Judgment Day

The Courier Journal had this story yesterday about the Becker Law Office, a Kentucky personal injury law firm, “giving back to the community” by offering 99 cent gasoline. The firm offered the deal to the first 250 motorists to arrive at a Chevron station, and applied a 15-gallon cap per customer.

The law office’s staff and employees of Peritus Public Relations were even kind enough to pump the gas. Cars began arriving at the gas station at midnight on the day in which the state increased its gas tax to 21.1 cents.

Interesting little marketing tactic here, to say the least. I can just hear those Becker employees now, while filling up a motorist’s vehicle:

Becker employee: Good morning, how are you today?

Motorist: I’m great, 99-cent gas … can’t beat that.

Becker Employee: Well, the Becker Law Office has always believed in helping the members of this community. In fact, we’ve been “helping injured people for over 20 years. Auto accidents, wrongful death, dangerous drugs, defective products, dog bites, hormone therapy, slip and fall, nursing home neglect, birth injuries, social security disability, medical malpractice, ADA compliance and sexual harassment … if you’ve been injured, we’d like to help. You can talk to us for free, with no obligation. We’re paid only when you’re paid. Here, take my card.”

Motorist: Okay … thanks.

This guy is nuts. Colorado native Darren Taylor, aka “Professor Splash,” broke his own Guinness World Record yesterday for highest shallow water dive. Taylor dove 35 feet, 5 inches into a kiddie pool filled with 12 inches of ice water.

According to Professor Splash, “the pain lasts for a minute, but the glory lasts for a lifetime.” Check it out:

Jamie Spencer, author of the Austin Criminal Defense Lawyer blog, is Calling All Criminal Defense Blogs. Here's what you need to know:

Got a request from Simple Justice to run another Criminal Law Blog survey similar to the one I did last year. The results came in two parts and were published in June of ’07. Although originally conceived as a method to rate the “Top 10” blogs, I ended up listing 23 blogs over the two part results posts.

I’m going to do it a little differently this time around. To heck with a rating system, or a Top 10, or Top 100. Just send me the name and URL of every good criminal defense type blog you read regularly or subscribe. And of course, don’t forget to tell me who you are. Everyone will get listed.

You could tell me just to count everyone in your blogroll, if you must, but let’s face it – blogrolls get a little stale. Do me a favor and cull through the best of them, by which I mostly mean those that still publish somewhat regularly.

You can leave a comment on this post, or better still just email me at jamie@austindefense.com. Bonus points – which to be perfectly fair are worth nothing except they’ll help me compile this list – are given to folks who mention that I am running this survey on their own blogs. (Don’t forget to email me and let me know you’ve done that.)

I’ll post the results in 2 weeks, and depending on how fast and furious the responses come in, possibly sooner, and possibly after that as well. How’s that for a really strict set of rules and guidelines.

I wanted to comment on this last week, but a lengthy appeal and a looming deadline have taken up nearly all of my time lately.

The LA Times had a story last week about two teens who, on several occasions, broke into an Orange County high school, stole tests and answer keys, and hacked the school’s computer system to change their grades.

The 2,800-student school in Las Flores, east of Mission Viejo, is academically well regarded and regularly earns a spot on Newsweek's list of best American high schools.

Omar Khan, of Coto de Caza, has been charged with 69 felonies and faces more than 38 years in prison if convicted. Tanvir Singh, of Ladera Ranch, has been charged with five felony counts and could face three years in prison. Singh will be arraigned today, and Khan will be arraigned Thursday at Harbor Justice Center in Newport Beach.

High school administrators wanted to handle the matter in-house:

We're really sad and disappointed that the charges have been filed against these students," said Beverly De Nicola, spokeswoman for the Capistrano Unified School District. "We have been cooperating with law enforcement and we have taken our own serious disciplinary actions based on our own investigation. . . . I haven't seen a situation like this in our school district ever."

