Crime

Last week, I wrote about why so few people go to trial, and I talked about some of the challenges of going to trial in a criminal case in federal court, particularly in a white-collar case.

This week, I’d like to talk about another challenge with going to trial — statements made to law enforcement by the person who is accused of a crime.

After Zachary Warren was indicted in connection with the Dewey implosion, there was a lot of coverage of why, exactly, a smart, educated, fancy lawyer would talk to law enforcement without a lawyer present. (See, e.g., here, and here, and here).

As these prior pieces talk about, there’s a tactical problem with talking to law enforcement in the first place — the agent may say that he or she is just giving you a chance to “tell your side of the story” or “get the truth out” but, really, that person’s interest is in getting a conviction so they get a stat. They’re trying to build a case against you and that has less to do with celebrating the importance of impartial truth seeking, and much more to do with boxing you in so that a trial would be hopeless (see this on one way to think about the agent’s priorities when they’re taking a statement).

There is, though, another problem with talking to law enforcement — one that, hopefully, DOJ is actually making better.

double red triangle arrows Continue reading “The Perils of A Criminal Trial Redux; or, DOJ Belatedly Notices It Has Recording Equipment”

We’ve been talking about officially-sanctioned Chinese hacking for years. Whether the narrative involved offensive attacks on U.S. systems or industrial espionage, the “China threat” was a reliable talking point when discussing cybersecurity. Was the extent of the threat a little overblown? Sure. Hey, the Pentagon needed to spook some legislators into opening the pocketbook. But the idea that the Chinese government was trying diligently to hack into American systems was accurate.

And now the U.S. is doing something about it. It may not be much, but the Department of Justice is filing charges against five Chinese officials in the People’s Liberation Army (known as Unit 61398) for industrial espionage….

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Criminal defense lawyers who practice in federal court bemoan the lack of jury trials these days.

According to the administrative office of the U.S. courts, in the twelve months ended March 31, 2013, in our federal courts, 83,614 people entered a plea of guilty. Only 1,953 went to a jury trial (there were 173 bench trials too, for what it’s worth).

So, around 2 percent of the folks who are charged in federal court go to trial — the rest plead guilty.

The numbers in white-collar cases are a little better. For fraud cases there were 9,925 guilty pleas and 411 jury trials — so about 4 percent of people accused of fraud opt to see a jury. For regulatory offenses there were 1,480 pleas and 47 jury trials — about 3 percent.

There are a lot of reasons why so many people plead guilty and so few go to trial. One reason is that the acquittal rate is low — about 13 percent overall (there were 260 acquittals overall in FY 2013). For what it’s worth, while fraud acquittals were in line with that, regulatory offenses had an acquittal rate that was much higher — 20 acquittals (counting bench and jury trials) out of 55 trials. That’s about 35 percent.

Another big reason is that people accused of a crime are meaningfully prevented from testifying — and if a trial turns on what a person knew, as many white-collar cases do, their ability to put on a defense is compromised by their inability to testify. They can see a bad verdict coming….

double red triangle arrows Continue reading “Why Johnny Can’t Talk: Federal Rule of Evidence 608(b) and the Difficulty of Trial”

Zachary Warren

* Justice Ruth Bader Ginsburg may retire by the end of summer 2015, or she may retire by the end of summer 2017, or she may retire whenever she damn well pleases. For the love of God, please stop with this. [Legal Intelligencer]

* The Fourth Circuit appears to be split on Virginia’s gay marriage ban. The Tenth Circuit appeared to be split on Utah’s gay marriage ban. We’ll give you three guesses on the eventual Supreme Court outcome. [New York Times]

* Law deans lose their jobs when their schools drop in rank, and it seems Biglaw chairmen lose their titles when their firms post the worst single-year drop in revenue ever. Sorry Bingham McCutchen. [Am Law Daily]

* Ex-D&Ler Zach Warren wants to sever his case from the likes of Joel Sanders and the Steves, using a “guilt by association” argument. The only thing he’s guilty of is being too cute. [National Law Journal]

