Mailing It In

Every now and then, someone wants me to review their trial record for any issues that might be useful on appeal or clemency. I’m, of course, happy to oblige.

Occasionally, however, they make me really sad.

The latest tale of the tape:

________________________

Terms of the Deal

In an agreed plea bargain:

Soldier agreed to plead guilty to all charges. He also provided the government with a written stipulation of fact to substantiate each element of the offenses.

Government agreed to give nothing in return. No, really. Nothing.

Objections on Record

Government: 0

Defense: 0

Witnesses for Sentencing (Life and/or Telephonic)

Government: 0

Defense: 0

Matters in Aggravation

Government argued that the charges alone were aggravation enough for a max sentence. (No defense objection, even if to merely call-out the flawed logic.)

Matters in Extenuation or Mitigation

Defense gave an extremely brief closing, stating that second chances are important.

______________________

Some assigned military defense counsel are exceptionally capable and dedicated. Some are anything but dedicated and capable.

This is a prime example of the latter. The young Captain representing this kid didn’t just mail-it-in, he was too lazy to even walk to the mailbox.

Sad. Really sad.

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My Take on the Pistorius Proceedings

Honestly, I don’t know any more than you do about the Pistorius thing.

Image

VIa NY Times

But, have you ever seen a courtroom with such dramatic lighting? I’ve seen a few bail hearings, and they tend to occur in the basement courtroom with cinderblock walls or via video teleconference from the detention facility.

They must have a special courtroom down in Johannesburg for cases that garner a worldwide audience, or they rented the one used for the People’s Court.

A College-Bound Teenager’s View of the US

So, here’s how a college-bound teenager I know views the United States of America.

Blue: Acceptable states in which to attend college.

Red: Too hot and/or higher risk of being lynched.

Green: States populated by clones of Larry the Cable Guy.

Gray: Those states have colleges/universities? Who knew?

Pink: Areas where people do not use deodorant.

Burgundy: Will consider, but only for a very sweet, incentive-laden deal.

Orange: New England, which looks like the corner of the US where lint collects.

Neon Green: New Jersey, one big cesspool.

Black: An imaginary state, created on paper to allow for an even 50.

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Dear 63%ers of the 2nd Congressional District of Illinois

Last November, you overwhelmingly (63%) elected a person with the following attributes (at the time of the election) as your representative in Congress:

  • Incumbent
  • Absent from office since June 2012 with no return date known (initially, his whereabouts were unknown to the public he purported to zealously represent as a lawmaker).
  • Diagnosed this year with “mood disorder” and bipolar disorder.
  • Something about a Peruvian hostess.
  • Implicated in the Senate-seat-selling scandal of Rod Blagojevich.
  • Currently the subject of a Congressional Ethics Investigation.
  • Previously implicated in an FBI investigation.
  • Currently the subject of an FBI criminal investigation.
  • Previously named one of the 15 most corrupt members of Congress by liberal group Citizens for Responsibility and Ethics in Washington.

Now, make the following changes to bring us to today:

  • Subtract: Incumbent (since he resigned shortly after you ushered him back into office)
  • Add: “Pleaded guilty on February 20, 2013 to one count of wire and mail fraud in connection with his misuse of $750,000 of campaign funds. As part of a plea agreement, prosecutors will recommend that Jackson be sentenced to between 46 to 57 months in prison.” (via his Wikipedia entry)

Knowing that we subtracted one attribute and added one, that leaves us at a net change of zero. Thus, he’s still the same man you elected in November.

So, assuming the worst possible sentence based on the information above, we should expect the dedicated and steadfast 63%ers to put him back into office in 2018.

Discovery: Give and Take

Texas is currently looking to revise it’s discovery rules, and it has a few defense counsel gnashing teeth at the proposed changes to reciprocal discovery. Reciprocal discovery are obligations placed upon defense attorneys to provide prosecutors with certain information, statements, and notifications prior to trial.

For a good overview of the Texas rule and links to other opinions, take a look at what Gideon (anonymous pseudonym of a computer in a Public Defender office in New England which, years ago, achieved self-awareness) at A Public Defender has to say about it.

