A brief First Amendment lesson.

It has come to my attention that folks out there may be confused about our rights under the First Amendement, as well as what the definition of "defamation" is.

Since I am an attorney (and have studied First Amendment jurisprudence at length), I shall give you all this Brief Lesson in Three Paragraphs:

1. The Black Letter law is clear. Defamation is defined as "an intentional false communication that harms a person's reputation."

2. A statement of opinion is not defamatory. See Gertz v. Robert Welch, Inc., 418 U.S. 232 (1974). ("Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries by on the competition of other ideas.")

3. Though private citizens (rather than public figures or limited public figures) need not prove "actual malice" in order to succeed on a claim of defamation, the truth (i.e., that which was published if factually true) is an absolute defense against defamation. Because defamation, by definition, is limited to false statements, true statements (written or oral) are protected by the First Amendment.

A Fourth Amendment quandary.

A Fourth Amendment hypothetical:

Two men, Bartles and Jaymes, rob a pizza delivery man. One is wearing a mask and another is wearing -- you guessed it! -- a black hoodie. Bartles and Jaymes disappear into the night, only to be tracked down later by magical, Hoodie Man-detecting bloodhounds. Bartles and Jaymes are arrested for the robbery.

At the time of the arrest, a police officer realizes that -- hey! -- Bartles's car is parked two streets away. He takes it upon himself to conduct a warrantless search of Bartles's car, where lo and behold, he finds (gasp!) a mask and black hoodie. Instrumentalities of the crime! A further search of the locked trunk of the sedan reveals a few keys of coke. Score!

Bartles's defense attorney is understandably outraged by the search of the car and moves to suppress the evidence. In an amazing twist of fate, a judge decides to apply the law, and suppress the evidence against Bartles. Without the evidence, the charges are dropped.

Question: May the evidence found in Bartles's car be suppressed as it pertains to Jaymes? For the sake of argument, assume that the items can be linked to Jaymes. The jurisdiction does not have automatic standing.

When approached with this question, my initial reaction was that Jaymes's attorney cannot make it past the threshold inquiry of whether Jaymes has a reasonable expectation of privacy as to the contents of Bartles's car. When I proposed this to my non-lawyer friends, they found this patently offensive: How can the fruits of an egregiously illegal search be used against anyone? A valid question. Still, I could not get past the initial question as to Jaymes's reasonable expectation of privacy.

And then I discussed this with a friend of mine who happens to be a Fourth Amendment Idiot Savant. He suggested that the situation of Bartles and Jaymes could be likened to the area of law regarding guests. If a person invites you to stay in his home. just because you do not own the home does not mean that you give up any expectation of privacy to your belongings in the home. He suggested that by likening the search of the car to search and seizure law regarding guests, a reasonable suppression argument could be made for Jaymes.

Understand that this question pertains to a case a friend of mine is working on, and that I have not actually researched this issue. I'm just throwing it out there to see if anyone has any ideas.

Baby on board?

On my way home today, I saw a "Baby on Board" sign on the station wagon driving in front of me. And I wondered: Does that really make anyone more cautious? Perhaps, in this age if litigiousness, people would be far more cautious around a car that had a sign proclaiming "Lawyer on Board." For while lawyers are a loathed group of folks, the consequences of careening into a lawyer could prove far more dire.

Hitched.

You heard it here first. I totally got hitched today. My newly-appointed husband was wholly inappropriate and tried to make me laugh during the civil ceremony. And speaking of inappropriate...

The Town Clerk not only awards marriage licenses, but doles out hunting licenses. They had posted a flyer with drawings of different birds. The husband may have been inappropriate during the ceremony, but I was the one who laughed at at the bird name "woodcock."

I'm such a child. Thus, I find it amusing that people depend on me to get them outta The Pokey.

The forensic psychologist who lost his way.

Boundaries of law, ethics and personal morality -- how far should they really be pushed? An illustrative (and true!) story:

Prior to law school, I dated a forensic psychologist for several years. When we met, he was finishing up his post-doc at Harvard. I fell in love with his story more than with him. A product of the New York City foster care system, he had beaten the odds, gotten out of the ghetto, earned his Psy.D. and did his pre- and post-doc training at Yale and Harvard. Even better, my mother could tell her friends that I was dating a Jewish doctor from New York -- who could ask for more?

