The future of Notguilty

Posted: May 16th, 2010 by .

I’ve written here and here about my thoughts on blogging and what its about.  I’m still a bit shocked when I come across posts like this one which talks about getting rejected as a guest blogger.  Rejected?  As a guest blogger?  Are there lots of people begging to write for other people’s blogs?  Aren’t blogs FREE?  I mean, can’t you just start your own and write whatever the hell you want?  I am also shocked at the people who want to tell you what you should write in your blog, what you should say, when you should tweet about it and how to make your facebook fan page more appealing.  Excuse moi?  My facebook fan page?  Like I’m Justin Bieber?

There are rules on how many people you should follow on twitter (if you follow more than follow you, you are a loser). There are people who won’t follow you even if they will respond to what you write because, um, I don’t know why.  The kids who were cool in school soon learn that they don’t own it anymore.  Punks and geeks reign supreme.

There are other bloggers on the world wide computer who will let you  know, in no uncertain terms, if they think your stuff sucks, you are stupid or lame or just an idiot for even putting it out there.  There are those who write only about their feelings or their latest boyfriend saga.  There are blogs that have fabulous legal analysis (or so I’ve heard, they are usually above my head so I don’t actually read them)  There are others devoted to everything you want to know about the blogger’s kids.  (I had a friend once say that the only thing more boring than hearing people talk about their kids are people talking about their pets or their dreams).

The people who say they write only to write may be telling the truth.  Hell, I truly believe I am one of those people.  But, when you get to the point where it looks like more than ten people might be reading this (and, for all I know, it’s my original six readers checking back 10 times a day to see if I’ve written anything new) I suddenly wonder what to do with all of this power (insert scary cackle here).  I am just starting up my practice again and I want people to know that I’m here.  Able to take on cases, that I’ve done lots of stuff in the past and feel comfortable taking on stuff in the future.  See, but there I should have said “I am a female criminal defense attorney in Montogmery County, Maryland who has experience trying murder, rape, drug and gun cases.  I am also able to handle a Montgomery County, Maryland DUI or  Montgomery County Assault charge”

But I don’t want to!  Because it boring.  And so painfully obvious as to what I’d be doing.  But. . .  but. .

If you type in “Female Criminal Defense Attorney Maryland ” the first non paid site you get to is Jamison Koehler’s despite the fact that I am the female criminal defense attorney in Maryland that he mentions in his post.  He, last I knew, was not female and he’s not licensed to practice in Maryland yet.  The search doesn’t help him any in getting clients for himself, it only gets people to go to his and then link back to notguilty, which doesn’t get you very far if you are looking to hire a female criminal defense attorney in Maryland.

I need that link.  I need to be able to type in Female Criminal Defense Attorney and have it come up with my yet to be launched website.  How do I do that while still being true to the original notguilty?  How do I do that without becoming just another pretty face during a google search?  This blog has no link to my as yet unlaunched website, it has no way of letting you know that I am a criminal defense attorney licensed to practice in Maryland with offices in Takoma Park click here for more information!  In fact, if you do go to my still sucky homemade website http://www.mzslaw.com/ there is no mention of notguiltynoway since I don’t even know if I want potential clients to read this. 

But I paid a web guy.  I showed him the websites that come up high on google searches and said “I want this”.  I don’t know how it will play out at the end of the day, but this world has changed drastically while I was hiding out.  Maybe my six readers (who have now checked this six times today) will chime in and let me know what they think.  And, if any of you six ask to guestblog, I will never reject you. 

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I’m Stupid and Arizona’s New Immigration Bill is Racist

Posted: May 16th, 2010 by .

A disbarred lawyer said I was stupid for saying the Arizona immigration law, 1070, was racist.  He then called me a liar when I said I’d read it.  He was incensed because I refused to engage in an email debate with him over 1) whether I’ve read the law and 2) why I think its racist.  I felt very Scott Greenfieldesque when I told him that I didn’t think I needed to answer to every schmoe who has access to my email address.

The fact that this guy is disbarred doesn’t automatically mean that I need to discount everything he says; but I will admit it does otherwise taint the weight I give to his opinion on my intellect or veracity.  I’m just saying.