Gid and I share the same view. Discovery rules are a give and take. I can’t think of a time when I’ve given-up something that wounds my client’s case. At the same time, discovery has yielded many, many benefits to my cases. Granted, the military rules are very liberal and vigorously enforced by military judges–especially in favor of the defense.

Note: I’ve attached the text of military reciprocal discovery rules at the end of this article, if you’re really, really bored.

What I think is a bigger benefit of this discussion is that it is crossing jurisdictional lines. I’ve met many lawyers who become mired in their chosen jurisdiction and forget that anything outside of their state/county/parish exist. Gid juxtaposed the TX rules with those of his state, and I’ve done the same with mine. Were it not for the Texas hubbub, I wouldn’t have reviewed the Rule for Court-Martial.

Too often, we merely accept our local/state rules because we are familiar with them.There’s comfort derived from the same because you know how it works, and how it won’t. That doesn’t make it right, or the best system. It helps to leave the house now and then.

With that said, here’s my take on the TX reciprocal discovery (juxtaposed with Rule for Court-Martial 701).

Sec. 2. DISCLOSURE BY DEFENDANT. (a) As soon as practicable after receiving the initial disclosure […] the defendant shall disclose […] and permit inspection, photocopying, and photographing of the following materials and information:

(1) any written or recorded statement by a witness, […] if the defendant intends to call the witness at the trial;

Yep, already have to do this. RCM 701(b)(1)

(2) any record of a criminal conviction admissible for impeachment […] of a witness, […] the defendant intends to call at the trial, if that information is known to the defendant;

Nope, not doing it. Prosecutors can go to their fancy-schmancy database (or that of their LEOs) and find it themselves.

(3) any physical or documentary evidence that the defendant intends to use at the trial and, on a showing of materiality by the attorney representing the state, the opportunity to test that evidence;

This is a fun one in the military. Defense counsel has a choice to make. If a formal discovery request is made for things outside the prosecutor’s automatic obligations, the defense counsel triggers additional reciprocal discovery obligations. Make good choices, defense counsel. RCM 701(b)(3)

(4) the names and addresses of the witnesses called to present evidence[…] the defendant intends to call at the trial; and

Why this isn’t weaved-into (1) is not known to me. Again, RCM 701(b)(1)

(5) any report produced by or for an expert witness the defendant intends to call at the trial.

As with (3), defense counsel should make good choices. RCM 701(b)(4)

(b) On a request by the state, a defendant planning to offer evidence of one or more defenses listed in Chapter 8 or 9, Penal Code, or evidence of an alibi defense, shall file a good faith notice of intent to raise the defense […] Any notice provided under this subsection is for purposes of discovery only and is not admissible at trial unless the court finds that the contents of the notice were not made in good faith.

Disclosure of certain defenses is old news for military practitioners, with a few additional caveats and duties. RCM 701(b)(2)

So, the TX rules are certainly not shocking to my conscience, but they might be if I’d been immersed in the previous discovery rules for years or decades. To me, they appear to be the usual give and take that generally benefits the accused far more than the government.

As promised, here’s the rules that bind me in my jurisdictions (from Rule for Court-Martial 701; please ignore any strange hyphens, as they are a result of cutting and pasting from the Manual for Courts-Martial):

Continue reading

State of the Potential Clients Address

(Thunderous applause as I enter. Tired, haggard, and physically more beaten-down than I was last year at this time.)

Thank you. Thank you.

(Continued standing ovation for at least 5 minutes, just to make me stand and wait for a bit longer.)

Revered potential clients and honored guests, we’ve had quite a year. You’ve shown great promise in your attempts to tear me away from my beloved actual clients. You know time is valuable, and you seek to leech as much of mine and my staff’s as humanly possible, all whilst keeping your wallets securely shut. You all deserve recognition, but I only have a limited amount of time before one of you calls in a deft attempt at siphoning a few more of my minutes.

In short, my office devoted 573 unpaid hours this year to your calls and inquiries.

(Thunderous ovation, lasting 10 minutes.)

In fact, we spent over $15000 in counseling and therapy for our intake paralegal.