More than his story, I admired how much compassion he showed. He wasn't just someone who wanted to testify for a living, earning six figures a year by living on the witness stand as a hired gun for rich white folk. He wanted to help people. He wanted to make the world a better place. This is what was most attractive to me.

Sadly, however, my forensic psychologist boyfriend was not humble. Perhaps his deep-seated self-esteem problems had manifest in a way that made him act cocky and arrogant. Even though it annoyed me, I overlooked it, because he was one hell of a clinician.

He called me yesterday. The pretext of the call was to see how I was doing. The real reason: Forensic Psychologist had been cited in a Connecticut Appellate Court decision published on January 29. He wanted to brag. He also wanted to see if I had a copy. Lucky me, I happened to have my Connecticut Law Journal on hand, so I read him the pertinent sections of the case, having to do with -- get this -- predictive neglect in the context of a care and protection case. Predict neglect? Alas, that's a discussion for another day...

In the process of tooting his proverbial horn, Forensic Psychologist described his next venture to me: He wants to start a substance abuse treatment clinic for the wealthy teenagers. The elite. The folks with money. Specifically, the parents who want to give their kids a chance.

A chance at what? A chance at getting proper treatment regardless of its cost? That would seem almost plausible. But no. Forensic Psychologist was invited to speak at a meeting in a wealthy Connecticut suburb regarding a new city ordinance having to do with the underage possession of alcohol. The parents were outraged; they knew their kids drink, and didn't want the kids getting into trouble.

Thus, an idea was born. Forensic Psychologist wants to give these wealthy teenagers a chance to lie. Let me repeat:

A chance to lie.

By not accepting insurance, there will be no paper trail. So when these kids are asked on college applications, "Have you ever received substance abuse treatment?" they will be able to check the No box without the lie ever catching up with them.

The entire concept is repugnant to my sense of moral righteousness. I told him so. To which he responded: "Everyone lies. Besides, it's not as if I'm telling them to lie."

Plausible deniabilty by someone who should know better. He is giving them the vehicle by which to lie. He is complicit in perpetrating a fraud. He is essentially saying to these kids: "When you're rich, you can get away with lying. It's okay." By his actions, Forensic Psychologist is creating a wider chasm of social stratification. When I explained this to him, he saw nothing wrong. He honestly thinks he is doing a good thing; he truly has convinced himself that he is helping people.

But at what expense to society?

Why I do what I do.

I'm tired of explaining that the Fourth Amendment (eroded thought it may be) is not a technicality. I'm tired of soapboxing when people ask me how I could stand to defend the people I defend. Tired of having to say over and over again, "We, as a society, treat our poor people like shit and then wonder why they're the ones committing, or at the very least, accused of a lot of the crime that goes down."

It's become tedious to debate whether the presumption of innocence actually exists to most juryfolk (I believe it does not). It's gotten old pontificating upon the fact that while most people out there can recite the standard of "guilt beyond a reasonable doubt," prospective jurors still state during voir dire that if a defendant has been arrested, then he must have done something wrong.

But mostly, I'm exhausted from explaining to people that by defending the rights of the indigent, I'm defending the rights of everyone.

And when I explain to the naysayers that by defending the rights of the indigent, my cohorts and I are defending the rights of everyone, I find that this is the only story that ever seems to get my point across.

Introducing ourselves to the jury pool prior to selecting a jury:

Prosecutor: Good morning. I'm Attorney Prosecutor and I represent the people of the State.

Defense Attorney: Hi. I'm Saucy Vixen. I also represent the people of the State. I just happen to have one sitting next to me.

Part II: Justice?

New job.

New state.

Words on the courthouse at the old job: Obedience to law is liberty.

Words on the courthouse at the new job: The welfare of the people is the highest law.

And they wonder why I left.

(See Part I here.)

The only thing I remember from torts...

This may very well be the only case I really remember from first year torts class (not counting Palsgraf, of course).

"We are called upon to determine whether United Airlines took adequate measures to deal with that elementary notion of physics - what goes up, must come down. For, while the skies are friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from overhead compartments."

Andrews v. American Airlines

New job.

It's official.

I just accepted a new job and gave notice.

Still public defending. Just in a different state.

(And when I say "in a different state," I mean geographically, not metaphysically.)

Reason #438 to hate the Red Sox.

I preface this entry by stating that it's not just the Red Sox I hate. It's all professional sports. Baseball, basketball, football, etc, etc, etc. I am indiscriminate in my hatred. I view professional sports as an excuse for grown men to get drunk and act like moronic babies.

