The Difference Between a Jurist and a Juror

     A jurist is anyone (judge, lawyer, or scholar) learned in the law: “The jurist was an expert in American constitutional law.”     A juror is a member of a jury: “A juror is supposed to apply the law to given fact…

     A jurist is anyone (judge, lawyer, or scholar) learned in the law: "The jurist was an expert in American constitutional law."

     A juror is a member of a jury: "A juror is supposed to apply the law to given factual situations and is not expected to be a Jurist."

Rod L. Evans, The Artful Nuance, 2009 

from http://jimfishertruecrime.blogspot.com/

Categories: Law

Legalese

     In 2001, the Economist magazine reported on a “worrying gap” between the language of the public and that of the legal profession. That gap grows wider every day, as legal English staunchly resists the changes rippling through everyday English. On the brighter side, this means that the law is less susceptible to silly fads…but it also means that the law is less and less accessible to each new generation.

     Legalese could even evolve into a foreign language in the not-too-distant future. Already, many linguists refer to the language of law as a “sublanguage,” meaning that it’s more than just a collection of jargon, but also has its own specialized rules of grammar and syntax [word order].

Adam Freedman, The Party of the First Part, 2007

     In 2001, the Economist magazine reported on a "worrying gap" between the language of the public and that of the legal profession. That gap grows wider every day, as legal English staunchly resists the changes rippling through everyday English. On the brighter side, this means that the law is less susceptible to silly fads…but it also means that the law is less and less accessible to each new generation.

     Legalese could even evolve into a foreign language in the not-too-distant future. Already, many linguists refer to the language of law as a "sublanguage," meaning that it's more than just a collection of jargon, but also has its own specialized rules of grammar and syntax [word order].

Adam Freedman, The Party of the First Part, 2007

from http://jimfishertruecrime.blogspot.com/

Categories: Law

The Class Action Suit: A Goldmine for Lawyers

     In a class action, a group of enterprising lawyers persuade a judge to certify a “class” of plaintiffs…and then proceed to bring a lawsuit on behalf of the class. If you’re a member of the class, you’ll get a letter giving you the right to “opt out” of the class. Most likely, you’ll throw the letter away without reading it because–you guessed it–it’s written in legalese. Since you didn’t opt out, you’re a plaintiff. And if the defendant ends up paying the money, you’ll get your share, but it’s usually a very small one.

     In April 2005, a Los Angeles Times reporter was surprised to discover that his son had been a plaintiff in a class action lawsuit against Bank of America. The son was equally surprised, and disappointed, to learn that his cut would be 49 cents, while the plaintiffs’ lawyers collected fees in excess of $2 million. In a similar action against Citibank, unwitting plaintiffs reported receiving checks as small as 2 cents. The legal fees were over $7 million.

Adam Freedman, The Party of the First Part, 2007 

     In a class action, a group of enterprising lawyers persuade a judge to certify a "class" of plaintiffs…and then proceed to bring a lawsuit on behalf of the class. If you're a member of the class, you'll get a letter giving you the right to "opt out" of the class. Most likely, you'll throw the letter away without reading it because--you guessed it--it's written in legalese. Since you didn't opt out, you're a plaintiff. And if the defendant ends up paying the money, you'll get your share, but it's usually a very small one.

     In April 2005, a Los Angeles Times reporter was surprised to discover that his son had been a plaintiff in a class action lawsuit against Bank of America. The son was equally surprised, and disappointed, to learn that his cut would be 49 cents, while the plaintiffs' lawyers collected fees in excess of $2 million. In a similar action against Citibank, unwitting plaintiffs reported receiving checks as small as 2 cents. The legal fees were over $7 million.

Adam Freedman, The Party of the First Part, 2007 

from http://jimfishertruecrime.blogspot.com/

Categories: Law

Lawyer Suicides

     Lawyers are killing themselves [according to] the Centers for Disease Control and Prevention….Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population….They come right behind dentists, pharmacists, and physicians.

     Lawyers are also prone to depression, which the American Psychological Association identified as the most likely trigger for suicide. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.

     Prominent lawyers keep turning up dead….Kentucky has seen 15 known lawyer suicides since 2010….There was no clear explanation for the rash of suicides in Kentucky, two of which came days apart. “It’s been primarily men,” said Kentucky Bar Association Executive Director John Meyers. “To a large degree it’s been trial attorneys. The men are primarily middle-aged.”

