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Franks A Lot

Okay, I have been complaining about the lack of understanding of Franks v. Delaware warrant evaluation standards forever. I know there were ones previous, in other times, I am pretty sure there have been more times since, even if less formally on Twitter or in comments, but here was a big one in relation to the continued insanity over the appropriate warrant, and subsequent reauthorizations, as to Carter Page.

The universe of commenters on this, including Michael Horowitz, the vaunted DOJ IG, have ignored the mark. Not short sold it, but totally ignored it. Between Horowitz’s deficient 435 page “report” and, now, the SSCI Report, all 952 pages of it, neither has addressed the applicable standard as to Page. That is 1,387 pages of refusing to mention for a word, much less discuss for a sentence, paragraph or page, the actual controlling authority on the issue. And, no, no discussion of it all is honest or complete without it.

But, as I have relentlessly pointed out, Page was absolutely a proper CI target. The warrant issue is about far more than the whiny Carter Page. It is about much more than FISC warrants. The same law applies to all, and it is being made a joke through through the Page nonsense.

The latest example is this case in NY State Court. I am not going to embed a bunch of tweets, read the thread for yourself. The pertinent case is described in this thread by Sam Feldman, as noted by Carissa Byrne Hessick. Later Scott Greenfield noted, appropriately, that the instant decision was done by the court, even if bogusly, under the old 1974 NY State case of People v. Darden. But Darden is bad law in every regard. For a modern court to glom onto it is maybe not stunning, but extremely disconcerting.

Darden, among other infirmities, relied on Roviaro v. US, a case that so stands for the opposite of what the Darden court advocated, it is hilarious. Literally the exact opposite.

But this is where the discussion is now thanks to the bogus discussion regarding the curious and disturbing character Carter Page. The micro analysis of all this has been ludicrous. If you cannot address the basic standards of warrants, how they apply to the initial, and then reauthorization warrants, for Page, and far more than just noisy FISC ones, it is a failed discussion.

I think a lot of people did not take me seriously as I relentlessly said that the warrant issue, whether FISC or Title III, was about far more than Carter Page. Well, here is a concrete example, even under related state law. There are serious issues here, and they go far deeper than the charlatan Carter Page. These issues are universal and critical.

Commuting Blago’s Wildly Excessive Sentence Would Be Right For Trump To Do

Another poster at the Emptywheel blog, okay, it may be Emptywheel herself, has today posted a very interesting take, and I think a good one, on the intersection of Jim Comey, Pat Fitzgerald and Rod Blagojevich.

If Trump were to commute Blago’s sentence…..it would be one of the few pardon power actions he has taken that would be justified.

The other was, obviously, the woman Kim Kardashian talked him into commuting.

Don’t get me started about governance by reality show/sex tape idiots like Kimye, but still that was good.

Here is the thing though. Hate on Rod Blagojevich all you want. Laugh at him all you want. Sure, all that is good and proper.

What was not, however, was his sentence. Judge James Zagel got a bug up his ass and sentenced Blago to twice as much time as was possibly appropriate for his purported offenses. There is a long history of Illinois Governors, criminal charges, and prison. But no sentence remotely like Zagel gave Blago.

Then there was Bob McDonnell of Virginia, who ended up not ever serving a day on things that were, mostly, more obvious pay to play corruption than Blago. Also, there was Don Siegelman, who arguably met potential charging elements, even if they were mostly innocuous acts, and who was only ever charged because of a Rove/Cheney effort to insure the same. Siegelman got just over six years.

Don’t get me started about Bob Menendez. The point being, even if Blago was corrupt, needed to be found guilty, and needed to be sentenced…..The sentence of 14 years Zagel gave Mr. Blagojevich was insane and ludicrous.

As big of a narcissistic and useless asshole as Trump is, he would be right to commute the insanely over sentenced punishment Zagel gave to Rod Blagojevich.