* The drama continues at Albany Law, where faculty members now face possible pay cuts or being put on unpaid leave following a “smear campaign” waged against Dean Penelope Andrews. [Albany Times Union]

It’s been a couple of months, so maybe you thought that there were no more dumb criminals doing dumb things with technology any longer. Well, that was a very silly thought, silly-thought-thinker. You should know by now that nothing will stop the deluge of dumb. This latest is special, however, due to the impressive dedication to stupid by our criminal mastermind. This case is one in which an 18 year old man videotaped himself driving like an idiot on purpose, injured himself to the point of needing an airlift to a hospital, after which he uploaded the video to YouTube — accurately titling it “Me Driving Like an Idiot”

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(c) Image by Juri H. Chinchilla.

On today’s date in 1905, the trial of the Stratton brothers began in the London Criminal Court. The case marks the first time in recorded Western jurisprudence that fingerprint evidence was used to obtain a murder conviction. This week, On Remand looks back at courts’ dealings with fingerprint evidence and the story of a lawyer whose fingerprints led to his erroneous arrest as a terrorist.

In March 1905, Thomas and Ann Farrow were murdered in their south London art shop. The crime scene suggested the motive — a cash box had been pried open and left empty — but offered investigators few clues about the perpetrator. With only a bloodstained sink and two discarded masks at the scene, and no murder weapon, signs of forced entry, or witnesses to the crime, investigators appeared to have no leads. But one other clue found at the scene — a bloody fingerprint on the cash box’s inner tray — would eventually break the case….

double red triangle arrows Continue reading “On Remand: Prints Finger The Guilty – And The Innocent?”

The criminal justice system has all sorts of problems. Far, far, far too many people are in prison. Hell, lots of them are downright innocent. Most of those inmates are drawn disproportionately from the poor and minority population while the more affluent and white receive better treatment for the same crimes. And the wealthy, mostly white people who caused widespread economic pain not only avoided prosecution, but made healthy sums.

But one big problem with the criminal justice system that we’ve harped on before is the broad, largely unchecked power of federal prosecutors to bully the accused.

A prominent federal judge thinks it’s gone too far and he’s got a proposed solution.

Too bad it’s far too sensible for anyone in a position of power to actually adopt….

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You can’t be a judge very long without having a trial that presents concerning situations. We handle them by talking them through with the marshals…. This sounds like something that could have happened at any courthouse, at any time.

– Chief Judge Marsha J. Pechman (W.D. Wash.), commenting on yesterday’s courthouse shooting in Salt Lake City, in which a defendant was shot and killed after rushing a witness.

That’s what some people are saying.

It’s a brutal attack on an attorney running for governor, blasting him for representing criminal defendants. How can he protect battered women when he helped their abusers beat the rap? How indeed. Oh, and it’s not just that he helped their abusers, he did so for money. Because counseling the accused for fees in this country is where all the money is. It’s a seedy racket no way at all as admirable as, I don’t know, lobbying elected officials for political favors at the expense of the citizenry. If only this guy was smart enough to take hundreds of thousands to poison rivers and streams he wouldn’t be such a scumbag.

This ad is just goddamned brilliant at connecting the disingenuous dots for the easily duped.

And this message was “approved” — ultimately — by a former prosecutor who’s now being investigated by the office he once led….

double red triangle arrows Continue reading “Is This Political Ad Against A Lawyer The Most Negative Ever?”

Porsha Williams

At the Real Housewives of Atlanta reunion that aired Sunday night, cast member Porsha Williams laid the smackdown on cast member Kenya Moore.  At issue was that Moore accused Williams of cheating on her husband, NFL superstar Kordell Stewart.

Moore called 911 from the reunion, though Williams was not arrested on the set.  Instead, an arrest warrant issued and Williams voluntarily had herself booked on a misdemeanor assault warrant and was released on $2,000 bail…

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