Rosa Fores and Rose Marie Arce, “Why Are Lawyers Killing Themselves?” CNN, January 20, 2014

     Lawyers are killing themselves [according to] the Centers for Disease Control and Prevention….Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population….They come right behind dentists, pharmacists, and physicians.

     Lawyers are also prone to depression, which the American Psychological Association identified as the most likely trigger for suicide. Lawyers are 3.6 times more likely to suffer from depression than non-lawyers.

     Prominent lawyers keep turning up dead….Kentucky has seen 15 known lawyer suicides since 2010….There was no clear explanation for the rash of suicides in Kentucky, two of which came days apart. "It's been primarily men," said Kentucky Bar Association Executive Director John Meyers. "To a large degree it's been trial attorneys. The men are primarily middle-aged."

Rosa Fores and Rose Marie Arce, "Why Are Lawyers Killing Themselves?" CNN, January 20, 2014

from http://jimfishertruecrime.blogspot.com/

Categories: Law

Vigilante Judges

At times, judges abandon their neutrality and step into the adversarial void, acting like prosecutors, forcing defendants either to take a deal or wait in jail for a trial date. That, or they deny a defendant his rights altogether….Many defendants plead guilty without a lawyer present. In some cases, they had been in jail for months without counsel. In others, they had no idea what they were pleading guilty to or they accepted sentences higher than the legal maximum.

Amy Bach, Ordinary Justice, 2009 

At times, judges abandon their neutrality and step into the adversarial void, acting like prosecutors, forcing defendants either to take a deal or wait in jail for a trial date. That, or they deny a defendant his rights altogether….Many defendants plead guilty without a lawyer present. In some cases, they had been in jail for months without counsel. In others, they had no idea what they were pleading guilty to or they accepted sentences higher than the legal maximum.

Amy Bach, Ordinary Justice, 2009 

from http://jimfishertruecrime.blogspot.com/

Categories: Law

Are ‘Orders’ from the Tweeter-in-Chief Legally Enforceable?

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore President Trump’s tweets calling for investigations into cases like the recent unsigned op ed in The New York Times. But how long can we rely upon this assumption? 

While many commentators have written about President Trump’s predilection for interpreting law via Twitter (whether the actions of his personal lawyer, Michael Cohen, in allegedly arranging “hush money” payoffs, were a crime, for example), a different presidential tweet poses even more difficult questions.

After Attorney General Jeff Sessions committed to not allowing the Department of Justice to be improperly influenced by political considerations, the President tweeted the following:

Jeff, this is GREAT, what everyone wants, so look into all of the corruption on the “other side” including deleted Emails, Comey lies & leaks, Mueller conflicts, McCabe, Strzok, Page, Ohr…FISA abuse, Christopher Steele & his phony and corrupt Dossier, the Clinton Foundation, illegal surveillance of Trump Campaign, Russian collusion by Dems – and so much more. Open up the papers & documents without redaction? Come on Jeff, you can do it, the country is waiting!

While the tweet about Michael Cohen’s actions not being a crime raised questions about whether the tweet constitutes a legal determination that is binding on the executive branch, the tweet about Sessions amounts, in my view, to what appears to be a presidential directive to investigate political opponents.

To what extent may federal authorities, particularly the DOJ and the FBI, respond in ways that are consistent with their interpretation of law and policy?

The question has become even thornier with the president’s recent comment that Sessions should investigate an anonymous Op Ed published by the New York Times. The author of the Op Ed claimed that members of the administration have worked to thwart some of the president’s agenda and inclinations, though he did not suggest any crimes were committed.

On the face of it, there is no reason why such an unclassified Op Ed would not be protected by the First Amendment.

The jabs at Sessions thus raise questions about a president’s constitutional duty—as Chief Executive—to “take care that the laws [be] faithfully executed” (Article II). Let me try to unpack some of those questions from the vantage point of the civil servants actually conducting investigations.

In other words, when President Trump calls for Sessions to investigate Op Eds or look into the “other side,” what does that mean for investigators?

Most FBI agents don’t carry around a copy of the Constitution in their pocket (well, some probably do), but they all have easy access to the Domestic Investigations and Operations Guide (DIOG), which “applies to all investigative activities and intelligence collection activities conducted by the FBI within the United States” (DIOG, § 1.1).

More generally, as both an intelligence agency and a law enforcement agency within the Department of Justice, the FBI’s power is dependent upon the authority vested in the office of the Attorney General, who may delegate authority to the FBI’s officials. This has been done in part through the DIOG, as well as through documents such as the Attorney General’s.

