Fengling Liu and Ghostwriters for Pro Se Litigants

Legal representation has traditionally been an “all or nothng” arrangement. You turned a legal dispute over to a lawyer or you appeared in court “pro se,” meaning that you represented yourself.

Limited-scope representation, also called unbundling, occurs when clients keep control of their cases but hire lawyers to perform specific tasks. For example a client who needs to file a “brief” in court may hire a lawyer to ghostwrite it. A judge may not know that a client has hired a ghostwriter, because typically the lawyer’s name does not appear on the brief. The American Bar Association’s Model Rule 1.2(c), which many states have adopted, allows lawyers to offer unbundled services. However, many federal court judges are light years behind the curve. In some federal court districts, ghostwriting is considered to be an unethical fraud on the court, and lawyers who unbundle to help clients who can’t afford to pay full price for justice may be fined.

In the 2011 Fengling Liu case, the Second Circuit federal court decided to accept limited-scope rpresentation as an idea whose time has come, even to federal courts. Here’s hoping that the trend continues. If a prisoner wants to file a brief in support of a habeas corpus petition in federal court, a ghostwriter can help both the prisoner and a judge interested in knowing whether the petition has any merit.

Illinois v. Williams- The Supreme Court Confronts the Confrontation Clause Yet Again

In the Crawford case (2004), the US Supreme Court decided that prosecutors cannot offer testimonial hearsay statements into evidence against defendants who have not had a chance to cross examine the people who made the statements. Subsequent applications of Crawford have been controversial, especially when in the Melendez-Diaz (2009) and Bullcoming (2011) cases the Court decided that reports of tests run by police crime lab analysts are testimonial and therefore inadmissible at trial unless the analysts testify personally. States feel that the decisions will severely undermine their ability to prosecute drug offenders and others whose guilt rests on the results of crime lab testing. Most crime labs are severely under-staffed, so to the extent that analysts have to wait around courthouses waiting to testify, they aren’t available to do their lab work.

The case of Williams v Illinois offers the Court another opportunity to determine the scope of the testimonial concept. In this case, a prosecution expert witness relied on a report prepared by a non-testifying laboratory analyst as a basis for the expert’s opinion that the defendant’s DNA closely matched the DNA found at the scene of a violent sexual assault. The State argues that since the report was not offered into evidence, but rather served only as a basis for the expert’s opinion, the report is not testimonial. The Court will probably decide the case in the first half of 2012. The precise outcome is probably less important than the attitudes towards the concept of testimonial hearsay that the justices express. Prosecutors and defense attorneys will parse their attitudes carefully, looking for hints about the outcomes of future cases.

Supreme Court: Cops Need a Warrant for GPS Tracking

The Supreme Court ruled today that a law enforcement agency’s attachment of a GlobalPositioning-System (GPS) device to a vehicle, and the use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. The decision offered the Court a chance to define “search and seizure” rights in an era in which technology is tirelessly extending the reach of the long arm of the law. But while all nine Justices agreed on the decision — use of the GPS device constituted a search under the Fourth Amendment so that a warrant is required — they didn’t take the same route to get there, and the somewhat narrow ruling may not cover much precentent-setting ground in the constitutional law canon.

The underlying facts of the case (U.S. v. Jones) show that a joint narcotics task force of FBI and D.C. Metro Police installed a Global-Positioning-System (GPS) tracking device on a suspect’s vehicle, and used the device to track the vehicle’s movements for 28 days, in connection with a drug trafficking investigation.

Justice Antonin Scalia authored the Court’s majority opinion in U.S. v. Jones, in which Chief Justice Roberts and Justices Thomas, Kennedy, and Sotomayor joined. In ruling that use of the GPS device to monitor the vehicle’s movements on public streets amounted to a “search” under the Fourth Amendment, Scalia’s opinion focused on the physical act of intrusion. Scalia compared the attachment of the device with the age-old legal wrong of common law trespass: “The Government physically occupied private property for the purpose of obtaining information…By attaching the device to the Jeep, officers encroached on a protected area.”

Justic Sotomayor wrote her own concurring opinion to emphasize that “the Fourth Amendment is not concerned only with trespassory intrusions on property,” and to suggest that a more appropriate focal point for analysis in cases involving the use of potentially intrusive technology might be on the “existence of a reasonable societal expectation of privacy in the sum of one’s public movements” under the circumstances. But Sotomayor then points out that resolution of such larger issues is not necessary in the instant case because “the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.” The glaring problem with Scalia’s decision as authored, according to Sotomayor, is this: “In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance.”

Justice Samuel Alito also authors his own concurring opinion (in which Justices Ginsburg, Breyer, and Kagan join) to also suggest that the majority may have erred in focusing on the physical trespass element of the search (the placement of the GPS device on the vehicle) rather than the bigger (unanswered) question: “I would analyze the question presented in this case by asking whether [the suspect]’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”

Read U.S. v. Jones — the majority decision, concurring opinions, and all — right here.

