We've nearly completed our move into new space - at 255 Washington Avenue Extension, in Albany. My brother Steve updated the main website to reflect that, but all the map sites show our building at 225 instead of 255. Weird.
Anyway, it's been a hectic few days getting the move done. We'll finish most everything tomorrow. It feels like a big step up. Our last space was ... well ... a dump. It was good for starters but we really outgrew it.
Now we're in truly first class space. Our new landlords, Tri-City Rentals, have been great. It's expensive, but well worth it.
More later once we get settled in a bit. Of course, I'll miss the first real day in the office, as I have a trial Monday.
Saturday, April 29, 2006
Friday, April 28, 2006
TV Interview - Justice Now
Ernie Tetrault informs me that his latest interview of me will be broadcast Sunday at 11 am on UPN 4. Tune in for our discussion of the metatheoretical presuppositions underlying the inappropriately named criminal justice system.
Oops. I must have taken a sociology class or dated a sociology student once. Ernie and I talked about the criminal process in NY.
Oops. I must have taken a sociology class or dated a sociology student once. Ernie and I talked about the criminal process in NY.
Tuesday, April 25, 2006
Blog post on Schenectady and new license plate reader
I was tipped off to this post on new technology in Schenectady, and asked to post my thoughts about it.
It will probably not surprise regular readers to know I'm not fond of the idea of police having a scanner reading license plates seemingly at random as the police vehicle drives down the street. A bit too much Big Brother.
Concerns include the accuracy of the device. What if the device misreads a plate and this leads to a traffic stop ... and something goes wrong?
The discussion also indicates how much money will be brought in by catching all these scofflaws. But the reality is that many scofflaws will eventually be brought in anyway when something else happens -- driver license renewal; regular traffic stop; insurance renewal; etc. So it's not that more money will be generated, but rather that it will come in a little quicker.
On the other hand, I can't say I'm losing a lot of sleep over this issue either way. There are bigger fish to fry.
It will probably not surprise regular readers to know I'm not fond of the idea of police having a scanner reading license plates seemingly at random as the police vehicle drives down the street. A bit too much Big Brother.
Concerns include the accuracy of the device. What if the device misreads a plate and this leads to a traffic stop ... and something goes wrong?
The discussion also indicates how much money will be brought in by catching all these scofflaws. But the reality is that many scofflaws will eventually be brought in anyway when something else happens -- driver license renewal; regular traffic stop; insurance renewal; etc. So it's not that more money will be generated, but rather that it will come in a little quicker.
On the other hand, I can't say I'm losing a lot of sleep over this issue either way. There are bigger fish to fry.
Friday, April 21, 2006
Police officer blog
I got a comment on one of my posts from a police officer. I checked out his blog. Looks like it's new, but I wanted to recommend it because I think it's great to hear from their perspective.
SJ Mercury News on Criminal Defense Lawyers
The third part of the SJ Mercury News series deals with the failings of some criminal defense lawyers. They discuss a practice where lawyers will charge a high up-front fee and then push the client to take a plea bargain. That makes for a good effective hourly rate, but not for good lawyering. In the particular case they discuss, the lawyer allegedly told the client he would only get one year when he actually got five. If that's accurate, that's very bad.
I always tell my clients that I love trials. I have one case right now where I've promised the client I won't charge him any more no matter how far the case goes. This particular case involves certain public policy issues that are quite important to me.
For me, trial has various aspects of playing a game. Cross-examining witnesses is one aspect of being a lawyer I really enjoy. But the "game" reference I make is important. For me it is a game. I get to go home when it's over, no matter what happens. That's why my client has to know the risks involved. Unfortunately, going to trial on a criminal case involves very big risks. Right or wrong, some judges will impose a higher sentence on someone who went through a trial. I've heard judges threaten defendants with exactly that.
That's not how sentencing is supposed to work, by the way. It's not discussed in the SJ Mercury's part about judges, but it's important. Sentencing is supposed to be an evaluation of the crime, the defendant's criminal history, character, and a variety of factors. Refusing to take a deal and demanding your right to a jury trial are not factors that should be considered in sentencing. But at least some judges do consider that as a factor, and often it is a big factor.
As a defense lawyer, I have to make sure my client understands all the risks, including the risks in the plea bargain. Like if the offer is 2 1/3 to 7 (two and one-third years, up to seven years), that you're pretty likely to do seven years. It might be easier to persuade the client to take the deal by talking about the low number, but personally, I think most people end up with closer to the higher number.
The article also talks about defense lawyers not doing proper investigation, and making certain trial mistakes (like not objecting to prosecutor misconduct). The investigation one is tricky. Getting a case investigated is not part of the lawyer's fee. I offer that to my clients, but they have to pay an investigator to do that work. I recommend one or two different private investigators, and let them decide.
