Reckless Driving

We've been seeing more reckless driving cases lately. Maybe summer does that. So I added a page on that topic to the firm website. Often the reckless driving charge comes from a high speed alone, which should not be enough for that offense (VTL 1212).

We have been getting a fair number of cases with AUO - Aggravated Unlicensed Operation, so I added a page on that too.

Albany DWI Crackdown Coming

Today's Times Union reports there will be a crackdown on DWI for 10 days around July 4th, running from Friday through July 8th.

We're already busy, getting a lot of DWI cases in the Albany area recently. Due to what we've been seeing lately, and with the latest changes in DWI laws, I added two pages to our website, one on Aggravated DWI and the other on DWAI.

We keep winning DWI cases. Just got a case dismissed, for a reason I didn't even anticipate. The officer was testifying at a suppression hearing. I was being my usual difficult self, objecting everywhere I could (and appropriately so - as it turns out). The officer was testifying about the place where they stopped our client, and the town judge began inquiring further about the specific location. Turns out they stopped our client in the village. Judge said the village had primary jurisdiction and dismissed the case. My objection had triggered this line of inquiry.

But that wasn't what I was going for. This was a low BAC case involving a checkpoint. The checkpoints are often unconstitutional, and the low BAC makes it much tougher for the prosecution to prove a DWI case. Also, our client had passed two out of three of the Standardized Field Sobriety Tests (SFSTs). I had a lot of ammo, but never got to use most of it. The location issue was related to a problem with the paperwork I was aware of - and this was why I had objected - but I was not aware that the village lines were near the stop.

Lately I've been thinking we need a slogan for our DWI practice. Hmm. Keeping Drunks on the Road Since 2003 ? Nah. Making the World Safe for Dangerous Drivers Since 2003 ?? The latter is more inclusive of the speeders, you see. But no. Still doesn't sit right. In all seriousness, I don't believe either is what we really do. Partly this is because many of our clients are actually innocent, and partly it's because I believe our traffic and DWI laws are just wrong. Speed limits are generally inappropriate on Interstate Highways, and they're certainly too low. And I do not like the "per se" DWI laws where a BAC over a certain number is illegal in and of itself. I've now seen several cases where defendants with a BAC between 0.08 and 0.12 were very clearly not intoxicated.

New Jersey Traffic Courts to enforce a new law

As you can read about in the following link, New Jersey Assembly has found a new way to make traffic courts busier without accomplishing much. In short, they want a new law requiring new residents to register their vehicles in NJ right away. I'm sure that will solve all New Jersey's problems. Phew!

Meanwhile, the busy New Jersey traffic courts, such as Jersey City Municipal Court will take care of this and make life better for all.

Meanwhile, in news about our traffic court database, we have now added an attorney advertiser in New Jersey. His name is Thomas Carroll Blauvelt, and he seems like a nice fellow. Based in Middlesex County, one of his busiest courts (and closest to his office) is Edison Municipal Court. I think the place was named for a lesser known Portuguese explorer, but others say it was some inventor guy.

I was talking to Blauvelt today and he mentioned a few other busy courts in New Jersey, like Newark, Woodbridge, and Trenton Municipal Court. Nice thing about our traffic court directory project is that I'm learning quite a bit about other places.

Avvo - Lawsuit over Attorney rating website

There's an interesting lawsuit going on right now for those who are interested in lawyers and the web. A website called Avvo offers ratings of lawyers. As the San Jose Mercury News and the Wall Street Journal blog explain, some lawyers who didn't like their ratings are suing to shut down the website.