Criminal Law: A Desk Reference

If you’re reading this blog, you may want to know more about criminal law and procedure. If so, might I suggest that you look at my recently-published Nolo book, Criminal Law: A Desk Reference. While the book is packed with important information, I’ve done my best to make it interesting and sometimes even funny.

The book discusses specific crimes, such as murder, drug crimes, animal cruelty and immigration crimes. The book also discusses criminal procedures, such as lineups, forensic testing, and bail hearings.

The alphabetical arrangement of the entries makes it easy for you to find a topic that you’d like to know more about. Most entries include a succinct definition or explanation of a law or procedure, and examples that illustrate its application and significance. Examples are drawn from a variety of sources, including history, actual court cases, and courtroom movies. Many entries also refer to current state or federal rules.

Here’s a brief sampling of the kind of information that you will find in the book:

1. The distinction between an accessory before the fact and an accessory after the fact, the differences in punishment, and an illustration based on the assassination of President Lincoln.

2. The term curfew reflects the French roots of William the Conqueror’s 1066 conquest of England. In French, covrefeu meant “put out the fires.” In medieval times, covrefeu orders meant that the peasants had to put out their fires. As the book points out, these orders protected villages against fires and the ruling class against nighttime peasant uprisings.

3. Why the notorious Charles Manson remains imprisoned more than forty years after he was sentenced to death after being convicted of murder for his role in the Tate-La Bianca murders.

4. The status of the “impossibility defense.” in other words, can a person be convicted of a crime for shooting a person who unbeknownst to the shooter has moments earlier suffered a heart attack and died?

5. The two approaches to convicting drivers of DUI offenses.

Criminal Law: A Desk Reference explains criminal law concepts in a way that everyone can understand. If for any reason you want to know more about criminal law than you do now, this may be the book for you.

The Young and the Arrested

By age 23, almost one-third of all people in the U.S. will have been arrested for a crime other than a minor traffic offense, so say the findings of a new study in the journal Pediatrics.

These numbers show a marked increase from a similar study conducted 44 years ago, which found that 22 percent of people had been arrested by age 23.

While the new number (30.2 percent, to be exact)  may seem surprisingly high, keep in mind that it applies only to arrests — not to convictions, and not even to the filing of formal criminal charges. (Learn more about Criminal Charges and How Cases Get Started.) And while there are surely more than a few hardened criminals under the age of 23, the data includes arrests for comparatively minor offenses such as truancy, vandalism, and underage drinking.    

So why are heavy silver bracelets all the rage these days? Some experts are attributing the rise in arrests among young people to factors like the increased prevalence of drug offenses and domestic violence offenses — which were not committed, reported, or acted upon by law enforcement with nearly as much frequency four decades ago (more in this Chicago Sun-Times article). The New York Times points out that this rise in arrests for young adults comes at a time when it’s easier than ever for potential employers to check on criminal histories, so young job applicants may be in for an “arrested development” when it comes to their careers.

Dr. Conrad Murray Convicted in the Michael Jackson Case

Dr. Conrad Murray was convicted of Involuntary Manslaughter. A Los Angeles jury concluded that his grossly negligent behavior led to the 2009 death of famed entertainer Michael Jackson. While Dr. Murray’s overall mistreatment of his personal patient was abhorrent, Involuntary Manslaughter is the least serious form of culpable homicide. It is punishable at most by imprisonment for 4 years.

One of the major disputes in the trial was whether Dr. Murray carelessly administered a fatal dose of propofol, a powerful anesthetic that before the trial few people had heard of. Murray’s defense, which shifted almost hourly, was that Jackson somehow managed to inject himself with a fatal dose of propofol. Either way, Murray was grossly negligent. Even if it were true that a barely-conscious Jackson managed to inject himself, the fact that Murray was nowhere around when he did so (Murray was outside Jackson’s bedroom, talking to one of his many mistresses, unless his wife happened to have beeped in and interrupted his conversation) constituted gross negligence.

Dr. Conrad Murray’s Sexual Character

Dr. Conrad Murray is on trial in LA, charged with involuntary manslaughter for his allegedly reckless medical treatment that led to the death of famous performer Michael Jackson.

In yesterday’s proceedings, the prosecution called several of Murray’s mistresses as witnesses. Their testimony suggested that Murray is a sexual scumbag who used his relationship with Jackson to entice women to sleep with him.

Character evidence rules generally forbid prosecutors from attacking the morality of criminal defendants. But Murray’s own behavior allowed the prosecution to call his mistresses to the stand without violating the character evidence rules.

