"I have this reputation for being a mean old bitch," Berkman, 70, said just before lunch, after hearing her last case, a gun possession, and stepping down from the bench.
Your Attention Please:
Judge Carol Berkman has retired.
Take Pause, Anonymous
My previous post, The Cops Show You a Picture of Yourself raised a good question from an anonymous commenter, who wrote:
Just to clarify before we go any further, I wrote in the original post, "I'm placed under arrest and they don't have to show me the video. They can save the video for trial..." Meaning, there is no right to see the video during the interrogation, before my arrest.
Let's start by taking a look at the Sixth Amendment and the Confrontation Clause briefly:
Ultimately, if this case went to trial, you would likely see this video at trial if the prosecution was using it as evidence against you.
Notice the two "if"s in that sentence.
First, if the case went to trial. If you took a plea deal, depending on the discovery rules in your jurisdiction and the timing of the plea, it is possible you would not see the video before your plea. Some states have very late discovery (for example, everything has to be turned over before the trial begins) and certainly, some defendants take a plea bargain well before the case proceeds that far. I think that most defense lawyers, if the video was the key evidence in the case, would ask for an opportunity to view the video before advising their client whether to take a plea deal. On the other hand, though, I can imagine a scenario where the prosecutor says, "Look, the deal is ____ today. Your client knows what he did. If I have to present the case to the grand jury and turn over evidence, the offer is going up." And, we're back to my assertion, they don't have to show you the video.
The second "if" is if the prosecution uses that video against you. Sometimes the prosecution has evidence that they choose not to use, particularly if there's a way to prove the case and protect that evidence. For example, imagine that same robbery case with the video. Let's imagine the prosecutor finds ten different people who were on the street that day. They all come in, pick you out of a mugshot book, pick you out of a line-up, and describe you perfectly. One of them even got a picture of you on his cell phone camera as you ran away. If the prosecutor decides that he feels pretty confident the jury will be convinced based on these ten witnesses and the cell phone camera photo, he may decide he doesn't want to use the video and may never have to turn it over.
On the contrary, if the prosecutor was using the video as the evidence against you, you would have a chance to confront it. To argue to the jury, for example, that the video may have been tampered with or that the footage doesn't show what it is alleged to have shown. The officer can't testify, "I saw the video and it showed the defendant committing the robbery," without showing the video for the jury - and letting the jury decide for themselves whether the video really shows what the officer says it does.
Bottom line, I agree, anonymous. It gives me pause too. A lot of the things that police are allowed to do, and a lot of things that prosecutors are allowed to withhold, give me pause too. Hopefully, you and all of the other readers will feel that same hesitation just between the officer asking you a question and you asking for a lawyer.
Your comment "they don't have to show me the video" makes me take pause. Aren't individuals accused of criminal behavior entitled to be confronted with the evidence? Doesn't the Sixth Amendment entitle them to see the video?
Just to clarify before we go any further, I wrote in the original post, "I'm placed under arrest and they don't have to show me the video. They can save the video for trial..." Meaning, there is no right to see the video during the interrogation, before my arrest.
Let's start by taking a look at the Sixth Amendment and the Confrontation Clause briefly:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.The question is referring to the Confrontation Clause, meaning the right "to be confronted with the witnesses against him." And I agree, absolutely, that would include the right to see the video... at trial. The Confrontation Clause is a trial right, not a pre-trial or investigation right.
Ultimately, if this case went to trial, you would likely see this video at trial if the prosecution was using it as evidence against you.
Notice the two "if"s in that sentence.
First, if the case went to trial. If you took a plea deal, depending on the discovery rules in your jurisdiction and the timing of the plea, it is possible you would not see the video before your plea. Some states have very late discovery (for example, everything has to be turned over before the trial begins) and certainly, some defendants take a plea bargain well before the case proceeds that far. I think that most defense lawyers, if the video was the key evidence in the case, would ask for an opportunity to view the video before advising their client whether to take a plea deal. On the other hand, though, I can imagine a scenario where the prosecutor says, "Look, the deal is ____ today. Your client knows what he did. If I have to present the case to the grand jury and turn over evidence, the offer is going up." And, we're back to my assertion, they don't have to show you the video.