Trial mistakes bother me more. There's no one to put that off on. You want to make sure that your lawyer is an experienced trial lawyer, and hopefully a successful one. A trial lawyer has to understand the concept of preserving the record for appeal. If you don't state your objection in a timely manner, your client will not be able to make that argument on appeal. There is a tactical danger to this. If you object all the time to all the prosecutor's conduct, the jury may feel you're argumentative and maybe overlawyering the case, and they may hold that against your client. Part of the trial lawyer's job is to be likeable to the jury. It's not supposed to be a popularity contest, but that aspect is always there. A good trial lawyer understands all this and does their best to balance these issues.
While there are many good trial lawyers, we all have our weaknesses. Some are just not as bright as others. Some lack motivation. Some don't keep up on the latest court rulings (or even the not so recent ones). Some don't have that game-playing mentality that is so important in the courtroom. There's a whole host of issues that can be a problem.
And if you get the wrong defense lawyer, you're going to have some serious problems.
I always tell my clients that I love trials. I have one case right now where I've promised the client I won't charge him any more no matter how far the case goes. This particular case involves certain public policy issues that are quite important to me.
For me, trial has various aspects of playing a game. Cross-examining witnesses is one aspect of being a lawyer I really enjoy. But the "game" reference I make is important. For me it is a game. I get to go home when it's over, no matter what happens. That's why my client has to know the risks involved. Unfortunately, going to trial on a criminal case involves very big risks. Right or wrong, some judges will impose a higher sentence on someone who went through a trial. I've heard judges threaten defendants with exactly that.
That's not how sentencing is supposed to work, by the way. It's not discussed in the SJ Mercury's part about judges, but it's important. Sentencing is supposed to be an evaluation of the crime, the defendant's criminal history, character, and a variety of factors. Refusing to take a deal and demanding your right to a jury trial are not factors that should be considered in sentencing. But at least some judges do consider that as a factor, and often it is a big factor.
As a defense lawyer, I have to make sure my client understands all the risks, including the risks in the plea bargain. Like if the offer is 2 1/3 to 7 (two and one-third years, up to seven years), that you're pretty likely to do seven years. It might be easier to persuade the client to take the deal by talking about the low number, but personally, I think most people end up with closer to the higher number.
The article also talks about defense lawyers not doing proper investigation, and making certain trial mistakes (like not objecting to prosecutor misconduct). The investigation one is tricky. Getting a case investigated is not part of the lawyer's fee. I offer that to my clients, but they have to pay an investigator to do that work. I recommend one or two different private investigators, and let them decide.
Trial mistakes bother me more. There's no one to put that off on. You want to make sure that your lawyer is an experienced trial lawyer, and hopefully a successful one. A trial lawyer has to understand the concept of preserving the record for appeal. If you don't state your objection in a timely manner, your client will not be able to make that argument on appeal. There is a tactical danger to this. If you object all the time to all the prosecutor's conduct, the jury may feel you're argumentative and maybe overlawyering the case, and they may hold that against your client. Part of the trial lawyer's job is to be likeable to the jury. It's not supposed to be a popularity contest, but that aspect is always there. A good trial lawyer understands all this and does their best to balance these issues.
While there are many good trial lawyers, we all have our weaknesses. Some are just not as bright as others. Some lack motivation. Some don't keep up on the latest court rulings (or even the not so recent ones). Some don't have that game-playing mentality that is so important in the courtroom. There's a whole host of issues that can be a problem.
And if you get the wrong defense lawyer, you're going to have some serious problems.
Cracks in the criminal "justice" system
The San Jose Mercury News is one of my favorite newspapers. I read it when I was a student at Stanford, and it pops up from time to time because they occasionally take on controversial issues, and because they have aggressively cultivated a web presence.
Recently the paper did a 5-part series on criminal justice, focusing on Santa Clara County in California.
The whole series is great, but the most notable parts for me are parts 2-4:
Prosecutors over the line
High cost of bad defense
How judges favor the prosecution
In the part on prosecutors, there's a chilling quote from one of the local prosecutors: "I knew I wanted to be a prosecutor, and be able to do what I think is right, not just what is in the client's interest.''
The client for a prosecutor is the People. I love the "what I think is right" comment. If you don't see why that's disturbing, you might be a prosecutor.
More later -- the baby's awake. :-)
Recently the paper did a 5-part series on criminal justice, focusing on Santa Clara County in California.
The whole series is great, but the most notable parts for me are parts 2-4:
Prosecutors over the line
High cost of bad defense
How judges favor the prosecution
In the part on prosecutors, there's a chilling quote from one of the local prosecutors: "I knew I wanted to be a prosecutor, and be able to do what I think is right, not just what is in the client's interest.''
The client for a prosecutor is the People. I love the "what I think is right" comment. If you don't see why that's disturbing, you might be a prosecutor.