I’m not well versed in computer hacking law, and have no idea of the kinds of sentences imposed for those crimes. I’d imagine the breaking and entering charges carry hefty sentences, but 38 years? Of course, I don’t believe Khan will be convicted of all these charges, and he'll probably serve little, if any, time in prison. But just to be facing that many years seems completely ridiculous. A person with thousands of child pornography images will face less time than that. You can beat your wife and/or children, kill someone while driving drunk, or commit a plethora of other heinous crimes and face much less time. Has the practice of hacking into school computers and stealing grades become so prevalent that law enforcement needs to come down hard on these two young men? I think not. We have kids up here in the Hinterlands who bring guns and other dangerous weapons to school--clearly a bigger issue than changing grades--and none of them face a sentence of anywhere near 38 years. Just another example of how out-of-whack our system really is.

On June 12th, the New York Court of Appeals decided Tutrani v. County of Suffolk, and held police officers are partially liable when their actions create a foreseeable danger, at least on the roadways.

This case reminded me of a post I read a couple of months back about Seattle attorney Eric Bryant filing a complaint against a police officer for illegally parking his patrol vehicle while waiting for his food. Here’s a portion of the post by Scott at Simple Justice:

Eric Bryant said he was sitting at the restaurant March 7 when Officer Chad Stensgaard parked his patrol car next to a no-parking sign and walked inside to wait for his food, the Portland Mercury reported Thursday.

Bryant told the weekly paper that when he asked Stensgaard about his car, the officer asked Bryant, "If someone broke into your house, would you rather have the police be able to park in front of your house or have to park three blocks away and walk there?"

Bryant filed a complaint as a private citizen alleging several violations, including illegal parking and illegal operation of an emergency vehicle.

In fairness, there are some good reasons why police engage in what appears to be unlawful conduct. If Stensgaard has gotten an emergency call while waiting for his food, requiring his immediate response, it makes sense that his car was right in front of the restaurant.

Similarly, police often respond to lower grade calls at a high rate of speed, and going through traffic lights, under circumstances that don't require full lights and sirens since they aren't in pursuit. The problem is that these aren't always the case, and almost every driver is aware of cops who do it just because they can.

Scott is right on.  Living outside of NYC, I often see cops pull up to a red light, pause for a few seconds, take a look around, and then go before the light turns green. I know cops who say they do this most of the time, even when they’re not responding to a call.  Why?  The usual answer is "why not?"  But if there is no call to respond to, and an officer is simply on patrol, why shouldn’t he or she follow the traffic laws like the rest of us? Tutrani suggests they should (at least in some instances). 

Defendant Lee Weidl, a Suffolk County police officer, was driving his marked police vehicle on the service road of the Long Island Expressway during morning rush-hour traffic.

According to the testimony, while traveling in the middle lane of the three-lane highway, he abruptly decelerated from approximately 40 miles per hour to 1 or 2 miles per hour while changing lanes. Plaintiff, traveling immediately behind the officer, slammed on her brakes and was able to stop within 'a half a car length' of Officer Weidl’s vehicle without striking it. Seconds later, plaintiff’s vehicle was rear-ended by a vehicle driven by defendant Darlene Maldonado.

A jury found that Officer Weidl’s reckless conduct and Maldonado’s negligence were each a substantial factor in causing plaintiff’s injuries and apportioned fault at 50% each. The Appellate Division reversed the judgment entered upon the jury’s verdict, holding, as a matter of law, that Officer Weidl’s conduct was not a proximate cause of the accident because 'plaintiff was able to come to a complete stop without hitting Officer Weidl's vehicle'.

The Court of Appeals reversed the Appellate Division’s ruling:

[I]n light of the fact that the accident occurred within seconds of Officer Weidl's abrupt deceleration, [Weidl’s] actions were not so ‘remote in time’ from plaintiff's injury as to preclude recovery as a matter of law. Under these circumstances, it is irrelevant that plaintiff was able to stop her vehicle without striking Officer Weidl’s vehicle.

Clearly, Officer Weidl’s actions created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by his vehicle, thereby increasing the risk of rear-end collisions. That a negligent driver may be unable to stop his or her vehicle in time to avoid a collision with a stopped vehicle is 'a normal or foreseeable consequence of the situation created by' Officer Weidl’s actions.

From the Austin American-Statesman:

The capital murder conviction of Charles Dean Hood, who is set to be executed Tuesday, should be overturned because the judge at his 1990 trial was secretly dating the district attorney, an appeal filed Thursday alleged.

