Code 2702) (ECPA). So I did some research.

First a little background. The TU's blogs allow for registered users to post comments on blog posts. The registered users can register with a pseudonym, effectively making their comments anonymous. Most commenters seem to do so anonymously (I use the somewhat obvious username wredlich). So if a reporter writes a blog post about Guilderland, someone who wants to say something about that can post a comment on it using a pseudonym such as NormalGuilderlandVoter or truthsquad.

This happened and the TU outed the commenters in an article. You can read more about this on their Local Politics blog, and the Times Union article itself.

Times Union reporter Scott Waldman, in a rare moment of actual investigative journalism, checked on the IP address of commenters and/or their e-mail addresses and then wrote an article reporting their actual identities.

The outing created a stir not only on the TU blog, but also on Democracy in Albany (aka DIA), a popular local website for political activists (mostly but not all Democrats). At least some DIA users are regular pseudonymous commenters.

The ECPA at 18 US Code 2702(a)(3) provides:
(a) Prohibitions. Except as provided in subsection (b) or (c)--
(3) a provider of ... electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service ....

There are exceptions of course, but I don't think any apply.

You can also read the TU privacy policy.

Some excerpts:
How does the Times Union use the information it collects?

The Times Union uses this information to provide you with the service you have requested. ...

Does the Times Union share the information with anyone else?
The Times Union may disclose information if it is required by law through a subpoena, a search warrant or another legal process or if we need to protect our legal rights (for example, if we are trying to collect money you owe us for a subscription). In this instance, the disclosure may take place without your consent. In addition, we may disclose information to third party service providers we use to provide products, services or functions on our behalf ... Finally, we may share your information with entities under control of, or under common control with Hearst ...
Beyond that, the information is not shared with any third parties.

What about information I share in your forums?

You should be aware that when you voluntarily disclose personal information (e.g., your name, e-mail address) in the forums, blogs, chat areas, or the user-created Web sites in, that information can be collected and used by others and may result in unsolicited messages from other posters or third parties.

Nowhere in the privacy policy does it state that a user's personal information will be published in the newspaper as news. As I read the privacy policy, the publication of these identities is both implicitly and explicitly prohibited. The "Beyond that" clause is explicit. The "voluntarily disclose" answer to the forum question also at least implicitly prohibits what was done, and I consider that to be an explicit prohibition.

Note that § 2702 of the ECPA is a criminal statute, so perhaps someone will contact the federal prosecutor ( Also, under § 2707, a violator can be held liable in a civil action. A plaintiff can recover any actual damages, as well as any profits made by the violator, and there is a minimum recovery of $1000. Punitive damages are also available if the violation is willful or intentional. In this case there have been prior complaints and so the conduct does appear to be intentional. A successful action also leads to attorney fees. Violation of the privacy policy can create a breach of contract claim.

There are quirks. For example, is the Times Union an electronic communication service provider under the Electronic Communications Privacy Act? I think so. Just having a website would not qualify, but by hosting forums and blog comments, I think they've opened that door.

Now imagine this: Mark Grimm and his attorney Warren Redlich join forces with ... Donald Csaposs. These Three Musketeers ride off into a courtroom battle with the mighty Times Union. Oh the humanity!

No IP addresses were harmed in the making of this post