More later -- the baby's awake. :-)
Thursday, April 20, 2006
The difficult prospective client
Had a call today from a prospective client who got a speeding ticket near New York City. For some reason the conversation was difficult. This guy would ask me a question, and I would answer it, and then after a few minutes he'd ask the same question again. After round three or four, I decided he needed to find another lawyer.
This happens once in a while. I tend to gauge it by how long the phone call lasts. A good new speeding ticket client call will take about 5 minutes. The client has some sense of what's going on, and just wants to make sure I know what I'm doing before they spend hundreds of dollars on me.
Sometimes the speeding ticket experience is new for the person, and they're anxious about something. Usually I can respond to those concerns and satisfy that person, but it might take a few more minutes.
Then you get the guy who wants to get free advice on how to handle the ticket on their own. I usually figure those out quickly.
But there's the occasional caller where the conversation meanders (kind of like the classic Italian film L'Avventura by Antonioni, but not as long). They ask questions that don't fit. They ask the same questions over and over again. It seems like the conversation is never going to end. And I guess, from a business perspective, it seems like this caller is not interested in hiring a lawyer.
So I look down at my phone and see I've been talking to this guy for 12 minutes. And I make a business decision - I suggest the caller look for another lawyer. Maybe I should be more patient. But it's a speeding ticket. I've had people hire me on felonies with less conversation.
This happens once in a while. I tend to gauge it by how long the phone call lasts. A good new speeding ticket client call will take about 5 minutes. The client has some sense of what's going on, and just wants to make sure I know what I'm doing before they spend hundreds of dollars on me.
Sometimes the speeding ticket experience is new for the person, and they're anxious about something. Usually I can respond to those concerns and satisfy that person, but it might take a few more minutes.
Then you get the guy who wants to get free advice on how to handle the ticket on their own. I usually figure those out quickly.
But there's the occasional caller where the conversation meanders (kind of like the classic Italian film L'Avventura by Antonioni, but not as long). They ask questions that don't fit. They ask the same questions over and over again. It seems like the conversation is never going to end. And I guess, from a business perspective, it seems like this caller is not interested in hiring a lawyer.
So I look down at my phone and see I've been talking to this guy for 12 minutes. And I make a business decision - I suggest the caller look for another lawyer. Maybe I should be more patient. But it's a speeding ticket. I've had people hire me on felonies with less conversation.
Speeding tickets, police, and your attitude
Just handled a speeding ticket in a local court. Met with the trooper to discuss the case. He reviewed his notes. Aha, he said. There's your problem. He pointed to the word "Attitude".
I knew exactly what he meant. This client had been difficult with me as well, and I remember from speaking with him that it sounded like he'd been difficult with the court staff as well.
So this particular client did not get the same deal he would have gotten if he had been polite to the Trooper. I still got him a deal, and this deal was significant, but it would have been better still if only.
Remember, police are people too. Most of the police I encounter in my work are pleasant. They believe in what they're doing (no matter how many of them I see speeding with a cell phone at their ear). So be nice to them. Respectful. Because you should be nice. But if that doesn't work for you, then because you won't get as good of a deal if you're not nice.
I knew exactly what he meant. This client had been difficult with me as well, and I remember from speaking with him that it sounded like he'd been difficult with the court staff as well.
So this particular client did not get the same deal he would have gotten if he had been polite to the Trooper. I still got him a deal, and this deal was significant, but it would have been better still if only.
Remember, police are people too. Most of the police I encounter in my work are pleasant. They believe in what they're doing (no matter how many of them I see speeding with a cell phone at their ear). So be nice to them. Respectful. Because you should be nice. But if that doesn't work for you, then because you won't get as good of a deal if you're not nice.
Monday, April 17, 2006
Malpractice in Florida
I got such a kick out of this I posted it on my other blog too. Went to a walk-in clinic in Florida and they had this sign up. It did not inspire confidence. I was not impressed with the doctor either.
Sunday, April 16, 2006
Interesting private investigator blog
When I'm searching for information on town courts, I often come across Jon Sabin's blog. Mostly it seems to be a listing of police blotters in the Watertown NY area, and lately there is a focus on some kind of problem with an animal control officer there.
Here in the Albany area, I have used Centurion Private Investigators LLC. When I was with Allstate we used Joe for some investigations. I have used him recently in a criminal defense case and a personal injury case, and think he's excellent.
Here in the Albany area, I have used Centurion Private Investigators LLC. When I was with Allstate we used Joe for some investigations. I have used him recently in a criminal defense case and a personal injury case, and think he's excellent.
Monday, April 10, 2006
Violations and out-of-state records
One issue for speeding ticket cases (and other traffic tickets as well) with out-of-state drivers is how the result will show up on the driver's home state record.
It is a widespread impression that non-moving violations do not transfer to other states. So far I've seen no evidence to the contrary.
Sometimes we are unable to get non-moving violations for our clients, but we are able to get non-speeding violations. The most common reduction we get besides non-moving violations is § 1110(a) - failure to obey a traffic control device.