Judge Verla Sue Holland, now retired, could not have provided Hood with a fair and impartial trial while involved in a long-term intimate relationship with then-Collin County District Attorney Tom O'Connell, the appeal said. O'Connell played an active role in prosecuting Hood for the double murder that put him on death row.

Appellate lawyers tried to verify that a relationship existed [in 2004 and 2005] without success …. This summer, with a new execution date approaching, Hood's lawyers caught a break when a former assistant district attorney signed a sworn statement June 3 calling the Holland-O'Connell relationship "common knowledge" in the prosecutor's office. Matthew Goeller, now a Plano lawyer in private practice, said the relationship was in existence in 1987, when Goeller joined the district attorney's office. Goeller also said it "existed during the trial of Charles Dean Hood" and ended in 1993.

Holland and O'Connell, now in private practice in Plano, did not return calls Thursday seeking comment. According to the Texas Constitution, judges cannot sit on cases where they have a personal interest or "where either of the parties may be connected with the judge."

I was happy to read this story today in the Pocono Record (via the AP) about Governor Ed Rendell pushing for major reforms to Pennsylvania’s dog laws. The legislation has drawn significant criticism from organizations representing professional dog breeders, farmers and hunters. I’m not a PETA member. I typically have more meat in my freezer than the grocery store has in its meat section. But few things infuriate me more than animal abuse, particularly when it involves dogs.

The bill is the Rendell administration's latest effort to rid Pennsylvania of its reputation among animal-welfare advocates as a haven for so-called "puppy mills" - large-scale breeding operations that house neglected and abused dogs in cramped, unsanitary cages. It would impose specific penalties for criminal convictions and make a host of other changes intended to provide better living conditions and adequate health care in larger kennels.

It’s about damn time. This industry has been allowed to operate with almost no oversight for far too long. Regulations are pathetic at best, and the sanctions imposed on those found in violation are laughable. One would think the professional dog breeder organizations would actually have an interest in the health and safety of these animals, but instead they’re more concerned with the money involved.

Under the legislation introduced in May, commercial kennels would be defined as ones that either sell any dogs to dealers or pet shops, or sell or transfer more than 60 dogs a year. Those facilities would be required to house dogs in larger cages with solid flooring instead of wire flooring, give the animals opportunities to exercise outdoors, and provide regular veterinary examinations, among other things.

[High-paid lobbyists] testified before the House Agriculture and Rural Affairs Committee [and stated the] proposed changes would force all commercial kennels to close and also prove burdensome for smaller facilities.

Are these people serious? Kennel owners are challenging this bill because they’ll actually have to walk these dogs, provide clean cages, and regular veterinary care? These owners are mad because they may no longer be allowed to stack dogs in cages for 24 hours a day, let them urinate and defecate all over themselves, and then give them a quick clean up and send them to pet stores with a host of underlying health problems.

I don’t feel sorry for any of these owners claiming they’ll go out of business. That’s bullshit. Those who provide adequate care will not be affected. Those who buy a few dogs, breed them until they can no longer reproduce, and skimp on cost to maximize profits may indeed see less profits, but that’s just too bad. If they cannot meet the minimum standards and are forced out of business, they don’t belong in the business to begin with. Screw them. Scumbags.

From the History Channel's website:

On this day in 1966, the Supreme Court handed down its decision in Miranda v. Arizona, establishing the principle that all criminal suspects must be advised of their rights before interrogation.

The roots of the Miranda decision go back to March 2, 1963, when an 18-year-old Phoenix woman told police that she had been abducted, driven to the desert and raped. Detectives questioning her story gave her a polygraph test, but the results were inconclusive. However, tracking the license plate number of a car that resembled that of her attacker's brought police to Ernesto Miranda, who had a prior record as a peeping tom. Although the victim did not identify Miranda in a line-up, he was brought into police custody and interrogated. What happened next is disputed, but officers left the interrogation with a confession that Miranda later recanted, unaware that he didn't have to say anything at all.

The confession was extremely brief and differed in certain respects from the victim's account of the crime. However, Miranda's appointed defense attorney (who was paid a grand total of $100) didn't call any witnesses at the ensuing trial, and Miranda was convicted. While Miranda was in Arizona state prison, the American Civil Liberties Union took up his appeal, claiming that the confession was false and coerced.

