The cases from the 4th circuit that we win are few and far between. By ‘we’ I mean to take credit for those defense lawyers that take up and throw down the appellate gauntlet in our hallowed federal circuit courts. This circuit in which I sit isn’t known for it’s kindness to criminal defendants, and yet there have been some very good decisions coming from them of late. I wonder how much of this is simply because they’ve been so lax for so long, that the liberties taken by law enforcement and the prosecutors just seem like, you know, COME ON.
In December of 2013 in the year of your lord, the 4th circuit handed down a great decision on consent. And it said there actually has to be consent for it to be consent. Not a grudging acquiensence to the will of the law.
The facts are as follows:
Some black guys in white shirts were chasing another guy. The other guy had a gun. I guess the police were looking for the black guys with white shirts. Jamaal Robertson was in a bus shelter with about 6 other black guys who had on shirts, some of them white. His was dark. There were about 5 police officers at this bus shelter and they were all questioning these black guys. This one officer,Welch, went towards Mr. Robertson who had his back to the wall of the shelter, a police officer in front of him, and four other officers around him and searched Mr. Robertson.
Unfortunately for Mr. Robertson, he did happen to have a gun on him. And a prior felony conviction. Which is a federal crime. Â So he had a suppression hearing saying there was no probable cause to search him, and without probable cause there needed to be consent. And well, there wasn’t any consent because what else was he supposed to do? The 4th Circuit agreed and said since there was no probable cause there needed to be consent, and there was no consent because:
The officer’s questioning was immediately accusatory: Officer Welch’s first question was whether Mr. Robertson had anything illegal on him. When Mr. Robertson responded with silence, the officer waived Mr. Robertson forward and asked to conduct a search. Mr. Robertson’s exit was blocked by Officer Welch, who never informed Mr. Robertson that he had the right to refuse the search. Officer Welch’s initial, accusatory question, combined with the police-dominated atmosphere, clearly communicated to Mr. Robertson that he was not free to leave or to refuse Officer Welch’s request to conduct a search.Â Mr. Robertson’s only options were to submit to the search peacefully or resist violently.Â Mr. Robertson chose the sensible route.
What? Did the Circuit actually acknowledge what we’ve been saying all along? That our clients don’t actually, really, honestly have a choice when ‘asked’ to submit to a search? Could this be for real? When I ask clients why they consent to searches they inevitably give the same answer ‘what else was I going to do? Say no? We know what would happen then.” And we do know. The search will take place with or without the grudging submission by our clients. There is no saying no. I’ve never had a client say “I didn’t give consent and they didn’t search so they came back with a warrant like they said they would.”
I try to put myself in the position of the client. If I was asked to submit to a search, would I do it? Would I have the balls to say no you can’t search my car, my house, my body? I know better. I am fairly familiar with the law and I don’t know if I would say no. I may be too afraid of the consequences.
So thank you, oh kind circuit, for this case. And thank you, police officer for not adding things to make there be probable cause for the detention of Mr. Robertson. And thank you, appellate lawyer, for winning.Share on Facebook
Mark Bennett wrote a post in November that has stayed in my mind ever since. You should go and read it even if you aren’t a lawyer because I think it captures the essence of the human condition: We humans are most insecure in those things which others around us think we do so well. Basically, Mark (who is taking from a post written by Keith Lee) says that having this lack of assurance in ourselves is a good thing, that because we don’t want to be discovered as frauds, we work harder to cover it up. Voila! It’s brilliant.
Today, like most days, I come to the office and the thoughts I have are “make sure I don’t screw anything up” and I know I can’t be alone in this. There are those of you out there with your schtick of suck it up, do your job, I am a tough guy gal, do it all and don’t complain because who cares anyway and now your jig is up – we know you are as full of doubt and fear as any one of us who put it out there that we are full of doubt and fear.
(The thing about a lot of lawyers though, is that they don’t discuss how insecure they are. Because who wants to hire an insecure lawyer? I don’t think anyone who has chimed in on this is talking about lawyers (or PR people or moms or whatever) who are wishy-washy or actually outwardly inept or don’t know basic procedure. They are talking about the internal mechanism that actually compels and drives you to not suck at what you do. Some call it ambition. And maybe we can re-characterize it that way. But the truth is, it’s just not wanting anyone else to know that we don’t know. So we make sure they don’t know.)
