« August 28, 2005 - September 03, 2005 | Main | September 11, 2005 - September 17, 2005 »
An Appellate Perspective On 4th Amendment Issues
As part of clinic class time yesterday we got to hear from an experienced criminal appeals attorney who had the following thoughts on how criminal defense trial lawyers should think about 4th Amendment issues (illegal searches and seizures):
1. Preserve issues for appeal. If it's not preserved at trial, it's waived. So your goal at trial is to make sure you raise issues, even if you know you'll lose, in order to preserve them for appeal. Suppression hearings are almost always a good idea. In most jurisdictions, you have to raise the precise issue that will be appealed, so raise lots of issues, don't just say “hey, I think there's a 4th Amendment violation here.” You don't want to raise frivolous issues and or waste the court's time or annoy the judge, but if in doubt, err on side of raising 4th Amend. issues.
2. If there's no warrant, you've got a 4th Amendment issue. Most of our cases won't have warrants b/c of all the exceptions to the warrant requirement. Remember: The rule is that a warrant is required; anything less is either an exception or unconstitutional. If there's no warrant, the burden is on the Gov't to explain why the search was constitutional. Be aggressive; they didn't have what they were supposed to have, so make them prove what they did was legal.
3. Check the paperwork. If there is a warrant, check it. Check the affadavits. Look for mistakes. The Leon good faith exception is bad for defense attorneys, but the officer still has to rely in objective good faith and if the warrant is facially deficient, objective good faith is not possible—it's the officer's mistake. See Groh v. Ramirez (U.S. 2004).
4. Always go back to the very beginning of the story—the police encounter that got you here. A lot of police encounters that lead to evidence you want to suppress are the result of a chain of actions, any one of which may have been illegal. Too often young lawyers just look at last step when really the first step may be more helpful (invalid). You only need one weak link; gov't has to win every single one but you only have to show one part of its case invalid to win.
Good stuff. Mostly review, but still all good to keep in mind. I love this clinic.
Posted 10:14 AM | Comments (1) | TrackBack | 3L
The Job Search Nightmares
My condolences and thoughts of encouragement go out to Woman of the Law who has had a hell of a time nailing down a job since graduating from law school last spring. If I have the story straight, it seems that first she thought she had a fellowship, then the state thought the idea was so great they took it over to do it themselves, leaving WoTL w/out a job. Then she had an offer somewhere, which she accepted, but they seem to be not getting back to her. The whole traumatic experience has brought her to the point where she writes:
[I] wondered what kind of men I could pick up with a line like, “Hey, I'm sexy and unemployed... wanna come back to my mom's house, drink my little brother's beer, and make out on my little sister's bed?” This is the life I envisioned when I took on $150k in prestigious law school debt, Yesssssssirreeeeee.
Man. What can you say to that? Ok, first I had to laugh. Is that the best pickup line ever, or what? I mean, it's so sad and full of wierdness that it might actually work. At the same time, it's so gut-punchingly scary that I basically have to laugh or else I'll seize up with anxiety because what I see here is basically a variation on my own worst fear: That this time next year I, too, will be unemployed and at loose ends with mountains of debt walling me in on every side. OMG, the sky is falling, the sky is falling! I can't even really think about it. And I guess, when all is said and done, the best thing to do is to keep trying, and to maintain your sense of humor. That's what WoTL seems to be doing, anyway, and I definitely admire her for that.
In a sort of different take on the unemployed recent law grad, Andrew Raff (from whom you can look forward to a great little interview on Ambivalent Voices soon) seems to be not overwhelmingly worried about the situation. In fact, he's spending at least some of his time being a rock star and releasing some kick-ass tracks for our musical pleasure. Cool.
Posted 09:46 AM | Comments (3) | TrackBack | 3L
Caravan4Christmas
So are you wondering how you could help some of the people most seriously affected by Katrina? How about making sure all the homeless kids from the region have a terrific Christmas? That's Law-Rah's plan -- she's abandoning her blog for now to start a new project, and it looks like it could be a big one.
Say hello to Caravan4Christmas:
Law-Rah's already getting lots of support on the project but she's depending on getting everyone she can to participate to make this as successful as possible. At this point there's no address to which you can send gifts or toys or whatever, but I'm guessing that will come soon. Just watch the Caravan4Christmas blog for more details as they develop and let Law-Rah know if you think of ways you could help out.
Posted 09:47 AM | Comments (1) | TrackBack | ai action alerts
OMG: I'm Really Running A Marathon!
It's now less than two months away! This Sunday we'll be running 23 miles (although for various reasons I might only do 20) and in a couple of weeks we're supposed to run a complete “practice” marathon before we sort of relax for the week or two before the real deal. Is it just me, or is this all rather hard to believe? ;-)
p.s.: I know if you're inclined to give to good causes Katrina is at the top of your list right now, but [nevermind. This has been edited to comply with commercial restrictions].
Posted 08:59 AM | Comments (1) | TrackBack | marathon
Ambivalent Voices #16: An Interview with Deborah Schneider
The latest episode of Ambivalent Voices is a special back-to-school edition featuring a conversation with Deborah Schneider, co-author of Should You Really Be A Lawyer? If you're a law student or thinking about becoming one, I almost guarantee you'll find this conversation helpful and informative in terms of making the most of law school and finding the right area of law for your own career. Check the show notes for more details of what you'll hear.