(Huge whoop from the crowed followed by 15 minutes of deafening applause.)

Some of you truly excelled this year.

Here’s to you, Clyde from Butte, Montana. You showed me what it means to be passionate. When you emailed asking that I accept your procedurally-dead and hopeless appeal, you refused to accept my brief “I’m sorry, but I’m not able to help you with this matter; best of luck.” No, you responded with an epic screed, bemoaning heartless, unfeeling money-grubbers like me. (Speech interrupted by uproarious standing ovation by the crowd.) Never mind that I didn’t even quote a fee, you knew I was just after you for the money. Keep fighting the good fight, Clyde.

And Sally from Keokuk, Iowa. You taught me that time can truly heal all wounds. After all, you contacted me in mid-2011 only to be shocked at my fee and opinion that your case has only a slight chance of success. Then, you called in late-2011, expressing renewed shock and dismay at the same. You’ve continued to call every 6 months, and we set our clocks on your predictable faithfulness. We look forward to talking to you again in 11 weeks, 2 days, 5 hours, 43 minutes, 32 seconds.

(Big applause for Sally who makes a “call me” gesture from her seat in the balcony.)

And Ed from Oklahoma City. No matter how much you cuss at my paralegal, she’s not going to patch you through to me. You’ve shown that gentlemanly qualities are discouraged among lifetime members of the society of professional potential clients. You started by calling her sweetheart. Then, you attempted a bit of condescension, advising her that she was fully unqualified to entreat the beautiful nuances of your case. When told that we don’t really handle cases like yours, you splattered her with colorful metaphors and encouragement to perform many private sexual acts upon herself. (Sustained applause from the crowd.) You did so with unwavering belief that your persuasive tone might pierce the paralegal barrier to lawyerly attention. Indomitable is you, dear Ed.

And Dakota from Phoenix. We appreciate your dire financial situation. You implore us to provide pro bono representation, citing your homelessness and difficulty finding work. We applaud the guts it takes to tell us this sad story while allowing the last sentence of all your emails to remain “Sent from my iPad.”

(Thermonuclear applause from the assembled potential client delegates.)

And Beverly from Danvers, Massachusetts. You showed that nothing is stronger than a family bond. Calling us without permission from your unknowing, accused nephew, you dodged the paralegal barrier by stating that you wanted to hire someone to help your poor, accused kin. Then, once you reached a lawyer, you sought vigorously to obtain as much information about the process and possibilities. Not because you wanted to help your sad-sack nephew. Nope. You just wanted to know what was happening for your own gossipy self-indulgence. (Loud applause.) Good for you, Beverly. Now, you’ll have the upper hand during next week’s conversation at the beauty salon.

And Chuck from Shawnee, Kansas. Chuck, we know you work for our biggest competitor, and we know you’re just trying to see what we tell potential clients and the fees we quote. Nice try. Stop it.

And, finally, Cornelius from parts unknown. We always know you’re short on medication because you call us. Yet, our advice remains the same, and patient. “No Cornelius, the government didn’t give you ovarian cancer because you don’t have ovaries.” And, “I’m glad you shared so much about your time in the Navy, considering that last week you told us you were in the Army……….oh, Coast Guard?”

(Thunderous applause for Cornelius, who smiles and nods while flanked by two orderlies.)

It’s been a great year for all of you, and your sustained and continued success deserves recognition. We have no doubt that you will take advantage of a year ending in “13” by showering our office with new and innovative ways of flushing hours down the toilet.

May your medication continue to be in short supply, your dedication unrivaled, and your anger sustained at a high level. Without you, it would be far too easy to pay the bills.

Thank you, good night, and god bless.

Eric for Pope 2013

It looks like a short and frenzied campaign season, but I’m up for it. I have a robe, a few goofy hats, and a willingness to suppress progressive ideas (provided the pay is right).

Eric for Pope 2013. Looking to the Past; Imposing it on the Future.Image

Vote for me if…

You feel that the “Buddy Christ” should really be the symbol of the church.

You support my initiative to create the George Carlin Center for Religious Studies.