The thing is, though, that Mark says this impostor syndrome is obvious to him when dealing with successful male criminal defense lawyers. I don’t know why that is. Is it because he doesn’t want to speak for people who are not like him? Does he not speak with female criminal defense lawyers in ‘truth-telling mode’ to find out how they feel about what they do and how they conduct themselves? Or, is it because he just doesn’t know enough successful female criminal defense lawyers?
I can only speak for myself. I don’t know how he defines truth-telling, or success. Maybe it’s money or law review articles or some other such popular notion of success. Maybe it’s winning all of your cases or having a nice office and minions to do your bidding. Maybe I am not successful in that same way. I mean, I don’t think I am successful quite yet but I can tell you that successful male criminal defense lawyers don’t have the market cornered on this feeling. We clawing our way out of the bottom -high- middle of the heap female criminal defense lawyers are also looking to hide the fact that we are not successful male criminal defense lawyers and that we think people will find out. (!) So we try a little harder. We hold the client’s hand a little tighter and smile a little wider. We look up some extra cases and make sure our tabs are in order. Because if we fail it will be because we are just not up to the task and then everyone will know we are just trying to be like our male criminal defense lawyer counterparts.
And when we do win, when things go our way we do not think it was because of that extra that we did because we were lucky – this time.
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I come into the office full of good intentions. After all, there is always so much work to do. Today, I planned on writing some motions to modify conditions of release (clients want to attend social functions with family members and since they are on house arrest, they have to ask the judge for permission.) It’s not hard work but it is tedious. Then there are motions to put things off or to get things in or to do things that honestly I’d rather just not do but they must be done. There is discovery to go through and videos to watch of my clients doing things they should not be doing on video and I intend it. I do. I mean to do it all and be incredibly efficient with it all. Answer my calls, return the emails. Get. It. Done.
And then I end up leafing through old calendars and address books wondering how I will find the girl who was such a good friend of mine when I was 19 and really, who the hell is this Allison I keep mentioning? (I really have no idea.)
In between I file things in ECF and I listen to a few voice messages (mostly collect calls from the jail that are then forwarded to my cell. Yes, I take calls from clients on my cell. They text me too.)
And I have been doing a lot of unearthing, uncovering, rediscovering the how and why of ending up here in this little office with orange walls.
Those who do not know history are doomed to repeat it.
We do these pre-plea investigations. Basically probation wanders down our client’s memory lane of arrests and convictions and writes them all up for us so we can tell them how screwed they are if they are convicted after a plea or trial. I used to just ask the clients about their criminal history, but it seems that once they are at the feds there are so many arrests they simply cannot remember them all. And frequently, when they are given a written copy of their foibles, they still don’t remember. But it is there in black and white and it is what we have and we have to face it, deal with it, figure out how to make it work to our advantage (that, my friends is not a task for the timid.) Maybe – maybe If my clients could take the time to sit down with old calendars and diaries and emails and look back and say “look, I really didn’t do so well here” then maybe they wouldn’t end up standing next to me in courtroom 4B on Cherrywood Lane. Maybe they’d have a felony conviction and never be able to own a gun but would be able to sleep in their own beds for the next two decades.
Every one of us needs a pre-plea investigation before we commit our next crime. Once it’s done, it’s just too late.
I used to think it was a good thing to not be able to understand why my clients did the things they did because it was the thing that separated me from them and made me sure I would never commit such atrocities (or sell drugs.) If I didn’t ‘get it’ then I wouldn’t do it, right?
But now I get it. I get the anger and rage and frustration and desperation. I get the need for more and better and higher and this is just not enough. The there has to be an easier, faster, better, way and I will not get caught no one will find out how will they ever know. I don’t know what it is that allowed me to come here and sit in this office of the orange walls and not in a cell with an orange jumpsuit. I think I had a better sense of fear of being too risk averse to take those kinds of chances with things. But that isn’t not getting it. that isn’t not understanding. It is actually being able to fully grasp and comprehend and making a choice to not do it because I am afraid I cannot handle the consequences. And, I have just been lucky so far.