But today, the Red Sox really incurred my wrath.

I had a motion to suppress scheduled. This is the second time it has been scheduled; the first time, the state trooper did not show up because he hadn't enough notice of the motion (even though I filed it on the agreed-upon "file by" date). The judge granted the opposition's continuance, over my objection.

We showed up today. While one of the troopers was there, the one that was actually present when my client was stopped was missing. And why? He was sent to Boston. Because Boston needed extra manpower. For the parade.

The parade? What effing parade?

The parade for the Rod Sox.

The opposition explained this to the judge, who granted the continuance over my objection.

So the Red Sox get their parade, while my client sits in jail, waiting to vindicate her rights. Which only proves that professional sports are more important than the Fourth and Fifth Amendment rights of poor people.

Go Sox.

The Great Hoodie Caper.

I am convinced that there is a magical misfit out there. His commits all sorts of crimes. He is a nefarious creature. A drug dealer, gang banger, and thief. He is the lowest of the low, the bottom rung of humanity, lower and less intelligent than a single-celled amoeba. Less intelligent, even, than a horny, Republican law student (and second only to this man, they are the worst types of creatures out there). He sells drugs in school zones, he robs convenient stores, he beats his girlfriends and pimps them out to support his habit, he holds people hostage inside fast food restaurants. The amazing thing? He does all these things without ever getting caught.

His name is Hoodie Man.

Hoodie Man resides in high crime areas, where men wearing hoodies are virtually ubiquitous. And how does he avoid getting caught? He wears his hoodie during his crime sprees; people rarely see his hair or his face when he is in action. And when he is not committing crime, he takes his hoodie off. Which is why no one can ever recognize him.

So what happens? Some other poor chump who happens to be wearing a hoodie gets accused of Hoodie Man's crimes.

Hoodie Man usually wins, at least when it comes to pinning his crimes on other people. (We don't know whether he'd actually win at trial, since he's never been caught.) My poor clients who own hoodies get picked up again and again because of Hoodie Man's actions.

However, occasionally, I am triumphant. I received the judge's findings today on a recent motion to suppress. He allowed the motion, finding that because the only description given of a suspect was that he was wearing a hoodie, the police did not have reasonable suspicion to warrant a pat frisk of my client, who was only stopped because he was wearing a hoodie.

Take that, Hoodie Man.

Motion denied.

Big fuckin' surprise. I mean, being a prosecutor is like being a Yankees fan: Your team wins even when it shouldn't.

Trial is scheduled for tomorrow. Mandatory minimum. Turd of a case. But at least we'll go down fighting.

Disclaimer: I am not now, nor have I ever been, nor will I ever be, a sports fan. I bow out of the Yankees/Red Sox controversy, which -- trust me -- is very difficult to do. I just stole the analogy from someone else, who said it back when the Sox were still losing all the time.

Cops versus Clients.

When cops do it it's called a "pat frisk."

When my clients do it it's called "indecent assault and battery."

And they say there's no justice.

Testilying.

I had a motion to suppress today in a case involving a search warrant. I argued an extremely narrow issue. The factual issue: the police report failed to mention a detail regarding how the warrant was executed.

I have no doubt that the search occurred the way it was written. That is, the detail was left out of the report because it never happened.

The prosecutor presented one witness; while the officer who testified was on the scene, he was not the officer who wrote the police report. Also, he was not the officer who purportedly did the thing that was never mentioned in the police report.

I told my boss this morning: "The cop'll take the stand, lie about what happened, I'll put my guy on to testify to contradict it, and then the motion will be denied."

It's not so much that I think police officers actively lie. Rather, I don't think they remember one case from the next. As this officer said, he's executed over a hundred warrants during the past two years. The purpose of the police report is to record the details because, really, cops can't be expected to remember the details on every single thing they do. Do some cops actively lie? Sure. But for the most part, I think they fill in the blanks and connect the dots during testimony. They know the standards and the rules; they know what they have to say to win.

Conversely, a defendant likely remembers pretty damn well what happened. He's had a single encounter that is pretty life-changing. The execution of a search warrant isn't just work to a criminal defendant. It's something out of the ordinary. It's something particularly memorable.

(The above should not be construed as a dimwitted notion that defendants never lie. That would be silly and naive. It's merely an illustration that a defendant is more apt to remember the details of an an interaction with police than a police officer is to remember an interaction with a citizen.)

