Two Against One: When the Judge is the Second Prosecutor

Sometimes criminal defense attorneys feel like it's two against one. That's when the judge acts as a second prosecutor.

I've been telling people this one story for years and I just stumbled on the transcript. Now I can relate it with the precise words that were used.

First some background. My client was accused of a residential burglary. The homeowner came home and saw the burglar, who fled. She called 911 and gave a description. A key element of the description is that the burglar was wearing a plaid jacket.

Remember the word plaid. It's going to come up again.

It's important because my client was not wearing any plaid when the police jumped him.

So for some detail, the first officer to testify at the suppression hearing said he was in the postal annex parking lot on Old Karner Road when he first saw my client crossing Old Karner into the McDonald's lot. Here's a satellite image:



The postal annex is in the bottom-left corner of the image. The McDonald's building is in the top center. Central Avenue is the very top-right corner. Using the scale in the bottom left corner, the edge of the McDonald's lot is about 200 feet from the driveway into the postal annex.

So as the officer is coming out toward Old Karner, he testified on direct that he saw my client:

Q (Prosecutor): What if anything did you observe as you proceeded in that direction, Investigator?

A: ... I looked towards Central Avenue and I saw a man .... He was running across Old Karner Road ... westbound towards the lot of McDonald's.

Q: What if anything did you observe about his clothing?

A: His clothing matched the clothing description given on the radio. He was wearing a flannel checkered coat ....

Q: Where did you see this person go?

A: He ran across Old Karner Road. He also, what made him suspicious was as he was running he was scanning left and right, left and right looking in a very furtive manner. He was visibly nervous. ...

Oh where do I begin? For starters, since when is it unusual to look both ways while crossing a street? What's a "furtive" manner? And how was my client visibly nervous from 200 feet away?

Now we'll get into my cross-examination of this officer. Another of the issues in the case was the police did something called a show-up identification. The link is to a blog post I wrote about it at the time.

Q (Me): Do you know who performed the show-up, Officer?

THE COURT: What's the relevance about him knowing?

Notice what's missing? The prosecutor did not object to my question. The judge stopped this line of questioning even though there was no objection. It'll happen again in this story.

On with the cross:

Q: You were describing when you observed -- first saw a gentleman running across Old Karner Road.

A: Yes.

Q: That he was looking back and forth in a furtive manner. What was the distance between yourself and him at that moment?

A: Fifty feet.

Q: And could you describe again what you meant about looking in a furtive manner?

A: His eyes were wide open. He was visibly sweating. His head was jerking back and forth almost 360 degrees as if he was looking to see if anyone was coming after him.

Q: You were able to see that he was visibly sweating from fifty feet while you were inside your vehicle; is that correct?

A: Yes. His face was very red.

Q: You were able to see his eyes were wide even from fifty feet away inside your vehicle?

A: Yes, sir. I could.

The big problem at this point is that it's not fifty feet from where the officer was to where he saw my client. As you can see in the map above, it's 200 feet or more. That's over half a football field. From that distance you can't see whether someone's eyes are unusually wide open or that they're visibly sweating. I should note this is winter and my client is wearing a coat and jeans, so the only place you could see sweat would be on his face. That's a small target at 200 feet.

We're just getting going.

Regarding the plaid jacket vs. checkered coat, I asked the officer about this bit of his grand jury testimony:

Q (from me, quoting from grand jury transcript):
"Question (from grand jury prosecutor): Did you see someone fitting that description?

Answer (from this witness at grand jury): ... I see a man who fits that description exactly running across Karner Road ...."

Were you asked that question and did you give that answer?

A: I'm going to say yes.

Q (me): So he fit the description exactly; is that correct?

A: My opinion is I may have misspoke that day. I would say he matched it very, very closely.

Going on, we get more "help" from the judge:

Q: What was he wearing when you first saw him?

A: He was wearing a flannel checkered jacket, blue jeans and work boots. In my opinion when I first saw him --

THE COURT: You have just answered the question.

THE WITNESS: Sorry.

Why is the judge stopping the witness?

And a little later, after some more back and forth:

Q: Just to be clear when you testified to the grand jury you said he fit the description exactly and you're testifying now --

THE COURT: It's been asked and answered. I already heard that Mr. Redlich.

Here again, no objection had been made. Why is the judge interfering?

But now we get to one of my favorite moments in my entire career as a trial attorney. The second officer comes up. He's the one who did the Miranda warning. As an initial part of his testimony, the prosecutor has him identify my client as the one he dealt with on the day of the arrest.

