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November 2006
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Scalia Banned in Arkansas

I wonder whether the Arkansas Supreme Court permits the decisions of Antonin Scalia to be quoted in opinions and briefs.

The Arkansas Court recently ordered a sentence struck from a brief. The defendant was appealing from his conviction on probation revokation. He claimed he was not protected from "the capricious whims of a judge who did not understand the law under which he was sentencing [the defendant]." Cox v. State, 365 Ark. 385 (2006).

Jeepers. That language sounds like "hello" from Justice Scalia. What a bunch of thin-skinned ninnies and goofs sitting on the high court in Arkansas.

Latest Bombshell in the Duke LaCrosse Case

Unreal [also see the update, below]:

DNA testing conducted by a private lab in the Duke lacrosse rape case found genetic material from several males in the accuser's body and her underwear - but none from any team member, including the three charged with rape, according to a defense motion filed Wednesday.

That the case has not been dismissed illustrates how procedurally flawed criminal cases are.  Here, people in cases similar to those facing the Duke boys have this "choice": Take a plea bargain and plead guilty (even though you're innocent) or go to trial.  If you lose at trial, remember, you'll likely go to prison and certainly be required to register as a sex offender.

If someone sues you for $10,000, you're entitled to extensive discovery and will be allowed to depose the person suing you.  When someone tries sending you to prison, you're entitled to less procedural safeguards.  You don't get to look your accuser in the eyes until trial.  (Which, unless you're a total blockhead, you'll never face because you'd have already pled guilty!)

The system will never be reformed.  Once the lacrosse players are freed, all of the wealthy white people concerned about the criminal justice system will move on with their lives.  People, after all, are only concerned with getting their own justice.  In the American criminal system, no one really wants justice for all.


DNA Security, the private lab that did the testing, violated its own policies by failing to turn over all material to the defense. Instead, it removed all mention of matches with multiple other (unidentified) males from its report.

Why did DNA Security violate its own internal policies?

On April 8, 9 and 10, DNA Security found DNA from multiple males on the panties and rectal swab from the rape kit; none matched the lacrosse players.

On April 10, Meehan met in his office with Nifong and the two lead investigators in the case, Sgt. Mark Gottlieb and Investigator Benjamin Himan.

On April 18 and 19, DNA Security ran tests on pubic hair from rape kit; multiple male DNA was found that did not match the players or any other sample taken by police, the motion said.

On April 20 or 21, Meehan again met with Nifong and the two investigators in his Burlington office.

Meehan included none of these DNA results in his final report to Nifong on May 12.

It's time to put Mike Nifong where he belongs - in jail.

How Scalia Views the "Little People"

Here is how Justice Antonin Scalia views 99% of people:

"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary [$165,200] is," Scalia said during a speech to the Northern Virginia Technology Council. 

Ninety-nine percent of people make much less money than that.  According to Justice Scalia, they must not be raising their families properly.  Only the little people make less than 150K.

I would love for someone to explain why someone who holds such viewpoints about Americans is considered a populist hero by lower-income conservatives.

Modern Scientific Evidence, 4 Volumes

Last week, I went toe to toe with a DEA chemist in a cocaine base case, trying to make a record for yet another run at the disparities in sentencing between crack and powder cocaine. The cross examination was fun, especially when the chemist refused to answer the following simple question: Do you agree that cocaine in its natural form and cocaine base have the same formula.

Her answers ranged from "that depends," to "I am not sure I understand the question," to "what do you mean by natural?" to, reluctantly, "yes."

"Yes" was the right answer in our case as we intend to argue at sentencing that the lack of clarity in 21 U.S.C. 841 and the Sentencing Guidelines about the differences between cocaine and cocaine base require application of the rule of lenity. That rule requires a defendant be given the benefit of ambiguity when a penal statute is unclear. In this case, it could mean the difference between a sentence measured in decades and one measured in years.

In today's mail arrived a tool that I could have used last week. It is a massive new four volume treatise entitled: Modern Scientific Evidence: The Law and Science of Expert Testimony, by Faigman, Kaye, Saks, Sanders and Cheng (Thompson, West 2006). It has a uselful discussion about the various methods and means by which substances are identified. Surprisingly, however it lacks much of a discussion of illegal narcotics. The work seems focused primarily toward the plaintiff's civil bar.