But it got me thinking, which caused a modicum of pain.  I took a look at the law that was initially signed and it is bad.  I mean, poorly written, leaves a lot of room for horrible abuses by law enforcement officers and just sucked.  The original bill said there just needed to be ‘lawful contact’ and then ‘reasonable suspicion’ that someone was not here legally.  Lawful contact is anything.  Anything.  Seriously.  Once anything has happened between you and a police officer, well, then there needed to be ‘reasonable suspicion’ that you are here illegally before they could proceed according to the rest of the bill.  Reasonable suscpicion, as we know, also means anything that the cop could think of.  (Like maybe the color of his skin?  His ability to speak English? The color of his skin?) 

The new bill says that there needs to be a ‘lawful stop, detention or arrest’.  I don’t know if this is a change in substance or merely semantics made to replicate substance, but I’m hoping it means that there must be a lawful stop as in a traffic stop.  This makes the law marginally more palatable.  In the same way that boogers and phlegm are made more palatable with ketchup.

The other big difference, to me anyway, is the section on transporting illegal aliens.  The original bill read as follows:

13-2929. Unlawful transporting, moving, concealing, harboring or shielding of unlawful aliens; vehicle
impoundment; classification
A. IT IS UNLAWFUL FOR A PERSON WHO IS IN VIOLATION OF A CRIMINAL
OFFENSE TO:
1. TRANSPORT OR MOVE OR ATTEMPT TO TRANSPORT OR MOVE AN ALIEN IN THIS STATE IN A MEANS OF TRANSPORTATION IF THE PERSON KNOWS OR RECKLESSLY DISREGARDS THE FACT THAT THE ALIEN HAS COME TO, HAS ENTERED OR REMAINS IN THE UNITED STATES IN VIOLATION OF LAW.

Basically, this meant that if you took an undocumented alien to the grocery store, you were in violation of this law.  The new law specifically says that the transport has to be “in furtherance of the illegal presence” which, I guess could still mean taking someone to the grocery store since, if they had no food and were starving to death, maybe they’d go back home.

But really, the law isn’t racist.  How do I know?  Because IT SAYS SO.  Right there.  On page one.  And then again on page three, five, six and nine.  People!  Come on!  It says that you cannot consider race, color, or national origin in implementing this law.  It says it FIVE times in a 13 page document.  FIVE TIMES.  I don’t know what else its going to take to convince you of the absolute race neutrality of this law? Huh?  Huh?

So see, disbarred lawyer guy was right.  I’m stupid because I didn’t read the law which clearly says you cannot use racial profiling in implementing it.  And, we all know that if it is expressly prohibited then it won’t happen.

There are great articles out there that make this law seem so reasonable, you could seriously fall in love with it if you’ve had a couple of drinks at a tea party. My favorite part of the linked-to interview from NPR is when the politician lays out the scenarios of how all of this would escalate in the ‘real world’.  It’s a prosector’s wet dream – there are no furtive movements made by a dark skinned hispanic, maybe the guy is driving down the wrong way on a one way street, at night, without his headlights on, maybe even driving on the median – there are twenty people hiding under a tarp in the back of a mini-van, and the driver doesn’t have any license or registration.  Oh, and he can’t speak English. And he says he’s illegal.  I mean, the law totally makes sense then, right?

I mean, I don’t want to be a cynic, but I have my doubts that that’s how this will work out.  But, I am stupid.  So, I could be completely wrong.

I live in the DC beltway.  We have undocumented aliens here.  A lot of them.  If we didn’t, I would have no work and I have a fair amount of it.  I’ve lived in New York, we have undocumenteds there too.  I know its hard to believe that the East Coast has immigration issues since we’ve got colleges where smart people go and you know, Central Park and whatnot, but we do.  Oh, and California too.  They’ve got their share as well.  So the argument that the folks in the liberal cities don’t understand the plight of illegal immigration is weak.

I think the people who don’t live in Arizona would like a little honesty.

Arizona – stop saying your law is like the federal immigration laws.  This doesn’t help you for a lot of reasons that are really too complex to go into in this little post; but suffice it to say that its absurd that you copied a set of laws that already don’t work.  If they did, you, Arizona, would not have felt the need to re-implement your own. Instead of being forward thinking and trying to find a way out of your current situation, you just mimiced an already broken system.  How well do you really think this is going to work?

Tell us the truth, that the inherent racism in the law is simply a collateral effect that people have to live with in order to accomplish the main goal of the law which is to make sure all those Mexicans go to New Mexico. 