You would like to see the church fund a study to chronicle similarities between Jigsaw from “Saw” and the purportedly all-powerful, all-knowing, and all-loving god of the Old Testament.

You realize that the church isn’t against birth control or condoms, it just really digs how groovy the 70s were.

You realize that the Spanish Inquisition is the proper method for dealing with the creators and participants of reality television.

Genuflect, stand, kneel, sit, kneel, stand, sit, genuflect, stand, genuflect. You realize that this is the world’s first organized foray into crossfit.

You think the popemobile is the second most awesome vehicle ever created by man, second only to the El Camino. (I promise all of my loyal subjects a PopeCamino within the first year).

Your way of dealing with serious priest misconduct: think “Running Man” in a post-apocalyptic Vatican City.

Your idea of communion: 1 shot of Jack and a “Chicken-in-a-Biskit.” Christ never tasted this awesome.

Your support the idea of an ordained Flava Flav.

Need Help Remembering My Passwords

Friends:

I recently changed my password, and I followed everything the geeks say I should do to make it as safe and secure as possible. However, I’m going to have a hard time remembering it. Please help in this endeavor. I’m posting it here, but only for my friends and family. That way, all of you fine, honest people can help me to remember it.

According to what I’ve read, it is easier for a thief to break-into my office and steal the sticky note from my desk than it is for them to access something I’ve posted online in the cloud. Anybody with malicious intent is strictly forbidden from accessing it or using it for purposes that I do not expressly permit. I mean it. Grrrrrr.

In fact, I’ve copyrighted the password. See the little © thingie at the end? So, that means you can’t (and won’t) use it for purposes I don’t like, or so I read recently on the googles. I’m sneaky that way.

With that said, my new password is:

fjkl;12$#%dUMk*&^*((dkv*YO45$#@Sjb*|{>©

According to what I’ve read, it would take hackers a gazillion years to crack this code, so I feel pretty confident.

Thanks a bunch for your help,

Eric

No Sale for Old Lawyers

Attending a continuing education conference a few weeks ago, a diverse roomful of  lawyers engaged in a debate about old lawyers selling their practice. It started with a story about a septuagenarian who wanted to sell his practice and retire, but he couldn’t entice any younger lawyers to buy it. His was a successful practice in a rural Kansas area where he was known and respected throughout a several-county area. Ideas flowed as to his problem.

A welcoming front desk may add value, but it can be negated by the mess found in the back rooms.

A welcoming front desk may add value, but it can be negated by the mess found in the back rooms.

Old lawyers (guys with names like Jack, Bill, and Ed) said that young punk lawyers only wanted to practice in the Kansas City area, where amenities and opportunities abound.

Young lawyers (with names like Connor, Tegan, and Dakota) said that nobody wants to live out in the land of dirt–not even farmers who work the land. Accepting ownership of the old guy’s practice means to die with the same.

Old lawyers said that the younger lawyers weren’t willing to work in a junior capacity, instead wanting to immediately be the owner and/or partner.

Young lawyers said that waiting for the old guy to finally quit or die is not an enjoyable or practical way to anticipate a (earned, assumedly) promotion. Why buy an old, musty practice when they could buy the building next door and create some new hotness.

This back and forth continued for several minutes.

Then, one of my very reasonable and balanced peers* of the middle generation of lawyers offered this:

“I bet he’s asking too damned much for his practice.”

Generation diaper and generation adult diaper both stared in silence, mouths agape.

Finally, one of the geriatric gang replied “Well, I know [the lawyer], and he is asking quite a bit.”

“Quite a bit” was never quantified, but we guessed it was significantly more than the value of his building and furniture. The discussion turned to a breakdown of the things that contribute to the value of a law practice:

Real Estate: Fair value is fair value. You can’t exactly argue with that. However, older lawyers often forget that there is a maintenance liability that accompanies any commercial space ownership benefit. My experience tells me that stained ceiling tiles are less worrisome to older lawyers than they are to younger lawyers. Asking a young, upstart lawyer to go into debt for a building that looks and smells like years of water damage rarely garners an answer of “yes.”

