October 2009 Archives

October 29, 2009

Eric Safire's courtroom theatrics

Eric Safire is a San Francisco criminal defense attorney.  Representing murder defendant Charles Heard at a preliminary hearing, Safire asked 7 men that he had asked to come to the hearing to stand up when the prosecutor asked an eyewitness to identify the shooter.  Like Heard, the 7 men who stood up in court are black.  Safire's courtroom theatrics may backfire.  The 7 men were arrested for intimidating a witness, and the DA is looking into the possibility of charging Safire with a crime or at least referring him to the State Bar for possible ethical violations.

While the DA's reaction may be overblown, Safire's tactic seems indefensible.  A few commentators have defended Safire on the gound that he used a creative means to test the eyewitness' ability to make an accurate identification.  But this is silly.  The eyewitness could not reasonably confuse Heard, no doubt seated at counsel table, with 7 men standing in the courtroom gallery.

Safire's misguided  effort reminds me of a more legitimate stunt pulled off by Earl Rogers, one of the greatest courtroom lawyers who ever lived.  Rogers practiced in Los Angeles until his death from alcohol disease in the 1920's.  Representing a man charged with murder, Rogers cross examined a prosecution eyewitness while blocking the witness' view of the defendant.  During the cross examination, the defendant changed places with a man who had been seated in the rear of the courtroom.  Once the switch had been made, Rogers stepped to the side and asked the eyewitness to once again point out the murderer.  Sure enough, the eyewitness pointed to the imposter.  Rogers then had the real defendant to stand up in the back of the courtroom, and asked the judge to dismiss the case.

Perhaps Safire got the idea for his stunt when he watched the pilot episode of the great 1960's TV lawyer show, The Defenders.  The show focused on a father-son lawyer team that grappled with the most controversial issues of its time.  In the pilot episode the father (played by Ralph Bellamy) is persuaded by his son (played by William Shatner) to use a variation of Rogers' trick, and the case against his client is dimissed.

Safire has to learn that even the most creative stunts will backfire if there's no point to them.   

October 21, 2009

Anonymous tips alone may not allow cops to stop vehicles

An anonymous tipster calls a drunk driving hotline and reports that "An idiot in a red car is driving down Elm Street.  He's swerving back and forth.  The car has a Virginia plate, the last numbers are 123."  The tip is relayed to a motorcycle officer. Can the officer pull over the possibly drunk driver of the red car based on the tip?   

The answer may be "No."  In the case of Virginia v. Harris, a narrow 4 to 3 majority in the VIrginia Supreme Court ruled that the anonymous tip alone did not justify the police officer's stopping of the vehicle driven by Harris.  The stop constituted an "unreasonable search and seizure" because the police officer acted only based on the tip and did not personally see Harris' bad driving. 

The U.S. Supreme Court voted not to review the Virginia Supreme Court's decision.  So although the VIrginia ruling is not binding on other states, the U.S. Supreme Court's action suggests that a majority of the justices agree with its outcome.

The Virginia court's decision is probably legally correct.  For example, police officers have to verify the information that anonymous tipsters provide before judges issue search or arrest warrants.  And the decision may not affect many cases, because most of the time police officers are likely to be able to verify tipsters' information. 

But the Virginia court's ruling may have lethal consequences.  If a police officer has to delay stopping a car until the officer personally verifies a tipster's information, the result may be more deaths and injuries caused by drunk drivers.

October 15, 2009

Jose Padilla Asks the Supremes to Void HIs Guilty Plea

Jose Padilla pleaded guilty in Kentucky to 3 felony drug charges, in exchange for the state agreeing to drop a fourth charge. According to Padilla, his lawyer never told him that his guilty plea would almost surely mean that he will be deported after he serves his sentence.  Padilla has petitioned for the right to set aside his guilty plea and go to trial. His case is now awaiting a decision by the U.S. Supreme Court.

Padilla's claim involves the SIxth Amendment right to counsel in criminal cases. The Court has to decide whether defense attorenys are constitutionally deficient if they fail to advise defendants about the likely collateral legal consequences of guilty pleas. If the Supreme Court rules in Padilla's favor, the question of whether Padilla's attorney in fact failed to advise him that he'd probably be deported is a matter that a lower court will have to decide after conducting a hearing. 

Had I been in Padilla's position, I think I would have expected my attorney to know and tell me that if I pleaded guilty I'd probably be deported.  It seems reasonable to expect all defense attorneys to live up to that standard. They're the paid professionals, and they ought to know or be willing to find out about the likely legal consequences of guilty pleas before giving legal advice to clients. 

October 8, 2009

A Pyrrhic Victory?

A "Pyrrhic victory" connotes a victory with disastrous consequences.  This is one way to understand the defendant's "victory" in the California case of People v. Morgain (2009).  Morgain was convicted of murder, and sentenced to a term of 51 years to life in state prison.  Morgain appealed, and the court rejected all of his arguments except for one.  The court agreed with Morgain that he should have been credited with serving 249 days in custody prior to the date of his sentence, rather than the credit of 248 days that the trial court had given him.  Winning one extra day of credit on a sentence of 51 years to life seems like a Pyrrhic victory if ever there was one!     
October 2, 2009

Roman Polanski- The US should recall its arrest warrant.

Roman Polanski, the famous film director, pled guilty in 1977 in LA Superior Court to sexually violating 13 year old Samantha Gaimer.  He fled to Europe before Judge Lawrence Rittenband (now deceased) could hand down a sentence.  Polanski has been a public figure all over Europe, but he has never (officially) returned to the US.  Thus, Polanski's case has been in abeyance for 32 years.  For reasons that are not clear, a few days ago, in Sept. 2009, Switzerland decided to enforce a US warrant and arrested Polanski.  Switzerland now has to decide whether to extradite him to the US for sentencing.  The issue has created a worlwide furor.

Those who focus on Polanski's horrible criminal act do not want to reward him for avoiding capture and argue that justice delayed can still constitute justice.  Those who focus on the Judge Rittenband's alleged misconduct in meeting privately with a prosecutor and on the passage of time argue that Polanski has in effect already been sufficiently punished and that putting him in jail now would be a waste of time and money.

Since both arguments are reasonable, let's give Samantha Geimer the last word.  She's been saying for years that she's put the case behind her and that she does not want Polanski to go to jail.  If Ms. Geimer were still a minor, or if she were in psychological disarray as a result of the crime, perhaps we could discount her opinion. But she's made a mature and considered judgment, and we ought to respect her autonomy.  Under the circumstances, we should not be angrier at Polanski than is the woman who he abused.  The US should recall the arrest warrant and provide Switzerland with a graceful exit from a no-win situation.     

October 1, 2009

Ponzi Schemes- Shouldn't Investors Share the Blame?

Orange County (CA) insurance salesman James Halstead and his lawyer partner-in-crime Jeanne Rowzee have pleaded guilty to running a Ponzi scheme that bilked investors out of millions of dollars. (Thanks so much Rowzee for adding to the legal profession's already-tarnished image.)  http://www.latimes.com/business/la-fi-halstead29-2009sep29,0,78151.story  The victims included "retirees on fixed incomes," so of course we're supposed to feel especially badly for them. 

But let's save some of our condemnation for the victims.  Halstead and Rowzee raised money by promising investors returns of 35% in three months.  It's easy to excuse investors who would swallow these lies for being simply naive.  But I think their incredible greed rather than their naivete was responsible for their losses.  The investors were as greedy as Halstead and Rowzee- they all saw a chance for ridiculously easy money and went for it.  So long as people base their actions on greed rather than reason, swindlers like Halstead and Rowzee will always be among us.