It has been my impression that these never show up on another state's record. I have seen dozens of records from other states and never seen anything from other states show up except speeding violations. I've even had Troopers tell me that they don't transfer to other states.
But now I've seen one. Below is a scan of a West Virginia record (client name, address, etc. omitted), and it has an 1110(a) from NY on it. I negotiated this 1110(a) for the client while he had a NY record, so it is possible that this one transferred because it was on his NY record when he changed his license to the new state. But maybe they transfer anyway. Something new to worry about.
It is a widespread impression that non-moving violations do not transfer to other states. So far I've seen no evidence to the contrary.
Sometimes we are unable to get non-moving violations for our clients, but we are able to get non-speeding violations. The most common reduction we get besides non-moving violations is § 1110(a) - failure to obey a traffic control device.
It has been my impression that these never show up on another state's record. I have seen dozens of records from other states and never seen anything from other states show up except speeding violations. I've even had Troopers tell me that they don't transfer to other states.
But now I've seen one. Below is a scan of a West Virginia record (client name, address, etc. omitted), and it has an 1110(a) from NY on it. I negotiated this 1110(a) for the client while he had a NY record, so it is possible that this one transferred because it was on his NY record when he changed his license to the new state. But maybe they transfer anyway. Something new to worry about.
Friday, April 07, 2006
So much going on lately
There's been so much going on lately, I forgot to mention that we (my brother and I) have incorporated a new business -- SpinJ Corp. This entity will house our web efforts. The first couple of projects are the Daniel Cady historical website, and the Town Courts directory website. Both are doing well, and hopefully we can find some time to work on them and get them up to full running status.
Why SpinJ? I was just goofing around one day, a couple years ago, looking for good web names. I found it and liked it. Maybe someday we'll make up a story to give it meaning.
I should thank Marty Ricciardi at Whiteman Osterman and Hanna for helping us with the incorporation. So far it's going well.
Why SpinJ? I was just goofing around one day, a couple years ago, looking for good web names. I found it and liked it. Maybe someday we'll make up a story to give it meaning.
I should thank Marty Ricciardi at Whiteman Osterman and Hanna for helping us with the incorporation. So far it's going well.
New Jersey Speeding Tickets
I was reviewing my main Albany Lawyer website statistics, and noticed that the New Jersey Speeding Tickets page is getting a lot of traffic now.
I added this page a few months ago, along with New York City and California, to see if they would get traffic. My main speeding tickets page gets an awful lot of traffic already, so I thought that might lead to traffic on pages that come off of it.
It's working now. If you search MSN or Yahoo for the right phrases, that page now ranks well on its own. There were 130+ visitors to that page in the past week.
So now I'm going to see if any NJ attorney wants to be listed on the page. I have one friend I contacted first. Figure we see how that goes for a few months and then maybe it becomes a source of revenue ... and then I'd have to add pages for other states.
I added this page a few months ago, along with New York City and California, to see if they would get traffic. My main speeding tickets page gets an awful lot of traffic already, so I thought that might lead to traffic on pages that come off of it.
It's working now. If you search MSN or Yahoo for the right phrases, that page now ranks well on its own. There were 130+ visitors to that page in the past week.
So now I'm going to see if any NJ attorney wants to be listed on the page. I have one friend I contacted first. Figure we see how that goes for a few months and then maybe it becomes a source of revenue ... and then I'd have to add pages for other states.
A speeding ticket moment
I just have to describe an interesting moment in one of my favorite courts. This particular court gets a lot of Thruway speeding tickets. I had been told that one of the judges is married to a retired Trooper, and might be a bit partial to the Troopers.
So I get there, and the Trooper on my case isn't there. In many courts around Albany, you wait about an hour, and then judges will call your case and dismiss the ticket if the Trooper's not there. After about 45 minutes I checked with the clerk. She told me she was surprised because this particular Trooper is usually there every week. She assured me the judge would call my case in a few minutes.
The judge called me and I moved to dismiss as the Trooper wasn't there. The judge exclaimed in a loud voice how the Trooper had been there, in front of the bench, only moments earlier.
The clerk then interrupted - "Your Honor, may I speak with you for a moment?" They went in the back room. I was trying to suppress my own laughter, and heard them laughing in the back.
The judge came back out and apologized, saying that it was the Trooper's brother who had just been there, and apologized for the mistake.
In case you're ever wondering why defense lawyers sometimes think courts can be biased in favor of the police or against defendants.
So I get there, and the Trooper on my case isn't there. In many courts around Albany, you wait about an hour, and then judges will call your case and dismiss the ticket if the Trooper's not there. After about 45 minutes I checked with the clerk. She told me she was surprised because this particular Trooper is usually there every week. She assured me the judge would call my case in a few minutes.
The judge called me and I moved to dismiss as the Trooper wasn't there. The judge exclaimed in a loud voice how the Trooper had been there, in front of the bench, only moments earlier.
