Civility in the Courtroom

It seems like the more of a digital society we become, the less of a civil one we are. People are on their devices constantly — while wandering the grocery store, in the middle of a movie at a theater, during dinners. How many times have you seen a group of people out and noticed that all of them are on their phones? While the source of the problem is debatable (maybe phones and tables aren’t to blame), there can be no dispute that rudeness and incivility is on the rise.  It is front and center in the national political discourse, and of course, Wisconsinites need only look as far as the Supreme Court or the Milwaukee County Sheriff to see first-hand examples.

But when I think about civility in the practice of law, it’s not the lawyers who are the problem; it’s the judiciary. I have never had opposing counsel question whether I was being candid, refer to me as intellectually dishonest, or tower over me and yell at me in the middle of hearing. All of those things have happened to me at the hands of members of the court. And how to deal with that is not something anyone ever teaches you in law school.

Judges do not have it easy. They have exploding caseloads and fewer and fewer dollars every year to deal with them. But at what point did the convenience of the court’s calendar start not just to overshadow the rights of the defendants and the needs of the victims and witnesses, but to completely consume it? Doing anything to disrupt the court’s calendar — whether it be by filing a motion requesting an evidentiary hearing, seeking an adjournment, or (gasp!) a defendant who actually exercises his right to a trial — causes a meltdown.

Recently, while waiting for my case to be called, I watched a judge grill a defendant at his final pretrial hearing about why he wanted a trial. “What is it you think your lawyer can do for you?” the judge asked, reminding the defendant that he had already confessed. But how does the judge know that? Because the state alleged it when the parties were discussing witnesses? There are lots of reasons people confess, if that is in fact what he did. And so what if he did confess; maybe his defense wasn’t that he didn’t do it, but that he was privileged to act in a particular way. I have no idea — I just saw a five-minute final pretrial hearing. But I was outraged that the defense attorney stood silent and let his client be questioned. The answer to the judge’s question is simple: the client wants a trial so he gets a trial. Why should never figure into it.

That sort of questioning has no place in a courtroom. It’s abhorrent. It’s unconstitutional. It’s uncivil.

Judges are under enormous pressure, but so is everyone else. A defendant exercising his rights by actively defending against the serious charges against him, should not be the cause of incivility. It should be celebrated.

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Life in the Digital Age: Is There Such a Thing as a Reasonable Expectation of Privacy?

A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.

The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.

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The Boston Case: Moving the Line on the Public Safety Exception

My practice is nearly exclusively a criminal appellate practice, and it’s been that way for almost 10 years. Being a one-trick pony, I can’t help but think about legal issues in the news in the context of an imaginary appeal. Of course, recently the news was flooded with stories about the Boston Marathon bombing. The issue that grabbed my interest the most was all of the talk centered on not informing captured suspect Dzhokhar Tsarnaev his Miranda rights pursuant to the public safety exception.

The idea behind the public safety exception makes sense: gathering information from a suspect to ward off an immediate threat. The exception was originally created nearly 20 years ago, but in the past 10 years or so, has become stretched (some say past recognition) to deal with terrorist threats. But that’s neither here nor there — the public safety exception and the suppression of evidence obtained from it is a trial lawyer’s concern.

First, told or not told, Tsarnaev has all of the same rights every American citizen has, including the right to remain silent and the right to an attorney. In this era of cop and robbers television (“Law & Order” in all its various forms has been on the air for 23 years), it seems self-evident that a person has those rights. But still, whether he knows he has those rights or not, the government has an obligation to inform a suspect he has them. But what happens when the defense persuades a court that law enforcement interrogated a person in violation of Miranda? That evidence is suppressed and so are the fruits of it. This is the part that really interests the appellate lawyer in me, because the question I keep coming back to here, is: so what?

If any of the news reports are to be believed, and obviously those outside of the parties won’t know until the trial, if there is one, the government has built a relatively strong case against Tsarnaev without his help. So even if some of his statements are suppressed, it doesn’t really matter because the government will still have plenty of evidence to go around. Presumably, the people who did the interrogating had a really good sense of what evidence they already had against him. Perhaps, sure in its case (even though the investigation was in the infancy), the government opted to question Tsarnaev and ask him everything it could think of. Worst case scenario, some cumulative evidence gets suppressed.

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