People, especially the more liberal than not among us, constantly scream for criminal justice reform. Abolish cash bail (a good thought, but one with far different and deeper implications than you think as Scott Greenfield at Simple Justice has noted), less incarceration, shorter sentences, better programs for those incarcerated. End the death penalty. Less solitary confinement. Etc. All good things.

But part and parcel of all of it is recognizing crazy stupid sentences too. Blago is pretty much a joke of a historical character. Fine. He was never Public Enemy Number One either. His sentence from Zagel was outrageous. If Trump is willing to commute it, he should, and that should be cheered.

But, because of pushback from the very same people that usually scream and squawk, and rightfully so, about criminal justice reform when it is not one of their pet pariahs, i.e. people on the left and, here, Blago, Trump will certainly chicken out from doing the right thing. Because Trump doesn’t know the facts, and he is a pussy that is too easily grabbed by Republicans and, in this case, bullshit liberals too.

Free Blago. It needs to be done.

Raising Pat Kane and Lawyers Selling Out Clients

If you haven't seen the reportage, there is a bit of a fascinating case going on up in Erie County of New York. That would be the Buffalo area, give or take. The matter involves the star of the Chicago Blackhawks, the current Stanley Cup Champions, Patrick Kane. And it involves extremely serious rape allegations.

Several people, both on and offline, have asked me about this case. I have made a few observations on Twitter (namely that the cops have a LOT to answer for, and that this case is nuts), which I stand by, but have been unwilling, without more, and better, facts to really express much of an ultimate opinion.

I am still not willing to go to Kane’s ultimate guilt or innocence, and neither should anybody else at this point. In fact, it is revolting to the extent that many in the press, especially digital media, have putatively done so. I have long loved Dave Zirin, of The Nation, but he got out ahead of himself and criminal (frankly even civil) law here:

In the entire horrific history of male sports stars and accusations of sexual violence, there may have never been a story as nauseating as this one.

Yeah, what?? That was while he was explaining that there may actually be a heinous problem with the critical evidence of guilt. So let’s frame it in terms of the victim, right?

Okay, but which victim? Is the “victim” the one Zirin, and honestly most of us, assume, i.e. the “accuser”?

It may well be!

But, is it necessarily? No, the “victim” could well be Kane too. Usually the cops and prosecutors are putting their weight behind a civilian victim and lying against the accused. At least that is my experience. Sometimes the “State” case is only lightly shaded by the cops and prosecutors, sometimes (and this is way more than you think), it is in an unreasonably leveraged, and borderline unconscionable, manner. And this is the problem with a victim culture in criminal matters, victims get presumed and the presumption of innocence gets lost.

So, what about here where the DA is standing up and saying everybody needs to slow down on Kane? Is the DA protecting justice, or preventing it?

We don’t know. I don’t know. Dave Zirin doesn’t know. And neither do you. The publics’ emotions and feelings are not the judgment of the civil, much less criminal, justice system. Time may tell, or this case may be so fundamentally buggered up by yet unknown actors that it is never really known what happened.

But there is one way in which the accuser is absolutely a clear cut victim. She has been screwed by her, now former, lawyer, Tom Eoannou:

The lawyer for a woman accusing Chicago Blackhawks star Patrick Kane of sexual assault abruptly quit the case Thursday night, saying he’s no longer comfortable representing the woman because of how her mother reported finding an evidence bag they believed once held the woman’s rape kit.

Thomas Eoannou told reporters he believes there were, what he called, “fabrications” in the story of how the bag was found. He added that he’s no longer sure if the bag ever contained evidence from the investigation.

“I can only say that I don’t know what’s true and what’s not true,” Eoannou said during a hastily called news conference at his downtown Buffalo law office. “I received the storyline from the mother. And it’s my position that I’m not comfortable with that version of the events.”

Say what??

I don’t know where this story will ultimately go, but suffice it to say that it is some major league ethically dubious lawyering for Eoannou, to be publicly holding a press conference to say he doesn’t “have confidence” in his client’s story. Especially when he is abandoning his client in the process. On what any moron would know would be, nearly instantly, national television.