These documents standardize the FBI’s investigation policy in national security and criminal law cases. Specifically, the DIOG permits four basic ways for the FBI to “look into” crime:

  • Assessments
  • Preliminary Investigations
  • Full Investigations, and
  • Enterprise Investigations

An Assessment is the most basic type of formal FBI investigation. Notably, the DIOG states that “[a]lthough ‘no particular factual predication’ is required, the basis of an Assessment cannot be arbitrary or groundless speculation, nor can an Assessment be based solely on the exercise of First Amendment protected activities…FBI employees who conduct Assessments are responsible for ensuring that Assessments are not pursued for frivolous or improper purposes….” (DIOG, § 5.1).

The DIOG goes into great detail about the various types of Assessments that may be opened and the standards for conducting them. As one would expect, moving to Preliminary (DIOG, § 6), Full (DIOG, § 7), and Enterprise Investigations (DIOG, § 8) requires even more exacting rules with respect to investigative scope, predication, techniques, and so on.

Preliminary Investigations are predicated based upon “’allegation or information’ indicative of possible criminal activity or threats to the national security” (DIOG, § 6.1), while Full Investigations are predicated upon an “’articulable factual basis’ of possible criminal or national threat activity” (DIOG, § 7.1).

Finally, Enterprise Investigations are opened as Full Investigations, but with respect to “a group or organization that may be involved in the most serious criminal or national security threats to the public” (DIOG, § 8.1).

Does the unsigned Op Ed, or for that matter, the suggestion to look at corruption “on the other side” fulfill any of these four guidelines for launching an investigation?

Working outside of this stringent framework would indeed be uncharted territory—at least since President Richard Nixon (and presidents before him) ordered investigations that resulted in solely political and personal information unrelated to national security.

So it hasn’t been terribly long since presidents successfully used the FBI as their personal spy agency.

The US Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (or the “Church Committee”) helped expose a variety of widespread information-gathering tactics—including illegal searches and surveillance under the FBI’s COINTELPRO program from the mid-1950s through the early 1970s.

Based on recent precedent, it seems safe to assume that the FBI and Department of Justice will ignore requests for investigations without a firm, non-arbitrary investigative basis that is consistent with policy.

But how long can we rely upon this assumption?

And there is a deeper question that has higher stakes: If there is disagreement about whether the Executive is taking care that the law be executed faithfully, what are the long-term implications for the rule of law in the United States given a dysfunctional executive branch?

Our history illuminates how executive authority and discretionary power have grown to such a degree that it is trending toward illiberal practices and policies. This is not a Republican or a Democratic problem. It is a broader problem regarding the limits imposed by the legal, political, and philosophical norms of a constitutional democracy in the liberal tradition.

Luke Hunt

Luke William Hunt

Although it may sound alarmist, the evidence suggests that we are returning to an older model of executive power that entertains political whims. There is no doubt that presidential executive power includes a great deal of discretion, but all of us should take care that we remain a state governed by the rule of law—not executive discretion.

Luke William Hunt is Assistant Professor of Criminal Justice at Radford University. After law school and a federal judicial clerkship, he worked for seven years as an FBI Special Agent and Supervisory Special Agent in Charlottesville, VA, and Washington, D.C. After leaving government service, he completed his doctoral work in philosophy at the University of Virginia. He is the author of “The Retrieval of Liberalism in Policing,” forthcoming with Oxford University Press.

from https://thecrimereport.org

Trial Lawyers

     They might best be called the shock troops of the legal profession, the ones called in when all else has failed. After the niceties of early legal wrangling, it is up to the trial lawyers to right wrongs, prosecute or defend the acc…

     They might best be called the shock troops of the legal profession, the ones called in when all else has failed. After the niceties of early legal wrangling, it is up to the trial lawyers to right wrongs, prosecute or defend the accused and see that--for at least one side--truth wins out in the courtroom's bright glare.

     Of course, real-life courtroom lawyers know that real-life cases seldom are won solely on the basis of flowery oratory. Instead, it's a matter of mastering an extraordinary complex set of facts and presenting them to jurors in a way that convinces them there is only one possible right version: their client's. And witnesses who confess on the stand, freeing an unjustly accused person, are even rarer; litigation rules now leave few opportunities for dramatic flourishes of that sort.