The really irritating part? Even when the cops fill in the empty spaces (or just out-and-out lie), they're generally believed. People want to believe their police officers.

In the meantime, the judge took the motion under advisement. The trial is scheduled for Friday. I await my denial.

Third Way Clients.

Third Way Clients are the one who believe there's a third way. You present two options, and they want the third. Conversations with such clients generally results in withdrawal from representation.

A watered-down example of such a conversation goes like this:

Client: I want to go to trial.

Me: Okay. We'll set up a trial date.

Client: When?

Me: At the very least, sixty days.

Client: That's bullshit. I've been in here a month and I have to wait another two?

Me: If you want a trial, yes.

Client: What if I cop to this today?

Me: With your record, no judge is going to give you more than six months. You'd likely be out at halftime, in two months.

Client: But I didn't do this shit.

Me: Alright then. We'll set up a trial date.

Client: Can you get my bail lowered?

Me: I can try.

Client: Think they'll drop it?

Me: No.

Client: Why not?

Me: Because you have a history of not showing up in court. You failed to appear on your last six cases. Your bail is $500, which I understand you can't post, but it's highly, highly unlikely that any judge is going to lower it with your history of defaults. It doesn't mean I won't bring you in for a bail review, but I don't want you to get your hopes up.

Client: I didn't do this shit, man. Can't you get it dismissed?

Me: No, I can't do that. I understand that you're frustrated, but I have no legal grounds to ask for a dismissal today.

Client: So if I cop to this, I get out in two months?

Me: Yes.

Client: And I'm stuck here for two months for trial?

Me: Yes.

Client: That's bullshit.

Me: You're right. It's total bullshit.

Client: Man, you're just not in my corner. You don't wanna fight for me.

Me: Hey, I agree that this is bullshit. I want to fight for you. But this is the reality we're dealing with.

Client: Fuck you. I want a new lawyer.

Me: You got it.

This is a sanitized version of such a discussion. Usually there's a lot more swearing on the part of the client, and a lot more interrupting. Often, there are more frequent attempts on my behalf to explain the law. The end result is always the same with these clients: A client wants out, and at the realization that he's going to be stuck in jail until his trial date, it becomes my fault. Luckily, I've had very few of these types of clients. But they never cease to annoy me.

Trial strategy.

I am at the office early this morning because I have a school zone case scheduled for trial today. This makes me extremely anxious and a little nauseated.

Since I've lost my taste for beef jerky, I've decided that today's trial strategy will include watching this in order to assuage my nerves.

After all, the only thing better than '80s music is fake '80s music.

Justice?

The courthouse where I work is called The Hall of Justice. It's a misnomer, which I suppose is vaguely entertaining.

What is more entertaining, however, is what is inscribed in two-foot tall letters on the front of the edifice:

Obedience to Law is Liberty.

Right. And war is peace

You can't keep a good man (or sex offender) down.

Many of you already know about the saga of my sex offender. The one who plead to failing to register, and was then held on a violation of his community parole supervision for life because he was homeless. People who kept track of the story may also remember that I filed a habeas in the matter. And they may also remember that he was released the day before the hearing was to go before the judge.

Pesky little suckers. Not letting me litigate the issue of an unconstitutional imposition of lifetime community parole.

About a week after he was released, I got a call from his parole officer. "He has absconded," she told me. "He is in violation of his parole."

I haven't heard from him since his release. To my knowledge, he hasn't turned up yet.

I wish him well.

* * *

Post Script. What this means is that if he does turn up, I'll have another issue to litigate. He was already violated once. Another violation would place him in jail for six months instead of thirty days. And so the issue the next time around will be appealing the first violation as unconstitutional on the basis that the only basis for the purported violation the first time around was his homelessness.

Judicial discretion?

I am not making this up:

Authorities are investigating allegations that now-suspended Mobile County Circuit Judge Herman Thomas periodically removed prisoners from Mobile County Metro Jail and spanked them in a room at the courthouse, according to courthouse sources involved in the inquiry.

Once inside the room, according to the sources, the judge would ask the young men to drop their pants and prepare to be spanked with what they described as a wooden or fraternity-like paddle.

I can tell you don't believe me. But I'm sure you'll believe MSNBC.

Jailhouse fun.

For some reason, I doubt my clients do this.