I guess Eoannou stopped a little short of calling his own client, and her mother, lying frauds, but, seriously, he did everything but that and certainly implied it. This is just flat out scummy, and arguably patently unethical lawyering, in my opinion. And it hurts lawyers, of all stripes, everywhere and taints the entire judicial system.

You don’t get to say such things as a lawyer. You CAN’T say such things as a lawyer. Not while both the active criminal investigation, and potential civil case, hang in the lurch for your client. And not while walking away like a coward from your client. Because that is selling your client, and everything you, as a lawyer, are supposed to stand for down the river. On a barge the width of the Mississippi.

Nothing good ever comes from a lawyer running his mouth to the press on a case before he really knows the facts. Far too many attorneys are tempted to self aggrandize and publicize themselves on their “big case” before they know what they are really dealing with. Thomas Eoannou should not have been yakking to the press to start with, much less have held a press availability to explain how he was shitting on his client and her case.

This is unconscionable, and unprofessional, media whoring at its worst. It brings to mind the case of David Aylor, the former lawyer for the cop charged with executing Walter Scott in South Carolina. As my friend Scott Greenfield said in that matter:

No one forces you to rush out to the spotlight and make a statement before you have a clue what evidence exists against your client, and no one forces you to rush out to the spotlight a second time when you’re exposed as the fool who shot off his mouth.

At first, the spotlight seems warm and alluring to the lawyer, a chance to get his brand out in public and make a name for himself as the kind of lawyer who can handle the big time. But stand in the spotlight long enough and it starts to burn.

Exactly. You just cannot do that, whether you represent the accused or the putative victim. You cannot bias and/or destroy your client’s case, your duty is to zealously protect the client. Here, Eoannou has prejudiced both the accuser’s case as a potential crime victim and any potential civil case she might have against Kane. That is simply impermissible irrespective of where the ultimate truth lies in the rape accusation against Patrick Kane.

UPDATE: Scribe has some good information in this comment regarding the the violations of the New York ethics code Thomas Eoannou arguably ran afoul of.

This is exacerbated by what might be the lawyer’s pretty blatant violation of the ethical rules. New York’s version of the Rules of Professional Conduct are interpreted more broadly than in other states, when it comes to disclosure of client confidences. Disclosure of anything that might embarrass the client or prejudice his rights is prohibited. The classic example is how the high-profile divorce lawyer is not allowed to acknowledge that the prominent movie star with a family values image has been to his office. This even if the star is not a client but only a prospective client.

NY RPC 1.6 states, in pertinent part:

(a) A lawyer shall not knowingly reveal confidential information, as defined
in this Rule, or use such information to the disadvantage of a client or for the
advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating
to the representation of a client, whatever its source, that is (a) protected by the
attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if
disclosed, or (c) ….

(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or
(ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.

NY RPC 1.18 makes 1.6 apply to prospective clients.

This attorney might argue his second “I quit” press release was correct under 1.6(b)(3) above. But the problem is that his first run-to-TV moment was the one he should not have undertaken. It appears he did little to no investigation before running to the press. If he had, chances are he would have had a good chance of finding whatever falsity he thinks he found between TV appearances that justified his dumping out on his client. Now, not only has he cast his client as a liar, her mother – who might have been a corroborating witness – as another liar – all prejudicial to the state’s case, if any existed, for an assault against her – but he also bolluxed any civil case she might have brought in the future.

I hope his malpractice insurance is paid up.

Criminal Sexual Assault: No Means NO Burden Shifting

CryingJusticeLate last night here, early this morning where many of you are, I saw an article pop up on the New York Times website by Judith Shulevitz on “Regulating Sex”. The title seemed benign enough, but thanks to my friend Scott Greenfield, and his blog Simple Justice, Ms. Shulevitz has been on my radar for a while. So I sent the article (which is worth a read) to Scott knowing he would likely pounce on it when he got up.