T. Summer Robinson in Emily Couric, The Trial Lawyers, 1988

from http://jimfishertruecrime.blogspot.com/

Categories: Law

Barring Psychologists From the Courtroom

     As trial witnesses, experts are brought into the courtroom to help jurors understand things beyond their knowledge as laypersons. Unlike ordinary witnesses, experts can express their opinions, which because they are experts, carry e…

     As trial witnesses, experts are brought into the courtroom to help jurors understand things beyond their knowledge as laypersons. Unlike ordinary witnesses, experts can express their opinions, which because they are experts, carry extra weight. Through exhibits and testimony, these specialists can point out similarities (and dissimilarities) between, say, a defendant's fingerprint, hair follicle, DNA, or handwriting to crime scene latents, hair, blood, or a document. A forensic pathologist in a murder case might be able to tell jurors when, where, and how the victim had been killed. While these courtroom experts work with physical evidence, and apply hard science to their inquiries, even they don't always draw the same conclusions after analyzing the same evidence. For the administration of justice, this is not a good thing.

     In terms of disciplines and fields of study, the more courtroom experts there are, and the less stringent the legal standards are for who is an expert, and who isn't, the worse it is for the trial process. Today there are too many trials featuring dueling expert testimony. Instead of helping jurors determine the facts of particular case, the competing experts render the process more difficult, and unreliable. This is why, especially in the soft-science disciplines of criminology (sociology) and psychology, trial judges should deny these practitioners expert witness status. In other words, when it comes to courtroom testimony, we'd be better off if they kept their opinions to themselves.

Psychologists in Child Abuse Cases

     Pennsylvania is the only state where prosecutors are not permitted to call psychologists to the stand as expert witnesses in child molestation cases to help jurors evaluate the credibility of young accusers. Specifically, in cases where victims of sexual abuse waited months or even years to come forward, prosecutors want psychologists to explain why this doesn't mean these accusers are not believable. These expert witnesses, according to prosecutors, can help jurors understand the psychology of this form of victimhood.

     Defense attorneys, on the other hand, object to this form of expert testimony on the grounds it usurps the role of the jury, and the power of common sense, in deciding if a particular accuser is a credible witness. In performing this duty, jurors do not need the help of a psychologists whose opinions on such matters are no better than anyone else's. Moreover, history has shown that too many prosecution shrinks have lost their objectivity by  thinking of themselves as members of law enforcement teams. (For a good example of this phenomena, look up the old McMartin preschool case.)

     As much as I loath pedophiles, and like to see them put away for life, I agree with the defense attorneys on this issue. In American jurisprudence, there are now expert witnesses testifying on virtually everything under the sun. It has become a racket, and it's screwing up the system. They cost a lot of money, and are corrupting the trial process. Some experts will testify for whoever will pay them. Others specialize in helping one side or the other. Too many of these witnesses claim expertise in fields that are themselves bogus, and many come into court with phony resumes. In selecting between dueling experts, jurors might side with the hired-gun who looks the best, or is the most persuasive speaker. A complete phony can look and sound more credible than his or her more credentialed counterpart.

     Psychologists and criminologists should not be qualified as expert witnesses. The jury process, and the criminal justice system, would be better off without their conflicting opinions.

from http://jimfishertruecrime.blogspot.com/

Categories: Law

The Professional Plaintiff

     A Brooklyn jury awarded more than $500,000 to a man who sued the city for a broken ankle he suffered during an arrest for shoplifting. The jury awarded Kevin Jarman the damages on July 16, 2014. The 50-year-old Jarman filed the suit after pleading guilty to shoplifting at a Queens, New York Pathmark in 2011…

     The New York Post reported that Jarman had received other payouts from the city. In 2005, he sued the New York Police Department for false arrest after a drug sale charge was dropped. The city settled for $15,000. In June 2014, the city settled for $20,000 after Jarman sued the police for false arrest in another drug case.

“NYC Shoplifter Awarded $510,000 From Jury For Broken Ankle,” Associated Press, July 17, 2014 

     A Brooklyn jury awarded more than $500,000 to a man who sued the city for a broken ankle he suffered during an arrest for shoplifting. The jury awarded Kevin Jarman the damages on July 16, 2014. The 50-year-old Jarman filed the suit after pleading guilty to shoplifting at a Queens, New York Pathmark in 2011…

     The New York Post reported that Jarman had received other payouts from the city. In 2005, he sued the New York Police Department for false arrest after a drug sale charge was dropped. The city settled for $15,000. In June 2014, the city settled for $20,000 after Jarman sued the police for false arrest in another drug case.