I'm particularly interested in this because I was thinking about creating a site, or sites, like that. I had registered the following web addresses as part of my plans: my-lawyer-sucks.com, my-doctor-sucks.com, review-lawyers.com, review-doctors.com. My mom told me I couldn't use the first two, so that was out. We actually started working on a site. I hired a programmer and we had a first draft, but we never figured out exactly what we wanted to do with it, and then our traffic court directory site took over and we dropped the idea. If we had stuck with it, we would have beaten Avvo to the punch, and then gotten sued like this. :-)

Basically, some lawyers are complaining that the site misrepresents the quality of the lawyers rated. There is a big difference between what Avvo does and what we were planning. Avvo makes its own assessment and rating of the lawyers, based on various factors it reviews. We were just going to allow "consumers" to rate the lawyers they had dealt with (I think . We weren't going to offer our own ratings. And we had plans for strong and prominent disclaimers, as well as a process for lawyers to challenge ratings. We even had some ideas about how to make money doing it.

Having looked at the ratings for some local lawyers (go to the site and enter a local zip code), I can say that the ratings are very much junk. A very prominent local attorney, who is widely considered the best DWI lawyer in the state (no, not me), is rated 7.2 out of 10. Their profile of him says his practice is 50% criminal defense - if I'm not mistaken, his practice is 100% criminal defense. His rating apparently suffers for a lack of "recognition." A number of other prominent lawyers in the community have similarly low ratings.

Two lawyers in the area are rated as 10s. One is pretty well known in his narrow field and deserves a very high rating in my opinion. The other, who I like and respect, and is a very good lawyer, benefits in part from a top rating for experience. This despite having one less year than me (I get 2 out of 5 for experience and a 6.2 overall). Aha, but this second lawyer has claimed the profile -- signed up with an account with Avvo and provided more information. I don't fault the lawyer for this at all. But if Avvo's system increases a lawyer's rating based on the lawyer signing up and providing more information, that's an unreliable method, and essentially a mild form of blackmail. We had a more sinister form of blackmail in mind for my-lawyer-sucks.com actually, but that's water under the bridge. :-)

Of course I'm now in the process of claiming my profile - wonder if it will help my rating? :-) Another interesting flaw I noticed in the process is the terms of use contain a very thorough disclaimer about the quality of their ratings, but that disclaimer is either not obvious or invisible on the actual ratings pages. If they need that kind of disclaimer in the registration process, why isn't it posted with the ratings?

Next in the process, I had to enter a credit card. Well, in the interest of journalism (what's happened to me?) ....

So I went through the registration process and now I'm rated 7.4. I should add some publications. That would probably help. :-)

Okay people. Form your own conclusions now.

Binghamton City Court and the rest of Broome County

I noticed we get very little going on in Binghamton City Court. We do get a lot of speeding tickets from other traffic courts in Broome County, like Kirkwood, Barker, Dickinson, and Windsor.

Coolest website ever!!

Okay, I went a little over the top on the title, but http://media-convert.com/ is a totally cool website.

I got an e-mail with an attachment in .wpd format --- an old WordPerfect file. I can't open WordPerfect files, and it's hard to find a way to do it.

I went to Media Convert, uploaded the file, and it converted it and allowed me to download the file in the format of my preference. Outstanding!!

Sad Irony - A Good DWI Prosecutor Charged With DWI in Albany

I got a couple e-mail last night or this morning. My friend Joe Meany, an Assistant District Attorney in Albany, was charged with DWI. You can read some of the details (I can't verify the accuracy) in an article in the Times Union.

Joe prosecutes, or perhaps I should say used to prosecute, DWI cases in Albany. My regular readers (all three of them :-) ) will be surprised to see me say this about a prosecutor, but Joe is a good guy. Despite my criticisms, I do deal with many good prosecutors who I respect and appreciate. I know nothing more about this case than what I just read in the TU, but I stand by one of my principles. He's innocent until proven guilty. And I'm rooting for him.

I've had somewhere between 5 and 10 cases with him, including a trial. Joe has always been decent with me. No animosity, always straightforward, and always fought hard on his case - within the bounds of the rules and honorably.

His situation looks dark at the moment, but I hope he knows what I know, that his future is bright regardless of this moment.

Southeast Town Court and Carmel Town Court in Putnam County

In my last post I forgot to mention Southeast Town Court and Carmel Town Court in Putnam County. Our newest attorney advertiser tells me these are the busiest courts there, especially Southeast Town Court.

