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Friday Roundup

The Philadelphia Story.  I've spent plenty of time bitching about the inadequate compensation that Ohio, and especially Cuyahoga County, provides for attorneys appointed to represent indigent defendants, but I'd probably go ballistic if I lived in Philadelphia.  The City of Brotherly Love doesn't give much love to defense attorneys, especially those assigned to death penalty cases.  As this article notes, a recent report ordered by the state supreme court shows that only about 30 lawyers, in a city overrun with 11,000 of the critters, are willing to take those assignments, and it's not hard to figure out why.  Lawyers get a flat $2,000 "preparation fee," which covers taking the case to trial.  At that point, a daily fee kicks in: $400 for full days, $200 for half days.  So if you're in trial for a month, you're going to walk out with about $6,000.

But if the case doesn't go to trial, you only get the $2,000.  Ooops, I'm sorry, you don't even get that:  the preparation fee is reduced by a third if the case is resolved before trial.

Think about that for a minute.  The usual rule is that you spend three hours in preparation for every hour you spend in trial, and while that may not be true for a lot of criminal cases, it certainly is for a capital case.  You have to prepare not only to persuade a jury that your client is innocent, but also that his life be spared.  (Actually, that latter part is the focal point of most death penalty cases.)  Some of the background checking for that is going to be done by your mitigation expert, but the coordination of that and the distillation of it into something you can use involves a lot of work on your part.  So you do all that, and what you've put together is so impressive that the prosecutor agrees the case doesn't warrant the imposition of the maximum penalty, so he pulls the death specs, and for all that work you get $1,333.

What's really obscene about this is that the people who came up with this have some involvement in the justice system, but don't give a crap about what justice is.

Freaking economics.  I had a pretrial the other day where the co-defendant's attorney wigged out at the prosecutor because she was offering a plea bargain that he didn't like.  I could understand both sides.  His client was charged with 2nd-degree felony burglary with a repeat violent offender spec, and all the prosecutor was willing to do was pull the spec.  Since this wasn't in front of a judge who was likely to impose time on the spec, that really wasn't much of a deal.  On the other hand, the guy had just gotten out of prison two months before this for the same thing, and they had plenty of proof against him, including his fingerprints on the inside of the house. 

It reminded me of a law review article I ran across the other day which discussed the market model of plea bargaining.  What the hell is that?  It stems from a 1983 article by Federal Judge Frank Easterbrook which argued that plea bargaining and other aspects of the criminal justice system could "be understood as elements of a well-functioning market system" that "set the 'price' of crime" and thereby tend to "get the maximum deterrent punch out of whatever resources are committed to crime control."

What that means in plain English is that plea bargaining is like any other market transaction:  you haggle over a product, and wind up with an agreed price.  The "product" is the quality of the state's case.  If it's trying to sell you a bad one -- the victim has a criminal record, the witnesses' statements are contradictory, and there's no forensic evidence -- you're going to pay a lower "price" than you would if they had a good case.  "Price," of course, is years or penalties instead of money.

This works up to a point.  One of the big problems is the parties' disagreement about the likely result of a trial:  if I believe that I've got an 80% chance of winning the case, but the prosecutor thinks he's got an 80% shot, a deal's unlikely.  Same thing as in a financial transaction:  if my wife's antique shopping and comes across something she thinks is worth $50, but the store owner thinks it's worth $500, it's very unlikely that she's going to be bringing that home.  And disagreement can result from lack of information.  One of the reasons that many prosecutors have come to like open discovery is that it makes plea negotations more fruitful.  A defense attorney has a much better chance of accurately analyzing a case's prospects if he has all the police reports and witness statements.  And a defendant has a better chance of doing that, too.

That last point, though, reveals one of the problems with the economic model:  as in all economic models, it's based on rational actors, each objectively evaluating the transaction and arriving at the maximum benefit for each of them.  For that reason, the free market correctly pegs the price of a commodity, whether it's stocks, houses, or widgets.

Except when it doesn't, and people start believing that a business plan for a dot-com startup drawn on a the back of a napkin will pan out, or that their house will keep increasing in value 12% a year.  With your 20 years of experience practicing criminal law, you may come to an evaluation of the chances your client is going to be convicted and what the likely sentence will be, but your client's not likely to come up with the same one if he's a 19-year-old dropout who's been told by his cellmates that there's no way he can be convicted of a gun spec if they don't find the gun.

Fun theory, anyway.

STFU.  I did a post yesterday about the troubles lawyers can get into talking about judges.  From New York comes a story that lawyers can get into trouble by running their mouths without even bringing judges into the mix.  Radical lawyer Lynne Stewart represented Omar Abdel-Rahman, the "blind sheikh," who'd been convicted of various crimes growing out the investigation of the first WTC attacks in 1993.  In 2005, Stewart was convicted of conspiracy and other crimes for helping Abdel-Rahman smuggle messages out of prison to his terrorist network.  Stewart faced a possible thirty years incarceration, but the judge gave her only 28 months. 

That sentence got reversed on appeal as insufficient, so on remand, the judge gave her ten years, based partially on the fact that immediately after the first sentencing, she'd given a press conference where she said that she could do the 28 months "standing on her head."  She'd also made several other comments indicating, shall we say, a paucity of remorse, including the statement that she'd do the same thing over again if she had a chance.

So Stewart's lawyers were back before the 2nd Circuit again -- in fact, the panel contained the same three judges who'd reversed her first sentence -- claiming that the imposition of the harsher sentence violated Stewart's First Amendment rights.

That's not necessarily a long shot; as one judge asked the prosecutor during oral argument,"Can't somebody say: 'I lucked out'?  What if she said: 'Boy, I was lucky to get the sentence this low.  A lefty like me usually gets hit hard.'"  The government lawyer asserted that the judge hadn't just listened to the audio, but had watched a video of Stewart's statements outside the courthouse.

I'm not sure why that should matter -- I don't understand how your First Amendment protections are affected, let alone lessened, by your body language.  The problem was that Stewart hadn't simply scoffed at her sentence; her announcement that she'd do the same thing again, which, the judge noted, she was in a position to do, went to the issue of whether she was sufficiently remorseful, and nobody's going to argue that's not a sentencing consideration.  As another judge put it during oral argument, "I'm not sure that freedom of speech means absolute immunity from the consequences of what you say."

In any event, the sentencing judge was wrong on one aspect of the case.  Stewart won't be in a position to do the same thing.  She's been disbarred.


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