The second "if" is if the prosecution uses that video against you. Sometimes the prosecution has evidence that they choose not to use, particularly if there's a way to prove the case and protect that evidence. For example, imagine that same robbery case with the video. Let's imagine the prosecutor finds ten different people who were on the street that day. They all come in, pick you out of a mugshot book, pick you out of a line-up, and describe you perfectly. One of them even got a picture of you on his cell phone camera as you ran away. If the prosecutor decides that he feels pretty confident the jury will be convinced based on these ten witnesses and the cell phone camera photo, he may decide he doesn't want to use the video and may never have to turn it over.
On the contrary, if the prosecutor was using the video as the evidence against you, you would have a chance to confront it. To argue to the jury, for example, that the video may have been tampered with or that the footage doesn't show what it is alleged to have shown. The officer can't testify, "I saw the video and it showed the defendant committing the robbery," without showing the video for the jury - and letting the jury decide for themselves whether the video really shows what the officer says it does.
Bottom line, I agree, anonymous. It gives me pause too. A lot of the things that police are allowed to do, and a lot of things that prosecutors are allowed to withhold, give me pause too. Hopefully, you and all of the other readers will feel that same hesitation just between the officer asking you a question and you asking for a lawyer.
Preach On, Gideon
I had two goals:
First, to find some new defense blogs to link to as I clear out some apparently-abandoned blogs.
The other was to try to write a meaningful piece on the Dharun Ravi - Rutgers - cyberbullying - "hate crime" - "bias intimidation" - "Tyler Clementi" case. But I had too many thoughts spinning around in my head, and I just wasn't ready to organize them all yet.
Instead, I found this excellent blog post When hard cases make bad law: Why the Rutgers Conviction is Wrong that says it all much better than I could. And in the process, I've found Gideon Speaks - a new (to me) defense blog!
Two birds, one stone.
First, to find some new defense blogs to link to as I clear out some apparently-abandoned blogs.
The other was to try to write a meaningful piece on the Dharun Ravi - Rutgers - cyberbullying - "hate crime" - "bias intimidation" - "Tyler Clementi" case. But I had too many thoughts spinning around in my head, and I just wasn't ready to organize them all yet.
Instead, I found this excellent blog post When hard cases make bad law: Why the Rutgers Conviction is Wrong that says it all much better than I could. And in the process, I've found Gideon Speaks - a new (to me) defense blog!
Two birds, one stone.
The Cops Show You a Picture of Yourself
This happens every day, so let's deal with it.
The police come to your house or a detective calls you into the police station, and they show you a photo. It's a photo of you, but you're not doing anything bad, just walking down the street, let's say.
The police officer asks you, "Is this you?"
You should respond, "I'm not answering any questions without a lawyer present."
Yes, even though that photo doesn't show anything bad and maybe the officer says something like "We just need to clear possible suspects," or "As soon as we know if this is you, we can exclude you as a suspect." But, you should know by now that the police are allowed to lie to a suspect during their investigation.
So, what happens if you say "Yeah, that's me," thinking that it can't possibly hurt you to admit to being the guy in the photo doing something totally innocent, like standing on the sidewalk? Let's be clear, the police didn't ask the question for no reason. They asked because there is some way to incriminate you with that photo.
Perhaps you're wearing the same distinctive hat they recovered from the crime scene. Or, more likely, the photo is actually a still shot from a video that shows you leaving the scene of the crime or committing the crime.
Over and over, I tell this to my clients. "The police says they have a video of the robbery, and they showed you a photo from it and you admitted that was you." And over and over, my clients say "That wasn't a video of the robbery, it was just a picture of me. There was no robbery in that picture."