More traffic courts ...

I noticed that we were missing a few of the top traffic courts in the state, so I added a bunch in the last few days. Some of the more important ones are:

Woodbury Town Court
Tuxedo Town Court
Wallkill Town Court
Newburgh Town Court

The ball keeps rolling.

Criminal Defense Lawyers and the so-called Innocence Myth

Back in April the Wall Street Journal had a couple opinion pieces about criminal law and criminal defense lawyers. The first stressed the role of defense attorneys in the Duke Lacrosse "rape" case. The second was by a Colorado District Judge, Hon. Morris Hoffman, who discusses what he calls (and the article's title) The Innocence Myth, from 4/26/2007. I'll rip that one apart first.

The big quote that stands out to me, enlarged by the editors, is: "Despite the hype to the contrary, wrongful convictions are exceedingly rare." Hoffman argues in this piece that the wrongful conviction rate is low, and so the criminal justice system is actually working quite well.

Regular readers will not be surprised to read that I have a different opinion. First and foremost, wrongful convictions are not the only problem in the system. I have had several clients acquitted on criminal charges, mostly in grand larceny cases. They were not wrongfully convicted. However, they were wrongfully accused, wrongfully prosecuted, and they suffered greatly from these wrongs. One spent about 30 days in jail, away from his wife, two young kids, and his parents and grandmother. And his family all suffered too. The process cost him in the ballpark of $10,000 when you include lost wages and other expenses. Some of my other innocent clients have spent time in jail, and they all lost a lot of money. At least two of the others spent in the $10K ballpark. One spent almost that much just on bail bonds. The "actually innocent" defendant who wins usually has no remedy in trying to recover what they lost in the process. Meanwhile, the police, prosecutors and prosecution witnesses who wrongfully accused and prosecuted the defendant generally face no consequences for their actions.

I should also mention that many of the "correct" convictions are for things that shouldn't be crimes. We have overcriminalized our society so everything is a crime now. I could go on forever about the drug war, but I've done that before (see my other blog's post about wasting money on the War on Drugs). There's more than that. If you call someone on the phone or e-mail them and say mean things to them, that's a misdemeanor aggravated harassment in New York. I've seen this one charged far too often. Then there's Aggravated Unlicensed Operation - when you are caught driving on a suspended license. Someone told me this used to be an infraction but was raised in severity to a misdemeanor sometime in the last 10 years. In most cases these drivers do not even know that they were suspended, because DMV sent the suspension notice to an old address. This is still the driver's fault because they have a duty to notify DMV of their new address, but I just don't see it as a crime. I'm not alone. Most prosecutors and judges sympathize and we are generally able to get good deals for our clients on these. But some judges are different and some people just plead guilty and get a criminal record.

As for the issue of wrongful convictions, in my own limited experience many police officers lie as a matter of course (and many do not). Some prosecutors (but not very many) lie and cheat to get convictions. Many judges are transparently biased against the defendant (and many aren't). I have seen judges - even lawyer-judges, and even judges I like - protect cops who slip up and get caught by a defense lawyer in a lie. My clients are represented by a well-paid lawyer who has a lot of trial experience (though with an undeservedly large ego). My clients can generally afford to hire investigators and/or experts where appropriate. With these resources, the innocent defendant has a good chance of catching the police and/or other prosecution witnesses in their lies, and otherwise of exposing and demonstrating the weaknesses of the prosecution case.

Many defendants are represented by lawyers who are not well-paid and who do not have as much trial experience - or in some cases just not good trial experience. These defendants generally cannot afford the investigators or experts necessary in more complicated cases.

Turning to Hoffman's analysis, there is this delightful bit in reference to the Innocence Project and the 200th person exonerated by DNA testing: "But in the 20 years innocence projects have been operating, there were roughly 2 million criminal trials in the U.S. Assuming as many as 25% of those trials resulted in acquittals ..., the wrongful post-trial conviction rate is only 0.013%. Since only 5% of cases are tried, that wouldd place the overall wrongful conviction rate at around 0.00065%."