Equipment and Furniture: This is necessary. True. However, just because you bought that 1992 Wang computer for $2000 doesn’t mean it is worth the same today. You’d better subtract from your asking price for the fact that your successor will need to invest heavily to upgrade automation. Also, have you smelled that couch in the waiting area? It reeks of a badly maintained nursing home bedpan. Subtract quadruple the amount you originally paid for the couch in 1972 to allow for purchase of new seating and air freshening products.

That snazzy blue door doesn't add as much value as you think.

That snazzy blue door doesn’t add as much value as you think, even if you spent hours mixing the colors and painting it yourself.

Phone Number and Website URL: A well-established phone number has value, but not as much now as it did 20 years ago. Come to terms with the fact that Reagan is no longer president. Nonetheless, you can add a bit for it. As for your URL, I was just kidding. Everyone knows you don’t have one. Or, if you do, it’s something like KeokukLawOffice.GeoCities.com. Zero value. In fact, dollars must be deducted if you try to sell this.

Clients: Established clients do have value, but only if they are willing to accept Logan as their new lawyer once George leaves the building. There are no guarantees that they’ll be accommodating. In fact, many may be waiting for George to die or retire so they can switch to John, who they’ve wanted to hire for years but remained with George out of pure loyalty Deduct value for this potential loss and liability. Criminal and personal injury practices? Don’t kid yourself. Yours are constant hustles and rapid turnovers. There is no client value to sell.

Sweat Equity: Let me be clear, there is no such thing. You can’t transfer work ethic or dedication. Consider that a person may labor for years to build a house. However, the value will be determined by square footage, quality of interior components, location, etc. No realtor will say “but, the owner of this house worked really, really hard.” Nope. No value added. We don’t care about the labor pains. Just show us the baby.

The File Room: Old lawyers have file rooms. Big ones. Lots of files. Typically, correspondence with prior clients was silent as to the maintenance of files, making a huge headache for anyone who inherits this cavernous room and its pulpy contents. Therefore, this is a huge liability and fire hazard. Banker boxes, stacked a mile high, are strewn throughout the room in no particular order. One person knows the location of every file. Unfortunately, that person is the lawyer closest to death. Deductions for this have the potential of completely negating any value added by the included real estate.

Sometimes, the problem is that the retiring lawyer fails to store a late-life nest-egg, and they view the value of their practice as a means of obtaining financial security. They will, almost always, be disappointed. Other times, the problem is simple pride, inflating the value of a practice well-beyond a practical range.

Should retiring lawyers ask value for their practices? Sure. Should inheriting lawyers pay value for a practice? Again, sure. The problem comes with the fact that both sides are not being reasonable in determining the value.

That’s where my middle generation is so critical. You all should listen to us much more often. After all, we’ve been bridging the gap between old and new for eons.

*Note: My peer group, whatever it may be, will always be the most reasonable, fair, insightful, and balanced of any other competing groups or generations. Why? It’s my blog, my rules. Deal with it.

When A Conviction Just Isn’t Enough (Updated)

Member of Congress Jackie Speier continues her rage against the Uniform Code of Military Justice. First, about a year (perhaps more) ago, she ranted in OpEd columns about the “statistics” that show that damn-near every male in the military is a rapist (OK, OK, a bit of hyperbole on my part, but not much). While I’m completely against any type of sexual assault, I am equally opposed to cooked, incomplete, and questionable statistics that favor the axe one wishes to grind.

Now, she looks to add wayward Drill Sergeants to the rolls of sexual predators. Her proposed law seeks to add the following crime to UCMJ Article 120:

1.  ENHANCED SEXUAL ASSAULT PROHIBITION.–A military instructor who commits a sexual act upon a member of the armed forces while the member is undergoing basic training (or its equivalent) or within 30 days after completing such training–

A. is guilty of sexual assault if the military instructor exercised any supervisory authority over the member during such training; and

B. Shall be punished as a court-martial may direct.

2.  ENHANCED ABUSIVE SEXUAL CONTACT PROHIBITION.–A military instructor who commits or causes sexual contact upon or by a member of the armed forces while the member is undergoing basic training (or its equivalent) or within 30 days after completing such training–

A. Is guilty of abusive sexual contact if the military instructor exercised any supervisory authority over the member during such training; and

B. Shall be punished as a court-martial may direct.

There you go. Label them as sexual predators. No mens rea (state of mind) required. That can’t possibly go wrong.