Even so, good reference books are great friends. Check it out.

Proffers: Read The Fine Print

Suppose Uncle Sam charges your client with a crime. You're a cautious sort of lawyer, dedicated to exploring every option available to your client. It is early in the case, and so when the feds express an interest in talking to your client, you decide "Why not?"

After all, should there be enough evidence to convict, you'll want to explore all the avenues for relief from a Guidelines sentence that you can find. Should your client offer the Government substantial assistance, a court just might, if the Government asks, depart from the Guidelines.

Out comes a proffer agreement prepared by the United States Attorney's office. You tell your client his statements can't be used against him unless he testifies at variance from the proffer. But read the agreement carefully. Odds are you are limiting the defense you can assert on your client's behalf.

A Second Circuit case is illustrative. A defendant in a cocaine base case, a.k.a. "crack" in most circuits, signed a proffer. He then told the feds he was a crack dealer. After the proffer, the defendant decided to go to trial. His lawyer said in opening statement that as to at least one sale the Government had charged the wrong man. It was a case of mistaken identity.

The Government then introduced the statements made by the defendant during the proffer statement. The Second Circuit upheld the trial court's ruling admitting the evidence. U.S. v. Barrow, 400 F.3d 109 (2005).

Why? The proffer agreement contained the following clause: the statements could be used as substantive evidence to "rebut any evidence offered or elicited, or factual assertions made, by or on behalf of [the defendant] at any stage of a criminal proceeding." In other words, the defendant's lawyer opened the door to the use of his client's statement in his opening statement. The Court also held that the door could be opened by cross-examination of the Government's witnesses. The key factor for the court to consider is whether the defense has directly or impliedly made a factual assertion that could be rebutted by the statements made under cloak of a proffer.

I recently completed a trial in which the defendant had been proffered by predecessor counsel. I challenged a Government witness and the Government gave notice of its intent to offer statements under a proffer. Much to my surprise, the proffer contained the language recited above. In the end, I persuaded the Government that my cross had not opened the door to use of the proffer.  It was a close call.

The court appears to view proffers as a contract binding parties to the clear terms of the agreement. When sitting down with the Government early in a criminal case, be careful not to give up defense themes and weapons as you explore a plea. It could come back to haunt you at trial.

Deputizing Webmasters

Senator John McCain has recently proposed that every webmaster be required to act as an unpaid deputy of federal and state law enforcement.  Under the proposed legislation, anyone owning or operating a website (that would presumably include bloggers), would be required to report sexually-inappropriate images displayed by its users.

Child pornography is one of the great blights on civilization.  But if McCain really cared about protecting children, he would put the billions of dollars being spent arresting and prosecuting marijuana users towards protecting children.  Imagine how many more child pornographer prosecutions we would have if only people like McCain truly cared about the children?  So long as the federal government pretends that marijuana use is a greater threat to society than child pornography, even deputizing webmasters will do little to stave off the problem.

Why Care About the Duke LaCrosse Case?

William Anderson, an economist, was asked why he cared so much about the Duke lacrosse case.  His answer: How could anyone of good conscience remain silent when

The Duke case is nearly nine months old, Nifong’s "evidence" has been shredded by attorneys and the blogs, yet the case continues toward trial because government courts are not about truth or justice, but rather are a plaything for prosecutors. It is obvious that truth does not matter either to the prosecutors or the judges, but I also know that truth serves as sunlight. I think of what I am doing as shining a light on cockroaches, something that makes them scatter.

Perhaps writing about the lacrosse case will give those with Mike Nifong's ethics something to ponder before indicting innocent citizens.  People like Nifong need to be deterred.  Since it's been conclusively shown that the North Carolina State Bar is unwilling to punish unethical prosecutors, it's up to ordinary citizens to expose prosecutorial misconduct.

Indeed, due to the attention critics brought to the case, Mike Nifong was unable to obtain a majority of the popular vote in his re-election bid.  (He was ultimately elected due to the friendly efforts of local attorney Steve Monks.  Monks ran in the election to draw votes away from Nifong's main opponent - presumably to gain favor with Nifong.  Monks' strategy worked, and Nifong was able to win re-election with less than 50% of Durham County residents believing in him.)