In case the math is unclear, taking out the 25% acquittals leaves 1.5 million trial convictions. Divide the 200 exonerated by 1.5 million and you get 0.013%. I checked it on a calculator.

Um ... well maybe only 200 have been exonerated by DNA testing, but that doesn't mean only 200 were actually innocent. I don't have inside info on the budgets for the innocence projects, but I'll bet they haven't examined every one of the 1.5 million criminal trial convictions over the past 20 years. Oh, by the way, the vast majority of criminal trials do not involve DNA evidence, so the innocence projects can't exonerate the defendants in those because there's no DNA testing to be done. The point of the innocence projects is that where there's smoke, there's fire.

There's also Hoffman's casual analysis of plea bargaining. At one point he points out, correctly, that almost all criminal defendants plead guilty (referring to plea bargains). He says 95% and that sounds about right. His purpose in pointing this out is his unstated assumption that people who plead guilty to something were guilty. In Hoffman's world, an innocent defendant would never take a plea bargain.

Then in a later paragraph he says the following: "Exaggerations about the unreliability of the criminal justice system ... threaten to become self-fulfilling. ... A widespread belief that the system is hopelessly unreliable will only encourage innocent defendants to plead guilty to lesser offenses."

Judge Hoffman apparently never represented an innocent defendant. The article doesn't mention any criminal defense experience. I checked his bio on the web just now and found this: "Prior to his appointment, he was in private practice in Denver, specializing in commercial litigation, real estate and bankruptcy law." He majored in math too. :-)

The system does not have to be hopelessly unreliable for an innocent defendant to take a deal. A rational innocent defendant facing a low-level felony charge with a maximum of four years in state prison would easily take a misdemeanor deal with no jail time and 3 years probation if he thought the system was only slightly unreliable. Add in the cost of a full trial at, say, $20,000 versus getting the plea deal for $2500, and assume the innocent defendant doesn't happen to have $20K lying around, and you can see where this is going.

My favorite quote of all is, after he makes a different set of assumptions, he figures that "the overall post-conviction wrongful conviction rate would still be only around 1%." Only? ONLY???? Forgive me for my bias in favor of innocent defendants, but a 1% wrongful conviction rate is absolutely horrible. Combine it with his estimate of 25% trial acquittals, and you have an awfully large number of people suffering horrendous consequences from a rotten system.

To end this post on a positive note, I turn to Professor Randy Barnett's "Three Cheers for Lawyers" in the 4/17/2007 WSJ. There are a number of great quotes in his article, and I'll just list them below:

"In every case I knew about where an innocent person had been convicted, there had been an incompetent defense lawyer at the pretrial and trial stages."

"Criminal lawyers are constantly asked how they can live with themselves defending those guilty of serious crimes. The full and complete answer ought to be that, because we can never be sure who is guilty and who is innocent until the evidence is scrutinized, the only way to protect the innocent is by effectively defending everyone."
--I would add to this my lament that prosecutors never get asked how they can live with themselves prosecuting those innocent of serious crimes.

"The mere prospect of a competent defense attorney scrutinizing the evidence in the future provides a powerful deterrent to pursuing weak cases before anyone is charged."
--Sadly this one is not true in my experience. Prosecutors around here are generally not involved in the charging stage and, with no consequences for wrongful prosecution, they would not be deterred anyway. The good ones don't need to be deterred - they don't want to prosecute weak cases because they don't want to waste their time and they actually care about the innocent.

"Notwithstanding the legal 'presumption of innocence,' in a system that generally gets it right, there is a pragmatic presumption of guilt. Consequently, effectively defending the innocent usually requires the ability to prove your client's innocence."

"The difficult problem of innocent defendants typically arises in run-of-the-mill cases wehre prosecutors acting in good faith have no reason to doubt their guilt. It results in part from the pragmatic presumption of guilt, which leads to inadequate defense lawyers, an indifferent press and an oblivious public."