The clerk then interrupted - "Your Honor, may I speak with you for a moment?" They went in the back room. I was trying to suppress my own laughter, and heard them laughing in the back.
The judge came back out and apologized, saying that it was the Trooper's brother who had just been there, and apologized for the mistake.
In case you're ever wondering why defense lawyers sometimes think courts can be biased in favor of the police or against defendants.
More about our new office
We're getting more excited about our move to new office space. As I mentioned before, we'll be moving to 255 Washington Avenue Ext., Suite 108, Albany, NY 12205. An image of the floor plan of our space is above. There are always compromises, but, well, we're just ecstatic.
Our new landlords are the folks at Tri-City Rental, and they have been great to work with so far. They own the building and occupy a big chunk of the upstairs.
I'm also looking forward to being near the Italian American Community Center, home to one of Albany's best restaurants. Yum!
Capital District Business Review
I'm pleased to hear that the Capital District Business Review published an article about lawyer blogs in the area. I haven't seen it yet, and it does not appear to be online, but they apparently wrote a lot about this blog and even printed a photo of me in my extremely messy office. I can assure all readers that the photo cannot possibly show how messy my office really is. Fortunately, there is an order to the madness.
Personal Apology
I previously apologized without naming the person, and offered to apologize to him by name upon request.
Today I received a letter making such request, and I will now do so. I hereby apologize to Joseph M. Ahearn, Esq., of the Rensselaer County District Attorney's office.
In a post a few days ago I named him and made some inappropriate remarks about him. After he complained, I reviewed those remarks and realized I had gone too far.
As an attorney, I should handle such problems professionally, and posting a personal attack on this blog was unprofessional of me. I regret doing so.
Today I received a letter making such request, and I will now do so. I hereby apologize to Joseph M. Ahearn, Esq., of the Rensselaer County District Attorney's office.
In a post a few days ago I named him and made some inappropriate remarks about him. After he complained, I reviewed those remarks and realized I had gone too far.
As an attorney, I should handle such problems professionally, and posting a personal attack on this blog was unprofessional of me. I regret doing so.
Criminal Injustice
Recent experience has prompted some reflection about the criminal process. This is sometimes called the criminal justice system, but the word justice is out of place.
What are some of the problems that stand out, in the eyes of this criminal defense lawyer?
In no particular order:
1. A systemic disregard for the rights of the accused. There are so many cases (and I'll probably discuss that below), and so many of us inside the system are so busy with all these cases, that the defendant can easily become just a number in our eyes. That's not right. These are flesh-and-blood people, with families who need them. It is not only prosecutors who become afflicted with this regard. I see it in defense lawyers, judges, police, and others involved. I even see it in myself at times.
2. Judicial bias. I could probably do a whole post just on this topic, but I'll mention it briefly here. In many courts, the judges spend a lot more time with the prosecutors and the local police than with defense lawyers or defendants. The typical local court is in the same building as the police station. The courtroom is guarded by local police. The judge sees the local police all the time. The prosecutor assigned to that court is there for every criminal session (but might not be there on traffic night). Even the most local of defense lawyers doesn't see the judge as much as the prosecutor. And the defendants are usually there for their first time. It would be inhuman for a judge not to begin to identify with the people that are with them all the time, guarding them, etc. We are fortunate that many judges are able to rise above this most of the time, but most show some vulnerability to this from time to time.
A great example of this is the initial bail hearing. I just had this on a case. I asked for release on recognizance (client would be let go without posting bail). The prosecutor (a particularly pleasant individual, by the way), said he would agree to $5000 bail if the defendant waived the preliminary hearing.
The purpose of bail is to ensure that the defendant appears at future court dates. If he doesn't appear, the bail money would be forfeited. If the prosecutor believes $5000 bail is adequate for that purpose, why should the defense need to waive a preliminary hearing?
Why is the prosecutor's opinion even relevant to the question of bail? The factors the Court is supposed to consider are listed in CPL 510.30. The prosecutor's opinion is not in there. The defendant's willingness to waive the preliminary hearing (an important procedural right) is also not in there.
Despite all of that, judges will often ask the DA for their bail recommendation. Not, by the way, their argument as to the factors underlying the bail decision, but simply for their position. The intrepid (or foolish) defense lawyer might then argue why the underlying factors suggest that the defendant should not have to post bail. On more than one occasion I've seen a local judge make facial expressions suggesting that such argument is not welcome. And then they'll set bail at what the DA recommended, making no findings of fact.
The real purpose of this process is to intimidate the defendant - first into waiving the preliminary hearing, and second into taking a deal. This is especially so if the defendant can't make bail. Now he/she is sitting in jail waiting for trial. In some cases the defendant will spend enough time in jail waiting for trial they'll end up taking a deal with time served. At that point, if there's any risk of conviction at all, the somewhat rational thing to do is take the deal. Even if the defendant makes bail, that $5000 or $10000 sitting there is money they need for their everyday existence. Most defendants are poor, and bail money is not easy to come by.