Q: Do you see the subject here in the courtroom today?

A: Yes, I do.

Q: Can you point him out for the Court?

[Not reflected on the transcript, the witness points to my client]

THE COURT: What's he wearing? What's the subject wearing?

THE WITNESS: Plaid.

THE COURT: No. Right now.

THE WITNESS: Right now, black shirt, tee shirt.

THE COURT: Let the record reflect he's identified the defendant.

Just think about what's going on at this moment. Everyone knew before the hearing that the homeowner had indicated the subject was wearing a plaid jacket, and that my client was not wearing plaid when he was arrested. To deal with Fourth Amendment concerns, if my client didn't match the description then the police should not have jumped him. And the suppression hearing is all about the Fourth Amendment.

So obviously, the second officer had been part of some conversations involving the word "plaid" that day. He knew it was an important issue.

The judge, by "helping" the prosecutor and asking what my client was wearing, accidentally exposed the witness' nerves about how they were going to deal with the plaid problem. And I'm getting ready to go out and buy a plaid suit, plaid shirt and plaid tie for the jury trial, as part of a Chewbacca defense.

After direct, I began my cross with how he (improperly) conducted the Miranda warnings. And then I came back to the plaid moment on his direct.

Q: When [prosecutor] was questioning you earlier at a certain point you were asked to identify [client] in the courtroom. Do you recall that?

A: Yes.

Q: And you were asked what he was wearing. You said plaid. Do you remember that?

A: Correct.

Q: Was plaid on your mind for some reason?

A: I misunderstood the question.

Q: Was there anything about that question that led you --

THE COURT: This is argumentative Mr. Redlich. Let's move on.

MR. REDLICH: Your Honor, may I be heard on that?

THE COURT: Was there something you didn't understand about my asking you to move on?

Again, there was no objection from the prosecutor. My question was not argumentative at all. I was trying to explore what the officer was thinking when he mistakenly blurted out plaid.

Here the judge was forcefully protecting the officer from a genuine inquiry leading to how he had obviously been prepped about a key issue.

That's why we sometimes feel the "game" of criminal defense is two against one.

On the bright side, it didn't matter so much on this case. My client was arrested a few days later for another residential burglary. Facing a hostile judge in our case and stronger evidence in the next one, he took a deal. We never got to a result on the suppression hearing. His first parole hearing will be about 10 years from now.

AdWords and the Quality Score Fiction

For those who are involved in pay-per-click (PPC) advertising, AdWords is the big player. It is the main advertising avenue for Google.

AdWords advice focuses on something called Quality Score. If you have a good quality score, then your ads get better placement and you pay less. One of the biggest factors in quality score is, supposedly, a high click-through rate (CTR). That's when a high percentage of people click on your ads, through to your website.

Below is a screen shot from one of my ad groups showing the top seven keywords. I've blurred the bids and the cost both to protect my bidding and to minimize offense to the folks at Google.



In my experience, 5% is a pretty good CTR. Here, four of the top seven have CTR over 10%. Despite that, the quality scores are very low. As Google describes it: "On this scale, 1 is the lowest rating, while 10 is the highest. 1-4 corresponds with Poor, 5-7 with OK, and 8-10 with Great."

So my keyword with an amazing 14% CTR has a quality score of 4 out of 10, which, in Google's description is "poor."

For those who are really into this, the shot is taken with the date range set to "all time". I've been running this campaign for about 2 months. I don't have a past bad history with the relevant keywords. To the extent that I have a history with related keywords, it's a good history. The landing page is highly relevant. The keywords are all "phrase-match" and the search term report shows more than half the clicks were "exact match", and all of those had even higher CTR.

I'm very fond of AdWords and I'll keep using it, but we're not getting the whole story about quality score.

Misinformation about DWI: Posters and BAC Calculators

I was in a local court last night and saw this poster, which is misleading about NY's DWI laws.

The poster is also available online as a pdf: Leandra's Law Poster

Here's the relevant quote:

... anyone in New York State convicted of drunken driving (even first-time offenders) will be required to install at their own expense an ignition interlock device on any vehicle they operate.

First, the use of "drunken driving" is imprecise, and is not the one used in the law. The main offense, DWI, means "driving while intoxicated." It is true that convictions for DWI (or the higher BAC offense of Aggravated DWI) now require the ignition interlock device.