The Supreme Court overturned his conviction, but Miranda was retried and convicted in October 1966 anyway, despite the relative lack of evidence against him. Remaining in prison until 1972, Ernesto Miranda was later stabbed to death in the men's room of a bar after a poker game in January 1976.

Leave it home, grandma.Gun control laws have always been a controversial issue. On one side, there are those that believe the right to bear arms is one guaranteed by our Constitution. Others, who take an opposing view, believe guns have no place in our society, outside of those used by law enforcement officers. I fit somewhere in the middle—I don’t have a problem with people keeping licensed firearms in their homes, but I believe carry permits should be severely restricted. The truth is, there are very few people who actually need to carry a firearm. This story from the Associated Press illustrates that point:

A relative of a 4-year-old South Carolina girl who accidentally shot herself with her grandmother's handgun in a Sam's Club store said Tuesday the family expects the child to be out of the hospital by week's end.

The child was riding in a shopping cart and playing with a cell phone, then grabbed the gun from her grandmother's purse and shot herself in the chest.

Authorities said the [grandma], a South Carolina magistrate, has a permit to carry a concealed weapon. The Sam's Club store does not have a sign prohibiting guns inside.

Chief Magistrate Rodger Emerson Edmonds said it's common for magistrates to carry guns for protection.

"Sometimes some of the judges have to make deposits at the banks," he said. "The other reason is for self preservation to protect yourself because there are some crazies out there."

There are "some crazies" out there, and this grandma who carried a loaded handgun into Sam's Club is one of them.  I don’t buy the Chief Magistrate’s reasoning here. First off, we all make bank deposits, and I hope to never see the day where every person who goes to the bank is armed. Regarding protection, many judges, prosecutors and defense attorneys receive threats from clients, prisoners, and friends and family members of those convicted. But how often do you hear about judges and/or attorneys actually being harmed? Almost never.  And what about doctors who perform abortions, the stock guy who picked the wrong symbol and lost his client a ton of money, and local politicians?  I'd bet they receive threats too--should they be armed as well?  At the end of the day, 99.9% of the population doesn't need to carry a gun.  If you're afraid someone might harm you, go get some pepper spray and/or a taser. 

Headed out West until Sunday for a little R & R.  Posting will resume Monday Wednesday. 

It’s no secret that the penalties imposed for drug crimes in this country are completely out of whack. I was recently assigned a client—a 21-year old male—who was sentenced to six years for possession. No violence involved in his crime, and the amount he was carrying, in my mind, doesn’t justify six years. I had an appeal a while back where a client of mine was given five years for pulling out a handgun, and another where the defendant was charged with two violent assaults and was only sentenced to two years. But my most recent assigned client got six years for possession . Our system is screwed up. It’s worth noting he has a prior drug offense, which of course increased his sentence a bit. It’s also worth noting that adding prison time isn’t the answer, since almost every study in the last decade proves treatment, not incarceration, is the best way to rehabilitate non-violent drug offenders.

This past weekend, the Washington Post ran a detailed story about Michael Short, a man sentenced to 15 years in prison for selling crack cocaine. Stats from the article show that drug sentencing—and crack sentencing in particular—needs to be addressed:

In 2005, only 6 percent of powder cocaine offenses and 10 percent of crack offenses involved violence or a threat of violence, according to the Sentencing Commission.

Yet in 2007, crack sentences were about 50 percent longer than powder sentences.

Of course, we still have those [morons] who believe crack is a major problem in society:

Speaking in 2007, Gretchen Shappert, U.S. attorney for the Western District of North Carolina, said that her career had been "defined by the ravages of crack cocaine." She spoke about open-air drug markets, people sleeping in bathtubs to avoid stray bullets, dealers recruiting kids to sell drugs. "We continue to believe that a variety of factors fully justify higher penalties for crack offenses," Shappert said. "It has been said, and certainly it has been my experience, that whereas powder cocaine destroys an individual, crack cocaine destroys a community."

Wake up, Shappert. The year is now 2008, and 1986 was a long time ago. In the late 1980s, crack consumed the media and was a major problem in American cities. But crack is no longer in high demand and the market that once dominated poor, inner city neighborhoods is a thing of the past. When was the last time you read a news story about crack “destroying a community?”