All branches of the military already have regulations (punitive) that address personal relationships with trainees. It extends to sexual relationships which are, regularly, adjudicated at court-martial. At Fort Leonard Wood, Missouri, for example, trainees are off-limits to any post-training members located at the installation. Violation of this rule is punishable by possible incarceration and a punitive discharge. So, to grade the current mechanism for dealing with any personal relationship with trainees (Pass/Fail):

  • Possible criminal conviction: Pass.
  • Possible Incarceration: Pass
  • Possible end to military career: Pass
  • Possible stigma of a punitive discharge (in addition to the stigma of a conviction): Pass

Clearly, this check sheet is incomplete and insufficient to Ms. Speier. She sees the following:

  • Possible Sexual Predator Status: Fail (which can be remedied by her shiny, new law)

I see what infuriates her. Trainees are subjected to a highly coercive environment. It is a radical change of lifestyle with clear distinctions between leaders and subordinates, and the trainees rely upon drill sergeants/instructors to lead them through the process in a tough-love way. The position of power occupied by instructors can be abused, and abused badly.

However, we are talking about consensual encounters (if it were not consensual for any reason, there are laws that already apply) between two (or more) military-age adults. Granted, the relationship is considered to be wrong. That’s why there are already punitive procedures available to commanders, with serious, life-altering potential consequences.

So, will Ms. Speier next address college professors? Coaches? Run-of-the-mill fraternization in the military? Law enforcement hooking-up with members of the community they control? High-level civil servants? Corporate executives? All of these individuals possess the potential of creating a highly coercive environment. Sure, there are no scary camo uniforms, but they are all environments where an individual can be caused to feel incalculably subordinate and necessarily obedient.

Returning to the task-at-hand, there is really one question to be asked: What do we stand to gain by creating laws that label bad military instructors as sexual predators? Was there a horrible crime committed by a former Drill Sergeant, convicted previously of having an inappropriate relationship with a trainee? Was his later crime directly related to the mental state exhibited by having sex with a trainee? Did officials determine that, had he only been a registered offender for his military misconduct, we could’ve prevented the later crime? Is there an epidemic of this? Is there even a single example. If this is the case, it didn’t show-up on my Google search.

So, knowing that there is no Googleable proof to show that had-sex-with-trainee former Drill Sergeants cause a clear threat to society, there must a simpler reason for this law. Here’s the list I devised:

  • It furthers Ms. Speier’s agenda and continues her status as tough on military crimes (primarily against women).
  • It is clearly “Tough on Crime.” That is, after all, a necessary label to wear if one wants to become/remain an elected official.
  • In addition to the other potential stigmas associated with court-martial conviction and punitive discharges, it adds wayward Drill Sergeants to our ever-expanding definition of sexual predators, regardless of intent or consent. Because the vast majority are hairy, nasty men, and nothing good ever comes from their ilk.

In today’s society, we call that fair, just, and part of the game of life we play. Well, unless it effects someone we know and love. Then it’s unreasonable.

UPDATE

I’ve already received several emails on Ms. Speier. Let me state a few things:

1. I realize her role in Jonestown and how she came to ascend to her seat in Congress.

2. I have great respect for what she endured in the face of a horrible, tragic situation. I have no idea what it is like to take one bullet, let alone a few. I have no idea what it is like to lay injured, mentor killed, wondering if I’d live to see another day. I bow to her ability to endure and overcome.

3. I have great respect for the many great things she has done for the nation and her constituency.

4. That being said, no history of heroism, overcoming adversity, or good acts gives someone the authority or license to make bad laws that have the potential of irreparably, unnecessarily, and excessively harming another person.

5. Her proposed law, to quote Shaquille O’Neil is “horrible and awful…….It’s hor-awful.” It is overreaching and excessive and has no place in the UCMJ.