But there is also a lesser offense called DWAI, for "driving while ability impaired by alcohol". Many people think of this offense as also being a form of "drunken driving." The device is not required by law for DWAI (though judges may require it). Notice that at the bottom of the poster, it uses the web address: www.safeny.com/IMPAIRED.

There is also a DWAI Drugs offense where the driver is accused of being impaired by drugs, rather than alcohol. Since it is part of the same statute as regular DWI (VTL 1192) some people think of this offense as a form of drunken driving. The ignition interlock device is not required for DWAI Drugs either.

Another problem is the "on any vehicle they operate" language. In at least some early versions of how this law was supposed to be applied, it covered any vehicle the offender has access to, such as a spouse's car, or perhaps a car owned by a child who lives in the home. From what I'm hearing, this is still unsettled and could be very problematic.

My biggest beef with DWI misinformation is the BAC calculators promoted by the government. Here's the Erie County Stop DWI calculator. I put in 3 beers for a male weight 200 pounds over 3 hours, and it shows a BAC of 0.02.


With 6 drinks over 5 hours, it shows 0.05 - legal in NY.

Then it says In New York State you would be arrested for 'Driving While Ability Impaired (DWAI)'. That's a bit inaccurate. First, they don't do the supposedly reliable test of your BAC until after you've been arrested. Second, while you might well be charged with DWAI for a BAC of 0.05, most defense lawyers would get that dismissed pretty quickly. A BAC of 0.05 is legal in New York State - see my 2009 blog post on DWI, DWAI, Aggravated DWI and Plea Bargaining.

Here's what a smart calculator would say:
If you've had one drink in the past 8 hours, and you get pulled over, you are at high risk for being arrested for DWI. You are also at high risk of an erroneous breath test showing you to have a high BAC, and then being charged with a DWI offense.

It is misleading to tell someone they can have 5 drinks over 5 hours and they're okay to drive. The calculators also fail to deal with physiological reasons why alcohol might not hit your system for a period of time, throwing off the calculation.

The poster is also a great example of how ineffective government is at communicating with people. I work in this field and this is the first time I've seen the poster. I was unaware of the website. The vast majority of NY residents (not to mention drivers from other states) are far less likely than me to have seen this. Makes you wonder how much money they wasted on the poster and website.

SEO for Lawyers?

As an attorney with a website, I get deluged with "experts" who want to help me with my SEO - search engine optimization. Here's excerpts from an e-mail I got today (in italics), with my comments (in regular font):

Hi Warren. I called your office today after seeing your PPC ad on the internet.

We did not get a call. For those who don't know, PPC means Pay-Per-Click - usually ads on Google.

We ... put your practice ahead of your competition ... for just about any way someone can type in a search for your practice areas. Our clients are found organically hundreds of ways right out of the gate. Eventually most are found over a thousand different ways.

I edited out some of the gobbledygook and it still looks like gobbledygook.

Two major things set us apart from any SEO or advertising company with which you’ve spoken or worked. For starters, we only work with a few lawyers per market for particular practice areas.

So you only work with a couple of my competitors? Wonderful.

Second, we have the only automated SEO content manager in the world. When Google makes a change to its rules, we update our content manager and all our clients (we have about 1,300 nationwide) are updated simultaneously.

In other words, they spam Google efficiently.

Please call when you have a few minutes and we’ll see if we are a good fit.

I was going to reply but hit the spam button instead. Here's what I was going to say:

"You have a page titled Search Engine Optimization For Law Firms, so I searched for that phrase. Your website wasn't on the first page. It wasn't on the second page. If you're so good at SEO, you would be on the first page."

Sometimes the e-mail solicitation will say something like: You don't rank on the first page for "new york city personal injury lawyer". Yeah, but I'm not in New York City. I wish these jerks would actually research us before they spam us. But that's life on the internet.

There are some excellent people out there doing SEO work, for lawyers and for other businesses. They don't get their clients through spam e-mails. If you want someone to help you with your SEO, do a search for SEO along with a relevant phrase based on topic ("for lawyers") or geography ("albany ny") or both. Whoever ranks high is probably good at it.

Involuntary Commitment vs. Arrest: NY Mental Hygiene Law Article 9

I was stunned by a recent experience with the involuntary commitment process. No, for those who think I'm crazy, I was not the one committed. I got a call from a close friend who had been taken to an emergency room against his will.

As Wikipedia puts it: "Involuntary commitment is the practice of placing a person to [sic] a psychiatric hospital or ward against his or her will ...."