CrimProf addressed the draconian sentencing scheme in this post yesterday:

Stop government waste. That's what state taxpayers are clamoring for, right? Cut out the padded pensions, lavish trips, no-show jobs ...

The Drug Policy Alliance released a study last week finding the state spends $331 million per year jailing nonviolent drug offenders, or more than the entire corrections budgets for 16 states. More than one-third of the state's prison population was convicted of drug possession or low-level distribution offenses - at a yearly cost, per prisoner, of $46,880.

And for what? Many of those offenders are in jail because of mandatory sentencing laws and tougher penalties for offenses within drug-free zones. Yet studies and commissions have concluded that drug-free zones and mandatory sentences don't deter drug activity near schools. Fact is, in somes urban areas, the 1,000-foot school zones blanket the entire city - making them meaningless as a deterrent. And one commission found that students were involved in only 2 percent of the cases.

And a few weeks back Scott over at Simple Justice ripped the Rockefeller Drug Laws:

[T]he concept of sure and harsh incarceration defies the legitimate purposes of sentencing, and reduces the integrity of criminal justice to a nullity. There is no rational basis to contend that a mule carrying a kilo of coke to make $500 to feed her children requires a 15 year sentence as a deterrent. Want a deterrent? Educate her so she can get a job and feed her kids. Or better yet, educate her so that she doesn't have kids when she's a 17 year old child herself.

The reality is Congress passed the mandatory minimum laws in 1986 when it was under intense pressure to address a growing crack problem. Over two decades later, crack is no longer “public enemy number one.” More importantly, intelligent people realize that harsh drug penalties are largely counterproductive to curing the nation’s drug problem and have done nothing but contributed to overcrowding in prisons.

There may be reason to believe (hope), however, that Congress will soon address this issue. During the 2007-2008 legislative session, six crack cocaine reform bills were introduced. And while most of the proposed legislation appears to be at a stand still, crime policy is often politically driven and 2008 is a presidential election year. A better indicator of Congress’ willingness to change may be its handling of the dramatic rise of methamphetamine, which many have termed the “new crack.” In 2006, Congress enacted the first comprehensive methamphetamine law, which, surprisingly, focuses less on tougher penalties and more on cutting off access to the ingredients used to manufacture the drug. And in a separate bill that never became law, the House Judiciary Committee, by a vote of 31-0, removed the mandatory minimum penalties for methamphetamine included in an earlier version of the legislation.

In addition, when the Sentencing Commission notified Congress it was lowering the Guidelines sentencing ranges for certain crack offenses and offenders in 2007, it gave Congress six months to comment on the proposed amendment. The six-month review period yielded no congressional action and the amendment was adopted and later made retroactive.

People v. Goldstein (May 22, 2008)

Defendant pleaded guilty to multiple counts of reckless endangerment and aggravated unlicensed operation of a motor vehicle, with the understanding that the sentences would run concurrently, unless he failed to appear for sentencing. Upon the defendant’s twice failing to appear for sentencing, the third count of his sentence was imposed to run consecutively. Defendant moved to withdraw his plea on the ground that it was not voluntary, and that his allocution failed to establish the element of depraved indifference as to the reckless endangerment counts. Denial of defendant’s motion was affirmed. The Court held defendant’s admission was voluntary despite his answering “I don’t know” in response to the court’s inquiry about his appreciation of the dangers created by his conduct (speeding through a construction zone). Defendant also adopted his counsel’s admission of the details of the charges by failing to object to his counsel’s actions.

People v. Rivera (May 22, 2008)

Defendant, who pleaded guilty to assault and weapons charges as a repeat felony convict, was not advised prior to his sentencing of the duration of the mandatory period of post-release supervision that was a component of his sentence. Defendant contended on appeal that this error made his plea one that was not entered into knowingly, voluntarily and intelligently as a matter of law, and which could be asserted on direct appeal in the absence of a post-allocution motion. Plea is vacated, conviction reversed and matter remitted for further proceedings. The Court of Appeals has now established that “where a trial judge does not fulfill the obligation to advise a defendant of the duration of post-release supervision during the plea allocution, the defendant may challenge the plea as not knowing, voluntary and intelligent on direct appeal, notwithstanding the absence of a post-allocution motion.” Here, there was nothing in the record indicating that the duration of defendant’s post-release supervision was made known to him during his allocution. Thus, when the duration of the post-release component was first made known to the defendant at his sentencing, it constituted fundamental reversible error as a matter of law.