But that's the point. The police don't show you the photo of you actually committing the crime. Then you would never admit it was you, and that would not make their job any easier.
Let's imagine, for a moment, that I killed someone. I walked right up to a woman on the street and stabbed her in the back. I dropped the knife and walked off. If the detective showed me a photo of me stabbing the woman in the back and said "Is that you?" I would say, "No, of course not!" Because I'm at least that smart. But if the detective showed me a photo of myself two minutes earlier, or two minutes later, when I'm just walking down the street, no knife in my hand, I might say "Yeah, that's me. Why?"
I'm placed under arrest and they don't have to show me the video. They can save the video for trial and say "Here's the photo Ms. Justice admitted was her. And here's where we got that photo from." Then the prosecutor could play the video that shows me stabbing the woman and walking away, and pause it at the spot that they printed and say "And is that the same scene you printed and Ms. Justice admitted was her?" The detective would say "Yes it is." And they have just proven my identity.
That's not to say I don't have some other defense. Maybe there's a self-defense argument or a causation argument. But, if I didn't have the knife on me when the police arrested me, and the police didn't find my clothes with the victim's blood on them, maybe my lawyer would have an easier time arguing, "That could be any female with blonde hair! That could even be a man in a blonde wig!" Now that argument is gone, and my lawyer better be able to come up with something else.
So, that's my advice: When the police show you a picture and say "Is that you?" do the same thing you should do when the police ask you any question. Say, "I'm not answering any questions without a lawyer present." And then keep your mouth shut.
The police come to your house or a detective calls you into the police station, and they show you a photo. It's a photo of you, but you're not doing anything bad, just walking down the street, let's say.
The police officer asks you, "Is this you?"
You should respond, "I'm not answering any questions without a lawyer present."
Yes, even though that photo doesn't show anything bad and maybe the officer says something like "We just need to clear possible suspects," or "As soon as we know if this is you, we can exclude you as a suspect." But, you should know by now that the police are allowed to lie to a suspect during their investigation.
So, what happens if you say "Yeah, that's me," thinking that it can't possibly hurt you to admit to being the guy in the photo doing something totally innocent, like standing on the sidewalk? Let's be clear, the police didn't ask the question for no reason. They asked because there is some way to incriminate you with that photo.
Perhaps you're wearing the same distinctive hat they recovered from the crime scene. Or, more likely, the photo is actually a still shot from a video that shows you leaving the scene of the crime or committing the crime.
Over and over, I tell this to my clients. "The police says they have a video of the robbery, and they showed you a photo from it and you admitted that was you." And over and over, my clients say "That wasn't a video of the robbery, it was just a picture of me. There was no robbery in that picture."
But that's the point. The police don't show you the photo of you actually committing the crime. Then you would never admit it was you, and that would not make their job any easier.
Let's imagine, for a moment, that I killed someone. I walked right up to a woman on the street and stabbed her in the back. I dropped the knife and walked off. If the detective showed me a photo of me stabbing the woman in the back and said "Is that you?" I would say, "No, of course not!" Because I'm at least that smart. But if the detective showed me a photo of myself two minutes earlier, or two minutes later, when I'm just walking down the street, no knife in my hand, I might say "Yeah, that's me. Why?"
I'm placed under arrest and they don't have to show me the video. They can save the video for trial and say "Here's the photo Ms. Justice admitted was her. And here's where we got that photo from." Then the prosecutor could play the video that shows me stabbing the woman and walking away, and pause it at the spot that they printed and say "And is that the same scene you printed and Ms. Justice admitted was her?" The detective would say "Yes it is." And they have just proven my identity.
That's not to say I don't have some other defense. Maybe there's a self-defense argument or a causation argument. But, if I didn't have the knife on me when the police arrested me, and the police didn't find my clothes with the victim's blood on them, maybe my lawyer would have an easier time arguing, "That could be any female with blonde hair! That could even be a man in a blonde wig!" Now that argument is gone, and my lawyer better be able to come up with something else.