One quick comment about this. If you're charged with a crime, are you going to look for the least expensive defense lawyer you can find? As one of my favorite defense lawyers puts it: "No one looks for the cheapest heart surgeon."

An interesting blog

My blog (what you're reading now) is albany-lawyer.blogspot.com. I've been doing it since May 1, 2005.

I noticed a different blog on technorati with a strikingly similar address: albanylawyer.blogspot -dot- com. The only difference is the lack of a hyphen. This almost identically-named blog appears to have been created in April of 2007. Hmm.

Bail Abuse: A Good Judicial Decision Attacked

The Times Union reported June 6th about a case in Rensselaer County where Judge Jacon released a defendant on his own recognizance. The defendant, 18 years old and local to the county, was the driver in an accident where a 19-year-old passenger was killed.

The victim's mother and some elected officials in the county are upset that no bail was set. Anyone can understand the victim's mother being upset, but the actions of the county officials are disturbing.

According to the paper, the county legislature is considering a resolution to ask the state legislature to set a minimum bail requirement, and some officials "have demanded an explanation from Jacon." Since he can't explain (a judge is not supposed to comment on a case pending before him), I will. No bail was set because there's no reason to require bail. A local 18-year-old is not a flight risk. He is likely to appear in court so there's no need for bail.

One Republican official is quoted as saying that community members are upset by the judge not setting a bail amount, and said that the county legislature's action "will bring the matter to Jacon's attention." Great. So the county officials (all of whom are from the party opposite that of the judge) are doing what then? Um ... threatening judicial independence? Yep.

The victim's mother is quoted as saying there should be "a repercussion" for what happened. There is. The defendant has been charged with at least two crimes (felony vehicular manslaughter and misdemeanor DWI). If convicted he can get jail time. But you see, he gets convicted and punished AFTER he gets due process. It's this crazy little concept we used to have in America called "Innocent until proven guilty."

I congratulate Judge Jacon for doing the right thing in the face of this kind of offensive political pressure.

Even more on attorney advertising and traffic court

Going back to my recent post on an unethical "attorney" website, I decided to do some more investigation.

I faxed a note to the site's fax number saying that I had gotten a ticket in Westchester County for 96 in a 65, and that I would like a quote.

I got a fax reply from "Gailia Walters," from "New York Traffic Tickets." The fax further indicates their slogan as "The Traffic Ticket Specialists."

Ms. Walters said:
Thank you for selecting our legal services. Here is your quote for your 8 point traffic ticket case. After handling over 50,000 traffic ticket cases over the last 15 years we are confident to inform you that we should be able to eliminate or reduce your points to prevent your insurance from going up. Our fee for this case is $800.00.
To proceed with this case please fax a copy of your traffic ticket to 1 866 899 4713 with your contact info so we can send you the retainer agreeement, and the credit card form. (Please let us know if you would like us to email or fax these forms to you)
If you have any further questions, please do not hesitate to call.

Well, I did have a further question, so I called. Ms. Walters, if that is her real name, answered the phone. I asked her for their firm name and she did not give me a sensible answer. Then I asked which lawyer would be handling my case. She gave me a name.

Patrick McLoughlin. She gave me his phone number: 716-536-0589.

I looked him up. He has a website/page at www-dot-defendingwnydrivers -dot- com.

He seems like a decent fellow, but he does not look like Ed Meese, James Baker, or Michael Deaver (see my previous post).

I also like how he's based in Rochester, and he handles "Criminal Defense Starting at $185"). Most likely Ms. Walters misunderstood when I said Westchester and thought I meant Rochester.

The New Yellow Pages

As an attorney with a substantial web presence, I frequently get solicited regarding listing on other websites. This ranges from sites like "personalinjurylawyers -dot- com" on what I would call the lower end of the scale (in terms of ethics) to "lawyers -dot- com" and "findlaw -dot- com" on the higher end.