People of the State of New York ex rel. Lucas Foote v. Piscotti (May 22, 2008)

Defendant brought a habeas corpus proceeding contending that DOCS lacked authority to add a period of post-release supervision that was not imposed by the sentencing court. The Writ was sustained and DOCS is directed to discharge petitioner. In accordance with the recent Court of Appeals decision in Matter of Garner v. NYSDOCS (April 29, 2008), only a judge may impose a period of post-release supervision as part of a sentence.

I find it interesting how many kids theses days have cell phones, probably because I never had one until after college. Today, even elementary school kids are equipped with the latest mobile devices. I can understand the convenience aspect—i.e., parents can call and tell their children they’ll be a few minutes late when picking them up, children can tell their parents they’re taking the bus and no longer need a ride, etc. And if there is a real emergency, a cell phone is invaluable. Those of us who didn’t have access to such technology, however, managed to work it out. After all, there were always pay phones for the real emergencies.

The problem with kids using cell phones in schools is that most children spend all day using them to text message their friends, play games, etc. Teachers become frustrated and students miss out on what’s going on in the classroom.

And now, Crime Stoppers gives students another reason to text while at school.

The East Volusia News has this article about Crime Stoppers in Daytona Beach, Florida, instituting a new program encouraging students to send anonymous text messages to law enforcement.

Crime Stoppers wants to be able to reach children, said Suzanne DeWees, executive director. It's a user-friendly technology for teens that can be used safely at school. They can just walk down the hall and text (a tip).

Crime Stoppers will put posters in every classroom in Volusia and Flagler counties -- 6,372 total -- as well as on VOTRAN buses.

A really nice aspect of this program is that we can text back, keep it anonymous and ask questions, and the sender can find out if their tip led to an arrest.

So Crime Stoppers is recruiting a bunch of student investigators. What a dumb idea. Do your own investigative work, and leave the rest to the teachers and school administrators. This anonymous program is ripe for bogus tips, which, of course, will lead to wasted resources. Not to mention the disruption it will cause in the school environment:

Teacher (Mr. Smith): Mikey, I told you no texting in class.

Mikey: It’s okay Mr. Smith, I’m just sending a crime tip.

And law enforcement can text back to get more info? I text, and it isn’t the quickest mode of communication. But who cares if students spend time at school helping out the police—it’s not like they have better things to do while they’re there. The program may yield a few helpful tips, but at what cost?

Scott at Simple Justice had this post earlier today, discussing a post by David Bernstein at Volokh about a student note recently published in the Harvard Law Review.

From Simple Justice:

Described as "bizarre", Bernstein notes that "[i]f there is any traditional legal analysis in this Note, it's not obvious (though I admit that I didn't read the entire thing)." The note, by HLS student Phil Telfeyan, is a passion play on morality versus justice set within the wealthiest University in the world.

If Bernstein's damnation of this note seems harsh, it's nothing. The comments to the post rip the author to shreds. The readers are offended, outraged and predict the fall of Harvard Law School as a direct result of the publication of this screed for the poor. Who is this sanctimonious punk to litter HLR with this pap? How dare he besmirch the history and tradition of HLR with his political rant?

Whether Phil Telfeyan stood on a soap box in Harvard Yard, or published in Harvard Law Review, isn't nearly as important as the fact that we need the next generation of people who care about something other than themselves, their Biglaw job and their eventual Ferrari. It warms my heart to know that there is a Phil Telfeyan waiting in the wings to fill the shoes of social activists who came before him.

And the commenters to Bernstein's post, from former HLR editors to Biglaw pretenders, your castigation of this Note and personal attacks on its author reveal only how shallow and myopic you are. There is a disgrace to be found here, and it is your intolerance of anything that would defile your Bible, the Harvard Law Review. What a terrible shame that all that intellectual effort was put into beating up on this punk kid instead of doing something to help someone.

Scott’s post reminded me of something I read a while back—Adam Liptak wrote this piece last year, about how irrelevant law reviews have become to the those actually practicing law. Here are highlights:

“I haven’t opened up a law review in years,” said Chief Judge Dennis G. Jacobs of the federal appeals court in New York. “No one speaks of them. No one relies on them.”