So, that's my advice: When the police show you a picture and say "Is that you?" do the same thing you should do when the police ask you any question. Say, "I'm not answering any questions without a lawyer present." And then keep your mouth shut.
Prison for Profit
Here's an interesting article:
Basically, this corporation, Corrections Corporation of America, has offered to buy states' prisons, in exchange for a 20 year management contract, plus an assurance that the prison would remain at least 90 percent full.
So, what happens if crime goes down? What happens if prosecutors aren't getting those convictions and are pleading people out to non-incarceratory sentences? What about "alternative-to-incarceration" programs? Would the pressure be on judges to look for excuses to violate people on probation or in programs to keep the jails full?
There are other concerns pointed out in the article, including the fact that the plan doesn't necessarily save the states any money, but I have a really hard time with the idea that we, as a society, want to keep our prisons full. Shouldn't the goal of law enforcement and the court system be a decrease in crime, however utopian that may seem?
Basically, this corporation, Corrections Corporation of America, has offered to buy states' prisons, in exchange for a 20 year management contract, plus an assurance that the prison would remain at least 90 percent full.
So, what happens if crime goes down? What happens if prosecutors aren't getting those convictions and are pleading people out to non-incarceratory sentences? What about "alternative-to-incarceration" programs? Would the pressure be on judges to look for excuses to violate people on probation or in programs to keep the jails full?
There are other concerns pointed out in the article, including the fact that the plan doesn't necessarily save the states any money, but I have a really hard time with the idea that we, as a society, want to keep our prisons full. Shouldn't the goal of law enforcement and the court system be a decrease in crime, however utopian that may seem?
Drug of Choice
If you were handed a hundred cases that are all serious felony trial cases, some of which need extensive motions or briefs, most of which need legal research and investigation, and they're all on for trial in two weeks, and you were supposed to be on vacation next week, I think there are a two approaches to choose from.
First, is what I think of as the "xanax approach." Take a deep breath, fight the anxiety, tell yourself, "I'll do what I can do, but I can't do any more than that." Chill. Use your favorite stoner as a role model. It's just a job. No matter what happens, you won't be the one to go to prison. And, perhaps, keeping a cool head will allow you to approach will help you pull through it with a cool head.
Second is what I think of as the "speed approach." Use your anxiety as a tool to work without food or sleep. Get to the office earlier and stay later. Rethink that vacation. Hey, going into the office when you're supposed to be on vacation isn't so bad, is it? It's kind of fun when you go to the office for a few hours on a Saturday, think of it that way. Even better, you can work at the beach, or wherever you were planning to go on vacation, it sure beats working in the office, doesn't it? Forget your family or friends you were planning to spend time with. If you are cranky or rude to your family or friends, that's ok, it only goes to prove that you take your job seriously and you care about your clients.
So, which are you?
I'll admit, my approach is generally the "speed approach" but I strive to find the "xanax approach," or at least a little bit of the xanax approach. Aside from an actual prescription for xanax, I don't know how to find that zen mindset. I guess you try to take it day by day, remind yourself to calm down and take a deep breath. If someone has more tips for finding that balance of productive tranquility, I'd love to hear it.
To be fair, there may be a third approach that I have seen. That involves just whining and complaining about how unfair it is, and how must work they have to do. I suppose that maybe that's part of the speed approach, but I think their time spent whining may be better spent getting the work done. Or, you know, blogging about it.
First, is what I think of as the "xanax approach." Take a deep breath, fight the anxiety, tell yourself, "I'll do what I can do, but I can't do any more than that." Chill. Use your favorite stoner as a role model. It's just a job. No matter what happens, you won't be the one to go to prison. And, perhaps, keeping a cool head will allow you to approach will help you pull through it with a cool head.