Arizona – your new law is racist.  If you don’t believe it is, re-read this post.  I’ve said it six times.

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Kathy Manley Guest Post – Sex Offender Registry Litigation in New York

Posted: May 15th, 2010 by .

This is another guest post written by my former co-worker, Kathy Manley.  Kathy is an attorney at Kindlon & Shanks in Albany, New York. A kick ass firm with kick ass lawyers. When I was in New York, Kathy was the primary writer, doing appeals, motions, etc. She’s recently stepped outside her comfort zone and is trying cases and I’m sure she’s killing it.  Here’s Kathy on the sex offender registery litigation the firm has undertaken recently:

I mainly deal with criminal cases, but over the last few years we have also taken on some of the most insane sex offender laws in a series of civil suits. Politicians love to score political points by passing stupid, counterproductive laws aimed at depriving registered sex offenders of housing, employment, and, well, basically, everything including their humanity. Which tends to make them feel like outcasts, drives them underground and makes them more likely to commit further crimes.

There’s a lot of misconceptions here, starting with the assumption that all registered sex offenders are pedophiles. Pedophiles represent only a small percentage of those who are forced to register, even if you only look at the level twos and threes (in most jurisdictions those are the supposed mid-level and high-level offenders, and in NY they are the ones on the searchable internet list). Many never offended against a minor at all, and many more – probably the majority – had some sort of sexual conduct with a teen. Sometimes this involved an underage girlfriend or boyfriend. The vast majority of people on the sex offender registry present no risk to the public.

A related misconception is that there are very high recidivism rates for sex offenders. When these crazy laws are passed, especially by county legislatures and town boards, the pols scream about high recidivism rates. When you ask what this is based on, it turns out they have absolutely nothing to back it up. In fact, the studies that have been done show that overall there are significantly lower recidivism rates for sex offenses than for most other crimes. When it comes to actual pedophiles (those who have a primary attraction to pre-pubescent children) there do tend to be higher rates, and less likelihood of success in treatment. But, as I said, these are the minority of people on the registry. If there is any value in the registry at all, it may be in monitoring confirmed pedophiles who are resistant to treatment. But it’s a lot harder to do that when the registry is cluttered with a bunch of 21 year olds who had 16 year old girlfriends.

When looking at sex offender policy the sane thing to do would be to get input from people who are well-educated about this population, i.e. treatment providers, and parole and probation officers, among others. It turns out that these people are almost always opposed to things like local residence restrictions and other crazy but popular laws. (In fact it was a parole officer who first contacted me about challenging one of the county laws.)

A few years ago lawmakers apparently started a contest to see who could drive more sex offenders out of their state or county by passing laws saying that registered sex offenders could not live within 500 (or even 1000 and in a few cases 2000) feet of a school, daycare center, park, etc. This became a huge headache for parole and probation officers, who are supposed to find housing for these people – sometimes there is simply no place to put them, and they stay in jails, hospitals or (in Florida for example) under bridges. In Iowa a few years after a statewide residence law was passed a study showed that nearly half of all registered sex offenders in the state had simply disappeared, gone underground. Brilliant strategy if the point is to monitor people. So they actually scaled back the law to make it somewhat less ridiculous.

Here in New York many counties have been passing these residence laws. But, aside from other legal problems, such as ex-post facto, equal protection, due process, etc., it turns out they are illegal – under the preemption doctrine – because the state has already passed many laws aimed at monitoring sex offenders, starting with the registration statute itself, and extending to recent parole and probation regulations. In fact, both the Governor (in an Approval Memorandum) and the new regulations themselves have come out and said that they do not want each locality making its own laws and driving people out of their county or town. Hmm, it turns out that this is the very reason for the preemption doctrine. So we have not only implied preemption but express preemption. This means that even the most conservative and cowardly judges have thrown these laws out when we’ve challenged them.

Unfortunately none of the counties have appealed so no higher court has ruled on this. I was like, oh, please don’t appeal, please don’t appeal, please not the briar patch! But they – or at least their attorneys ( I think some of the legislators tried to get them to appeal – in fact they made the Albany attorney file a notice of appeal but he unfortunately hasn’t actually filed the appeal and probably never will) – haven’t done it. So these laws remain on the books in counties where no lawsuit was filed, and not only that but new counties are still passing them. Chenango County just passed one the other day.