Judge Jacobs and six of his colleagues on the United States Court of Appeals for the Second Circuit said in a lecture hall jammed with law professors at the Benjamin N. Cardozo School of Law this month that their scholarship no longer had any impact on the courts.

Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them.

In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Professors in attendance were offended—no doubt—to hear their work was so unimportant.

Some [professors] suggested, gently, that judges might not have the intellectual curiosity to appreciate modern legal scholarship.

That's laughable, and so typical.

“The claim by judges that they have no use for law review articles seems to me an anti-intellectual know-nothingism that is understandable but regrettable,” Professor Dorf said.

Hold your head up high Phil Telfeyan, even if David Bernstein didn’t like your article enough to give it a full read. Truth is, no one is giving any of his a full read either (and his website has a typo).

Interesting article from today's Denver Post discussing prisoners who were once on death row but later exonerated--here are highlights:

Since 1973, 129 people have walked off death rows in 26 states after evidence proved they were wrongfully convicted, according to the Death Penalty Information Center.

Florida leads all states with 22 exonerations, followed by 18 in Illinois. Oklahoma is one of five states that have each freed eight inmates from death row. One of the Oklahoma men, Ron Williamson, spent nine years on death row and came within five days of execution before he was set free by DNA evidence.

Nobody has ever been able to produce irrefutable proof that any innocent man was executed in recent U.S. history, but Oklahoma's execution of Malcolm Rent Johnson has troubled many death penalty opponents. He went to his execution proclaiming his innocence.

A star prosecution witness against Johnson, convicted of the 1981 rape and strangulation of an elderly woman, was police chemist Joyce Gilchrist, who was later fired amid allegations of shoddy forensic work and misleading testimony.

Like 99.9 percent of the rest of the working world—at least those that work the standard Monday through Friday—I love Fridays. Two work-free days (usually)—no phone calls, no business email, no work people…and no law.

Since I started this blog a short time ago, I constantly find myself looking for interesting criminal law content to post. Sometimes I completely miss other, more important news stories simply because I’m scanning so fast. This morning in particular it hit home, and I was reminded of a post by a public defender, titled Asides:

Since this is still my personal blog, and there are stories of interest out there that are not law-related, I’ve created a category called asides, wherein I will post links to stuff that interests me.

I’m following Gideon’s lead on this one. On Fridays, I'll be posting non-law related things of interest to me, and hopefully you, in celebration of the upcoming two days of all things not law.

Disclaimer: If there’s a legal story of particular interest on a Friday it may make its way in too.

An exonerated prisoner is national news, and the media cannot wait to tell the story of the innocent prisoner who has spent X amount of years behind bars. But what happens after these prisoners are released?

CNN recently interviewed 15 of the 17 men wrongfully convicted in Dallas County Texas. You can read how they’ve fared.

The detailed story of one recently exonerated prisoner, Wiley Fountain, is here.

Wiley was one of the lucky few to receive financial compensation from the state, but the $190,000 or so that made it into his pocket is long gone.

Time-out: $190,000 for 15 years? Just under $12,700 for each year of his life lost to a wrongful conviction? That sucks, plain and simple. I’m not sure you can even put a dollar amount on “time,” but I know a measly $12k doesn’t cut it. How often are exonerated prisoners compensated, and how does it work? Does the state simply shell out the money and say “good luck?” I’d hope there is some kind of reintegration program, but I’m pretty sure it’s average at best. Maybe Grits or Jamie Spencer can provide some information on this?

In Fountain’s case, he was homeless in five years, rearrested, and now he’s gone off the map. Most of the others released report they cannot find steady work.

According to Jeff Blackburn, one of the lead attorneys with the Innocence Project of Texas:

These wrongly convicted men get "a double-whammy screw job." There's little help from the government to transition back into society and they're still viewed as criminals once they're out of prison. They don't have any services available to them, not even $100 and a cheap suit.

Updated:   A special thanks to Grits for Breakfast for providing the following commentary:

It's even worse than "average" services. Because they're not on parole, they can't even get service received by people who actually committed crimes.