I got an e-mail solicitation from lawyers-dot-com today, the text of which is below. What you can't see is that the message had various terms in bold, usually in color - either red or blue. While I did not find this particular solicitation too bad, note the clear message: "Since you do not have a full listing with us, it could be costing your firm revenue ...." That is marketing through fear.

The message also included an image that I will not bother including here. It was a bar graph that really didn't make a lot of sense.

--------

Greetings Counselors!

Do your search statistics from our websites - Martindale.com and Lawyers.com look like this? -


Since you do not have a full listing with us, it could be costing your firm revenue - from new and existing clients.

Please call/email me if you are curious as to what your search statistics are, were, and have been in the past.

If you are contemplating a full listing with Martindale-Hubbell once again, here are 10 reasons to do the listing now -

#1 - As an Internet Marketing Specialist, I look to enhance the listing to maximize exposure in an already proven medium
#2 - Making sure you have Preferred placement on Lawyers.com with a 1 page site that will drive web traffic to your existing website
#3 - Make sure you have all sub-category AOP's listed so your firm shows up in more searches than other attorneys already listed with us
#4 - Make sure appropriate icons are added to Lawyers.com listing to get more profile views
#5 - Add pictures and/or logos to Martindale.com and Lawyers.com to make listing stand out more
#6 - Help with the tagline on Lawyers.com to make listing bigger and more appealing without increasing the cost
#7 - Help facilitate the rating review process if it makes sense
#8 - Expedite the order so we can have listings and website up within 2 weeks
#9 - Offer you a complimentary($255 Value) Cross-Reference in a city that you are looking to bring business in from
#10 - If you plan to give a full listing a chance to help grow your business once again, this is a better time than next year to do it. - Prices will only increase.

As a returning subscriber, we can offer delayed billing for 90 days and interest-free monthly billing.

There are approximately 500,000 attorneys listed with us, and I'm sure many of your competitors. I think it is an investment that most attorneys can't afford not to be listed.

Thank You for your time and consideration.

[Name Omitted]
Account Executive
Martindale-Hubbell
121 Chanlon Road
New Providence, NJ 07974

[Phone/fax omitted]

Criminal Defense: No Guarantees

Prospective clients frequently ask me if I guarantee results. I do not. I get paid for the work that I do, and I do the same quality work for my clients whether we win or lose, and whether we get a good deal or a bad deal.

There are lawyers out there who do "guarantee" results. For example, in Syracuse the firm Sommer & Sommer (website is trafficticketdwi -dot- com) says on their website in bold red: "you will not pay a fee unless we reduce your points and acheive [sic] our goals."

Yes, they do have the word "achieve" misspelled on their site. More important, they offer a guarantee. The problem is that this is effectively a contingent fee arrangement (payment of the fee is contingent on achieving a certain result), and contingent fees are generally prohibited (DR 5-103(A)(2)) and are specifically prohibited in criminal cases (DR 2-106(C)(1)). And while one might argue regarding DR 2-106 that traffic cases are not criminal, the listing of things this covers on their firm site includes "Driving on Suspended License," "Suspended Registration" and "No Insurance," all of which are misdemeanors in New York. For those who don't know, misdemeanors are crimes.

There are some fundamental ethical problems with an attorney making this kind of guarantee. Suppose you're in Court and are offered a deal for your client. The deal is not good enough to satisfy your guarantee, but is better than the likely outcome. The attorney may be inclined to do a trial against the client's interest in order to have some chance of getting a fee. While few attorneys really think this way in the middle of handling a case, we are supposed to avoid creating this kind of conflict in our work.

Another problem is the perception this may create that we have the power to make guarantees. People may think we have inside connections with prosecutors and courts. Perhaps that is true for some lawyers, but that is not something one should advertise. It creates an appearance of impropriety.

There are other problems with it, I'm sure, but my brain is dead today from lack of sleep, so you're all on your own to figure out the other issues. :-)