We won in Albany, Rensselaer and Schenectady Counties and did the cases pro bono. We’re pretty over-extended right now so we can’t whack all these moles down when they pop up. It would be really nice if a statewide group like the NYS Defenders Association or NYCLU would take this on with a class action suit or get an injunction or something. (Al O’Connor from NYS Defenders is an expert in this and has the answers to all my questions, but unfortunately they haven’t taken this on in the way I would like.) I don’t generally do civil law so I don’t know this stuff that well.

I was also contacted by two registered sex offenders who had moved out of New York and yet somehow were kept on the NY registry. I looked at the registration statute and it was clearly written to apply only to NY residents. So I wrote to DCJS (Dep’t of Criminal Justice Services) and said there must be a mistake. Their attorney wrote back and said, no, we decided we could keep them on. So I sued and argued plain language, statutory construction, the doctrine against extra-territorial application of statutes, and a few constitutional provisions. Based on a series of unfortunate incidents (or maybe fortunate) the cases got assigned to two different judges. The attorney from the AG’s office wrote a response which was 90 percent irrelevant and then said that the only way people could be removed from the NY Registry is if their underlying convictions are vacated. So then I asked whether DCJS would keep people on after they die and make them provide their new address beyond the grave… I won one of the cases, but the other one is still pending. And all DCJS did was take my one client off the list – all the other out-of-staters are still on there. And then I find out, from a post by Norm Pattis that some jurisdictions are actually keeping people on the registry after death. Wow.

That’s why it’s impossible to write satire these days.

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Because it needs its own space.

Posted: May 13th, 2010 by .

What you are about to read was written as a comment to my repost of Norm Pattis‘s mother’s day post.  Anyway, the purpose of my post was not to call anyone in particular out, but I wanted people, mothers in particular, to think of all of this in a different way – from the perspective of a mother whose child stands accused.  The comment is very well written, and I would hate for it to get lost in the mix between the Facebook note that this blog becomes and the feeds that pick it up (or however that works).  Anyway, here it is:

I am a Mom. I am not an Attorney. I read this blog the first time because you were my friend. I continue to read it because it’s well written, funny, thought-provoking and I enjoy it. I don’t often comment on the legal stuff, as I don’t want to be out-classed by the experts, but since you called for the Moms, and I feel I am somewhat of an expert there, I am bold enough to tread into the unknown zone.

I read Norm Pattis’ Mothers Day Entry; my heart felt bad for those poor Mothers. I then read Norm’s “Defending Sex Offenders” blog – the question of the word of an 8 year-old child to convict. I don’t know what the answers are.

I believe in my heart that the Constitution has to protect us all; if it doesn’t, the whole system crumbles. What’s to stop someone from planting evidence because they “just know” the person is guilty, but dammit – they just can’t PROVE it beyond a reasonable doubt, or denying someone a trial by jury because while they KNOW he’s guilty, they fear the jury won’t “get it”. I understand intellectually that the protection of Defendants, both the guilty & the wrongly accused, protect MY Civil Rights — I get it, I get it, I get it. Even getting it, I don’t have the Call to love those Rights enough to defend the accused, unless I believed them to be innocent. There is a vigilante in me that wants justice. There is an emotional response to a violent crime, a rape, a child murdered – that makes me want to grab the nearest noose and rile the mob. In my head I get the Accused is entitled to the best defense, entitled to every Right from Miranda to Appeal, but my heart yells for a pound of their flesh.

I don’t confuse Criminal Defense with an Attorney that must love the murderers, rapists and child molesters so much that they want them to go free and walk among the innocent to commit more crime. I like to believe that those that do it have a zealot’s passion for JUSTICE for the accused: make sure they have a fair trial, make sure they get excellent representation, make sure they understand the plea being offered, make sure they are not browbeat into a confession, make sure they are treated like a human being and not suffering inhumane treatment even when accused of the most heinous, etc. I GET IT.

And yet part of me still longs for an eye for an eye. The emotional part, the part that discounts reason and reacts. The part that doesn’t think about how I would feel the day after I slipped the knot and kicked the chair of the accused. I don’t long for vigilante justice enough to want the rights of others violated, but I don’t not want it enough to stand up and defend them either.

If I ever ask “How do you do this?” it’s because I am filled with wonder and admiration at the strength, passion and conviction that inspires you to devote your life to protecting the rights of us ALL, not just your clients.

 

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