I should write more on this general topic of criminal injustice, but I'm running out of steam. More later perhaps.
What are some of the problems that stand out, in the eyes of this criminal defense lawyer?
In no particular order:
1. A systemic disregard for the rights of the accused. There are so many cases (and I'll probably discuss that below), and so many of us inside the system are so busy with all these cases, that the defendant can easily become just a number in our eyes. That's not right. These are flesh-and-blood people, with families who need them. It is not only prosecutors who become afflicted with this regard. I see it in defense lawyers, judges, police, and others involved. I even see it in myself at times.
2. Judicial bias. I could probably do a whole post just on this topic, but I'll mention it briefly here. In many courts, the judges spend a lot more time with the prosecutors and the local police than with defense lawyers or defendants. The typical local court is in the same building as the police station. The courtroom is guarded by local police. The judge sees the local police all the time. The prosecutor assigned to that court is there for every criminal session (but might not be there on traffic night). Even the most local of defense lawyers doesn't see the judge as much as the prosecutor. And the defendants are usually there for their first time. It would be inhuman for a judge not to begin to identify with the people that are with them all the time, guarding them, etc. We are fortunate that many judges are able to rise above this most of the time, but most show some vulnerability to this from time to time.
A great example of this is the initial bail hearing. I just had this on a case. I asked for release on recognizance (client would be let go without posting bail). The prosecutor (a particularly pleasant individual, by the way), said he would agree to $5000 bail if the defendant waived the preliminary hearing.
The purpose of bail is to ensure that the defendant appears at future court dates. If he doesn't appear, the bail money would be forfeited. If the prosecutor believes $5000 bail is adequate for that purpose, why should the defense need to waive a preliminary hearing?
Why is the prosecutor's opinion even relevant to the question of bail? The factors the Court is supposed to consider are listed in CPL 510.30. The prosecutor's opinion is not in there. The defendant's willingness to waive the preliminary hearing (an important procedural right) is also not in there.
Despite all of that, judges will often ask the DA for their bail recommendation. Not, by the way, their argument as to the factors underlying the bail decision, but simply for their position. The intrepid (or foolish) defense lawyer might then argue why the underlying factors suggest that the defendant should not have to post bail. On more than one occasion I've seen a local judge make facial expressions suggesting that such argument is not welcome. And then they'll set bail at what the DA recommended, making no findings of fact.
The real purpose of this process is to intimidate the defendant - first into waiving the preliminary hearing, and second into taking a deal. This is especially so if the defendant can't make bail. Now he/she is sitting in jail waiting for trial. In some cases the defendant will spend enough time in jail waiting for trial they'll end up taking a deal with time served. At that point, if there's any risk of conviction at all, the somewhat rational thing to do is take the deal. Even if the defendant makes bail, that $5000 or $10000 sitting there is money they need for their everyday existence. Most defendants are poor, and bail money is not easy to come by.
I should write more on this general topic of criminal injustice, but I'm running out of steam. More later perhaps.
Wednesday, April 05, 2006
Apology
I made an inappropriate post the other day and I now wish to apologize for it.
I named the particular prosecutor involved and I went over the top with my criticism. While I still feel strongly that the factual issues underlying what I said were fair, I should not have named the particular prosecutor, and some of my comments were inappropriate. I have modified the post to take out the inappropriate comments, and removed the name of that prosecutor, both from that post and a subsequent post.
I have not named him here, but I will apologize to him personally by letter, and if he requests that I apologize to him by name on my blog, I will do so.
I named the particular prosecutor involved and I went over the top with my criticism. While I still feel strongly that the factual issues underlying what I said were fair, I should not have named the particular prosecutor, and some of my comments were inappropriate. I have modified the post to take out the inappropriate comments, and removed the name of that prosecutor, both from that post and a subsequent post.
I have not named him here, but I will apologize to him personally by letter, and if he requests that I apologize to him by name on my blog, I will do so.
Tuesday, April 04, 2006
Something's fishy in Rensselaer County
[Note: This post has been edited slightly in light of a complaint that was made.]
I previously posted about a new criminal defense case I've got in Rensselaer County. Today we went before the town court judge. I had applied for bail or release. Bail means someone has to put money up to get the client out -- kinda like ransom. :-) Release means the client gets out without having to post bail.
The Rensselaer DA's office opposed our bail application. Keep in mind that the supposed reason for bail is to make sure the defendant appears in Court. In reality prosecutors will sometimes seek to keep the defendant in jail because that encourages the defendant to take a deal. Jail can be rather intimidating, even (or perhaps especially) to an innocent defendant. Nothing in their papers or their remarks said anything about why my client might be guilty, or why he might be a flight risk.