My friend had been communicating with a mental health professional. He mentioned suicide, but had never harmed himself, made no mention of a plan, and closed the message with: "But I have to go to work. I'll call you later." Hardly seems like an emergency to me though of course I'm no expert.

Pursuant to NY Mental Hygiene Law § 9.27, an ambulance appeared at his home and took him to an emergency room. His room was strikingly uncomfortable due to the removal of any object he might use to kill himself. While there he was lied to repeatedly by the staff. They lied to me too. They threatened him, and me. They intimidated him and discouraged him from exercising his right to a hearing. They disregarded the laws requiring them to give him proper notice of his rights.

In other words, it was a lot like a criminal prosecution.

From a defense lawyer's perspective, some contrasts between arrest and involuntary commitment stood out to me.

If you're suspected of murdering someone, the police are not supposed to arrest you unless they have probable cause. If, on the other hand, someone thinks you might be a risk of serious harm to yourself, the standard is lower. In fact, it's not even clear what the standard is.

If you are arrested, the police are required to bring you before a "neutral magistrate" (a judge usually) within 24 hours, whether or not you request to see a judge. If you are subjected to involuntary commitment, there's a variety of time periods that might apply if you request a hearing. If you don't request a hearing, it could be a long time. For example, under § 9.39 they can hold you for up to 48 hours on an emergency admission. Then, if they decide to keep holding you, you can request a hearing - in writing - and the hearing should be held within five days. So that's a total of seven days. And again, in a criminal case they have to give you a hearing. It doesn't matter if you ask for it.

Everyone has heard of the Miranda warning. When arrested, you have the right to remain silent. Anything you say can be used against you in a court of law, but your silence cannot be used against you. The police are also required to give you that warning, and they're further required to make an effort to make sure you understand it. If they fail to warn you properly, any subsequent evidence obtained from you cannot be used against you and you might have a civil rights lawsuit (though it's usually not worth anything).

If you are committed against your will, you do not get read a Miranda warning and you do not have the same right to remain silent. The hospital is required to provide you with written notice of your rights and to post them conspicuously. In practice if they do so the notice is buried among other papers and there is no requirement that they make sure you understand your rights. If you choose to remain silent, your silence will be deemed a lack of cooperation with their evaluation and treatment, and will be used against you in any hearing. My friend did not receive any written notice. When I visited the rights were not posted anywhere I'd call conspicuous - I couldn't find them and I looked for them. There were places where things were posted conspicuously and the relevant rights were not there.

If you are arrested you have the right to an attorney. If you can't afford an attorney, one will be provided for you. You are notified of this as part of the Miranda warning. Once you request an attorney, they can't question you without your attorney present.

In involuntary commitment, there is no clear right to an attorney. There are some requirements that the Mental Hygiene Legal Service be notified and they will serve, in a sense, as your public defender. In practice you don't get to see them for a while.

I tried to assist my friend. Hospital staff limited my access to him. They refused to allow me to be present while he was questioned.

When my friend submitted his written request for a hearing, one of the hospital psychiatrists got right in his face and yelled at him. This treatment was not therapeutic.

I fully appreciate the feeling many have that we need to protect those with mental health problems, even from themselves. Similarly, there is a demand to protect the rest of us from them. William Galston argues that in The New Republic, arguing: the law should no longer require, as a condition of involuntary incarceration, that seriously disturbed individuals constitute a danger to themselves or others, let alone a “substantial” or “imminent” danger, as many states do.

Apparently Mr. Galston feels the laws are too lenient on those with mental health problems. The problem with his logic, as with many who cry out for tougher crime laws, is that it ignores the rights of the innocent. My friend was not a danger to anyone. Yes he has a mental health problem. But the hard truth is that mental health problems are commonplace. Galston's approach would take us down a very slippery slope.

We are already too far down that path. It is idiotic that those suspected of being a danger to themselves have less rights than those suspected of actually harming others. Yes it is important to make an effort to protect people with dangerous mental health problems. But it is more important that we ensure this is not abused. Anyone subject to involuntary commitment should have at least the same rights as an arrestee.

And thanks to Winston's comment on facebook, there's another point. When the mental health professional pulls the involuntary commitment trigger, it inherently damages the relationship. That may be necessary at times. But if the process thereafter is unfair, it further damages the relationship between the patient and the entire mental health profession. Future care for this person will be far more difficult.