Second is what I think of as the "speed approach." Use your anxiety as a tool to work without food or sleep. Get to the office earlier and stay later. Rethink that vacation. Hey, going into the office when you're supposed to be on vacation isn't so bad, is it? It's kind of fun when you go to the office for a few hours on a Saturday, think of it that way. Even better, you can work at the beach, or wherever you were planning to go on vacation, it sure beats working in the office, doesn't it? Forget your family or friends you were planning to spend time with. If you are cranky or rude to your family or friends, that's ok, it only goes to prove that you take your job seriously and you care about your clients.
So, which are you?
I'll admit, my approach is generally the "speed approach" but I strive to find the "xanax approach," or at least a little bit of the xanax approach. Aside from an actual prescription for xanax, I don't know how to find that zen mindset. I guess you try to take it day by day, remind yourself to calm down and take a deep breath. If someone has more tips for finding that balance of productive tranquility, I'd love to hear it.
To be fair, there may be a third approach that I have seen. That involves just whining and complaining about how unfair it is, and how must work they have to do. I suppose that maybe that's part of the speed approach, but I think their time spent whining may be better spent getting the work done. Or, you know, blogging about it.
Flirting Longer and Harder
I first met my client a few days ago. He is kind of homeless-looking and had a long rap sheet full of long prison bids. He had just been arrested and he was very angry. He didn't want to talk, he wanted to shout at me. Among the things he shouted at me was, "I DON'T TRUST COPS, I DON'T TRUST JUDGES, AND I DON'T TRUST LAWYERS!" It seemed we had a lot in common, if only he'd stop shouting. He banged on the walls, he banged on the desk, and I waited patiently through quite a bit of shouting when finally he cut the interview short, walking out of the booth and insisting the guards come and take him out. That was ok with me, I needed to meet with other clients and this meeting was not productive. I figured I'd see him in a few days (there was no chance of him getting out) and maybe at that time he'd be a little calmer and able to communicate.
I saw my client again today. The first thing he said to me, to his credit, was "Were you the same lawyer I met a few days ago? I really owe you an apology. I was so angry, I just really needed to calm down. I'm really sorry I was so disrespectful. Can you accept my apology?" I told him I accepted his apology, and I was happy to start off with a clean slate and talk about his case. As I was talking about his case, though, he had other things on his mind. "You've got a nice smile. I can't believe I yelled at a nice lady with a beautiful smile like that. Are you married? I could take you to dinner sometime. When I get out." I was able to redirect him and we talked a little about his case and the plea offer the prosecutor was extending.
"I'll take that plea," he told me, "but see if you can get it down a little lower. A little lower would be better." I told him that I'd talk to the prosecutor and see if we could get the offer a little lower. Satisfied, my client went back to asking me if he could take me to dinner.
After a few minutes, I told the client that I would step out to talk to the prosecutor to try to get the sentence he was looking for, and I'd come back to let him know how it went.
The prosecutor was willing to go along with our counteroffer, after just a little persuasion. I went back into the jail pens to give my client the good news. He was happy, and even more eager to take me to dinner.
"Listen," he said, "I was serious about taking you to dinner when I get out. I really am. I know that will be a long time from now, but you never know where life will lead you. You know, we don't always find love where we're looking for it. Sometimes it's right in front of our eyes and we don't even see it."
I tried again to redirect his attention to the case, "Alright, we're going to go see the judge soon, and you can take the deal today if you want to get this over with. Or we can get an adjournment, if you want more time to think about it."
"No, no, I want to get this finished today." Then, finally, my client made his last ditch attempt. "I didn't get a chance to tell you what I do for a living. I know, it's my fault, because I was yelling at you. But I want to tell you. I make pornos. That's what I was actually doing in the city when I got arrested. I make pornos. I was here to make pornos. You might not recognize me, but some people recognize me. Can I take you out to dinner when I get out?"
Oh, well now that you put it that way... why didn't you mention that sooner?
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