No, their argument was that, #1, the Court doesn't have jurisdiction to set bail or order release, because he hasn't appeared in the Court yet. It's a nice Catch-22 argument. The DA is keeping him in Chicago, so he can't appear, so the judge can't set bail. Of course, the statute (CPL 530.10) doesn't say anything anywhere about a judge not having jurisdiction in such a situation. It specifically authorizes a judge to order not only release, but "prospective release". What else could that mean? The DA didn't point to any statutes or cases. They didn't explain how a judge can have jurisdiction to issue a warrant that can keep a guy in jail for 30 days, but somehow lacks jurisdiction to release the guy. But the judge went with their argument anyway. At least the judge was pleasant. He really is a nice guy, so even when he rules against you, you just can't dislike him.
But that was not the most interesting part of this experience. It was the other issue raised, only on oral argument (i.e. not in written papers but what the ADA there said). The DA has applied to the County Court Judge for appointment of a special prosecutor.
Huh?
My client is from western Massachusetts. He happened to work for a store in Rensselaer County for a few months. The charge is a relatively minor felony involving allegedly stealing money from that store, which is owned by a Rochester-based corporation.
So what can there be about this case that would lead to the need for a special prosecutor?
Is there a real conflict? I.e. is someone in the DA's office related to my client? Not likely. Are they related to a witness. Maybe, but that still seems unlikely, and there would be a lot more special prosecutors if that were the way things usually went.
The ADA who was there (a generally pleasant fellow, by the way, though not happy with me this evening), got particularly perturbed when I restated [another ADA's] remark about the DA's office not being "travel agents", in explaining why it's taken so long to get my client here from Illinois. Could that have something to do with the request for a special prosecutor?
[Update: I now know that the reason for the application for a special prosecutor is related to the complaint that was made about my blog posts. A special prosecutor has been appointed.]
But even if it does, why are they opposing bail on a minor felony case where the usual plea bargain involves no jail time and my client has already done 30 days?
Remember that my client was arrested on March 8th near Chicago and has not had any opportunity to have his case reviewed by a judge because the State Police and Rensselaer DA have deliberately delayed bringing him here from Chicago. We argued this on April 4th, so it's been close to 30 days now.
You see, there's this basic principle I have in my head that if you're arrested you're supposed to get some chance to have the facts of your case heard by a judge so the judge can make sure there's some evidence to support the case going forward, and so you'll have the opportunity to get out of jail while the case is pending. I don't know. It's something like innocent until proven guilty. Or due process. I think I picked it up in elementary school, but then again, I did go to a public school so maybe I got it wrong.
At this point it seems like my client would get fairer process in Guantanamo. Maybe we should nickname Rensselaer County as Ritmo. Won't work. Ritmo is the Spanish word for rhythm.
The other minor interesting thing is that the DA now says my client will be here tomorrow (April 5th). The date moved up 10 days from what they first said it would be. Could it be that I actually had an effect? Probably not. Illinois probably called and told them to come get him or else they'd let him go after 30 days. But I'd like to think it was my doing.
One note of reflection. It seems like I haven't been a defense lawyer long enough. I still care about my client. He's got two young daughters, not to mention a wife, parents, a sick grandmother - maybe even a dog or a cat or something. But since I have two young(er) daughters, I relate to being kept from them, and to the daughters wondering where daddy is. I haven't been a defense lawyer long enough because I still see my client and his family as people.
We don't get passionate about all our cases. Believe it or not, some of our clients are actually guilty. Really!! And usually the prosecution will have an easy time proving their case. So most of the time we're just trying to minimize the consequences and get our client the best deal we can.
But sometimes our clients are innocent. Sometimes we have a fighting chance. Sometimes we believe.
And that's why I'm having trouble sleeping tonight. I don't know much about the facts of the case yet, but I'm starting to get the strong feeling this client is innocent, and he's getting railroaded by our criminal process. I won't call it the "criminal justice" system because I've done this long enough to know that justice has nothing to do with it.
I previously posted about a new criminal defense case I've got in Rensselaer County. Today we went before the town court judge. I had applied for bail or release. Bail means someone has to put money up to get the client out -- kinda like ransom. :-) Release means the client gets out without having to post bail.
The Rensselaer DA's office opposed our bail application. Keep in mind that the supposed reason for bail is to make sure the defendant appears in Court. In reality prosecutors will sometimes seek to keep the defendant in jail because that encourages the defendant to take a deal. Jail can be rather intimidating, even (or perhaps especially) to an innocent defendant. Nothing in their papers or their remarks said anything about why my client might be guilty, or why he might be a flight risk.
No, their argument was that, #1, the Court doesn't have jurisdiction to set bail or order release, because he hasn't appeared in the Court yet. It's a nice Catch-22 argument. The DA is keeping him in Chicago, so he can't appear, so the judge can't set bail. Of course, the statute (CPL 530.10) doesn't say anything anywhere about a judge not having jurisdiction in such a situation. It specifically authorizes a judge to order not only release, but "prospective release". What else could that mean? The DA didn't point to any statutes or cases. They didn't explain how a judge can have jurisdiction to issue a warrant that can keep a guy in jail for 30 days, but somehow lacks jurisdiction to release the guy. But the judge went with their argument anyway. At least the judge was pleasant. He really is a nice guy, so even when he rules against you, you just can't dislike him.
