I’ve been an attorney practicing criminal law for over 16 years. Until last week, however, I had no idea that the Penal Code explicitly makes it a crime to disturb a meeting. I suspect I’m not the only California lawyer who has labored under such ignorance.

I learned about Penal Code section 403 when I read that the Orange County District Attorney has charged 11 University of California students with conspiracy to violate the statute. They are accused of being part of the UC Irvine Muslim Student Union’s planned effort to shout down Israeli Ambassador Michael Oren when he spoke on campus last year.

Here’s one of several YouTube clips showing what happened:

District Attorney Rackauckas’s press release concerning his decision to prosecute the Hecklegate 11 on misdemeanor charges can be read here.

As expected whenever the First Amendment is at issue, ACLU types are screaming that Rackauckas is causing the sky to fall. One lawyer breathlessly predicts that it will “intimidate students in Orange County and across the state and discourage them from engaging in any controversial speech or protest for fear of criminal charges.”

Oh, please.

If Rackauckas’s decision was so intimidating, you’d think that it would have caused the Hecklegate sympathizers to fear protesting it at his office headquarters. But that’s not the case:

The prosecution may well discourage some people from trying to shut down a lawful public speaking event, but I think that is Rackauckas’s point. If he accomplishes it, our society won’t suffer.

Other critics of this prosecution call it a waste of resources. These criticisms are more on the mark. Given that the University has already punished these students individually for their disruption, and collectively suspended the Muslim Student Union, the most rational thing to do would be leave it alone. I doubt that many people in the audience that day reacted to the protest by thinking: “I’m in the middle of a crime scene! A criminal conspiracy is unfolding around me!” There is no reason to give the protesters more attention a year later by alleging that their actions were a crime against the state.

The accusation of government officials “wasting tax dollars” is thrown around so frequently that it loses meaning. But I’ve been in the middle of these media cases. It is likely that hundreds of attorney and investigator hours have been spent researching and investigating the case, strategizing its legal and political implications in “10th floor” meetings where Rackauckas’s executive suite is housed, and calling witnesses before the grand jury. Many more hours will be spent in court hearings, since the defendant (as protestors are wont to do) will take up a great deal of court resources in an effort – which will undoubtedly fail – to show that the prosecution violates their constitutional right to free speech and/or that it should be dismissed since they are the hapless victims of selective prosecution. A judge, multiple bailiffs, and court staff will be prevented from attending other court business during every hour that this case is heard.

If this matter were put to a public referendum, is there any way the voters would choose to spend their tax dollars seeing it through, as compared to avoiding the layoff of a firefighter or teacher? No way. While this vote will never take place, the comparison isn’t mere hyperbole. The annual salary of a public servant is substantially less than what this prosecution will likely cost before its conclusion.

Disproportionate costs are sometimes unavoidable in the criminal justice system. For example, when a community lunatic is cited for stealing a ketchup bottle from a school cafeteria, the prosecution can’t simply dismiss the case because the defendant wants his jury trial. The cost of the trial may be extravagant in comparison to the harm society suffered, but a prosecutor can’t simply decline to prosecute petty theft cases, or dismiss them whenever a defendant demands that the prosecution prove its case.

But this isn’t one of those unavoidable situations. Unlike petty theft, heckling is conduct that doesn’t typically result in a criminal prosecution. The decision to prosecute this case, knowing full well the resources it would cause our overburdened justice system, was quite intentional.

Will the Board of Supervisors will be less sympathetic to Rackauckas next time he comes before them, claiming that his office needs an infusion of funds to avoid layoffs that would jeopardize public safety?

Dear Jamison Koehler:

Thank you so much for featuring me in your Blawg Review this week. You’ve asked me to write a brilliant post before you publish it tomorrow. I’ve thought of several great ideas, including: (1) the top 20 ways my perspective has changed since I went from overzealous prosecutor to co-dependent defense attorney, (2) why Andrew Gallo’s conviction for murdering Angels’ pitcher Nick Adenhart was a foregone conclusion, given California’s screwy DUI homicide laws, and (3) why your recent pro-colonoscopy post will likely result in you saving lives, but losing potential clients.