ONe mistress testified that around the time that Jackson’s heart stopped, Murray had lleft the room where Jackson lay dying to chat with her. Another mistress testified that Murray had large quantities of propofol shipped to her home address, showing that he had lied when he told the pharmacy that his medical clinic was at that address.

Thus, even though the mistresses’ testimony suggested that Murray is disgustng, their testiony was not barred by character evidence rules because the testimony was relevant to show that Murray was not paying adequate attention to Jackson’s condition and that he was overmedicating Jackson with propofol. You might credit the prosecutors with cleverly circumventing the character evidence rules, but it was Murray’s own actions that created the opening.

Dr. Conrad Murray on Trial for Michael Jackson’s Death

Dr. Conrad Murray is charged with involuntary manslaughter for causing the death of Michael Jackson. In California, a conviction for involuntary manslaughter is punishable by up to 4 years in prison. While this is analogous to a civil medical malpractice case for damages, the prosecution’s task is harder in two key ways, compared with what a civil plaintiff must prove.

First, the prosecution has to prove that Murray behaved recklessly rather than negligently. In order for Jackson’s killing to be considered involuntary manslaughter, it must be shown that Murray showed a reckless disregard of substantial risks, and that those risks caused Michael Jackson’s death.

Second, prosecutors must prove Murray’s guilt beyond a reasonable doubt. Because involuntary manslaughter involves recklessness and not purposeful killing, it is a less serious crime than murder or voluntary manslaughter, but it’s still a tough crime to prove.  

As in so many cases, if Murray is convicted, it may be due to his own lies and failure to tell emergency medical personnel that he had treated Jackson with propofol.

We hear a lot these days about how medical care for the wealthy is so much better than it is for poorer people. Maybe it’s not so. Michael Jackson was paying this guy an absurd $150,000 per month, and for all that Murray seemed far more interested in talking to his bevy of mistresses than checking to see whether his patient was breathing.

Troy Davis, the Death Penalty and LWOP

Georgia executed Troy Davis for the murder of police officer Mark MacPhail on Sept. 21, 2011. Though Davis is black and MacPhail was white, the racial makeup of the jury (7 blacks, 5 whites) muted some potential claims of racial bias. Instead, the controversy over Davis’ execution was based on claims that Davis might be innocent. The conviction was based largely on testimony from eyewitnesses, many of whom have signed affidavits stating that their testimony was wrong. Some blamed the police for coercing them into false testimony,

Despite the recantations and the ensuing protests, the existing justice system has perhaps worked as best it can. Davis’ execution was postponed at least twice, and his attorneys appeared in court and contested the conviction. However, in the absence of DNA evidence (or other scientific evidence) that might have cleared Davis, judges refused to believe the witnesses’ recantations rather than their trial testimony. “Buyers remorse,” after all, is common: witnesses who feel bad about contributing to convictions (especially those that produce death penalties) often say that their testimony was mistaken.

Ultimately, replacing the death penalty with LWOP sentences (Life in Prison With No Possibility of Parole) is the only long-term solution to situations like the Troy Davis case. In the absence of conclusive scientific evidence, the criminal justice system is simply incapable of guaranteeing either that he is guilty or that he is innocent. Perhaps a clear answer would emerge in the fullness of time, but even postponed execution dates establish time limits that expire. LWOP sentences protect society in two ways. They guarantee that murderers will never get out of prison, and also guarantee that we will not carry out wrongful executions.

‘West Memphis 3’ Freed: What is an Alford Plea?

In one of the most surprising chapters in the controversial story of the “West Memphis 3″, the three Arkansas men — convicted of murder while still in their teens, and now in their 30’s — were set free today.

Jason Baldwin, Damien Echols, and Jessie Misskelley have essentially agreed to plead guilty to the 1993 murders of three boys in West Memphis, Arkansas, but the three defendants are also still permitted to proclaim their innocence.

Confused yet?

The judge in the Jonesboro, Arkansas case has allowed the “West Memphis 3″ to enter a special plea agreement, commonly known as an Alford plea, which lets an accused person maintain their claims of innocence while acknowledging that the prosecution has compiled enough evidence that a jury could return a conviction on the crime charged. There’s some good background and discussion on this kind of plea here on CNN.com.

Baldwin, Echols, and Misskelly were given time served for their charges after the judge accepted their new plea bargains, and all three are under suspended sentences after being set free, this according to MyFoxMemphis, which quotes prosecutor Scott Ellington saying after today’s proceedings: “I believe this case is closed.”

The Alford plea gets its name from the 1970 U.S. Supreme Court case Alford v. North Carolina, in which the Court upheld this specific kind of agreement between a prosecutor and a criminal defendant. In that decision, the Court declared:

    “An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the crime, or even if his guilty plea contains a protestation of innocence, when, as here, he intelligently conclude that his interests require a guilty plea and the record strongly evidences guilt.”