Our relatively new wrongful conviction compensation law authorizes a lump sum payment of $50K per year incarcerated, taxable.

Until recently, nobody gave a second thought to what happened to these folks when they're out. Now that there are so many of them, it's becoming extremely clear that the injustice done to them did not end at the prison gates, and can never be fully compensated with money alone.

In a prior post here I talked about New York considering microstamping ammunition to help aid law enforcement in gun crimes. According to this article in today’s Times Union, it looks like the plan is fading. The bill passed the House in April, but has been stuck in the Senate ever since.

Advocates like Assemblywoman Michelle Schimel, D-Great Neck, suspect the microstamping issue may have roused the National Rifle Association to push the Senate's Republican majority for a delay. The NRA has historically been active in upstate Senate races.

Or, the NRA has historically been active anytime, anywhere, any gun-related legislation is on the rise.  Yeah, it "may have" roused them.  It gets better:

In an unusual breach of unwritten legislative protocol, opponents, including one of Schimel's colleagues and representatives of gun groups, showed up unexpectedly at a live fire event. The opponents were thrown out before the actual demonstration, but later returned.

WOW, breaching the unwritten legislative protocol? Those guys are crazy! This is why I hate politics. Below is live footage from the event:

People v. Carter  (May 8, 2007)

Carter pled guilty to third degree burglary. The county court promised to sentence him to 2-4 years in prison, conditioned upon his return to court on the date of sentencing. The court further advised Carter that if he failed to appear, the court would not be bound by the plea bargain. Carter did not return for sentencing. His attorney advised the court that Carter’s parents said he was “eight states over” and the court imposed a sentence, in absentia, of 3 ½ to 7 years.

The Third Department vacated Carter’s sentence and remanded the case.

CPL 380.40 provides that a defendant must be personally present at the time sentence is pronounced. While this right may be waived where a defendant fails to appear at sentencing, he or she may be deemed to have waived the right to be present only if the defendant was previously advised of the consequences of failing to appear at sentencing.

Didn’t the county court advise Carter of the consequences of failing to appear at sentencing when it informed Carter if he failed to appear the court would not be bound by the sentence?

Not according to the Third, which held:

Although the County Court informed defendant that he could be subject to an enhanced sentence if he failed to appear for sentencing, the court did not specifically articulate that sentencing could proceed in his absence.

I find this holding interesting because of the degree of specificity the court required. Because the lower court merely informed Carter that it would not be bound by the plea deal, but did not inform him sentencing would proceed in his absence, Carter never waived his right to be present at sentencing. In some of its recent decisions in plea cases, however, the Third has taken the opposite approach when a defendant challenges the specificity of the plea colloquy. In those cases, the court has held the judge’s questioning was essentially “good enough.”

The Third continued:

Moreover, even where a defendant is found to have waived the right to be present at sentencing, proceeding with sentencing in absentia is not automatically authorized; rather the trial court must exercise its sound discretion upon consideration of all appropriate factors, including the possibility that defendant could be located within a reasonable period of time. Here, just one hour after the time set for defendant's appearance, the County Court sentenced him without first taking any reasonable measures to secure his attendance.

I wonder what the Third considers “reasonable measures” when the only information concerning defendant’s whereabouts was that he was “eight states over.” It’s not like he was sitting at home on the couch and the court could have given him a call.

The Chicago Sun Times has this story:

The Illinois prison population had been steadily increasing, mostly because of the high recidivism rates of drug offenders.

In 2003, Govenor Blagojevich made crime one of his top priorities by implementing a drug treatment program at the Sheridan Correctional Center and increasing the number of parole officers statewide.

The number of new convictions among parolees has decreased by more than 18 percent from fiscal years 2004 to 2007, with arrests of parolees declining by 23 percent during the same period.

Because of the reduction in repeat crimes, taxpayers have saved an estimated $64 million in prison costs since 2004, officials said.

"It's very uncommon for states to be able to reduce their overall recidivism rates," said Deanne Benos, assistant director of the Department of Corrections.

Benos, is correct, it is very uncommon—most states in the country are struggling with overcrowded prisons and no money to support them. But it really shouldn’t be. For years criminologists have touted the benefits of treatment over prison for drug offenders, particularly non-violent offenders that suffer from immense addiction.