But alas, the words aren’t flowing today. So rather than write something unworthy of my enormous potential, I bring you the following cartoon that illustrates how the Fourth Amendment often works in the courtroom:

P.S. While the cartoon is funny, I laughed even harder at a comment on Youtube. Someone named Auggie97 wrote: “If you think officer safety is funny, cops do get shot a lot more often then defense lawyers.” Get a grip, Auggie97. It’s a joke. And while you’re at it, work on your spelling and sentence structure. Cops do get shot more often than defense attorneys, but not because anyone thinks officer safety is funny.

Imagine you’re a juror in a case involving numerous bank robberies committed close in time and in the same community.

The first witness is a bank security employee who explains that a surveillance video captured an image of the perpetrator during one of the crimes. The prosecutor puts up a large mounted poster. It looks like this:

You look over at the defendant sitting next to his lawyer. He’s dressed in his Sunday best in the courtroom, but he looks like the same guy to you. Same chin, same wide nose and prominent lips.

The next witness is the defendant’s mother. She testifies, very reluctantly, that she saw the image on the news and called the police to report that she believed her son was the one responsible for the crimes. You probably assume that she knows her son is a crook and a drug addict. You imagine that if he were living a decent life, his mother would never suspect him of such a serious crime.

The prosecution next parades in several witnesses, all of whom confidently identify the defendant as the guy who did the robbery.

The final prosecution witness is the police officer who arrested the defendant. He testifies that the defendant did or said something incriminating when officers contacted him. Maybe he was evasive about his whereabouts, maybe he lied about some fact.

The defense attorney puts on what you think to be a weak case. Maybe a few witnesses testify that they were hanging out with the defendant when one or more of the robberies took place. But they seem like dirtbags who would readily lie for their friend.

The prosecutor’s closing argument is very strong. He talks about facts and common sense. The defense attorney’s was just the opposite. All he does, you think, is talk about reasonable doubt. His client has no solid alibi. And there is simply no evidence that someone else – someone who looks exactly like his client – committed the crime.

Now imagine you retire to the jury deliberation room. You and 10 other jurors want to convict. But one dissenting voice says: “This isn’t enough evidence for me. Who knows? Maybe the guy who did the crime was really a white man who was wearing a mask! And maybe the mask just happened to look so similar to the defendant that his own mother, and all the eyewitnesses, made a mistake!”

The other jurors tell the dissenter that he is a moron. He is reminded how the prosecutor emphasized during closing argument that a doubt must be reasonable. The judge’s own instruction said it cannot be “mere possible or imaginary doubt.”

Does this scenario sound far-fetched? Would you be swayed by the dissenter?

That trial easily might have happened. The real bank robber captured in the grainy photo at the top of this post is Conrad Zdzierak. Conrad is anything but black:

Here’s the mask Conrad used:

The details about his case can be read here. The short version is that Conrad’s girlfriend heard about the robberies, found the mask, and found cash stained with dye from one of those exploding money rolls that banks used. She turned him in. He’s pled guilty and “apologizes to everyone,” according to his lawyer.

Prospective bank robbers reading this blog can purchase the mask from SPFX Masks. They’re expensive, but they beat the hell out of ski masks or – God forbid – bandanas.

With rare exception, most private criminal defense attorneys began their careers as either deputy district attorneys or deputy public defenders.

The video below shows why I’m grateful for the path that I took. It is intended to be satirical, but it is probably a lot closer to the truth than some might care to admit.

I learned of this video from fellow blogger Jamison Koehler, who worked as a public defender for several years before deciding to give capitalism a chance, and work for clients who actually want him as their attorney. Jamison tells me that being a public defender is like having to work as a prostitute for clients who complain that they have to sleep with you.*

Enjoy.