The Podcast Learning Curve Is A Sine Wave
Blawg Review #22 is up at Blawg Wisdom and it's packed with links about how hurricane Katrina affected the legal community, what's going to happen with the SCOTUS with two new Justices on the way, some great links from various practitioners, and a few notes about people starting and returning to law school. I think it's a fine Review (I'm biased) and I encourage you to check it out. That said, it's not everything I'd hoped it would be.
This was my first time hosting Blawg Review and I wanted it to be special. The theme was back-to-school so I had hoped to read or scan as many law student and law prof blogs as I could and compile more links than you could shake a stick at about the return to school. I also planned to supplement all that law schooly goodness with about 8 great podcasts featuring interviews with students returning to school. Well, I praised Gizmo a while back for giving me one-click, high-quality, phone recording. And while it's great, it has one problem that I didn't discover until way too late: The sound files it creates are not compatible with Garageband! After many attempts to convert the files into something Garageband would accept without destroying their quality, I finally found that all was well if I burned the files to CD as regular aiff files, then imported them into iTunes as mp3s, then imported those files into Garageband. Needless to say, that all takes a lot of time, none of which I was planning on when I sat down to work on the project, so my big plans had to be reduced considerably in order to make the deadline. Oh well.
And then, as I was enjoying a great hike on Labor Day, I realized that I had produced a Blawg Review on Labor Day that said almost nothing about labor. How sad. I was so focused on my big podcast plans that I just forgot. So I'm sorry about that. I know labor is pretty used to be discounted and dismissed, but I really hate being part of that.
In my final podcasting lesson for now, I also learned why Garageband is not the ideal podcast creation tool: It doesn't allow you to create "songs" longer than 999 "measures." That's apparently about 33 minutes, which is fine because I prefer podcasts that are shorter than that and I think most listeners do, to; however, it's not fine when you have a great interview that happens to be longer than that. Garageband also has other drawbacks as a podcast-creator; primarily, it doesn't have a very good way for you to save and reuse bits, such as promos or transitions or little intros or outros that you'd like to use in multiple shows. You can sort of do this with the loops, but it's pretty limited. You can also just create single files with those things and import them again for each project, but that's a pain. I wonder if Apple has any plans to create a real podcasting tool. I hope so. If not, I hope someone else will make one that has Garageband's great mixing capabilities but adds lots of nice little features just for podcasting.
Anyway, as I said here, I'll be working on publishing those interviews w/law students as soon as I can. Meanwhile, thanks to all those I've had the pleasure to interview—your podcast is coming soon!
The Fisherman and the MBA Grad
I heard this joke a few weeks ago and forgot it, but just saw a variation of it over at George's Employment Blawg. It's about a fisherman and a businessman (MBA for short):
MBA: You spend your morning fishing, but the you spend your whole afternoon sleeping. Why not go fishing all day?
Fisherman: What's the point?
MBA: With the money you get, you could buy another boat.
Fisherman: What's the point?
MBA: You could invest your money, go public, buy more boats, and become a leader in your country.
Fisherman: What's the point?
MBA: As a tycoon, you could sleep the whole afternoon.
Posted 07:45 PM | TrackBack | life generally
Why We Do This
I had my first contempt hearing last week; the issue was: Could the government show probable cause to believe my client committed the crime of contempt? The government had to show that my client intentionally violated a condition of his release. I was loaded up with just over 25 questions for the arresting officer and a half-page of argument, even though my supervisor said we were destined to lose b/c probable cause is such a low standard. The point of this hearing was simply to give us as much information as possible to prepare for trial on the issue. Apparently many defense attorneys just waive such hearings because they so rarely win, but I'm told that's a really poor thing to do because you miss the chance to possibly gain that extra bit of information that will help you at trial. While waiting in court for my case to be called I actually saw several attorneys waive their clients' contempt hearings. Maybe they had good strategic reasons for doing that, but, well, it didn't look like such a great idea.
It looked like an even worse idea after I actually won mine! To just about everyone's surprise (including the judge's, I think), somehow the judge became convinced that the government had not shown probable cause. I'm thinking this is why having law students in court can sometimes be a great advantage for clients—judges don't want to shoot the puppy, so they sometimes give you a little extra benefit of the doubt. I was also lucky. The cop said exactly everything I hoped he'd say in response to my questions (in my first real cross examination ever), so he basically made my argument for me. The prosecutor seemed caught off guard that the judge was actually taking my argument seriously and so was unable to mount a real counter-argument. He could have easily shot me down, but I think he just hadn't thought much about it because he hadn't planned on needing to argue the issue.
The hearing lasted about 35 minutes and when it was over I could barely believe what had happened. And to blow my mind further, after the court had recessed another prosecutor who had been watching the hearing came up to me and said in what seemed a very serious way, “Nice job.”
My client was pretty happy, and he's free for now, so all in all it was a very good day. Even though this was a teensy tiny little hearing, a very simple legal issue, there's really nothing like the feeling of prevailing in court when even you think you're going to lose. And although it's inevitable that I will lose more than I win, the hope that next time might do the trick and you'll get that feeling again is least part of what keeps criminal defense attorneys going.
Posted 01:55 PM | Comments (9) | TrackBack | 3L