I have twin boys named Yonas and Yacob (Jonas and Jacob) They were born in 2007. In 2000 I wrote a short story about a woman who gave birth to twin boys named Jordan and Jacob. I found the story today, I haven’t seen it since I finished the journal I wrote it in. It freaked me right the fuck out. In the story, the woman, Willow (name inspired by the Robert Frost poem, ‘Maple’) doesn’t dress the boys alike for fear they will not have individual identities. She loves these boys more than she loves anyone or anything. She is a criminal defense lawyer with twin boys.
Apparently I could see my own future.
I can see my clients’ futures too, but they don’t believe me when I tell them what will happen and what is coming. I know that there is a sense of ‘this can’t really be happening to me’ when they hear how it will be, how the next years of their life will unfold. I try to keep them strong and tell them to hold on. To the young ones I say “when you get out you will be younger than me” as if this is a sense of hope. I want to ask them why they didn’t know fear or understand this is where this would lead them. Why they couldn’t just take the path that I did.
After all, now that I get it I am just like them, right?
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The truth is this blog probably wasn’t ever meant to be a legal blog. The truth is it always was just a place for me to write down how I felt, thought, sometimes what I was doing. I dipped my foot into the legal world, wanting to be accepted as a ‘real lawyer’ and a ‘real blawger’ but the truth is – the truth is not guilty has always just been a smokescreen for me. Â There is nothing in here that will make you smarter. Nothing that will give you insight into what is happening in the legal profession or how things are changing. You will not learn of the latest case or read about my analysis of it. And I’ve given up trying to keep up with the big boys whose acceptance and criticism both warmed and stung me. So, this page. This one that I write on now is nothing more or nothing less than what I make it be. It is nothing else but me. Mirriam Z. Seddiq. Not guilty.
I started this blog for me. There were just a handful of us at that time doing this blogging thing and it was just for shits and giggles. I wrote about TV shows and my move to Baltimore and trying to have babies. I wrote about the cafeteria in the basement of the old Albany County Courthouse and the people I knew. I documented the day to day drudgery and routine of being this person in this skin. Because see I love these words. I love the way they sound when I read them back to myself. I like the ups and downs and the swings and sways and then I wanted also to make you all see the things as I saw them and I tried to use these words to do it, these words that I am in love with and have always been in love with. I wanted you to love them too.
And you did.
You love them and you loved me and I wanted you to keep loving me.
But the problem is the world didn’t change because you loved these things I said. My clients were still getting screwed. The law was still so harsh and heavy and it seemed at times too much to withstand. There is nothing that prepares you for all of this. Nothing that will set you straight when you have heard so many kids cry for their dads and so many mothers weep for their children.
Does this all sound like so much more of the words I’ve already given you? But you see that’s all there is here. There isn’t anything else for me to say. I can tell you about the NSA listening to your calls and watching me type this blog post (I’m a muslim criminal defense lawyer from Kandahar, Afghanistan, if you’ve ever spoken to me on the phone you know they are listening) but do you care? I can tell you I had a client sentenced to 11.5 years for moving marijuana across the country (it was a gift from the judge, if you can believe that) I had another sentenced to 21 years (another gift) and on and on and on it goes. And there are the wins which make it possible to get through another day and there are the mothers and sisters and dads who call and email and say thank you (although that is rare).
I was asked over the break what it is that makes us do this thing that we do. I know we devoted so much of this blogging time to figuring it out. This weekend I got out my journals from college and law school. I’ve always been writing. I started my first diary in 1984 and was constant and consistent until 1995. Then the blog in 2004. And it seems that from the beginning of my life I knew that there were things that just weren’t right. That I had to be a part of fixing. I didn’t know what those things were but I felt it. I just though tit was all – unfair.
People say “life isn’t fair” and I get it. We tend to believe it is either a well thought out plan by a supreme being or a bunch of chaos and we are just lucky to avoid full on force of the meteor landing in our town. But probably it is neither or both. It is beautiful anarchy that we make sense of so we can get from place to place without stumbling over ourselves all the time.
Look, this is a post about nothing. These are just words that fill in this space and since you’ve been reading me for a while you keep doing it. And I appreciate that. I appreciate that you stop in and say hello and some of you send me a nice message saying you are happy when I write. I am happy when I write. I am happy to be able to put things down on paper and in this computer and I am happy that my words that have frequently failed me are still here and I am happy that we are still fighting this fight together and that even though I may not stun you with my keen legal mind that you come back here and sit with me for a bit.
Happy new year, dear reader. Here’s to year 10.
We are still all not guilty of something.
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