* Actually, he didn’t say that. I just made it up. Jamison isn’t nearly that witty. But the comment has more credibility if I attribute it to someone who has actually been there. And I know that most people who are offended by it will never actually read this footnote. That’s what he gets for making me join his stupid blogger fantasy football league despite my utter lack of football knowledge, and then humiliate me repeatedly by posting the results on his site.

On Wednesday of this week, I wrote a comment to one Scott Greenfield’s blog posts where I expressed some dismay about criminal defense attorneys – a few of whom I generally admire – who find it acceptable to reveal client confidences on their Twitter accounts.

My comment stated in part:

[Twitter posts that reveal client confidences] never cease to amaze me.
While I haven’t seem any tweets saying, ‘Client just confessed to _______,’ a number of otherwise respectable criminal law blawgers think it is OK to tweet gripes (usually for comedic value) quoting clients (or prospective clients) who don’t hire them, fire them after they’ve been retained, or fail to show ample appreciation for the lawyer’s work.

Yesterday, I read something that proved my point in a rather profound fashion. Mark Bennett posted a blog entry about a fellow criminal defense attorney whose tweet stated the following about his day’s schedule:

[C]hild sex day: child porn, soliciting minors, sex assault. Different clients all attracted to kids. Tough cases[.]

The attorney who authored this tweet is no slouch. He’s both experienced and respected. He is intelligent and passionate about his work, and writes one of the best criminal blogs on the Web. He strikes me as a man of integrity and courage. Never would I expect something like this from a guy of his stature. For all of these reasons, I hope and suspect that he’ll realize he blew it – big time – and admit his error in a way that serves as an example to younger attorneys whose reputations will be shaped, in part, by what they do online.

What was so wrong with his tweet? For starters, you can bet that the clients whose cases he was scheduled to appear on that day did not consent to his online admission that they have a sexual attraction to children. That alone establishes a violation of the trust the clients placed in him.

The violation is particularly serious because it wasn’t some indiscreet observation made to a trusted friend or associate. Instead, the comment was made in a public forum that memorialized the clients’ sexual interest for eternity, and in a manner that could lead to their identification fairly easily.

What if a judge or prosecutor on one of these three cases read the comment on the same day this attorney appeared in court? When I was a DA, I would have kept in the back of my mind for the remainder of the case. If and when the defense attorney made some plea for lenience during a chambers discussion, I might have brought it up to contradict the defense attorney if I thought he wasn’t telling the truth to the judge. It could have gone like this:

Defense Attorney: Your honor, this is really an unusual case where the court should give my guy probation. My client is willing to admit that he had these pictures on his computer, but he’s not the pedophile Mr. Gurwitz is making him out to be. Me: Well, I’m not the only one who thinks he’s a pedophile. Counsel admitted on his own Twitter account that his client has a sexual attraction to little kids.

Defense Attorney: That’s totally inappropriate for Mr. Gurwitz to say, your honor. It is also untrue. I never called my client a pedophile.

Me: Do you deny saying he had a sexual interest in children?

Judge: All right, cut it out. I’m not considering anything counsel may have written on Twitter. But I don’t think this is a probation case. My indicated sentence is three years state prison. Now, both of you get out of my chambers and see if he’ll accept the offer.

Dick move on my part? Perhaps, but I would have felt totally justified in using the statement if I felt the attorney was lying to the court in an effort to obtain a disproportionately low sentence. ———————-

Update: The defense attorney who authored this ill-advised tweet (whose name I haven’t used because I don’t feel the need to have this post show up when a prospective client Googles his name), wrote a response to this controversy on his blog. He claims that his phrase: “Different clients all attracted to kids” wasn’t a concession, but rather a statement that the prosecution believes this to be their motive. Good luck getting everyone who read the Tweet to believe that explanation.

He claims he will be sending documentation of this Tweetgate controversy to his local bar grievance committee, and will publish the results of their determination. He says: “If I am wrong, I will admit it.”