"NYC Shoplifter Awarded $510,000 From Jury For Broken Ankle," Associated Press, July 17, 2014 

from http://jimfishertruecrime.blogspot.com/

Categories: Law

The Richard Bistline Child Pornography Case

     In 2007, 67-year-old Richard Bistline lived with his ailing wife in Mount Vernon, a central Ohio town of 17,000 not far from Columbus, the state capital. In October of that year, FBI agents came to his home, arrested him for possess…

     In 2007, 67-year-old Richard Bistline lived with his ailing wife in Mount Vernon, a central Ohio town of 17,000 not far from Columbus, the state capital. In October of that year, FBI agents came to his home, arrested him for possessing child pornography, and seized his home computer. A search of Bistline's computer revealed 305 images and 56 videos of eight to ten-year-old girls being raped by adult men. Bistline had downloaded this material from an online program called "Limewire" which provided access to child pornography without a fee.

     Three years after his arrest, Bistline pleaded guilty in a Columbus U. S. District Court to one count of possessing child pornography. The Sentencing Guidelines for this federal offense, as established by Congress, consisted of a sentence of between 63 and 78 months in prison.

     Assistant United States Attorney Deborah A. Solove, in preparation for Bistline's sentencing hearing before federal judge James L. Graham, submitted a detailed memorandum outlining the government's argument for a sentence that fell within the established guidelines.

     Judge Graham, a 1986 Reagan appointee who was Bistline's age, opened the sentence hearing with statements that telegraphed his decision to be lenient with the child porn possessor. Noting that mere possession of this kind of material did not constitute a very serious offense, Judge Graham declared the federal Sentencing Guidelines for the crime "seriously flawed." The judge also stated that in determining who should go to prison and who shouldn't, the age and health of the convicted person are important considerations. Judge Graham said that he was worried that Mr. Bistline, who over the past decade had suffered two strokes, would not receive adequate health care in prison. Moreover, if he sent this man away, who would care for his sick wife?

     Judge Graham shocked the federal prosecutor when he handed down his sentence of one night in the federal courthouse lockup. That was it. No prison time for a man caught in possession of images and videos of young girls being raped by adult men. Congress and its sentencing guidelines be damned.

     After prosecutor Solove objected to the sentence as being extremely lenient, and outside the bounds of the guidelines, Judge Graham convened a second sentencing hearing two months later. At that hearing, the judge simply added ten years of supervised release to his original sentence. Still no prison time for Mr. Bistline.

     Assistant Unites States Attorney Deborah Solove appealed Judge Graham's sentence to the 6th Circuit Court of Appeals in Cincinnati on the grounds the district court judge had improperly rejected the federal Sentencing Guidelines in this case.

     In January 2012, the panel of three appellate judges handed down its decision. The federal appeals court justices held that a district court judge cannot, without a "compelling" reason, ignore sentencing guidelines created by the U. S. Congress. The justices ruled that in the Bistline case, Judge Graham's personal belief that the guidelines were too harsh for the possession of child porn did not constitute a "compelling" reason for ignoring them.

     In justifying this legal decision, the appellate court laid out the following rationale: "Knowing possession of child pornography...is not a crime of inadvertence, of pop-up [computer] screens and viruses that can incriminate an innocent person. Possession of child pornography instead becomes a crime when a defendant knowingly acquires the images--in this case, affirmatively, deliberately, and repeatedly, hundreds of times over, in a period exceeding a year."

     The 6th Circuit justices noted that Mr. Bistline never expressed genuine remorse for his actions. In fact, the defendant said he didn't understand why the possession of child pornography was even a crime. (Bistline was also angry at FBI agents for seizing his illegally downloaded music along with the child pornography.)

     The 6th Circuit Court of Appeals justices ruled that Judge Graham's sentence "... did not remotely meet the criteria that Congress laid out. We vacate Bistline's sentence and remand his case for prompt imposition of one that does."

     In January 2013, at Bistline's third sentencing hearing, federal prosecutor Solove urged Judge Graham to sentence the defendant to five years in prison. Intent on keeping this man out of prison, Judge Graham sentenced him to three years of home confinement. This sentence was a far cry from the recommended sentence of 63 to 78 months behind bars. If Judge Graham thought the federal sentencing guideline for the possession of child pornography was too harsh, he should run for Congress. Otherwise, as a judge, he should follow the law.
     

from http://jimfishertruecrime.blogspot.com/