But that was not the most interesting part of this experience. It was the other issue raised, only on oral argument (i.e. not in written papers but what the ADA there said). The DA has applied to the County Court Judge for appointment of a special prosecutor.
Huh?
My client is from western Massachusetts. He happened to work for a store in Rensselaer County for a few months. The charge is a relatively minor felony involving allegedly stealing money from that store, which is owned by a Rochester-based corporation.
So what can there be about this case that would lead to the need for a special prosecutor?
Is there a real conflict? I.e. is someone in the DA's office related to my client? Not likely. Are they related to a witness. Maybe, but that still seems unlikely, and there would be a lot more special prosecutors if that were the way things usually went.
The ADA who was there (a generally pleasant fellow, by the way, though not happy with me this evening), got particularly perturbed when I restated [another ADA's] remark about the DA's office not being "travel agents", in explaining why it's taken so long to get my client here from Illinois. Could that have something to do with the request for a special prosecutor?
[Update: I now know that the reason for the application for a special prosecutor is related to the complaint that was made about my blog posts. A special prosecutor has been appointed.]
But even if it does, why are they opposing bail on a minor felony case where the usual plea bargain involves no jail time and my client has already done 30 days?
Remember that my client was arrested on March 8th near Chicago and has not had any opportunity to have his case reviewed by a judge because the State Police and Rensselaer DA have deliberately delayed bringing him here from Chicago. We argued this on April 4th, so it's been close to 30 days now.
You see, there's this basic principle I have in my head that if you're arrested you're supposed to get some chance to have the facts of your case heard by a judge so the judge can make sure there's some evidence to support the case going forward, and so you'll have the opportunity to get out of jail while the case is pending. I don't know. It's something like innocent until proven guilty. Or due process. I think I picked it up in elementary school, but then again, I did go to a public school so maybe I got it wrong.
At this point it seems like my client would get fairer process in Guantanamo. Maybe we should nickname Rensselaer County as Ritmo. Won't work. Ritmo is the Spanish word for rhythm.
The other minor interesting thing is that the DA now says my client will be here tomorrow (April 5th). The date moved up 10 days from what they first said it would be. Could it be that I actually had an effect? Probably not. Illinois probably called and told them to come get him or else they'd let him go after 30 days. But I'd like to think it was my doing.
One note of reflection. It seems like I haven't been a defense lawyer long enough. I still care about my client. He's got two young daughters, not to mention a wife, parents, a sick grandmother - maybe even a dog or a cat or something. But since I have two young(er) daughters, I relate to being kept from them, and to the daughters wondering where daddy is. I haven't been a defense lawyer long enough because I still see my client and his family as people.
We don't get passionate about all our cases. Believe it or not, some of our clients are actually guilty. Really!! And usually the prosecution will have an easy time proving their case. So most of the time we're just trying to minimize the consequences and get our client the best deal we can.
But sometimes our clients are innocent. Sometimes we have a fighting chance. Sometimes we believe.
And that's why I'm having trouble sleeping tonight. I don't know much about the facts of the case yet, but I'm starting to get the strong feeling this client is innocent, and he's getting railroaded by our criminal process. I won't call it the "criminal justice" system because I've done this long enough to know that justice has nothing to do with it.
Sunday, April 02, 2006
Lessons in lawyer advertising
Going through my bills for the year so I'll have all my expenses down for taxes.
Noticed a bill for $400 for "Prof Internet Directory". Figured out it's for a directory of attorneys called "AttorneyFind" dot com. I remembered it once I saw it. I paid $100 each for 4 listings (personal injury, drunk driving, etc.).
Well, I reviewed my web traffic and found that since 1/1/2006, I've had one (1) visitor to my site from that directory. By comparison I had 28 from DUI.com, which costs about the same.
I notified them by fax, e-mail and letter that I want to be removed from their directory and that they should not charge my card again.
Perils of advertising. Some things work. Some don't. Nice thing about the web is you can tell which listings work.
Noticed a bill for $400 for "Prof Internet Directory". Figured out it's for a directory of attorneys called "AttorneyFind" dot com. I remembered it once I saw it. I paid $100 each for 4 listings (personal injury, drunk driving, etc.).
Well, I reviewed my web traffic and found that since 1/1/2006, I've had one (1) visitor to my site from that directory. By comparison I had 28 from DUI.com, which costs about the same.
I notified them by fax, e-mail and letter that I want to be removed from their directory and that they should not charge my card again.
Perils of advertising. Some things work. Some don't. Nice thing about the web is you can tell which listings work.
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