The fact that he hasn’t used this opportunity as a teaching moment for others is a disappointing, since he’s written before about the good that comes from mentoring younger attorneys. But his apparent failure to recognize that he was wrong – unless a grievance committee tells him otherwise – is a bit outrageous.

And what about the clients? Will he fully disclose this controversy to them? And if they think he was wrong, will that be enough to convince him?

California law says that if a person previously has been convicted of any theft offense, and has served at least a day in jail, future convictions for petty theft (which generally applies to property valued at $400 or less) can be prosecuted as a felony, rather than a misdemeanor. The applicable statute, Penal Code section 666, is known as “petty theft with a prior.”

But it seems likely that this law will change soon.

This week, the Legislature passed Assembly Bill 1844. The bill passed both houses unanimously. Governor Schwarzenegger will likely sign it within the next several weeks.

Under AB 1844, the petty theft with a prior statute cannot be alleged unless the defendant has been convicted of theft three or more times, with an important exception. That exception provides that only one prior theft conviction is required if the defendant is a registered sex offender, or if he or she has a prior conviction for a serious or violent felony (i.e., a “strike” under California law).

Because the bill is designated as urgency legislation, it will take effect immediately upon the governor’s signature. It will likely be applied not only to those who commit a theft crime after the bill is signed, but to those who were convicted under the prior law, so long as their judgments were not yet final on the date of the governor’s signature.

Mark Bennett posts today on his Defending People blog about an academic paper published in the Journal of Criminal Justice that purports to show that criminal defendants represented by public defenders generally receive the same justice as those who hire private counsel to represent them.

The study, entitled “Do You Get What You Pay For? Type of Counsel and its Effect on Criminal Court Outcomes” took place in Cook County, Illinois. It measured case outcome based on four criteria: bail decisions, plea bargaining results, whether the defendant was ultimately incarcerated, and the length of custody for those who were sentenced to jail or prison.

The authors, Richard D. Hartley, et al., analyze the data and conclude:

This study suggests that there is little difference in the ‘quality’ of legal defense provided to defendants by private attorneys and public defenders. Public defenders are as effective as private attorneys in Cook County (Chicago), Illinois.

I have no quarrel with the study to the extent it simply measures whether the “average” public defender client achieves a result that is roughly the same as the “average” client of private counsel. My own experience tells me that the same conclusion would have been reached if the study took place in Orange County, California.

But if the study were intended to show whether money makes a difference to defendants with the wherewithal to spend it wisely, it fails. If Cook County is like Orange County, most of the best criminal defense attorneys are private. But as I’ve written before, the overwhelming percentage of the terrible ones are, too. Every prosecutor and judge has watched some defendant think he’s doing himself a favor by firing his competent public defender and paying money to retain an attorney recognized by everyone in the courtroom (except the client himself) as a total hack.

A more interesting study would measure the outcome achieved by the “average” public defender vs. private counsel who are viewed as “very good” or better within their legal community.

A man in Saudi Arabia attacked another guy with a meat cleaver. As a result, the victim is paralyzed for life. This morning, the press reports that the sentencing judge is asking Saudi hospitals whether they can perform an operation to damage the defendant’s spine so he, too, will be paralyzed for life. It’s eye for an eye, spine for a spine.

It is interesting to review the reader comments on various news sites. A good number of people posting comments express their disgust at how this “backward” Islamic judge would consider such a “barbaric” and “sickening” punishment.

While I share their disgust, I suspect that a majority of these commenters also support the death penalty. Many of them would quickly agree with the principle that a person who takes someone else’s life should suffer the same consequence.

Why the double standard?

While I oppose the death penalty for a number of reasons, and believe the majority of Americans would be against it if they studied all aspects of it (particularly the extraordinary costs of enforcement), I realize that reasonable minds will differ.

But what I can’t see is any principled reason why judicial maiming should be considered fundamentally immoral, but the death penalty should be viewed as acceptable. The only difference I see is that our society has become inured to the latter form of punishment.