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Friday Roundup

Russ' Excellent Adventure.  As I told you earlier this week, I spent yesterday morning in Cincinnati in oral argument before the 6th Circuit Court of Appeals.  Actually, it wasn't "the morning"; it was about ten minutes.  I was one of ten defendants' counsel sharing ninety minutes of oral argument about the events of the ten-week trial of the Outlaw Motorcycle Club on various RICO counts back in 2004.

Two other lawyers in my office tried the case, and they got me assigned the appeal.  Seemed like a good idea at the time, until I realized two things.  First, although I know a fair amount of constitutional law, I know very little Federal criminal law, especially about arcane subjects like the RICO statutes.  Second, the transcript, as mentioned, was 8,100 pages, and that isn't even the half of it:  the appendix, which in Federal appeals comprises the transcript and all relevant documents, like the indictment, motions, journal entries, etc., came to 30,000 pages. 

This, in turn, produced a twin series of recurring nightmares over the course of my representation.  In the first, I would get a journal entry from the appeals court, before I'd even looked at the transcript, telling me my brief was due in 20 days, with no extensions permitted.  (A variation of the "didn't study for the final and don't know where it's being held" dream.  Yes, I've had that one, too.)  The other was one in which I would do what I believed was sufficient research, and finally write the brief and send it off, only to get the government's reply, which was rich with phrases like, "Defense counsel's buffoon-like reliance on US v. Wilmot is misplaced, given that the case was specifically overruled by this court four years ago," or "Defense counsel's imbecilic insistence on an analysis of the RICO statutes which has been rejected by every court it has been presented to suggests that his brief serves no purpose other than to lay the foundation for a claim of ineffective assistance of appellate counsel."

Of course, none of that materialized:  I got through the transcript, wrote a brief which apparently analyzed the appropriate issues in an appropriate fashion, and got up and gave an argument for which none of the judges felt compelled to laugh out loud, let alone throw vegetables at me.  Nightmares don't usually come true. 

Except for that one about the test.

Boys and their toys.  I've always marveled about the contrast in police work between the suburbs and the city here in Cuyahoga County.  You'll go to a pretrial on a rape case that happened in Cleveland, and the police report will be three pages long; a report on a shoplifting out of the suburbs will be four times that. 

I had a pretrial on a drug case earlier this week, out of North Olmsted, one of the western suburbs.  The detective was there to explain what had happened, and he led me through the chain of events, beginning with "complaints of drug activity at that address," leading to a controlled buy of drugs, and shorly thereafter culminating in a raid conducted by the city's SWAT team.  "SWAT team?" I said.  "What'd you need the SWAT team for?"  The detective assured me that they had a "formula" for deciding when to bring the SWAT team along, and my client was "off the charts."

This was all over a controlled buy of sixty dollars worth of marijuana.  My client was 52 years old, had a fourth degree felony drug abuse in 1994, and an aggravated assault in 1980.

Guys, if you need a SWAT team for something like that, you probably shouldn't have one.

Technology marches on.  I talked a few days ago about the Supreme Court's decision on capital punishment in the Baze case, and Doug Berman's Sentencing Law & Policy blog had an interesting alternative take on the decision: 

a majority of the Justices' opinions (4 of the 7) cited to websites, and I counted a total of 13 references to website materials.  Among the cites, Justice Stevens' referenced a forthcoming law review article now appearing only on SSRN, and two opinions cited to two distinct transcripts from legal proceedings that have been made widely available through on-line posting.

Needless to say, Ohio remains behind the curve in that respect; I've yet to see a decision, either from the Supreme Court or any of the appellate districts, which cites anything on the Internet.  In fact, I wouldn't be surprised if most judges' understanding of how the Internet works paralleled that of Alaska Senator Ted Stevens

They want to deliver vast amounts of information over the Internet. And again, the Internet is not something that you just dump something on. It's not a big truck. It's a series of tubes. And if you don't understand, those tubes can be filled and if they are filled, when you put your message in, it gets in line and it's going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.

That may change.  There are several judges at the 8th District who read this blog with some degree of regularity, and I ran into one of them the other day, who told me that they'd briefly discussed citing my blog in a recent opinion.

Apparently, everybody sobered up after that, but I'm getting those tubes ready just in case.


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