And Scott did just that, in a post called “With Friends Like These”, while I was still comfortably tucked in:

A lot of people sent me a link to Judith Shulevitz’s New York Times op-ed, Regulating Sex. As any regular SJ reader knows, there is nothing in there that hasn’t been discussed here, sometimes long ago, at far greater depth. But Shulevitz is against the affirmative consent trend, which she calls a “doctrine,” so it’s all good, right?

What Shulevitz accomplishes is a very well written, easily digestible, version of the problem that serves to alert the general public, those unaware of law, the issues of gender and sexual politics, the litany of excuses that have framed the debate and the seriousness of its implications, to the existence of this deeply problematic trend. She notes that one of its primary ALI proponents, NYU lawprof Stephen J. Schulhofer, calls the case for affirmative consent “compelling.” She neglects to note this is a meaningless word in the discussion. Still, it’s in there.

On the one hand, I think Scott is right that there is really nothing all that new here in the bigger picture, and, really he is right that Ms. Shulevitz is far from a goat, even if a little nebulous and wishy washy.

No, what struck me like a hammer was the ease with which academics like Georgetown’s Abbe Smith and NYU professor Stephen J. Schulhofer, not to mention the truly formidable American Law Institute (ALI) are propagating the idea of alteration of criminal sexual assault law. In short, are willing to put lip gloss on the pig of shifting the burden of proof on a major felony crime of moral turpitude.

And it is an outrageous and destructive concession. This is not a slippery slope, it is a black ice downhill. You might as well be rewriting the American ethos to say “Well, no, all men and women are not created equal”. In criminal law, that is the kind of foundation being attacked here.

Scott did not really hit on this in his main post, but in a reply comment to some poor soul that weighed in with the old trope of “gee, it really is not too much to give” kind of naive rhetoric, Mr. Greenfield hit the true mark:

The reason I (and, I guess, others) haven’t spent a lot of time and energy providing concrete examples is because it’s so obvious. Apparently, not to everyone. So here’s the shift:

Accuser alleges rape because of lack of consent, saying: “He touched me without my consent.” That’s it. Case proven. Nothing more is required and, in the absence of a viable defense, the accused loses.

Now, it’s up to the accused student to prove, by a preponderance of the evidence (which means more than 50%) that there was consent. There was consent at every point in time. There was clear and unambiguous consent. And most importantly, that the accused’s assertion of consent somehow is proven to be more credible than the accuser’s assertion of lack of consent.

Let’s assume the accuser says “I did not consent,” and the accused says, “you did consent.” The two allegations are equally credible. The accused loses, because the accuser’s assertion is sufficient to establish the offense, and the burden then shifts to the accused, whose defense fails to suffice as being more credible than the accusation.

Mind you, under American jurisprudence, this shifting compels the accused to prove innocence, which is something our jurisprudence would not otherwise require, merely upon the fact of an accusation, or be peremptorily “convicted.”

Is that sufficiently concrete for you?

Yeah, and do you want that star chamber logic in not just public university settings, but embedded with a solid foothold in common criminal law? Because those are the stakes. Constitutional law, criminal law, and criminal procedure are not vehicles for feel good patina on general social ills and outrages de jour, in fact they are instead designed, and must be, a bulwark against exactly those people who would claim the former mantle.

First they came for the Fourth and Fifth Amendments, and you poo poohed the cries from criminal defense lawyers, going back to at least the mid-80’s, about the dangerous slippery slope that was being germinated. Whether the results have touched you, or your greater “family”, yet or not, it is pretty hard to objectively look at today’s posture and not admit the “slippery slope” criers thirty years ago were right. Of course they were.

People operating from wholly, or mostly, within the criminal justice system, whether as lawyer or client/family, just have a different, and more immediate, perspective. A position rarely understood without having tangible skin in the game.

Maybe listen this time. The battle over racial and sexual equality is far from over, but it is well underway intellectually, and headed in a better direction. It gets better. So, make it better in criminal justice too, do not let it be the destructive war pit morality betterment in the US falls in to.